May 19, 2005

The Board of County Commissioners of Brevard County, Florida, met in regular session on May 19, 2005, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Ron Pritchard, D.P.A., Commissioners Truman Scarborough, Helen Voltz, and Jackie Colon; County Manager Peggy Busacca, and County Attorney Scott Knox. Absent was: *Commissioner Susan Carlson.

The Invocation was given by Pastor Ken Delgado of House of Prayer in Palm Bay, Florida.

Chairman Ron Pritchard led the assembly in the Pledge of Allegiance.

REPORT, RE: POLICY OPTIONS FOR CONTROVERSIAL REZONING REQUESTS

County Manager Peggy Busacca advised the Board requested information about policy options in dealing with controversial rezoning requests; staff prepared three options that the Board may not want to discuss this evening; it also has language from the City of Titusville; but she understands it has not yet been incorporated into the City’s Codes. She stated the Board may want to look at it and discuss it at a future meeting.

Commissioner Scarborough suggested the Board take it under advisement.

The Board took under advisement policy options for controversial requests for Comprehensive Plan amendments and zoning changes regarding (1) notification to applicants to meet with concerned parties, (2) automatic tabling of items recommended for denial, and (3) cost of re-advertising charged to applicants if item is tabled by the Board.

REPORT, RE: TABLING OF ITEM V.B.2., LINDA MUELLER’S REQUEST

County Manager Peggy Busacca advised Commissioner Carlson requested tabling of Item V.B.2., Linda Mueller’s request for a community commercial boundary expansion and change from RU-1-7 and BU-1 to RP on .20 acre located on the southwest corner of Albert Avenue and Martindale Lane.

Chairman Pritchard stated usually when there is a motion to table made, the Commissioner is here in case a member of the audience has an issue about it; since the Commissioner is not here, the Board does not know why she made the request; and its assumption is usually there is a discussion that has taken place or she would prefer to be here to have that discussion. He stated Commissioner Carlson just arrived home from being in Washington for a few days as part of her assignment with East Central Florida Regional Planning Council; they do not know why she made the request; generally it is the Board’s policy to abide by it, so it will abide by the Commissioner’s request. Chairman Pritchard stated the next Planning and Zoning Board meeting is not until July; and inquired if this could be heard at a regular meeting.

County Manager Peggy Busacca advised the next zoning meeting is August 4, 2005. Chairman Pritchard inquired about the next regular meeting; with Ms. Busacca responding July 12, 2005. Chairman Pritchard inquired if the Board has no more meetings in May; with Ms. Busacca responding it has a Legislative Workshop with Mr. Thrasher on May 23, 2005.

Chairman Pritchard inquired if the change is from RU-1-7 and BU-1 to RP; with Ms. Mueller responding she is trying to convert her property which is split diagonally between BU-1 and RU-1-7; and she wants to expand commercial use to RP zoning. Chairman Pritchard stated he has a problem when a Commissioner of the District has a concern and is not here; each Commissioner would like the opportunity to work the issues; they do need to accommodate the lady at the earliest possible time; and inquired when is the workshop; with Ms. Busacca responding May 23 at 1:00 p.m. Commissioner Scarborough inquired if it could be done at the end of the workshop, which should not be too long and may be less time than sitting through a zoning meeting. Ms. Mueller stated that would be fine; and inquired if she would come to the same place; with Chairman Pritchard responding it will be upstairs in the Florida Room. Chairman Pritchard stated Commissioner Carlson may speak with Ms. Mueller in the meantime and maybe the issue could be resolved to a certain point and be a much quicker meeting for Ms. Mueller and the Board at the workshop. He stated he does not want to hold it up until August or postpone it until July, but needs to accommodate Commissioner Carlson.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to table Item V.B.2 until May 23, 2005.

Ms. Mueller inquired why is something tabled; with Commissioner Scarborough responding for various reasons and the rest of the Board does not know why Commissioner Carlson requested it. Commissioner Colon stated she is sure Commissioner Carlson’s office will contact Ms. Mueller to get it straightened out. Commissioner Scarborough stated Commissioner Carlson’s aide was here and Ms. Mueller may want to speak with him to schedule an appointment with the Commissioner. Ms. Mueller inquired where is her aide; with Chairman Pritchard responding staff will track him down; and if she will sit in the audience, they will direct him to her.

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

REPORT, RE: FLORIDA TODAY ARTICLE

County Attorney Scott Knox advised Commissioner Voltz asked him to opine on an issue that was published in the Florida TODAY newspaper.

Commissioner Voltz stated the Florida TODAY pretty much smeared her today regarding ethical issues and a number of other things; and she would like Mr. Knox to address those because obviously the paper did not do its homework.

Mr. Knox advised he looked at the issue; Florida TODAY indicated Commissioner Voltz might have a conflict of interest because she was president of the homeowners association that was opposing Florida Avenue extension; and after researching the issue, they determined that the newspaper probably did not have very good legal advice on that point. He stated they do not think she has a conflict of interest; and the Florida TODAY neglected to use some of the words in the Florida Statutes that made it very clear she did not have a conflict of interest.

Commissioner Voltz stated in 1998 when they talked about Florida Avenue extension, the Transportation Study Board denied that extension; she happened to move there and it would have been hypocritical of her to not support it then and support it now. She stated once again Florida TODAY has not been a hallmark; and if it had taken the time to look at the facts, it would have seen what was going on.

Commissioner Colon stated when Commissioner Voltz mentioned she lived in the area and was president of the homeowners association at that meeting, she asked Mr. Knox if that was something he felt comfortable with in regards to it being a conflict of interest; and Mr. Knox said he was comfortable with that on that same day. She stated she did not want the Board to proceed if that was not the case.

Commissioner Scarborough stated it would be beneficial for Mr. Knox to put his opinion in writing and in a nice manner send a copy to the publisher of Florida TODAY. Commissioner Voltz stated if they do not do anything with it, she will have it on her website, and it will say what Florida TODAY has been telling the public.

Chairman Pritchard stated there is a booklet that came out about Brevard County government; when one looks at the opening page, it is wrong; the interesting part is he signed the letter and when he got the letter it was correct; but all the boxes around it were added; and he did not add the boxes, but guess who did. Commissioner Voltz stated the paper still has Commissioner Higgs in there, which tells everyone how much the Newspaper loves her. Chairman Pritchard stated he signed the letter as Chairman, but it listed Commissioner Higgs as Chair in the little box, and it makes one wonder if they read their own paper.

*County Attorney Scott Knox’s absence and Assistant County Attorney Eden Bentley’s presence were noted at this time.

RESOLUTION, RE: RECOGNIZING COCOA BEACH LIBRARY 50TH ANNIVERSARY

Chairman Pritchard read aloud a resolution recognizing Cocoa Beach Library on its 50th anniversary.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to adopt Resolution congratulating Cocoa Beach Library as it celebrates its 50th anniversary of serving the residents of Cocoa Beach and Central Brevard with enthusiasm and a passion for literacy. Motion carried and ordered unanimously. (See page for Resolution No. 05-151.)

REPORT, RE: BIRTHDAY WISHES

Chairman Pritchard advised today is Christine Taylor’s birthday; she is busy at work at SCGTV; and the Board wants to wish her a happy birthday. He stated he can think of many other ways to spend a birthday besides being at the control panels; but the Board appreciates her because if she were not at the controls, the show would not go on.

RESOLUTION, RE: COMMEMORATING MEMORIAL DAY

Chairman Pritchard read aloud a resolution commemorating May 30, 2005 as Memorial Day.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to adopt Resolution commemorating May 30, 2005 as Memorial Day in Brevard County, remembering the departed service men and women and the country they gave everything to serve by flying the flag, visiting a grave, offering a prayer, and putting the memorial back in Memorial Day. Motion carried and ordered unanimously. (See page for Resolution No. 05-152.)

Chairman Pritchard presented the Resolution to Maurice Meisner, Chairman of the Brevard Veterans Council, and Mel Mueller, Curator of the Veterans Memorial Center Museum. Mr. Meisner stated, on behalf of all veterans, it is with deep pride that he accepts the Resolution. He stated there is a sentence that asks everyone to show a good deed in remembrance and visit a cemetery or place of honor to show our veterans how much they are appreciated.

Commissioner Colon advised every year the City of Palm Bay has a Support the Troops Rally; men and women are in the middle of a war right now; and it is a great way to show respect and appreciation, especially since there is a military base right here and their families are here wondering if people care and appreciate them. She invited everyone to attend the Support Our Troops Rally on June 4, 2005, beginning at 3:30 p.m. at Veterans Park, which is a wonderful event to show respect to all service men and women.

RESOLUTION, RE: RECOGNIZING FATHERS’ DAY

Commissioner Voltz read aloud a resolution recognizing Fathers’ Day.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to adopt Resolution recognizing the immeasurable debt of gratitude owed to all fathers for their strength, guidance, understanding, and love every day, all year long. Motion carried and ordered unanimously. (See page for Resolution No. 05-153.)

Commissioner Voltz presented Resolutions to Chairman Pritchard, Commissioner Scarborough, County Attorney Knox, and Assistant County Manager Ed Washburn. Chairman Pritchard extended congratulations to all fathers everywhere.

RESOLUTION, RE: COMMENDING EAGLE SCOUT STUART FOXHALL HEMMENWAY

Commissioner Colon read aloud a resolution commending Stuart Foxhall Hemmenway for attaining the rank of Eagle Scout.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to adopt Resolution commending Stuart Foxhall Hemmenway for attaining the rank of Eagle Scout, and recommended all citizens acknowledge his accomplishments. Motion carried and ordered unanimously. (See page for Resolution No. 05-154.)

Stuart Foxhall Hemmenway advised there are lakes around Windover, but no benches or any place to sit to enjoy the scenery; so for his project he built five benches around the large lake and surrounding lakes. Commissioner Colon presented the resolution to Stuart Foxhall Hemmenway.

PUBLIC COMMENTS - MARK RYAN, RE: COUNTY AND CITY DIALOGUE

West Melbourne City Manager Mark Ryan advised as a follow-up for discussion the other day, the City will continue to try and have dialogue with the County; and invited Commissioner Voltz to the City’s June 7, 2005 meeting at 7:00 p.m. to continue their partnership.

PUBLIC COMMENTS - JESSIE FLEMING, RE: SPEED HUMPS

Jessie Fleming of Port St. John advised sometime ago there was discussion of putting speed humps on Bridge Road in Port St. John; he talked with Traffic Engineering and asked the lady who answered the phone to call him before it went to the Board so he could be here for the meeting; it was during the time the Board was doing away with speed humps or rewriting the way they were done; and she said she did not know if it would ever be an issue but she would call him. He stated going home this afternoon, he noticed they were planning street signs for speed humps; he then found out the Board approved it August 10, 2004; and thinking it was a dead issue, during the last year, his wife and he spent major money remodeling their home because they wanted to stay there since speed humps were not going to be there. He stated he would have moved if they were going to put in speed humps; he has eight to nine herniated discs in his back right now; and the slightest bump can make him paralyzed either from the neck down or from the chest down. Mr. Fleming stated the map he gave the Board shows #1 is where the property is at; the green marks are existing speed humps; the yellow marks are the proposed speed humps and where the County has marked off to put the new speed humps; and there is no way for him to get home without going over speed humps. He stated he would have to go across a speed hump at any place to try and get to his home; they have been in the house for 18 years; so this came as a shock to them. He stated there may need to be something done, but what he would propose is a compromise and starting the speed humps west of Cannon Avenue, which would give him an access into that area to his property plus all the residents around Elgin Road, Maravoss Street , and Eaglewalk Avenue would all have access to their homes without going across speed humps. He stated when this was brought before the Board, there were some issues that were brought up that he would have had to contradict if he had been here; and requested something be done. He stated they have not started the speed humps yet; and there is no equipment on site as yet.

Commissioner Scarborough stated he does not recall what happened; and recommended stopping installation and bring it back to the Board. He stated the Board can always reverse and do things differently; but if there are no speed humps there now, it would probably be best to put everything on hold until they meet with the community. Mr. Fleming stated he found out about it at 3:00 this afternoon. Commissioner Scarborough stated they will work with him.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Voltz, seconded by Commissioner Colon, to appoint and/or reappoint Bobbie McMillan to the Art in Public Places Advisory Committee with term expiring December 31, 2006; Bob Champaigne to the EELs Program Recreation and Education Advisory Committee with term expiring December 31, 2005; and Veronica Clifford to the Titusville-Cocoa Airport Authority with term expiring July 7, 2008. Motion carried and ordered unanimously.

REPORT, RE: ITEMS REMOVED FROM AGENDA

Zoning Manager Rick Enos advised Item V.B.8., Real Estate Investment Depot, LLC (William Mayo Stinson, Manager/Member)'s request for change from AU to RU-1-11 on 7.68 acres located on the north side of Main Street, west of Hammock Road, was requested to be tabled by the applicant.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table Item V.B.8. to the August 4, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos advised Item V.E.1., Administrative Rezoning of property owned by Happy Landings Homes, Inc. to change from AU and CUP Z-7430 for Residential Social Service Facility and School to IN(L) with Binding Development Plan and removal of CUP Z-9349, was tabled by the P&Z Board to its July 11, 2005, so the Board of County Commissioners has to table it to its meeting of August 4, 2005.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to table Item V.E.1 to the August 4, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED ITEMS

Chairman Pritchard called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on March 7, 2005, March 31, 2005, and April 11, 2005, and tabled by the Board of County Commissioners on April 7, 2005 and May 5, 2005 as follows:

Item V.A.1. (Z0503105) Carlos L. and Sandra J. Springfield’s request for change from AU to RR-1 on 4.9 acres located on the south side of Carter Road, west of Hammock Road, which was recommended for approval by the P&Z Board.

Carlos Springfield advised he owns 15 acres on Carter Road in Mims; they are presently cow pasture, fenced and used for cattle; and what he would like to do is rezone the front 4.9 acres to RR-1. He stated it would allow him to break the front portion into four 1.1-acre lots rather than two 2.5-acre lots; and the reason is he had people recently interested in purchasing building lots, but some of them could not afford 2.5 acres and preferred an acre. He stated the majority of the properties on that road are already zoned RR-1; on the south side where he is requesting the rezoning 100% appear to him, according to the Property Appraiser’s website, to be RR-1 except the portion he is asking to rezone; and on the north side approximately 50% are RR-1. He stated there is a large AU tract across from the property that belongs to Mr. Williams; and he talked to Johnny Williams and he has no objections to the rezoning. He stated apparently at the last meeting there was a petition and letters that came in at the last minute; Commissioner Scarborough felt they should table the item to research it further, which is what happened; and there was one speaker in opposition to the rezoning at the last meeting, Ms. Seymour. He stated that surprised him that she was there because he talked to her prior to filing the application to see if she had any objections to the rezoning; and she basically indicated she did not because her property was zoned RR-1. Mr. Springfield stated some of her concerns were water; that has been a concern of a lot of people in the Scottsmoor/Mims area; it is probably a genuine concern; and he cannot say anything about that because he has the same situation. He stated her second concern was schools; since that time the Board addressed that concern by passing an impact fee Ordinance; and hopefully that will resolve the problem. He stated her third concern was traffic; according to a study staff did on that segment where they enter off Carter Road from U.S. 1, it has a capability of handling 42,800 trips per day; currently it is used at slightly over 11,000, which is about one-fourth of its capacity; and he is not sure if there was a concern about property values. Mr. Springfield stated in order to resolve that, if there was a concern, he had agreed at the last meeting that he would put deed restrictions requiring a minimum of 2,500 square feet under air and 3,500 square feet under roof, which is far in excess of what RR-1 classification requires. He stated in addition to Ms. Seymour’s letter, there was a second letter from Robert Gagliano, a resident of Rockledge and friend of Ms. Seymour’s; there was a third letter of concern about the same as Ms. Seymour’s concerns; and there was also a petition submitted at the last Zoning meeting, which was fraudulent. He stated it had some incorrect statements in the body of the petition; it pointed out that the density requirements in that area were 2.5 acres per dwelling unit; and that is not true, it is one acre. He stated in some areas along Carter Road on the south side it is even two units per acre; another error in the petition indicated that the sizes of the property in that area were five to 2.5 acres; 100% of the properties on the south side of Carter Road are already zoned RR-1; he is not sure it is all RR-1 because there may be a ten-acre section that is AU; and that was divided years ago and homes built on one acre. He stated when he reviewed the names on the petition, he recognized quite a number of folks who live north of him; he took the liberty of talking to a couple of them to see what their specific concerns were; and it turned out that they were unaware that he was rezoning the property and that the petition was signed over a year ago for a rezoning that occurred on Pennsylvania Avenue and should not have been submitted against his rezoning. Mr. Springfield stated so the Board would not have to take his word for it, he had one of the men write a letter that he submitted to the Board; and he will read the letter into the record as follows: “My signature appears on a petition that was submitted by Billy Volner on April 5, 2005 in objection to the rezoning request by Carlos Springfield for a change of classification from AU to RR-1 on 4.9 acres on Carter Road, Mims, Florida. The list of names on that petition was fraudulently submitted against my knowledge because the list of names included was apparently taken from an earlier petition signed over a year ago objecting to a rezoning on Pennsylvania Avenue. I did sign that petition. I request that my name be deleted from the petition that Mr. Volner submitted because I have absolutely no objections to the rezoning change requested by Mr. Springfield as the majority of homes in the area of his request are built on RR-1 zoned property.” He stated it seems strange to him that he is getting so many objections from people as far as Rockledge to Scottsmoor, so he did a research project of his own and checked up on the people who live on Carter Road, the people most affected; and he did that very thing. He stated every person he talked to signed a petition in support of his rezoning; the only one he did not ask to sign is Ms. Seymour because he knew her position on it; he also had them date the petition; and he thinks the Board has a copy of that petition. Mr. Springfield stated the rezoning complies with the density requirements in that area; it is compatible as most of the homes are already on RR-1 zoned property; the residents on Carter Road, except one that he knows of, but there may be a few others because he did not talk to everyone as he could not catch them all at home, are in favor of his rezoning; and with the current zoning he has, which is AU, if he sold the property as is, it would allow someone to build a 750-square foot home ten feet from the property line. He stated if it is rezoned to RR-1, he would be required to put in a 1,200-square foot home; but he is willing to put a requirement in terms of deed restrictions or a binding development plan to require 2,500 square feet under air and 3,500 square feet under roof. He stated the final point is the P&Z Board approved it by a ten to one vote; the only vote against it was a lady apparently associated with the School Board who announced before the meeting that she was going to vote against any zoning that would potentially increase the number of children in school; so if there are any questions, he will be glad to try and answer them.

Commissioner Scarborough stated it is a request for change to RR-1; the cover sheet says currently he can put one unit there and the acreage is 4.9 acres; then it says three units; and he is not sure he is understanding the map. He inquired where are the numbers coming from. Mr. Enos advised Mr. Springfield could put four one-acre lots on 4.9 acres; he is not sure where the three came from; maybe it is the assumption the larger parcel if he had a subdivision, would eat up some of the land; but since all the property is on the street he can get four units. Commissioner Scarborough inquired how many units is Mr. Springfield looking to put in there; with Mr. Springfield responding four and they would be an acre and an eighth size lots. He stated currently he can put two units on there; he could not put two on the 4.9 acres but he still has ten acres behind that, that he is going to leave as AU; so he could use another tenth of an acre and put two units along the road instead of one now.

Marlene Seymour of Mims stated she lives next to the property for the rezoning; and she wants to clarify a few points. She stated Mr. Springfield did mention to her his rezoning; as she recalls the conversation, she told him she did not like it but there was probably not much she could do about it because her property was also zoned RR-1, but she has 2.5 acres; and she plans to keep it that way. She stated she cannot overemphasize the severity of her concern over the water supply; and it is such an important issue that she has taken time out of her schedule again to come address the Board to voice her opposition to the rezoning. She stated she knows some of the neighbors mailed letters and sent emails, and a letter has come from Rockledge; they own the property just to the east of her property and they also have concerns about the water; and emails were sent to Commissioners expressing they do not want to see it become another Port St. John. She stated some of her neighbors have come with her because they are also concerned with the growth going on in the area; there would be three more neighbors here this evening except for the work schedule at the Space Center; they had to work this evening and could not come; but they are definitely seeing a degradation in the water quality. Ms. Seymour stated when she purchased her home in 2001, the previous owner’s daughter was coming to the house to get her drinking water; she had to add an iron filter on her water system to maintain the water; last year her neighbors had to replace their well; and since then their water quality has been terrible. She quoted from an email a neighbor sent to all Commissioners as follows: “I have a feeling this is only the beginning of our water problem in the area. I attended numerous County area planning meetings at the public library chaired by Commissioner Scarborough and I left the meetings with the impression that the Commissioner was there not only to explain these issues associated with the growth of the area but to listen to the residents and understand how they wanted to see the community develop. Dick Martens said, regarding the Mims Water Treatment Plant, that the only way for the north end of the County to preserve the water supply is to control the density growth in the area; and Terry Humphrey, Principal of Astronaut High School, has spoken and said the schools are at capacity right now. She stated Billy Osborne of Landscaping and Roadways Department stated that SR 46 is overcapacity at this time; and she hopes the decision the Board made regarding the First Equity Development Group set a precedent. She stated on May 5, 2005, the Board voted to deny the rezoning of 430 acres from AU to RR-1; it should serve as a standard for what the area residents would like to see in the way of development growth for the area; she understands this rezoning is only one small parcel of land; but the action to control the density growth has to continue. Ms. Seymour stated the zoning classification of AU residential was established for a good reason; and it should remain in effect through those properties. She stated Mr. Springfield mentioned a petition; and she has no knowledge of the petition and cannot answer any questions about it being done with signatures obtained last year. She stated the immediate neighbors she has spoken to are not in favor of this rezoning; she is not against growth and change, but the growth in the area has to be controlled and monitored; the infrastructure, utilities, roads, and schools to support the growth should be in place or at least planned before they do this; and she is not aware of the impact fee so it may put a different perspective on the situation as far as the schools go. She stated the community is sending a message that they want the zoning to remain AU residential; they want to continue to have their horses and be able to ride down the road and enjoy themselves; they purchased the property to enjoy that lifestyle; and she moved there so she would not have to put her horse in a trailer to go on trail rides. She stated the owners of the property next to Mr. Springfield’s property do not want to see the property rezoned; their concerns are valid; they should all be responsible citizens and do what is best for the community and not the individual; Mims is a very nice rural community; and they would like to see it remain that way.

Commissioner Colon inquired if Ms. Seymour has seen the petition from her neighbors with 21 of them in favor of the rezoning; with Ms. Seymour responding she has not. Commissioner Colon stated she will make sure Ms. Seymour gets a copy of it; there are 21 signatures; and they are all from Carter Road. Ms. Seymour stated she does not have time to cruise the road like she said; she saw her immediate neighbors who have sent letters or emails addressing their concerns; but she has not seen the petition. Commissioner Colon stated she just wanted to make sure that Ms. Seymour has seen the petition; and she is glad she answered the question regarding the previous petition, which is basically lying to the Board. Ms. Seymour stated it is nothing that she submitted; she has no knowledge of that whatsoever; she wishes she had time to go out and talk to all the neighbors to understand how they felt; but her schedule did not allow it and she just talked to her immediate neighbors.

Commissioner Scarborough inquired if the Board could find out where the other folks live by depicting it on the map. Chairman Pritchard stated she is not a direct neighbor; and inquired what is the address of the subject property. Mr. Springfield advised it is 3620 Carter Road. Chairman Pritchard inquired if all the addresses on the petition abut his property; with Mr. Springfield responding they do pretty much and each one of those represents one family. Mr. Springfield stated he did not try to get a lot of names and got one name per household, so those are 21 households. Commissioner Scarborough stated Mr. Springfield indicated he owns another parcel; and inquired if he could mark the parcel on the map. Mr. Springfield identified the parcel on the map behind the parcel requested for rezoning.

Chairman Pritchard stated Parcels 788, 752, and 789 appear to be smaller than 2.5 acres; with Mr. Enos responding they are probably 2.5 acres or close to it; but the ones to the north are RR-1. Chairman Pritchard inquired how large are the RR-1 parcels; with Mr. Enos responding minimum one acre. Chairman Pritchard inquired how large is parcel 750; with Mr. Enos responding his guess is it would be more than one acre because the two frontage lots are also RR-1. Chairman Pritchard stated he is trying to get a handle on Parcels 797 and 795; they are zoned RR-1; and inquired if staff is telling him they are approximately one acre in size; with Mr. Enos responding yes. Chairman Pritchard inquired about parcels 540 and 501 to the east that are zoned RR-1; with Mr. Enos responding those are larger parcels in the range of 2 to 2.5 acres even though they are zoned RR-1. County Manager Peggy Busacca stated they could be subdivided because they have road frontage. Chairman Pritchard stated they have the zoning.

Mr. Springfield stated he has lived in the same spot for 45 years; he has made an effort to make some income out of farming, citrus, and cattle; he tried to do a good job of it; out of 45 years, all he has gotten out of it is a suntan because one does not make any money out of cattle and citrus; and that is the reason he pushed out the last grove. He stated with cattle, by the time he buys hay and does all he has to do with them, i.e. build fences, etc., he does it for fun; but he is 70 years of age and it is getting to be more work now. He stated he has been doing it himself and is getting tired of it; now he has the opportunity to sell a few lots, which he has not had in the past because properties never had value up there; but now people are interested in property and approached him; and he should not be penalized because he has AU property that the neighbors do not want rezoned. He stated he cannot go out and spray a grove on certain days because the wind would carry the spray over and might kill the neighbor’s bushes; farming is not an easy thing to do; he cannot put sludge on his field because it stinks and the neighbors do not like it even though his land is AU and is set up for farming; it is getting tough to do; and he does not get any money out of it. He stated he does it because he likes it; and he still has property that he will try to farm that is in better condition to farm than the property he is trying to rezone. He stated when he went to Viera to file the application, he saw a mound of dirt higher than the Government Center and could not figure out what was going on; and before he could get his rezoning done, there is a new high school almost built. Mr. Springfield stated when he first started going to Viera, there were pastures on both sides; since that time, there have been land manufactured, holes dug, lakes made, and million-dollar homes built, yet they have one heck of a time trying to rezone property in Mims because people are concerned about water. He stated water is probably going to be a problem because Titusville and other municipalities come to Mims and Scottsmoor or try to, dig their wells, and take millions of gallons of water a day; homes like they are trying to build would probably be fine with water; people like Ms. Seymour and him have elaborate sprinkler systems; and they are not really concerned about water or they would shut the sprinkler systems off. He stated they use two or three times as much water as households do; it appears some inequities are going on in the County; and that is how he feels.

Commissioner Scarborough stated Mr. Springfield indicated two parcels behind the subject parcel are his as well; and inquired what are his intentions; with Mr. Springfield responding right now he has a garden on one and might keep the garden, but there is the possibility that he might sell them in 2.5-acre lots. Commissioner Scarborough stated unfortunately Ms. Seymour was out of town and he was not able to get everyone together; he had one chance to speak to her on the phone; and like everything else, there is probably nothing that is absolute this way or that way, but there is an opportunity to look at the whole area. He stated if Mr. Springfield is going to sell his property as 2.5-acre lots, that makes him a lot more comfortable with the action this evening; if he is trying to create something with the remaining ten acres, then he would like to talk about that; the thought is there will be larger and better homes on the property than is required; it appears Mr. Springfield is not going to have the minimum one-acre lot; but the other thing he needs to address with Mr. Springfield is the full 15 acres rather than 5, 5, and 5 acres. Mr. Springfield stated his ultimate plan for the full 15 acres is four one-acre lots on the front, and probably four 2.5-acre lots on the ten acres behind it. Commissioner Scarborough inquired if Mr. Springfield would be willing to enter into a binding development plan on that; with Mr. Springfield responding he would do it. Commissioner Scarborough stated that would include the house limitations of 2,500 and 3,500 square feet; when one looks at the overall density there is a blending between the one-acre lots and the 2.5-acre lots that are being offered; so the question to the County Attorney is can Mr. Springfield enter into a binding development plan on properties that he does not have before the Board this evening.

Assistant County Attorney Eden Bentley advised generally they do not do that in zoning contracts; and the binding development plan section of the Code is written for the zoning application that is before the Board. Commissioner Scarborough inquired if the Board can do it so Mr. Springfield does not have to come back again; with Ms. Bentley responding the two tracts to the south are already limited to 2.5 acres; and he would have to come to the Board to change that. Commissioner Scarborough stated he would like to have it as part of the public record that a decision was made regarding them because one of the things he got a comment on is that Mr. Springfield has another ten acres that is going to be rezoned. He stated people do not know until it is said; Mr. Springfield agreed to it; and by saying that, the Board could go ahead and provide for the four in the front and four in the back for a total of eight on 15 acres; and it is a nice ratio overall. He inquired if that is what Mr. Springfield was saying; with Mr. Springfield responding that is exactly what he is saying and he will sign and agree to the size of the homes because it would protect Ms. Seymour, him, and the rest of the neighbors and will probably enhance the area because he does not live in a large home; and two other people do not live in that nice a home. Commissioner Scarborough stated that is a good point, not to degrade the neighborhood.

Commissioner Colon inquired if the property is landlocked; with Mr. Springfield responding the access would be through the middle of the four lots on the front. Commissioner Colon stated that is more reason why it needs to be in the binding development plan, the fact that the others will have access through the subject property; so putting it all in one is the way to go. Mr. Springfield stated he will be happy to do that; he likes a binding development plan better than deed restrictions, which he is going to do anyway because he does not think deed restrictions really have any meat in them. Commissioner Scarborough stated with this scenario they are looking at a little shy of one to two average; so he will move it with those caveats.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item V.A.1. with a Binding Development Plan limiting development to four units on the 4.9 acres, and possibility of one unit per 2.5 acres on the back ten acres, and homes with 2,500 square feet under air and 3,500 square feet under roof. Motion carried and ordered unanimously. (See page for Zoning Ordinance.)

PUBLIC HEARING, RE: ORDINANCE REGULATING RESORT DWELLINGS

Chairman Pritchard called for the public hearing to consider an ordinance regulating resort dwellings.

Zoning Manager Rick Enos advised this is the second reading of the resort dwelling ordinance; staff made some changes to the ordinance based on direction and comments made at the May 10, 2005 meeting; and they amended the paragraph regarding the location along A1A so either east or west side would not be able to abut any single-family use or lot zoned single-family. He stated the two remaining issues are the definition and amortization; the Board needs to decide whether it wants to go with 60 days or some other amount; and staff received a study from the consultants, which Assistant County Attorney Terri Jones is here to discuss. He stated he understands they recommend a one-year amortization period with an opportunity to request a longer amortization period if unrecoverable costs exceed $12,000.

Commissioner Colon stated she was not at the meeting when the item was forwarded, so she wants Mr. Enos to repeat his statement about the east and west sides of A1A and if it abuts residential. She stated what the Board is doing is assigning particular areas where it will be allowed; and that is basically what it is saying because A1A is quite large. Mr. Enos stated they amended the language in Section 4 so that in single-family zoning classifications that are located east or west of A1A, it would be permitted only if it did not abut a single-family detached use or lot zoned for single-family detached use; and that language is in paragraphs (1)(b) and (c). Commissioner Colon stated the Board has been discussing this issue for almost an entire year; and she would like to know where the $12,000 came from. She stated the Board was more than generous considering the fact of tourism and spring break; it tried to be sensitive to that; and inquired what is this about the $12,000. She stated she has seen on the Internet some of the units per week are going for over $1,000; so if the Board is referring to that, they would easily lose $12,000 in no time; it has provided a loophole that would allow those folks to get through it; and she is trying to understand how that works. Mr. Enos stated when the consultants reviewed the incomes from those properties, they did an average and threw out the highest rents; they determined the average income is around $12,000 a year for those homes; and when amortizing uses, they do not include the costs that are recoverable. He stated their conclusion was that those unrecoverable costs probably would not exceed $12,000; so that is where they got the one year, which they felt would be adequate to recover all unrecoverable costs. He stated they also included a provision that if a particular homeowner could show he or she has unrecoverable costs exceeding $12,000 he or she could request a different time period; and that would be reviewed on a case-by-case basis.

Attorney Richard Torpy, representing Mr. and Mrs. Utting, stated the Board made a lot of progress on this issue; he had an opportunity to talk to County staff; the only issue he wants to talk about is the definition of resort dwelling because the way he understands the proposed ordinance is resort dwellings cannot be adjacent to single-family residential use, which is great. He stated as lawyers, they look at the Ordinances; the debate is whether the Board should stick with short-term leases of less than 60 days or consider making it less than 30 days, which is consistent with the Florida Statutes for licensing resort dwellings; but he would advocate the Board not go with a 30-day period. He stated it is single-family neighborhoods; they are not worried whether or not people are licensed to operate a resort dwelling; that is a State standard; and what the ordinance is addressing is that they cannot go into a single-family neighborhood because non-business is the intention of the residential area. Mr. Torpy stated if the Board defines resort dwellings as anything less than 60 days, the economic advantage is still there; they think 90 days is more appropriate but can live with 60 days; but if the Board says a resort dwelling only exists if it is 30 days or less, someone will start entering into leases for 31 or 32 days and still be able to make enough on that for a month’s period that it is profitable to have the turnover of non-residents. He stated that is the focus here; if a person wants to rent his or her house to someone who lives in Brevard County and works here, there are occasions where they would live 30, 60, or 90 days then move; there are people all over looking for places for 30, 60, or 90 days while they get their homes renovated; and those are not who the Board is after. He stated that is not the concern because those are legitimate people needing housing; but what it is trying to stop is people making a profit renting to vacationers; and his concern is if the Board defines it too short, such as 30 days, there is still enough profit that those who engage in the business would say they can be next to single-family residential property because they do not operate resort dwellings and are renting for 35 days. He stated another issue that may happen is they lease it for 31 days for a large amount of money to a middle man and that person subleases for a week at a time. Commissioner Scarborough inquired if they can get away with that; with Mr. Torpy responding the difficulty is in enforcement; he has been down that road many times with the Board; and if it goes to the owner, the owner will say the lease is for 35 days or 60 days; and if the ordinance is not carefully crafted, then that person can sublet it. Mr. Torpy stated one of the things he talked with staff about is defining short-term or resort dwelling as 90 days; that is the number they think is appropriate and 60 days would probably work; but if the owners are leasing for less than 90 days, it becomes prima facie evidence, meaning on its face; and if someone complains that the house is being leased for less than 90 days, and one of the Code Enforcement officers asks how long are the folks there and they say 60 days, that is all Code Enforcement needs to send a notice to the homeowner saying he or she is violating the ordinance. He stated the reason it is considered prima facie is because the homeowner can contact Code Enforcement and say there are facts they do not know and show they are residents of Brevard County, or come up with criteria so they can show they are not operating a resort dwelling. He stated if the Board uses 90 days as prima facie, then Code Enforcement can engage that person and force him or her to come to the Board and explain why he or she should not be considered as operating a resort dwelling. He stated that would be his suggestion to the Board; and to set up the definition for a period of anything less than 90 days adjacent to a detached single-family residence is prima facie evidence that they are engaged in the business of resort dwelling or vacation dwellings, and shift the burden to them to come to Code Enforcement to provide for some reason they are not. He stated that way people would not slide under the radar screen saying they are leasing for 35 days so they are not operating a resort dwelling. He expressed appreciation for all the work that has been done; and requested the Board consider his suggestion.

Brenda Warner of Merritt Island, representing Space Coast Association of Realtors, stated like Mr. Torpy, her concern is the time limit; however, unlike Mr. Torpy she agrees with the LPA that 30 days is the way to go for two reasons. She stated any time they can keep consistency in regulations they hve done a good thing; it is difficult as a business owner to deal with the State, County, and cities when every agency has different regulations; and some of the cities resort dwelling Ordinances have seven days or less. Ms. Warner stated people who rent their homes for those uses do it for a variety of reasons; she applauds the Board's effort to keep residential neighborhoods from becoming resort properties; that is not why people buy homes in residential neighborhoods; and the Board has an obligation to protect people’s property rights. She stated when people buy homes in a single-family residential neighborhood, they have a right to expect their neighbors to stay the same for more than 30, 60, or 90 days; what the ordinance may do is affect some of the properties that have traditionally been resort dwellings in Brevard County; Brevard County is a resort community whether the Board admits it or not; it spends millions of dollars advertising for people to come here and enjoy what it has to offer; and it has an obligation to provide them with a place to do what the Board is asking them to come and do. She stated the LPA hit the nail on the head by recommending keeping resort dwellings in line with the State regulations; if the County’s regulations are not consistent with the State, it may allow some people to slide under the radar; State regulations require those places to be inspected; and she knows from experience that the State inspectors do an excellent job. She stated she does not think the Board wants to add a burden to its Code Enforcement of having to inspect resort dwellings when the State is already providing that service; as far as having a local rental agent, that is a wonderful idea; and there should be a local rental agent, who can be contacted. Ms. Warner stated Section 4 (2)(d) under performance standards, says that local managers should post and make visible from the street a name and number; her idea of visible from the street may be different from the Board’s; and inquired if the Board wants visible from the street for a Law Enforcement officer who may be at the property and need to contact somebody or for anybody driving down the road. She stated it needs more definition; she understands the purpose and would hate to be a deputy at midnight at one of those properties trying to locate somebody as a key holder or somebody to cite for an issue and there is no information there; but by the same token, she does not think the Board wants signs on the side of the road with a name and telephone number. She stated the Board has done a good thing by trying to limit resort dwellings; it has gotten out of control; and she does not know if it is the regulation that allowed it to get out of control or the fact that Code Enforcement officers, not just in Brevard County, but every place in the County are overworked. She stated it is an issue, not just for the County but for some of the cities also; it is important for the Board to remember Brevard County is a resort community and depends on tourism and encourage tourism; it has an obligation to make sure when those tourists come here they know those properties they are renting are regulated by the State and inspected; and keeping it 30 days will insure that.

Carolyn Lavrack of Melbourne Beach stated it has been a difficult period in her life; the home next door was purchased last October; and after that it was rented to the original owners until the first of March. She stated on the first of March, the new owner took over, came to their home and told them he was going to have relatives and friends staying there; so they checked the Internet and sure enough his relatives and friends were advertised all over the Internet and the house was up for rent weekly for $2,250 a week. She stated they realized there was a moratorium on it at this time; they went to Code Enforcement and asked it to intervene, which it did; they have been more than nice to the owner; but unfortunately the calendar is still on the Internet and people are still apparently offering to rent the house. She thanked everybody for their help especially Commissioner Voltz who listened to them. Ms. Lavrack stated page 13, item (c) says nothing next to a residential house; she hopes it is going to be enforceable; and their worry is if it will have enough teeth for Code Enforcement to be able to stop people who are renting by the week. She stated they did not move to Brevard County to live next to a Holiday Inn; they live in the South Beaches in a quiet area; they sure would like to keep it that way; and having people move in and out every week does not make it a wonderful place to live.

Peter Mears of Melbourne Beach stated he wants to talk about the comment that Brevard County is a resort community; that will drive the answers; and inquired when the Board thinks of Daytona Beach, what image does it conjure up. He stated the Board has been successful in raising property values, particularly in the South Beaches; they have done it because they are family oriented; they get involved with rentals and people in the community; and if they could go to three-month rentals minimum, that would preserve the flavor of what the Board has been so successful in pulling off. He stated it is pretty nice in Brevard County, particularly if they keep the mental image of what went wrong in Daytona; and having weekly or monthly rentals next to a residential dwelling deadens the whole area because the renters do not care. Commissioner Colon inquired if Mr. Mears commented that the Board raised property values; with Mr. Mears responding the Board has improved property values by adding direction and a sense of stability. Commissioner Colon stated the Property Appraiser is the one who handles property values, and she does not want to take credit for that. Mr. Mears stated he did not mean that. Chairman Pritchard stated the Board has enhanced Brevard’s quality of life.

Tom Fiorillo of Melbourne Beach stated the weekly or monthly rentals is a cause of concern to him; Melbourne Beach is a bedroom community for the most part with a lot of upscale homes and retirees; and the thought of having a transient weekly or even monthly is somewhat disturbing to him. He stated he and his wife spent decades at the New Jersey seashore where weekly rentals were prevalent; and it was necessary to beef up the police forces in those areas to handle the influx of troubled people, alcohol abuse, drug abuse, and noise, which were difficult to keep under control. He stated those are concerns he has in the South Beaches; they moved from the Philadelphia area in 1997 with a three-month rental, which worked fine for them; currently long-term rentals bring retirees to the area; he sees them in the church parking lot with license plates from other states; and they infuse themselves in the area, learn the traffic patterns, and are respectful of other people and their properties. He stated that is what the Board will get with a 90-day rental, someone who thinks about the area as a second home; and he does not think the Board will get that with a one-month rental and certainly not with a one week rental. He stated if the Board is looking for the type of person to come into the area that infuses himself into their way of life, that is the 90-day renter they would like to see.

Ayn Marie Samuelson, Vice President of South Patrick Residents Association and small business owner of residential rental property, stated two essential questions must be asked, what type of communities do they want and what decisions must be made to preserve those communities. She stated they are requesting the Board actively promote the residential character and stability of their homes; their homes are their safe havens; they are places where they raise their families and live; and they are worth fighting for. She stated this is an issue that County residents can wrap their hearts and minds around; in a time when stability of families is eroding; and inquired why would an ordinance be enacted that would further erode the sanctity of their neighborhood. Ms. Samuelson stated a gentleman from Iowa spoke at the May 10th meeting and suggested all parties sit down and talk; in that spirit, she called the Commission Offices and also sent them an email of what she thought would satisfy most all the parties; and it addressed the need of preserving the permanent residential areas and a need for flexibility for short-term rentals. She stated Florida Statutes define resort dwellings in Chapter 509 as those rented for less than 30 days; but there is also another definition that is the transient rental defined in Chapter 212 as those rented for six months or less; and Satellite Beach and Melbourne do not allow transient rentals and they must be in an area more than six months in a residential stand-alone community. She stated another thing to be considered are those that have existing State licenses; when they go to the State, the State does not look at whether or not they are living in a particular community; they are there to generate revenue from licenses only; and their covenants for Waterway Estates do not allow businesses, yet they have two resort dwellings in that area. She stated the focus is the timeframe; the LPA recommended resort dwellings be defined as those leased for less than 30 days; but it was never the intent to have dwellings rented for 30 days in a residential area; and further enforcement is easier when there are longer rather than shorter rental periods. Ms. Samuelson stated enforcement begins with complaints; the process is generated by an initial complaint; and there is a greater possibility of complaints with shorter-term rentals. She inquired what would be the direct impact of a 30-day rental in their neighborhood; stated if an investor buys a home next to a Commissioner’s home, the Commissioner might actually be living next to 12 different individuals over a year with the way the LPA suggested; that is not an acceptable situation; and clearly it would work against preserving the stability of their community. She inquired what would be the long-term damaging effects of 30-day rentals in their neighborhoods, they would encourage speculation and more rentals in the real estate market; they would change the nature of their stable communities; they would strain essential services such as fire, police, and medical; and they would encourage the residents in unincorporated areas like theirs to reexamine annexation by cities such as Satellite Beach that prohibits transient rentals. She inquired what do they need and what is fair; stated there can and should be two definitions, one for resort dwellings in specific areas as the proposed ordinance states and defines as less than 30 days, and non-transient dwellings defined as greater than six months to insure the stability of their neighborhoods. She stated she is concerned on a personal note; she attended the dedication of Scotty Culp Municipal Complex last Sunday; one of Commissioner Colon’s staff members was there; Scotty gave her life to her community and lived there 40 years; and she looked around and knew some of those people because they attended churches, their children went to the schools, and they are part of the community. She stated those are the types of communities they want; and requested the Board help them preserve those communities.

Commissioner Colon stated she is trying to understand what Ms. Samuelson is trying to say to the Board; she cannot speak for the rest of the Board, but she does not want any resort dwellings in residential areas; and inquired if Ms. Samuelson is saying she wants to be able to have resort dwellings for 30 or 60 days. Ms. Samuelson stated what she is saying is the way the LPA recommendation defines resort dwellings of less than 30 days means that they can be rented out for 30 days; they say it is consistent with the Florida Statutes, and it is; but that is the way it can be interpreted. Commissioner Colon stated she wants to make sure there is no room for misinterpretation; and that is why she wanted to make sure they were perfectly clear that none be in residential areas and make sure the wording does not leave it open. Ms. Samuelson stated the difficulty is that issue.

ANNOUNCEMENT, RE: GRANT/VALKARIA DISCUSSION

Chairman Pritchard stated those who came in he assumes are here for the 7:30 p.m. time certain on the Grant/Valkaria issue, either that or they have given blood because he can see the arm bands; and he did not know if the bloodmobile had pulled up out front or not. He stated there are seats available in the Commission Room and additional seating on the third floor.

Commissioner Scarborough stated there are a lot of speaker cards on the resort dwelling issue; with a 7:30 p.m. time certain and waiting for Commissioner Carlson, the Board is going to be here for an extended time; and it may be advantageous, if anybody does not want to be here until the early morning hours, to put in a request to have their items tabled to the following meeting. He stated he is willing to stay here to the early morning hours; the Board is here for the duration; but this group is being heard and at 7:30 p.m. or when Commissioner Carlson gets here, the other group will be heard.

Chairman Pritchard stated Commissioner Carlson requested that the Board wait until she arrives to discuss the Grant/Valkaria issue; she flew into Sanford Airport about 6:00 p.m. and is expected here soon; and she wants to be present for that discussion. He stated he assumes the people are here in support of the issue; and they may want to have one or two spokespersons to speak for them because if everybody gets five minutes, they are going to be here a very long time.

Commissioner Scarborough stated the next zoning meeting is August 4, 2005; but the Board could table the item to an evening meeting; the Commissioners do not have their calendars; but in fairness to everybody, in decisionmaking at 4:00 a.m. they do not have the same mental focus that they would at 11:00 p.m. He stated it would be advantageous if they are going to break the meeting to do it now rather than at midnight after everyone has sat here until then.

Commissioner Colon inquired where is Commissioner Carlson right now. Commissioner Scarborough stated when Commissioner Carlson gets here, they will hear the item; but there are a number of other controversial items that the Board needs to hear fully; and if they hear Valkaria, that may last several hours; and they will be in the wee hours of the morning just hearing those things. He stated they should make a decision to break the Agenda at a certain point and move the remainder to a time certain next week in the evening. Chairman Pritchard suggested waiting until the Board is done with the resort dwelling item, then it can make that decision. Commissioner Colon stated it is a good suggestion and needs to be discussed now so that everybody has the same thing. Chairman Pritchard advised the Board is discussing the resort dwelling item, then it may table every other item except the 7:30 p.m. time certain and see where it goes, otherwise it will be here for a very long time. Commissioner Colon stated the folks who are here for zoning have waited months and months to be here tonight; they have been through the LPA meetings and so forth; and she wanted to point that out.

PUBLIC HEARING, RE: ORDINANCE REGULATING RESORT DWELLINGS
(CONTINUED)

Evelyn Brown of Satellite Beach stated she is a real estate broker and has long-term rentals; she is adamantly opposed to short-term rentals for less than 30 days; she sent all of the Commissioners an email giving them an example of the type of weekly rent that can be charged for those properties; they can be rented for five days, two bookend weekends, nine days out of 30 days, etc.; and they still are going to have weekly rentals because the owners are still able to make a profit doing that. She stated she does not know how many Commissioners had a lot of in-depth work with real estate, but it is like any other business, follow the money; if they do the math on what can be accomplished with those rentals under the 30-day deadline, they would never ever vote to have a short-term rental like that; and it should be at least 90 days or more. She stated Commissioner Colon said she thought they would not have it in any residential neighborhood; all that means is they would not have anything less than 30 days because it is going to be hard to selectively apply it; and maybe staff can write it up so they can selectively apply it, but she does not know if they can. She stated the cities have absolutely no problem extending it to six months; and inquired if the cities have no problem writing documents that are not in disagreement with the State’s 30 days, why should the County have a problem. She suggested the County go to one of the cities and ask it how it did it and copy it; stated it is simple and would not cost the County a dime; and she is sure the city would give it to the County for free. Ms. Brown stated when she heard about the amortized payoff she had to laugh; it is the Board’s decision to throw money at the problem if that is what it is going to do to get rid of it; and inquired what is defined as unrecoverable costs. She stated she was an accountant; accounting is like statistics; the numbers will say whatever they want them to say; any financial report of any company that wants to show a big profit or no profit, they will make that happen; and accountants will make it happen for the County. She inquired if the County is going to talk about unrecoverable costs and pay the investors off to get out of business, is it going to balance out their $100,000-plus capital gains that they are going to get on those properties; and are they going to give the County their tax returns and show the County how much money they made on those. She stated the County is going to pay people for making money; it is going to give them more money; and that is ridiculous. She stated subletting was brought up; as a real estate agent, she sees that clear as a bell; the Board thinking that limiting it to 30 days and one person on the lease is going to accomplish what it wants to accomplish is a little bit simplistic; and there are more ways to ring around the rosy when it comes to rentals and money than the Board can possibly imagine. She stated it is nothing new; it has been done for decades and maybe hundreds of years; there are lots of ways to make money; so the Board has to be really careful how it writes this up to accomplish what it would like it to. She stated she does not know if the Commissioners had the opportunity to go over real estate information, but if they need any help, she would be happy to help them; and if they want someone else in the business, she can give them dozens of names of people who can provide them with expert advice who probably worked in that area of real estate much longer than she has. Ms. Brown stated they have been coming to these meetings since last July and coming back and coming back; what is a very simple problem seems to be taking a very long time to resolve; she does not know why that is because she is not in the wheels of government; but she will say they keep coming back to the County for protection. She stated they need protection, they expect it, and they hope to get it; and if the County is not able to provide them with the protection the communities need, they have no alternative but to go to the cities. She stated that would mean months and months of work for them to try and get annexed by the cities to get protection; and she does not see why the County cannot help them and help them quickly. She stated it is talking about amortization of one year; they can put their houses on the market and they are gone in 30 days; they are going to make a huge amount of money; so the Board needs to wake up, small the coffee, and get on the ball; they are tired of waiting; and they have the expectation that the Board will work for them.

Juanita Brooks of Melbourne Beach stated she is concerned about the ordinance as it affects property east of A1A; prior to 1995, most of the properties were zoned multifamily and commercial; east of A1A has always been a tourist area; the zoning was changed in 1995 to keep a low density in the South Beaches to help protect the nests of the endangered sea turtles; and today, due to the zoning changes, there are many more properties with single-family classifications; however, the zoning change primarily affected new construction. She stated in other words, pre-existing multifamily dwellings could continue to exist as such; today they have single-family homes that are next to duplexes, motels, townhouses, triplexes, condominiums, quadruplexes, restaurants, County parks, State land, National Wildlife Refuge, a golf course clubhouse, and Kennedy Space Center observation station; and there are private beach rights- of-way from communities west of A1A. She stated there are public beach rights-of-way and a private beach right-of-way for Barefoot Bay community, which is on the mainland; and there is even an RV park on the ocean. Ms. Brooks stated people who have purchased property knew when they purchased their property, even after 1995, that east of A1A was a tourist area; they were also aware of the noisy environment, the loudest being the traffic on A1A as well as the crashing waves of the ocean, typical of a tourist area; and there are houses built in the 1950’s to recent mini-mansions. She reiterated the zoning was changed for the turtles not for the purpose of making an exclusive upscale community; there has been only one property owner who has objected at a Board meeting to having resort dwellings east of A1A; his objection did not even address any existing problems; and his statement about paying $25,000 in taxes leads her to believe that he lives in one of those mini-mansions. She stated the beaches belong to everyone regardless of their affluence or lack of affluence; the beach is not the private backyard of any property owner; they all pay high taxes; and at least she has homestead exemption and has a cap on her yearly taxes. She stated at the last Board meeting there was a gentleman who advocated for resort dwellings east of A1A even though he was against resort dwellings in other areas; everyone who comes to the beach knows it is a tourist area; therefore, she strongly suggests the Board seriously consider placing all dwellings east of A1A in section 3 of the ordinance. She stated the beach has motels, parks, recreational facilities, restaurants, and single-family residences just like TU-1 zoning in section 3 of the ordinance, townhouses just like RA zoning, multifamily dwellings just like RU zoning, a gift shop just like BU zoning, and as previously noted, an RV park and Space observation facility. Ms. Brooks stated placing resort properties east of A1A in Section 3 of the ordinance is a fair and equitable decision that she would recommend to the Board.

Sylvia Hatcher of Satellite Beach stated she lives in North Waterway Estates, which is a single-family residential neighborhood in South Patrick Shores; and they have owned their home since 1977 when they relocated to the area from Kona, Hawaii. She stated when they first moved to Kona, they lived in a condo complex that was occupied by permanent residents, semi-permanent residents, and many transients; the units could be rented by the day, week, or month; and the number of occupants depended on the type of unit that could accept two, four, or six persons. She stated it was not unusual for a unit rented for four to try and have six or eight, but luckily they had a wonderful onsite manager who was responsible to those who lived there; they rented for one year and were lucky the residents above them and next to them were permanent; but they were not so lucky with the complex next door where they were subjected to the party-type atmosphere that goes with transient rental property when people are on vacation. She stated it makes it quite difficult with lack of consideration for others when trying to live, work, and go to school; that experience taught them that when they were transferred back to the mainland, in their case this area, they wanted a single-family neighborhood; they knew there wee areas such as oceanside A1A that offered single-family houses but also multifamily hotels and other transient housing; and it is accepted that many single-family residential neighborhoods have rental homes, but again those are designed to be occupied long-term and not by the day, week, or month. Ms. Hatcher stated they rented out their home in North Waterway Estates for seven years when her husband’s job again transferred them; all their tenants were residents for a minimum of one year or longer; and it is important to the community that those areas remain without fear of having short-term rentals of less than six months up and down the street. She stated there are areas zoned for multi-use; those areas are where the short-term rentals belong; they do not belong in single-family residential neighborhoods; and the restrictive covenants of Waterway Estates, Third Addition states, “property shall be used only for residential purposes with no commercial use that will disrupt the neighborhood”; so short-term transient rentals are commercial activities and do not belong there. She stated the Tindale Report would be in the best interest of the neighborhood and community if those property owners were required to increase their rental time to six months or more; unfortunately in today’s society, they have another serious issue to address, which is either a sexual predator or offender; and inquired if transient rentals are permitted in their single-family residential neighborhoods, how can they as residents, parents, and grandparents, safely provided for their children and grandchildren. She stated on long-term rentals a background check and list of all occupants can be addressed; but it is not done with transient rentals; and urged the Board not to permit transient rentals in single-family neighborhoods of less than six months, and preferably one year.

Pam Pipher of Melbourne Beach stated this is her fifth time in front of the Board; she said a lot in the other four times; but she wants to remind the Board to think about the people like her who have invested in those homes. Ms. Pipher stated she had a business in South Carolina with her husband; they worked it very hard, sold the business, and moved to this area because they found it attractive; they have a family and it is a family area; and at the same time they had money to invest and decided to invest in two homes. She stated they checked it out totally before they bought the homes; everybody said it was okay to rent them short-term, so they made a huge investment in those homes side-by-side on the west side of A1A, facing A1A; and they have been renting them to beach families. She stated she is very strict about who she rents to; if she does not like the sound of their voice on the phone, they do not get her approval and she does not rent to them; they strictly rent to families; so the Board needs to remember those who bought the homes when it was perfectly legal and have a huge investment in them. She stated their savings are in those homes; it was a huge undertaking to furnish and supply the homes for rental; people keep saying those people are making money; and inquired when did it become illegal to make money. She stated that is what she does, rent those homes; it is her livelihood; so the Board needs to think about those who bought when it was okay to do so and the huge investment they made. She stated some of the people exaggerate the problems; she charges a $500 damage deposit when people come into her homes; she is very picky; if there is a doorknob broken, she charges them; and the only time she had to keep any money was when one small thing was broken and she kept $20. She stated she goes through the homes with a fine-tooth comb; she has excellent cleaners; and she only kept money from one renter one time for something that was broken. She stated on the east side of A1A there is a golf course within stones throw of her home; there are a motel, stores, fast food restaurants, convenience store, and other things on the west side of A1A; and requested the Board consider the west side of A1A facing the highway because there are so much other businesses on that side also. She requested the Board remember the investment they made; stated it was not done without thinking about it or without a lot of research; and here a few years later it is coming under attack.

Gene Cimino of Merritt Island stated he read the Tindale Report; they talked about a $12,000 recoup of investment in one year as an income approach; but the appreciation they quoted was 28%. He stated he has given the Board newspaper reports for that article on January 26 with the medium price gone up 42% in Brevard County last year; and that is not counting the five months of this year. He stated taking 30% of $200,000 is $60,000; that is much more than $12,000 the people will recoup; they have suffered long enough; he has suffered; and the Commissioners do not know what it is like when they get up in the morning and find beer bottles in the back yard or the neighbor complaining because a skateboard ripped up his sprinklers. He stated he should have taken pictures when the trash people came; they dumped the garbage and there was trash lying around; it has been accumulating week by week; and they are not going to pick up the stuff that they throw on the ground. He stated it destroys the integrity of the neighborhood; the noise is ungodly; one week might be okay and the next week they have somebody else there for three or four days and all they do is party; and he hopes the major thing the Board does today is end this thing. He stated they have suffered long enough; he came here from a sick bed; it is ridiculous; he wishes he had found out about this situation two years ago; he would have made more money; and he would not have to worry about a second job. He stated he hopes the Board stands up to those people and says it is going to amortize it in less than a year because of what happened to the neighborhood and to some of the neighbors in Satellite Beach. He stated he wishes the Board would put it to rest especially the amortization deal.

James Brown of Satellite Beach provided a slide presentation of the operation at 417 Penguin Drive that was grandfathered in; and inquired if they have to put up with it for a year until it is amortized. He stated they have a 22-foot trailer parked on the sidewalk; the photo was taken Monday at 10:45 a.m.; when he left this afternoon at 4:00 p.m., it was still there; and as the Commissioners can see from the pictures, they blocked the driveway with the white car. He stated he has three pickup trucks; one cannot be seen and two are very large; the sidewalk has been blocked for six days; the lady who owns the house is here in the third row; and he would like to know what sort of management is that. Mr. Brown stated the neighborhood contains essentially older people; in the evenings when it is cool, they like to go for walks; some people walk with canes and walkers; and they cannot walk on the sidewalk and have to go out on the street. He stated the black and white photos show more detail; there is sand on the sidewalk; and inquired if they would want to be in a walker or dependent on a cane and use the sidewalk. He stated they filled in the front yard with gravel, which will not stay; it is a safety hazard; it meets the requirements for parking as the County’s only requirement is that it has three parking spaces, which it does; and right now there are seven vehicles and there have been as many as eight. He stated it is typical of what he calls a party house; the first people show up; a day or two later more people show up; and pretty soon they have seven to eight cars there.

Assistant County Attorney Terri Jones stated a car parked on a sidewalk is illegal under State law; and a trailer cannot be visible according to the Ordinance.

William Pardue, Jr. stated he lives in Winter Park and works all over Central Florida; some people know him as a real estate appraiser and some know him as a broker; and he is not here to support or approve the issue. He stated he feels considerable sympathy for the speakers he heard, but is here to talk about the amortization period; one year has been suggested, which is woefully short based on a faulty analysis that included such statements as they are not paying anybody back if the furniture is over five years old; and if that is the case, most people, not just the landlords, have valueless furniture in their houses, not just the landlords. He stated it is immaterial that property values have gone up 28%; the people are not a special class; everybody’s property has gone up 28%; but if the Board treats them as if they are a special class and does not let them amortize their investment, then it is misappropriating part of their 28% increase. He stated the analysis that was done, and he only had it two days, fails totally to recognize mortgage payments and other costs such as taxes, insurance, pool and yard maintenance, etc.; it claims $12,000 net operating income would operate it for one year, but it will not; in the example presented in the study, when he ran out all the costs of it, the net income was $1,580 a year, which is what they are making a year above their expenses. Mr. Pardue stated he ran his own analysis on more typical property and found they are probably making about $7,000 a year; that is typical and will vary; and he had the study only two days but it was enough for him to know with absolute certainty that one year amortization is not enough. He stated he does not know if it should be five years or ten years, but he knows one year is not enough; he would remind the Board the ordinance amounts to a taking of property and property rights; and he is not a lawyer, but has been in the real estate business for 50 years. Mr. Pardue stated it is unconstitutional to take property or property rights in this case without just compensation; and requested the Board consider carefully, despite the laughter from the people who obviously do not know, before it decides on a one-year amortization period.

Commissioner Colon inquired if Mr. Pardue works in Brevard County; with Mr. Pardue responding yes. Commissioner Colon inquired based on his research, does he realize the Board has been studying this thing to death and folks have had a heads up for almost a year; with Mr. Pardue responding yes. Commissioner Voltz stated if he thinks one year is too long, she thinks 30 days is too much.

Attorney Mike Minot, representing a few resort dwelling owners impacted by the legislation, stated there are a couple of items he wishes to remind the Board they discussed at the first public hearing, which have been re-addressed this evening; and the first is the definition of resort dwelling. He stated his estimation is there are three categories of renters; the vacationer comes for less than a week, a week, or possibly two weeks, but certainly not 30 days or longer; as he suggested before, the seasonal visitor comes from other places in the Northeast or Midwest come here and stays for extended periods of time, and if the definition of a short-term rental is something more than 30 days, the ordinance will capture them and tell them they cannot be in those areas either. He stated he also suggested those who need housing do not fit the bill of difficulties that are being expressed this evening; so his suggestion is for consistency with Florida Statutes. He stated Mr. Enos expressed to the LPA, and the LPA took that into consideration, that short-term renters as vacationers are really what they are trying to capture and not allow those into neighborhoods will be met by the policy if the policy is 30 days or less. Mr. Minot stated the second issue is about property located east of A1A; Mr. Cimino mentioned the last time, in defense of his neighborhood, that people move to neighborhoods such as Waterway Estates and other places that are single-family platted subdivisions, for the purpose of having just that; and the Board heard for a year now what the problems are with those rentals for 30 days or less. He stated Mr. Cimino also cited that the area east of A1A is something that is totally different, and he supports that characterization; it is a tourist-related area; there are hotels next to restaurants and bars, and real estate offices next to single-family residences, duplexes, and triplexes; and for that he would suggest there is a geographical area where the Board can encourage this activity for people coming from the Northeast and Midwest to spend some time and have a good time with their families and allow that to be the area where they go. He stated there was no anticipation before today nor will there be after today that it is an area that needs to be protected in the manner the Board is contemplating; and suggested that be in Section 3, which is a permitted use for any type of rental period. Mr. Minot stated the third issue is difficult to comment on again; he warned the Board on it at the last meeting; it is difficult to comment on a report that is only two days old, the Tindale-Oliver Report; and Mr. Pardue did tell him he did have an opportunity to look at it and has given the Board some opinions. He stated the Board has a report from a gentleman from Jacksonville who has also looked at the study; but in 48 hours, there is no way to properly analyze the study or the situation; they both opine that, in the critical part of the legislation, what Tindale-Oliver has suggested omitted certain parts of the quantifying factors that are necessary to go into a proper analysis; therefore the Board is due that at least from their side as well. Mr. Minot stated he would like an opportunity, if the Board rules this evening or votes on legislation, that it postpone that aspect of it; and have an opportunity for a meaningful response to that so it will be better and fully informed to make a well-reasoned decision on that.

Ava Cronin of Melbourne Beach stated she manages a triplex at 6811 Highway A1A in Melbourne Beach on the east side; and inquired if she will be allowed to continue to operate because there is a single-family home next to the property to the north and a duplex to the south. She inquired if that is going to be a problem; stated as the ordinance reads now she would be able to operate with conditions; and she is concerned about some of the conditions. She stated she has never had complaints about her property; it has been a vacation rental since 1997; and she sends out a cover letter and her tenants sign a lease regarding occupancy of no more than four adults in the unit, two cars parked on the property, and no parking on A1A. Ms. Cronin stated she is concerned about the performance standards regarding posting of her name and phone number for the public; she is not comfortable with the public having that information; and she would be happy to give her neighbors her phone numbers, home and cell phones, but she would not want to post it on the building. She stated forcing a manager to resolve complaints in one hour is untenable and may be impossible in some circumstances; inquired if she was in an area of the County where her cell phone did not get a signal and she missed a call about a complaint, would she be in violation. She stated she wants to keep her neighbors happy, but some of the provisions do not relate to life and death situations; and inquired if the Board is complicating the issue by adding more bureaucracy than needed and giving power over the business owners to potential weirdos. She stated some could see her name on the building someone calling her day and night; her vacation rentals have been operating on the A1A corridor for a very long time with no problems; and the way she sees it is, if it is not broken, don’t fix it.

The meeting recessed at 7:44 p.m., and reconvened at 7:52 p.m.

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

Chairman Pritchard advised the Board has heard all the speakers, had a lot of discussions, and it is time to do something, as it has been a long time coming.

Attorney Jones advised the Board needs to start picking the time period; she has a problem with the amortization clause because it is written for 30 days; they have 60 days as the proposed period; and once the Board picks a time period of what a resort dwelling is, then they can actually draft an amortization period to match that. She stated the study was for 60 days or less; she does not know because she is not an economist whether it would affect it if they go up to six months; and they might have to go back to that. She stated she does not want to be tarred and feathered for suggesting the “T” word, but they can start the amortization tonight if the Board picks the siting and timeframe. Attorney Jones stated it has already picked the siting where they can be permitted; and now the timeframe of what is a resort and short-term dwelling for the definition is needed.

Chairman Pritchard requested discussion on the timeframe. Commissioner Voltz inquired if it is for the short-term rental definition or amortization; with Chairman Pritchard responding the short-term rental definition; and inquired if the Board wishes to consider 30, 60, or 90 days. Commissioner Voltz suggested 90 days. Chairman Pritchard inquired if anyone has the right to rent out their property in single-family residential neighborhoods.

Commissioner Scarborough inquired if somebody assigned to Patrick Air Force Base has a home here and is transferring some place else and wants to come back to Brevard County when he or she retires, can that person rent out his house. He stated the Board needs to take it to that point; he does not think that duration is what those people are concerned with; and he heard things tonight that he had not considered previously. Chairman Pritchard stated homeowner covenants can restrict rentals for six or 12 months; with Commissioner Scarborough responding everything is not covered by the homeowner covenant; and the residents are looking to the Board for those cases.

Chairman Pritchard stated homeowner covenants are agreed upon, a contract that a homebuyer makes when he or she purchases in a neighborhood; the ordinance is something different and is imposed by government; so it is a different type of imposition and is not an agreed upon imposition. He inquired if government can enforce a six-month time frame, what can it enforce, and at what point would it start its enforcement process. Ms. Jones stated if the Board chooses a 30-day time frame, it can enforce it; that is a short-term rental based on the State’s definition of a resort dwelling; it can also restrict rentals for six months because that is a transient rental, which is also defined by the Florida Statutes; and when it gets above six months, it gets into problems with alienation, takings, and the Bert J. Harris Act. Chairman Pritchard inquired if six months is the threshold and anything less than six months is, in effect, a short-term residential rental; with Ms. Jones responding technically it is called a transient rental. Chairman Pritchard inquired if six months is transient; with Ms. Jones responding yes, and they pay resort taxes for those rentals but not for rentals over six months. Chairman Pritchard inquired when does short-term kick in; with Ms. Jones responding short-term is something that is not really defined; and they are called resort dwellings. Mr. Enos stated resort dwelling by State definition is one month. Chairman Pritchard inquired where does 90 days come into it; with Ms. Jones responding 90 days is a type of transient rental, which is six months maximum; they have up to 30 days as resort dwelling, 30 days to six months as transient, are over that it is regular rental; and a long-term rental is from six months to however long they want to rent it.

Commissioner Voltz stated if the Board restricts it to 90 days, it would not be considered short-term rental, and inquired would that mean the Board does not have a short-term rental ordinance. Ms. Jones stated there is a problem with terminology; that is how a lot of people get in trouble; the Board can be more restrictive than the State and does not have to stick to the terminology of the State; so it can go 90 days or 60 days. Commissioner Voltz inquired if that would be considered resort dwelling; with Ms. Jones responding right, as the County’s definition of short-term rental. Ms. Jones stated to be consistent with the State, it has to be 30 days; but the Board does not have to be consistent with the State.

Commissioner Colon stated the Board needs to go ahead and put it in plain English, for example, what kind of ordinance it is going to have so there is absolutely no resort dwelling, transient dwelling, or whatever they want to call it to make sure that it protects residential areas, so it can be zero and none be allowed in Brevard County. She inquired how would that work; with Ms. Jones responding the Board has to decide if it wants to allow people to rent for four months; the problem is the people who are coming in for a week or two; and the longer term rentals have few complaints. Ms. Jones stated snowbirds are approximately four-month renters; people come here for November through February then they go back up north; so the Board’s task is to decide what it wants to regulate; and inquired if it wants to regulate six months or less, 30 days, or another number in between. Commissioner Colon inquired if the Board is going with 90 days.

Commissioner Carlson stated the difference between 30 days and six months are enforcement issues; there are guidelines that define transient rentals up to six months; and inquired what legal issues do they get into in terms of enforcement and are there any issues that are different from the 30 days to the six months. Ms. Jones stated the only issue is going to be the burden of proof; the Board would be asking its Code Enforcement officers to go out and determine whether somebody is renting for three months or less; and they do not have to turn over that lease to the County so it would probably be from observation. Commissioner Carlson stated they could go back to the occupational license connection. Ms. Jones stated 30 days is a lot easier to prove because the neighbors would call and say there is a new guy there; it is easier to prove that and to keep tract of that; and she does not know whether the Board wants to go on how easy it is to enforce. She noted 30 days has to be licensed by the State. Commissioner Carlson stated she knows there is no connection in requiring the occupational license; the State is not required to tell them that they need to check with their jurisdictions wherever they are setting up shop; and that particular area may require an occupational license. She inquired how will the County connect the dots there; with Ms. Jones responding staff can contact the Tax Collector’s office; anything that is rented for six months or less must pay resort taxes; and the Board could ask the Tax Collector to tell people who come in to pay their taxes that a license may be required. Commissioner Carlson stated that would be the best way to enforce it instead of waiting for somebody’s neighbor to say somebody is moving in and out of this place and they do not like it, and it is becoming a nuisance. Mr. Jones stated there are privacy issues with tax records.

Chairman Pritchard inquired if it is possible to have rentals in single-family residential neighborhoods at either 60 or 90 days and other rentals at 30 days; with Ms. Jones responding sure, if the Board wants 30 days at multifamily condos, it can allow that; if it wants 90 days, it could do that; and it has to come up with definitions of what those things are. Chairman Pritchard stated they could do less at a multifamily facility and allow less than 30 days; and there could be different levels depending on occupancy. Commissioner Voltz stated she thought all the Board was talking about was single-family residential areas. Chairman Pritchard stated he was just trying to get a feel for what the opportunities are because he knows there are some folks who own triplexes, live in one side, and could rent out the other two units for weekly rentals. Commissioner Voltz stated the Board is regulating those. Chairman Pritchard stated he knows, but there are going to be folks looking at what effect this going to have on them; and the primary concern of the Board is single-family residential neighborhoods. Commissioner Carlson stated the primary complaint has been short-term rentals, which is 30 days or less. Chairman Pritchard stated that is right; so that is what the Board needs to focus on and what constitutes single-family residential neighborhoods because it is not always a subdivision. Commissioner Carlson stated the Board needs to first define short-term, which is what Ms. Jones gave the Board guidance on. Chairman Pritchard inquired what is short term. Commissioner Colon stated if the Board is comfortable with making sure that it does not affect the snowbirds and it is not hurting those folks, then it can stick to 90 days, which would be a safe number. Commissioner Voltz stated she agrees and will second that.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to establish 90 days for short-term resort dwellings.

Chairman Pritchard inquired what is the effect of 90 days versus 60 days; and what effect is that going to have on someone who can make a commitment to come and spend 90 days as compared to someone who can make a commitment to come and spend 60 days; with Commissioner Voltz responding it helps with enforcement if somebody is there for quite a long time versus a shorter amount of time. Chairman Pritchard stated he does not have a problem with it and was just bringing it up for discussion.

Commissioner Carlson stated they cover the short-term, 30 days or less and the transient, which might be a problem; the three-month period of time might be an issue versus the snowbirds, which are a little bit longer; and the Board is not getting into that end of things. Chairman Pritchard stated many snowbirds he knows come for four or five months; and some Canadians come for almost six months.

Chairman Pritchard called for a vote on the motion for 90 days as being the qualifier for short-term. Motion carried and ordered unanimously.

Commissioner Scarborough stated the issue of a lease that is sublet came up; as the Board enacts this ordinance it needs to make sure that there is no ability to sublet and circumvent the ordinance; and requested the County Attorney put that in the ordinance.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to direct the County Attorney to include in the ordinance no subletting. Motion carried and ordered unanimously.

Chairman Pritchard stated it was brought to the Board’s attention that there are single-family residences lining A1A in the South Beaches that are not necessarily subdivisions; and inquired how do they fit into what the Board has just done.

Commissioner Colon stated her concern is making sure they do not adopt an ordinance that blankets everything; A1A is extremely unique and is 72 miles long so the Board may not want to go there; therefore, it already knows the players and has no intention of hurting them since they are in an area that is tourist related. She stated the Board could consider having them come before it in regards to possibly considering that particular site as a tourist area. Commissioner Scarborough inquired if it would be a CUP type of thing; with Commissioner Colon responding CUP or TU-1. Chairman Pritchard inquired if that would be east of A1A only; with Commissioner Colon responding if the Board takes it on an individual basis, it already knows the players who have coming to the Board forever, and it may be able to do that and work with staff to see who those folks are. She stated they are so unique; she does not want to adopt an ordinance that is going to blanket everybody; but if there is a residential home right next door to a restaurant or hotel, that owner should be able to rent it. Chairman Pritchard inquired if that would be on the east and west sides; with Commissioner Colon responding both sides. Commissioner Colon stated it would be no more than 10 or 15 that the Board knows about; anybody else who is doing it that the Board has not seen is doing it illegally; and that might be some place for the Board to start with and carry out the ordinance today. She stated it would be fair to those folks because the Board would look at it on an individual basis. She stated they would have to pay a fee so the Board might consider some type of exception of how much is fair because they are almost causing them to rezone that particular property; and inquired if that is something the Board might want to look at as a conditional use.

Mr. Enos stated the ordinance was written to do that, paragraphs 1(b) and (c) of Section 4 on page 13 says if it abuts the east side of A1A or the west side of A1A but does not abut any single-family uses or lots zoned for single-family uses, they would be permitted even in a single-family zone. Commissioner Scarborough stated he is confused; and requested Mr. Enos repeat his statements. Mr. Enos advised if the home is located in a single-family zoning classification, there are certain locations where they can have a resort home; one is if it is a multifamily structure; and another is if it is located either on the east side of A1A or abutting the west side of A1A but does not abut any other single-family use or lot zoned for single-family use.

Commissioner Scarborough stated that would not be getting a CUP and would be automatic; with Mr. Enos responding it would be automatic if permitted. Commissioner Scarborough stated Commissioner Colon suggested a CUP; with Mr. Enos responding the ordinance would have to be rewritten to include a CUP. Commissioner Scarborough stated he thought Commissioner Colon was saying they have a blanket and then come back with a CUP; and gave a scenario of a group of people with single-family properties that do not meet the classification but all of those owners want to get into a mode of that type of rental; on the other side are restaurants and stores; so the CUP would benefit those people. He stated there is always the unusual situation that may be right there but surrounding it or behind it is something else; there is a whole tenure of single-family areas; the beach does change; driving down A1A one can see every place is a little bit different; and if they did go to the CUP, it would give the Board that opportunity that Commissioner Colon is suggesting to look at everything on an individual case basis with the community commenting and things like that. Mr. Enos stated staff did not write the Code for a CUP; a CUP is a different part of the Code; so if the Board wants to go in that direction, which is the first time staff has heard about that possible direction, then they are talking about starting over basically. Commissioner Scarborough stated what he thinks he heard Commissioner Colon say is take that language where they are automatic and remove it entirely; so there would be a blanket closure; then come back with a separate ordinance dealing with a CUP; so the Board could move forward and then layer it with a separate CUP ordinance. Mr. Enos inquired if the Board wants to eliminate (b) and (c) from the ordinance; with Commissioner Scarborough responding where there is anything automatic; and everything would then become an individual case. Commissioner Carlson inquired if that is the beach only in terms of a CUP; with Commissioner Colon responding because of its uniqueness.

Commissioner Colon stated today the Board is going to pass the ordinance in regards to the timeframe, which is 90 days; it is going to discuss the amortization; it has discussed making sure there is not a sublease; and those things will go through that will take care of the meat and potatoes of the ordinance. She stated what is going to come back as a separate ordinance is a CUP, which would allow those folks who are in very unique areas to have consideration by the Board; and that is basically what the Board has done. Chairman Pritchard stated CUP’s are for business uses and they pay for it, such as a CUP for beer and win or whatever else. Commissioner Colon inquired if Commissioner Scarborough made the motion for a separate ordinance; with Commissioner Scarborough responding he thinks the attorney does not like what the Board is saying. Ms. Jones stated she has a suggestion for the Board and hopes her boss agrees with her. Commissioner Colon stated the Board is her boss; with Ms. Jones responding the Board is actually her boss.

Ms. Jones stated the Board is talking about permitting; it has an Agenda item today to extend the moratorium by 120 days, so it is still at status quo; and if it starts its amortization and chooses to go that route, it can start that as of today because it is pretty clear that it is at 90 days. She stated everybody is on notice that if they are in a single-family area, they need to start looking to divest themselves of the investment of anything less than 90 days; they have to think of long-term rentals or moving to the beachside and such; so staff can write that into the ordinance and bring it back even though everybody will not like that. Commissioner Colon stated she does not want to see the ordinance any more and it should be shut today. Ms. Jones stated the problem is the Board does not have the CUP; she also has a problem with the amortization which was written for 30 days; and it says for people who have business licenses. She stated if they rent for 31 days or month-to-month or something like that, they are not going to fit into that amortization; and the Board has to include people who are renting from 30 to 90 days to allow them to come in with their tax receipts to prove that they are entitled to amortize as well. She stated they are talking about the Fifth Amendment, takings in Bert J. Harris Act; and the problem is not having that timeframe defined makes it difficult. Commissioner Scarborough stated the Board has set it for 90 days. Ms. Jones stated they do not have anything written for 90 days, as this is the first time it has been determined.

Commissioner Scarborough stated the Board has now said it is 90 days. Ms. Jones stated so it can start the amortization period today even though they have the effective date set at a different time.

Commissioner Scarborough stated the Board removed one portion of Section 4, and directed staff to come back with a CUP ordinance; if somebody comes in and applies for the CUP and it is granted, he or she basically has not lost any rights; so if he or she has contemplated the Bert Harris Act, he or she would then dismiss the action because he or she has not been harmed. Ms. Jones stated she was talking about the single-family homes that were already in place before the moratorium, the ones that have been licensed or have been renting for 30 to 90 days; the consultant came back wanting a hearing, if possible, for amortization; and that is not written and needs to be written as well, so it is not ready for the Board. Commissioner Scarborough inquired if Ms. Jones is suggesting the Board not take any action this evening; with Ms. Jones responding no, she is not saying that at all.

Commissioner Carlson stated the confusion is that they want to do a CUP and leave Section 4 out of the ordinance; staff has to come back with the CUP language; and that is why they have to come back. She stated the Board already approved the 90 days and has decided if it is going to do amortization and that kind of thing, it can probably cover that too; but it has not talked about that yet. She stated she understands the language has not been written the way the Board is talking about; so that has to come back at the same time.

Commissioner Colon stated no more than six months is generous; and whoever wants to take the Board to court is going to take it to court whether it gives them a year, year and a half, or two years. She stated the Board has been working on this ordinance since August 2004, which is almost a year, so folks cannot say they did not know that; and she will make a motion for the amortization to be no more than six months starting now because this is when the ordinance is going to be taking effect.

Commissioner Voltz stated she was going to suggest 90 days; she would prefer less; and inquired if she heard Commissioner Colon say it would be easier if they do the amortization the same as the short-term rental. Commissioner Colon stated she wants a year. Ms. Jones stated she does not want a year and just wants to make that clear; and they have been advised by their consultant, to whom the Board paid $20,000 to look at all the factors, that study is what is going to support the ordinance in court. She stated if somebody challenges it as a violation of the Constitution of the State of Florida and the U.S., competent substantial evidence to support the one year is right here. Commissioner Carlson stated it is based on the study. Commissioner Colon stated had the Board not been generous in January, it would not be here; and it gave them five months extra. Commissioner Voltz inquired if they can start it from when they started last year. Commissioner Carlson inquired if Commissioner Voltz wants it to be retroactive; with Commissioner Voltz responding she knows the Board cannot do that, but thinks that 90 days is better. Ms. Jones stated the other suggestion to the Board other than a year was for them to come in and prove their actual losses to the Board and their non-recoverable costs; a non-recoverable cost is the cost of actually doing a rental, not like replacing the roof, which is a capital cost, and they would still have that roof. Commissioner Carlson inquired if that is covered under Section 3; with Ms. Jones responding set up a case-by-case amortization system where affective parties can demonstrate their losses and an appropriate amortization period that can be calculated individually for each circumstance. Commissioner Carlson inquired which page is that on; with Ms. Jones responding page 6.

Commissioner Scarborough inquired if that means they would come before the Board, and the Board would hear the case; with Ms. Jones responding they can set that up for the special magistrate process if the Board would like. Commissioner Scarborough stated the special magistrate would be much better if they can get someone who is technically trained in that field. Commissioner Carlson stated based on the formulas in the study, that would be an easy way to apply it. Commissioner Scarborough stated if they hired someone who is extremely competent in it, that would hold a lot of weight subsequently if it is challenged.

Chairman Pritchard stated one thing that needs to be considered is, while everyone’s property has appreciated, the folks went into business and stocked the houses with furnishings as part of that business; and now the Board is putting them potentially out of business and they have an investment that includes furnishings in that property. Commissioner Carlson stated that is part of the recoverable costs. Chairman Pritchard stated that is right and that is the part the Board is dealing with, not the increase in real estate, which everybody’s boat floated on. He stated the part the Board is looking at is the unrealized costs; what it is looking at is amortization and whether or not it can and how it should be done; and (b) would be the appropriate way, but he is not too sure what values can be attached to it. Commissioner Carlson stated page 6, subsection (b) says, “set up a case-by-case amortization system”; that means that it could be within a one-year period or greater than one year based on recovery costs; and inquired if that is what it means; with Ms. Jones responding right, it would be an individual set up and could be much less than a year; the burden of proof shifts to the property owner to come in with receipts and say he or she spent this much money on furniture; and there would be depreciation off the furniture because they already wrote that off on their taxes. Commissioner Scarborough stated that would be much fairer and they would get a chance to bring in their own facts because everybody’s situation is different. Chairman Pritchard stated it includes signage, extinguishers, kitchenware, silverware, pots, pans, dishes, linens, bedding, sheets, and on and on.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve (b) and use somebody who is extremely confident in doing those calculations and hire somebody to be the special magistrate in that regard.

Commissioner Carlson stated page 5 has the amortization period, which is allowable, unrecoverable costs divided by the estimated annual resort dwelling income; and inquired if staff did any analysis on what the greatest amount is, amortization-wise if the Board went that route. She stated she is just wondering because the unrecoverable costs might put them out five or ten years or something like that; and she does not have any idea how much money they can sink into resort homes. Ms. Jones stated it has not been analyzed; they do not have any estimate of that; but the consultants used what they thought was a reasonable amount, and came up with $12,000. Chairman Pritchard inquired if that is how they came up with 12 months. Ms. Jones stated they looked at it and thought one year was a reasonable time to do it. Commissioner Carlson stated she is just concerned about Commissioner Colon’s comment of six months; and she thinks (b), which is the case-by-case, would be prolonging something the Board does not need to prolong if it went with the one year. She stated because it has not been put in practice, it is hard to say what it is going to create; so that is her concern, but she is willing to try it that way. Chairman Pritchard suggested a blend of (a) and (b), as (a) is to adopt a one-year sunset period with an established appeal process. Commissioner Scarborough stated he likes putting the burden on the property owners. Commissioner Carlson stated that is fine and the Board ought to try that; and if it does not work, it will have to change it. Commissioner Scarborough stated they need to show what investments they made; it is fair to both sides because all sizes do not fit everybody; and somebody may have put a lot more in and somebody else just the minimum.

Commissioner Colon stated the proof should be on the property owners; this is definitely America and God bless them to be able to do it; but if they are making $2,500 or $3,000 a week, she is not hurting for them; and she hopes they are claiming that for their taxes. She stated it should not be more than six months; and if they are able to prove the Board is hurting them, then at that point they can go before the special magistrate and be able to prove their case; but it should not be more than a year. She stated it should be six months and let the process start from there; that would be something that is fair; it gives them the process to be able to prove the kind of loss they are having; and they have to show the special magistrate, who is basically like a judge, how they are hurting. She stated they will have to prove how much they were making per week; the burden of proof has to be on those folks; the Board has been more than fair; it shared with them that it would not hurt them during spring break; and they were able to make a very good case before the Board in regards to that. She stated it is not like the Board gives them the pinky and now they want to take the whole arm; and that is why she thinks that it should be six months and allow them to go before the special magistrate. Commissioner Scarborough stated if they are not happy with the six months, they can reach for more. Commissioner Colon stated they can present the case before the Board; but the other folks who have unique situations are a totally different arena. She stated the other folks in the residential area can go home; they know they do not have to deal with that any more; and for the other folks with a CUP, the Board is going to look at their situations on a case-by-case basis.

Commissioner Voltz inquired how long is the Board giving some of those people to come in; and inquired does it wait six months and at the end of six months say they need another year or whatever. Ms. Jones stated page 5 of the Attorney’s report for Tindale-Oliver recommends restricting the property to continue resort dwelling one year then the property can have a six-month period during which to proceed through the appeal process with the special magistrate. She stated the Board can change the one year to six months and the six months to a shorter time period to come in to apply; it is a good way to go because if it does not have the six months, it is going to have everybody coming into Mr. Enos’ office to apply for amortization; and if there is a bottom line, there will be less special magistrate time and less problems.

Commissioner Colon stated they are going to get a letter from the County because they should be registered either with the State or the County; therefore, their papers should be up-to-date; and that is the kind of letter that will go out letting them know. She stated there are some folks who are probably not at this meeting and do not have a clue that this is about to happen even though she knows that they know.

Commissioner Carlson inquired in terms of the motion, if the Board is going to do the step-by-step, is it putting a cap on that or no more than one year. Commissioner Scarborough stated what Commissioner Colon is saying right now, and he really likes the idea, is everybody gets six months; they do not have to prove anything for six months; and if they feel like they have a right to amortize over longer than six months, Ms. Jones said they probably should within three months come in and tell the Board that they would like to have a longer amortization period. He stated it would be a burden on them to show that they need an amortization period longer than six months. Commissioner Carlson inquired if that would be no more than a year or is the Board going to be more flexible; with Commissioner Scarborough responding it needs to really just say it is case-by-case because he does not think if the Board is going to let them prove it, it can come in and limit it. Commissioner Carlson inquired, looking at the analysis that was done by the consultant and the legal side, does that work within the framework that Ms. Jones was concerned about; with Ms. Jones responding because the Board is including the hearing process, she thinks it is okay; and it is going to be okay administrative burden-wise as well. She stated she does not think it is going to have a lot of people coming in and wanting one of the hearings just based upon the testimony of the people, the prices, and everything like that. She stated Tindale-Oliver said that one year was a conservative estimate; and they are paid to be conservative to prevent litigation, so six months is probably more accurate. Commissioner Carlson requested the motion be restated with the changes in the timeframe. Commissioner Scarborough stated it is Commissioner Colon’s motion, but he would be glad to restate it. Commissioner Carlson stated she thought Commissioner Scarborough made the motion and she seconded it.

Commissioner Scarborough stated it is different now; there is an automatic six months amortization; anybody wishing to have something longer than six months must, within three months of the enactment of the ordinance this evening, appeal for an extended period of time; and that would be heard by a special magistrate.

Commissioner Voltz inquired if the three months is long enough; with Commissioner Scarborough responding they do not have to be heard in three months. Commissioner Colon stated it is only to apply. Commissioner Voltz stated she understands that; but it may overburden the special magistrate if umpteen people come in. Ms. Jones stated they could probably burden the Value Adjustment special magistrates to see if they would like to take on the work; they are used to assessments and those kinds of things; and the Value Adjustment Board is going to be soliciting for special magistrates probably by tomorrow. Commissioner Colon stated for the record, she sits on the Value Adjustment Board.

County Manager Peggy Busacca suggested the Board give staff permission to go out with an RFP to find a special magistrate so that they would have one on-board after July or something like that.

Chairman Pritchard stated there is already a motion on the floor or an evolution of the motion. Ms. Jones inquired who qualifies for amortization. She stated right now what is written are the people who have licenses; only the people who have been renting for 30 days have licenses; and since the Board is going to 90 days, it needs to include the people who have paid their taxes and let them come in and produce proof. Commissioner Scarborough stated if they want the amortization, they need to come in and apply; and they need to come forward and say they are in the status of having it, then the Board will know who has it.

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

Chairman Pritchard stated he wants to put everyone on notice that there will be no late filings; the Board will not be hearing any second appeals; they will have the amount of time the Board has allocated to come and make their requests; and it expects them to be heard timely. He inquired about performance standards; with Commissioner Scarborough responding he thought Commissioner Voltz had a motion to make.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize staff to go out for a request for proposal to hire a special magistrate. Motion carried and ordered unanimously.

Chairman Pritchard inquired if performance standards will be in effect as soon as the Board initiates them; with Ms. Jones responding yes. Ms. Jones requested an amendment to the performance standards because it does not have an appeal process if they have a license being revoked; she does not think the Board wants to revoke a license; but perhaps the special magistrate could have that as a penalty instead of coming to the Board as a general appeal. Commissioner Carlson inquired if Ms. Jones will bring that back with other language on the CUP. Ms. Jones stated she talked to Mr. Bowen earlier today and he has some qualms about the enforceability of some of the performance standards; so she will bring back some clarification on the language of those particular ones as well. Chairman Pritchard inquired if a motion is needed to deal with it; with Ms. Jones responding yes, to give her direction.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to direct the County Attorney to go with the performance standards and some clarification of the language.

Commissioner Scarborough inquired if it will go to a special magistrate as opposed to the Board and can they make that as part of the motion or does staff have to bring it back. Ms. Jones stated she would prefer it be brought back as a penalty section; there are some constitutional issues of completely revoking, and maybe a suspension would be better.

Chairman Pritchard stated that is included in the motion as direction; and called for a vote on the motion. Motion carried and ordered unanimously.

Commissioner Voltz stated posting of the name and phone number on the home visible from the street is a bit much; and the Board should not do that. She noted there has to be another way. Chairman Pritchard stated it could say management company. Commissioner Voltz stated she does not even know about having just manager and the phone number. Chairman Pritchard stated a house for sale has the name of the broker on the sign and phone numbers and there does not seem to be a problem with that. Commissioner Colon suggested leaving it alone.

Commissioner Carlson stated the other issue was brought up by the LPA. Chairman Pritchard stated he would like to go back to the signage issue; there may be a certain level of comfort for the neighbors if they knew who to call if there was a problem. Commissioner Voltz stated the neighbors know somehow or another. Chairman Pritchard stated with all the real estate signs in the neighborhoods having names on them, they are more than happy to get the phone calls; and he could call a dozen right now who would be thrilled to get his call or somebody’s call.

Commissioner Colon stated they were discussing those particular circumstances based on the issues they had in the past; so they need to leave it alone and she does not think they need to go there. Commissioner Voltz stated they are all going to go away anyway.

Commissioner Carlson stated the LPA recommended on page 14, if there is a change in management, the owner would notify the County of the change within 14 days; and she does not know if the Board wants to consider that as an option. She stated the local manager is responsible for compliance with performance standards in that section; it says, “Local manager shall satisfactorily address complaints by concerned residents of violations of the performance standards in this section within one hour of receipt of the complaint. Resort dwellings occupational license may be revoked if more than two unresolved complaints are received by the County.” She inquired if the Board wants to incorporate that into what the special magistrate can do, as it already said revocation is a possibility, but does it want to specify further. Ms. Jones stated she suggested the special magistrate because if the Zoning Department revokes a license, it is an appeal; there is a general appeal section that any appeal from an administrative officer comes to the Board; and that is why she suggested that move to a penalty section in which it can be included for a violation. Commissioner Carlson inquired if Ms. Jones is saying to move it to the penalty section; with Ms. Jones responding right, and she can bring back something when she brings back the CUP to amend it and get what the Board wants. Commissioner Carlson stated the whole idea for doing this is to enforce it; she does not really want to put something on the books if they cannot enforce it; and she knows that the State is not going to help the County out; but they need to somehow find a way to get a list of who is paying the tourist tax. She stated she does not know if the County is kept from doing that because of the laws; and inquired if there is any way they can get access on an annual basis to see who is paying tourist tax, then make sure they are going through the process and have an occupational license. Ms. Jones stated she will call the Tax Collector; he is the one who has that information; they tried to get some information from their consultant; and they were very iffy on what information they would give out because there are some privacy concerns with how much taxes people pay. She stated she does not know what is public and what is private, whether somebody has a license or is paying the tax; but she will get with the Tax Collector’s Office on that. Commissioner Carlson inquired if Ms. Jones will bring that back with the other stuff; with Mr. Jones responding yes, she will do that.

Commissioner Colon stated there are folks who are under the impression this was just a beach issue, and they are highly mistaken; this also affects the mainland because those folks were going to Melbourne, Suntree, and putting on their websites saying they are only minutes from Cape Canaveral and from the beaches. She stated this is coming to the mainland; that is what it is all about; this is not just the beaches having the problem; and she wanted to make sure folks realized that. She stated that is how they were advertising, just minutes from the beaches; so this problem was about to get bigger because folks were putting their homes up for rent as a way to make money; and they were coming to neighborhoods near everyone.

Ms. Busacca inquired, since the interested parties are still at the meeting, would the Board consider taking a motion on Item V.G. to extend the moratorium if it is going to be done. Mr. Enos stated he has more questions on the ordinance before going to Item V.G.; the Board spoke about a CUP on A1A; in order to do that they need to eliminate from Section 4 of the ordinance paragraphs 1(b) and (c) because that permits it on A1A.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to direct staff to eliminate paragraphs 1(b) and (c) in Section 4 of the ordinance.

Chairman Pritchard inquired if that is for the east and west sides of A1A; with Mr. Enos responding yes, right now it is set up as a permitted use with conditions; and if the Board wants to go with the CUP, it has to eliminate those paragraphs.

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

Commissioner Voltz stated she is not sure what the Board has done is giving the people on the beach a level of comfort at this point, and she hopes they can work that out quickly.

PUBLIC HEARING, RE: ORDINANCE EXTENDING MORATORIUM ON SHORT-TERM
RENTALS, RESORT DWELLINGS, AND RESORT CONDOMINIUMS

Chairman Pritchard called for the public hearing to consider an ordinance extending the moratorium on short-term rentals, resort dwellings, and resort condominiums; and inquired if there is an interest in extending the moratorium. Commissioner Voltz inquired if the Board needs to extend it; with Assistant County Attorney Terri Jones responding it would not hurt and there are some things that could slip through the cracks. Commissioner Scarborough suggested doing the moratorium extension. Chairman Pritchard stated there are three speakers, Evelyn Brown, Merrill Lochmaier, and Mark Hinds; the Board is going to extend the moratorium; and in the interest of brevity, he is telling them what the Board is going to do. He inquired how many days should it be extended for; with Ms. Jones responding it is already set for 120 days; and stated it would prevent new ones coming in and if they missed anything, they can deal with that.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to adopt an Ordinance of the Brevard County Board of County Commissioners; extending the moratorium enacted BY Brevard County Ordinance 2004-51E by 120 days, prohibiting any new short-term rental, resort dwelling, and resort condominium pending the adoption of an ordinance establishing regulations applicable to the same; establishing a moratorium on the issuance of occupational licenses and the establishment of resort dwellings, resort condominiums and conversions of single-family residences to short-term rentals in the unincorporated area of Brevard County; setting forth the purpose of the moratorium; setting forth the extent of the moratorium; providing for exemptions; providing for extensions and expiration of the moratorium; and providing an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 05-26.)

The meeting recessed at 8:44 p.m., and reconvened at 8:49 p.m.

PUBLIC HEARING, RE: ORDINANCE REGULATING RESORT DWELLINGS
(CONTINUED)

Assistant County Attorney Eden Bentley requested the Board make a motion to adopt the ordinance regulating resort dwellings as amended.

There being no further comments or objections heard, motion was made by Commissioner Colon, seconded by Commissioner Voltz, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Section 62-1102 by creating a definition of resort dwellings; amending Sections 62-1331(1)(B), 1332(1)(B), 1334(1)(B), 1335(1)(B), 1336(1)(B), 1337(1)(B), 1338(1)(B), 1339(1)(B), 1340(1)(B), 1341(1)(B), 1342(1)(B), 1443(B), and 1462(E) by adding resort dwellings as a permitted use with conditions in certain single-family and PUD zoning classifications; amending Sections 62-1343(1)(A), 1344(1)(A), 1371(1)(A), 1372(1)(A), 1373(1)(A), 1481(1)(A), 1482(1)(B), 1483(1)(B), 1511(1)(A), and 1512(1)(A), by adding resort dwellings as permitted uses in certain multifamily, commercial, and hotel classifications; creating Section 62-1841.5.5 to establish location and performance standards for resort dwellings where listed as a permitted use with conditions in single-family and PUD classifications; creating Section 62-1191 to provide for the amortization of pre-existing resort dwellings; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances, as amended. Motion carried and ordered unanimously. (See page for Ordinance No. 05-27.)

CITIZEN REQUEST - DAN FADEN, RE: INCORPORATION FEASIBILITY STUDY FOR
GRANT/VALKARIA AREA

Chairman Pritchard advised he has been assured by Commissioner Colon that there will be two speakers.

Dan Faden of Valkaria stated he appreciates everyone being so patient; they have blue armbands so neighbors can identify each other; and they would like to make a 15 to 20-minute presentation so the Board would not have to go through all the speaker cards.

Chairman Pritchard inquired if they are here tonight because they want the Board to contribute to a feasibility study for potential incorporation of the Grant/Valkaria area; and inquired how much money would they need for the study; with Mr. Faden responding $20,000. Chairman Pritchard stated that falls in line with what the Board did for Port St. John. Mr. Faden stated the study will cost $15,000, and $5,000 would go into development of the survey, viable charter, and data evaluation. Chairman Pritchard stated generally the Board would require a straw ballot to see if there is interest in the community; however, knowing that is an unpopulated area of the County, he would say they have a pretty good straw ballot here tonight. Mr. Faden stated he has 1,321 signed petitions to present to the Board, but it is a copy as they are continuing the petition drive to ask for a feasibility study only. He stated they are taking the first step to see if incorporation is feasible for their community. Chairman Pritchard stated he probably has that many emails and is sure the other Commissioners have also, so they do not need to make a case and the second speaker does not need to address the Board.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve $20,000 for a feasibility study for potential incorporation of the Grant/Valkaria area. Motion carried and ordered unanimously.

The meeting recessed at 8:54 p.m., and reconvened at 8:57 p.m.

County Manager Peggy Busacca requested authorization to remove the $20,000 from the Contingency Fund and to enter into a contract with Dr. Laney who did the Port St. John study. She stated the original Agreement for Port St. John was half now and half later so the Board knew what it was paying for; and requested a motion to include the contract as well.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize the County Manager to remove $20,000 from the Contingency Fund for an incorporation feasibility study for Grant/Valkaria area; and to enter into contract with Dr. Laney to perform the study. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED ITEMS (CONTINUED)

Chairman Pritchard advised the Board has returned to the tabled zoning items as follows:

Item V.A.2., (SPE50301) Indian River No. 1 Developers, LLC, LKC Corporation and Indian River No. 2 Developers, LLC (Edwin R. Krug, P.E.)’s request for amendment to the PDP in a PUD on 26? acres located on both sides of Highway A1A, north and south of Aquarina Boulevard, which was recommended for approval by the P&Z Board to change Stage 3, Tract 1, Unit 2 to one acre commercial designation with a 10,000 square-foot building, and 2.22 acres to transfer 25 low-rise residential units; approve change to Stage 3, Tract 1, Unit 1 to three acres of open space designation on golf clubhouse; approve transfer to Stage 5, Tract 1, on 5.93 acres of 60 residential units with a maximum height of 35 feet; deny change to Stage 4, Tracts V and VIII to remove two acres of open space designation; and deny change to Stage 2, Tract A, to go from 3.02 acres of active recreation to 2.31 acres of active recreation and 0.71 acre to transfer five low-rise single-family residential units.

Commissioner Scarborough stated one of the issues that came up was maybe allowing a movement into the A1A setback.

Ed Krug, representing the applicants, stated the Aquarina PUD is the oldest PUD in Brevard County; he first started working on it in 1975; and 30 years later he is proud to put the final stroke on the painting hopefully and bring it to closure. He stated he has a short presentation and a long one; the zoning request is a win/win for everybody; Aquarina has a number of land uses associated with it that really do not belong in the South Beaches; and today they are going to request that those be eliminated from the PUD. He stated they are also going to request that various unit counts that are already approved for the PUD be moved from one parcel within the project to another, and for creation of four oceanfront lots that are currently not approved in the project. He stated when they went to the P&Z Board, they had some opposition from the Aquarina Residents Association; with the leadership of Commissioner Voltz and tenacity and help of her staff, they have come together and reached an agreement on the issues that were on hand; and the document is now signed and has been given to Mr. Enos as part of this action today. Mr. Krug depicted the tracts of land affected by the rezoning; stated he will not go through them one by one because it is a very lengthy and complicated process; and he would like to go right to the summary of the changes and when they mix it all together what happens to the project. He stated first and foremost they eliminated 350 hotel rooms; that was the only zoning that was tight on the South Beaches; it has been there for 20 years and went from 500 to 350 rooms; and now they are eliminating it and will be replacing it with low-rise residential from another portion of the project into this tract. He noted 350 hotel rooms is equivalent to 550 townhomes; and that is the type of impact reduction they are giving. He stated it would have been an 11-story building approximately 110 feet wide; they are increasing the open space by 2.6 acres and taking it from 120 acres to 124.6 acres; there is commercial land associated with the project in two tracts; in tract 4 they are reducing the size from 3.22 acres to one acre of commercial; and they are reducing it from 55,000 allowable square feet of building down to 43,000 square feet. Mr. Krug stated there is no change in total residential units for the project; it will stand at 826 units; however, the actual buildout of the project will probably be 630 to 640 units. He stated the agreement he referred to provides for construction of a new beach clubhouse, which will go on Tract 3; Mr. Catterton is here representing ARA; and they will not be seeking a waiver from the additional 25-foot building setback from the 1981 Coastal Construction Line. He stated they have worked an arrangement where they can get by without having to get that waiver; therefore, that is not a part of their request. He stated the changes in land use will create a significant reduction in traffic impact on the South Beaches and significantly reduce the water demand, which is a relatively fragile resource in the area; that is the short version of the presentation; and he would be happy to answer any questions.

Commissioner Carlson inquired if Mr. Krug has any comments regarding the recommendations of the P&Z Board; with Mr. Krug responding the primary thing it did was deny their request for five single-family lots on the oceanfront; he believes its opposition came primarily from the fact that the ARA was in objection to that; and the reason they objected was because they did not nail down the issue of construction of the beach club and who was going to pay for that. He stated that is going to be paid for by the developer; and that is now in writing in the agreement. Commissioner Carlson inquired if there are still five lots; with Mr. Krug responding no, there are four lots. Commissioner Voltz inquired if that is plus the beach club; with Mr. Krug responding Mr. Catterton is here if the Board wishes to speak to him.

Van Catterton of Melbourne stated he is the attorney for the Aquarina Residents Association, Inc. (ARA), a voluntary Homeowners Association in Aquarina; he can confirm the representations made to the Board by Mr. Krug; and his only purpose at this stage is to tell the Board they are in agreement with the documents that have been presented, which represent the preliminary development plan and the addendum, which all the parties have worked extremely hard on. He stated he could not leave without expressing a great thanks and appreciation to Commissioner Voltz; she and her staff have been made available to them a great many times; and he does not think they would be in agreement tonight were it not for her efforts.

Commissioner Voltz inquired if everything is in writing and satisfactory to both sides and signed by Marty; with Mr. Catterton responding he can provide Commissioner Voltz with an affirmative response to the first part of her question and the addendum was signed as well.

Commissioner Scarborough inquired if the thing with A1A is not going to be an issue this evening; with Commissioner Voltz responding no, it is not because they are moving it closer to the road rather than into the coastal construction line. She stated they had the big building torn down; and once it was torn down, they lost their permit to be back on the coastal construction setback line. Commissioner Scarborough stated in his briefing they were moving closer to A1A and encroaching into the setback; and inquired if they are not encroaching now.

Assistant County Attorney Eden Bentley advised they raised an issue with an interpretation of the Ordinance and said they needed it dealt with tonight; it was not possible to do an appeal of an interpretation in a short timeframe; there is an alternative; it could be very broad or it could be very narrow; and the problem was encroachment eastward of the coastal setback line. She stated if they moved the whole structure to the west, then they hit the setback from A1A; however, the Board had previously waived or reduced that A1A setback by 25 feet; and if the Board wishes to give the staff direction to reduce the setback on A1A in the South Beaches, it can be very limited. She stated it could be just for PUD’s reducing densities or it could be all on the South Beaches. Commissioner Voltz stated Mel Scott has been working on it.

Commissioner Scarborough stated the worse thing is to do one thing for one person or one group if the Board finds it advantageous to allow the building closer to A1A; and he talked to Ms. Busacca about it, and she said with the reduction in density some years ago they will never be four-laning A1A on the beaches. He stated some of the setbacks were originally set with that contemplation. He stated maybe he is reading more into it; and today they could just look at this one case; but it is always best to ask do they need to have that much setback and if they do not have the setback requirement from A1A, it would allow a lot more development opportunities to move off the dunes and puts dwellings less at risk. He stated it may be worthwhile to view this as broader policy rather than a limited policy to meet a certain developer’s needs. Commissioner Voltz stated that is exactly what they are trying to do; and Mr. Scott needs to answer that because there are no like properties around there to do this.

Mel Scott stated he is not the developer but is intimately aware of the things they need to make this work; one thing that they need, which Ms. Bentley broached, is referred to as the Green Light doctrine; and essentially what the developer needs to move forward in good faith on the agreement is to know that for at least his little sliver of the South Beaches he is going to be able to proceed with plans knowing that and respecting the 25-foot County setback line. He stated they need to know they are going to be able to move forward and start design of the clubhouse and the four lots moving closer to A1A.

Commissioner Scarborough stated he understands the Green Light Doctrine, the creation of Scott Knox; he never heard of it before from law books in Brevard County; anyhow, it is his preference, if it is a good policy, that it should not be for just this item, but as they move to the Ordinance, which allows them to use the Green Light Doctrine, they could use it in a more comprehensive manner; and that is the direction Commissioner Voltz may want the Board to go.

Commissioner Voltz stated without the variance everything goes down the tubes. Commissioner Scarborough stated he does not have a problem with the variance and is just saying to enact the Green Light Doctrine they have to instruct staff to do an ordinance; he would prefer to have a more comprehensive rather than limited ordinance; and if it is good, they need to do it. Commissioner Voltz stated that is not the problem, she is just questioning it time-wise. Commissioner Scarborough stated the Board has to instruct staff to do an ordinance to have the Green Light Doctrine kick in; and he supports a broader ordinance. Commissioner Voltz stated as long as both parties are happy with all the information that was given, bonds or whatever were with the two lots being held in escrow, and it is all written out, documented, and signed, she will move the item as listed with all of the specifications they have listed including the setback.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to approve Item V.A.2. as recommended by the P&Z Board with all the specifications including the setback from A1A and follow the Green Light Doctrine; and direct staff to draft an ordinance to move development off the dunes and closer to A1A, but not increase building envelope, and prepare an ordinance which would enact the Green Light Doctrine.

Commissioner Voltz stated staff will have to come back with an ordinance of whatever they want it to say. Mr. Enos stated the Board has already directed it as a result of another project on the beaches so this would kind of fit right in with that. He inquired if the Board wants staff to return with a report or go directly to the LPA with the ordinance; with Commissioner Voltz responding go with the ordinance. Commissioner Scarborough stated he was given several different flavors here, and he wants to make sure what flavor he is voting for; he would like to come back with the comprehensive movement towards A1A with all construction on the beaches to allow the movement off the dunes so they can protect structures from future storms; and that leads the Board into a better position; so if that is the motion, he will second it.

Commissioner Carlson stated she agrees with moving homes off the dunes, but what form should it take is uncertain because some will go out there and try to maximize the footprint and stay at the closest point of the dune and still use that setback. She inquired if it is being done in the form of a waiver of how exactly will it be done. Commissioner Scarborough stated it would allow a person to build closer to A1A. Commissioner Carlson stated they are not trying to encourage them to stay where they are but are trying to encourage them to get off the dunes. Commissioner Scarborough stated if the Board wants to go with dealing with the dunes, he would suggest it deal with the setback in a separate ordinance; allowing people who are cautious and wise to move closer to A1A and off the more vulnerable areas is like the carrot on a stick; this is the carrot part of it; and the Board can come back with the other side if it wants to. Commissioner Carlson stated at the end of this discussion the Board ought to do that. Chairman Pritchard inquired if it would give them an option for a bigger backyard; with Ms. Busacca responding she would suggest they talk about this in lieu of getting any waivers to a setback so that they are not increasing the building envelope by 25 feet on both sides. Ms. Bentley inquired if the Board wants to give staff specific direction to follow the Green Light Doctrine as it has in the past; with Commissioner Scarborough responding absolutely. Commissioner Voltz stated they have been working on this from almost the day she got elected, weekly and sometimes daily; so she is glad that it is over.

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

Chairman Pritchard stated because the Board does not meet until August, it is his intent to go through the zoning items.

Item V.A.3. (Z050440) Norman F. and Carmen M. Wagner (Jason and Caroline Hitte)’s request for change from AU to SR on 0.5 acre located on the south side of Rose Drive, west of Murrell Road, which was recommended for approval by the P&Z Board.

Commissioner Carlson stated she met with Mr. Wagner and resolved the issues.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item V.A.3. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item V.A.4. (Z0504104) Clifford L. and Jamie L. McKnight’s request for change from AU to RR-1 on 1.32 acres located on the north side of Palm Avenue, west of U.S. 1, which was recommended for approval by the P&Z Board.

Commissioner Scarborough stated he met with the applicants; and while it may seem strange, what they have is a collection of properties very similar to what they are doing. He stated it is the overall trend; and the Board needs to approve this.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item V.A.4. as recommended by the P&Z Board. Motion carried and ordered unanimously. (See pages for Zoning Resolutions.)

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
MAY 2, 2005

Chairman Pritchard called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its meeting on May 2, 2005, as follows:

Item V.B.1. (Z0505401) Scorpion Properties, LLC (Jim Hagan)’s request for CUP for alcoholic beverages (beer and wine) for on-premises consumption in BU-1 zone on 1.04 acres located on the west side of South Patrick Drive, south of Tortoise View Drive, which was recommended for approval by the P&Z Board with stipulation that the concurrency issue is worked out.

Jim Hagan, representing the applicant, advised they are requesting a conditional use permit (CUP) for alcoholic beverages (beer and wine) for a restaurant they are replacing; and they are reducing the size and doing extreme renovations to it because it is a dilapidated building. He stated they agreed to raise the height of the wall which was a concern of one of the residents he spoke to today; they have provided letters to the P&Z Board from schools and other residents who are in support of the CUP; and he has an email from the person who lives directly behind the property who is in favor. He stated other than that, they would like to get their CUP and get the restaurant started.

Henry Lorenzen, Jr. advised Debbie Fischer was not able to stay and dropped off a letter in opposition to the CUP. He stated his property abuts the property for which there are applications for the CUP; he has lived in Brevard County for several years and has not attended too many meetings, but in March his two children Sarah and Henry were recipients of the Governor’s Hurricane Heroes Award; and they came to the meeting that morning. He thanked the Board for the presentation it did for them; and stated they greatly appreciated it. He stated the previous time he was at a meeting was in October when a different company applied for the same CUP at the same location; at that time the Board rejected the application; and he is requesting the Board follow through at the same level and refuse them once again for the CUP. He stated the same reasons apply; the neighborhood has not changed, just the applicants have; the restaurant chain has several other locations in the County, all of which fit the proper zoning; and in this case it does not fit the proper zoning. He stated the reasons for denying the permit in the past were and still are under the Brevard County Code of Ordinance General Standards for Review, which state, “the proposed CUP will not result in substantial and adverse impact on adjacent properties”. He stated due to numbers of persons anticipated to use the CUP, with the addition of alcohol, it certainly will be increased just for that. Mr. Lorenzen read, “nuisance activities generated by conditional use”; and stated noise, confrontations, and general rowdiness may not be a result of alcohol consumption, but certainly are a byproduct. He read, “the increase in traffic within the vicinity caused by the proposed conditional use”; and stated they are looking at the amount of traffic being increased in the area as a direct result of this company being issued a conditional use permit for alcohol and beer and wine sales. He stated the restaurant is advertised as a family sports pub; a pub by definition is a place where alcoholic beverages are sold and consumed; it is not advertised as a family restaurant; and it advertises happy hour from 4:00 p.m. to 7:00 p.m. with $1.25 drafts and $11.00 buckets of beer. He stated they are not opposed to the restaurant as a whole; what they are opposed to is the CUP for alcohol; and read, “the proposed would be compatible with the character of the adjacent properties with regard to function, operation hours, and amount of traffic. He stated currently the local stores within the business areas right there are a real estate office, flower shop, nail salon, computer shop, dress shop, and auto repair facility, which all operate from about 8:00 a.m. to 6:00 p.m.; there are two businesses, a gas station and pizza restaurant that stay open until 10:00 p.m.; and the other chain restaurants in the County are open until 11:00 p.m. He read, “the proposed will not cause a substantial reduction in value of abutting residential property”; stated when they purchased their home, they reviewed the Ordinances and Codes and zoning in surrounding neighborhoods; and they knew what types of businesses were allowed in that area and that a restaurant was available in the area, but the option for the CUP had expired. He stated there are a playground and sports fields across the street; leading intoxicated people into a primary residential neighborhood is a concern; the Board denied it in the past; and he is requesting it reject it once again.

Mr. Hagan stated they do not have liquor; they close at 11:00 p.m.; he provided a statement from their accountant certifying their food sales are 83% and beer and wine sales 17%; and they operate seven restaurants in the County. He stated this restaurant will be the 8th and the 9th will be built in Titusville; they have letters of support from schools throughout the County; they are family conscious; they have been in business 11 years and their history is 83% food; and it is not a bar by any means. He stated it sounds like Mr. Lorenzen’s concern is it is more a bar than a restaurant; it is by far a restaurant; they have 175 restaurants that operate nationally and over 100 of them are in Florida; and their figures are similar to the 83% food. Mr. Hagan stated Ryan Rusnak was concerned about the traffic impact; the road is at 90% capacity; and the restaurant traffic will fall within that.

Commissioner Carlson inquired if any other Beef O’Brady’s abut residential areas; with Mr. Hagan responding Merritt Island is next to the High School and behind that is residential; the Cocoa Beach, Cocoa, and Melbourne facilities abut residential; in Palm Bay it has a vacant lot adjacent to it; and Bayside Lakes it abuts residential. Commissioner Carlson inquired if those restaurants are right up next to residential; with Mr. Hagan responding Merritt Island is, and Melbourne has an alley and wall; Palm Bay and Bayside Lakes have separations, but they have not had issues in the past. He stated they only serve beer and win and their normal hours of operation are 11:00 a.m. to 11:00 p.m.

Commissioner Carlson inquired if Mr. Lorenzen has lived at his residence to see other restaurants that have come and gone; with Mr. Lorenzen responding no, the last business was a child daycare facility. Commissioner Carlson stated when the Board voted against it the last time, it was looking at the Diamond Zone at the same meeting and denied it; when it got to this issue, the issue was access into the neighborhood; and probably the foremost reason the Board denied it was the issues the community brought up about access and potential influence on the neighborhood from folks who had been drinking alcoholic beverages. She stated this is a slightly different angle because it is only 17% of their sales and only beer and wine, not hard liquor; she is concerned about the playground across the street and traffic issues on South Patrick Drive; and the wall issue they are willing to resolve. She inquired if Mr. Lorenzen is more concerned about folks finding their way into the neighborhood who had been drinking or the noise issues. She inquired what are his major concerns; with Mr. Lorenzen responding people entering the neighborhood, noise, and the general change in zoning allowing something there that was not there before. Commissioner Carlson stated it was three different restaurants before and the last time she looked at it, it was the Moose Lodge, which was looking for a full alcoholic license. Mr. Lorenzen stated he believes they were looking for beer and wine also. Commissioner Carlson stated it was liquor, and they would have created a bigger sale of alcohol than Beef O’Bradys; the Board voted against it the last time; she voted for it the last time because she did not think it was the same scenario; but if the Board stays consistent with its previous vote, it would be a denial. She requested comments from the other Commissioners. Mr. Lorenzen stated another item that might be a concern is the other locations seem to be in shopping centers with major anchors such as a Publix and things designed and zoned for alcohol where this is a stand-alone building abutting a residential neighborhood.

Chairman Pritchard stated it is a restaurant that serves beer and wine; he has been in Beef O’Bradys and had sodas; people do not go there to drink, they go there for food and the beverage that goes with it; so there is a big difference. He stated 17% beer and wine sales is a minimal part of the restaurant.

Mr. Hagan stated they do not have live entertainment, bands, or anything like that; and it has been a Hub’s Pub and Sullivan Steakhouse with full liquor and larger than they are proposing. He stated the roof is dilapidated; they are planning a tin roof and dormers to make it appealing; the property is in bad shape right now and they are going to clean it up; and they have no problem with the wall to help the residents who are concerned about people throwing beer bottles over it or somebody hopping the wall. Commissioner Carlson inquired if there is a six-foot wall there now; with Mr. Hagan responding it is six feet and drops down to five feet at some point; and they will bring it up to whatever height the Board says they need. Commissioner Carlson stated the property needs to be improved significantly. Mr. Hagan stated they had to put a site plan in and will have islands, take asphalt out, and make green areas; and the lean-to that is leaning into the property will be removed. He noted the improvements will raise the value of property in the area.

Commissioner Scarborough stated Mr. Lorenzen indicated the restaurant has happy hour and buckets of beer. Mr. Hagan stated they have always done that to provide inexpensive beverages; it is a family place and nothing costs over $8.00; they try and stay on the lower end of Chili’s and Applebee’s; and they have prices that point there. Commissioner Scarborough stated is there concentration on the sale of alcoholic beverages with a bucket of beer and happy hour; with Mr. Hagan responding if six guys come in, a bucket of beer is less than buying individual beers; and if it was a big come-on, they would have a higher than 17% beer and wine sales. He stated they are tin buckets with six beers in them. Commissioner Carlson stated she has never seen anyone order a bucket of beer. Mr. Hagan stated it is a sale not for one guy; they can mix and match beers; and it saves a couple of dollars versus buying two beers each while watching a football game, coming in from softball game, or whatever.

Commissioner Carlson stated even though it is a stand-alone building, it has a little plaza next to it as well; it is an older plaza; it has been multiple restaurants so the precedent has been set; and she understands the concerns of the folks who live right behind it, but she thinks there is a need to clean up the property. She stated the Board will look to Mr. Hagan to make sure they stay within the performance standards set with zoning issues and things of that nature; so she will go ahead and move it and see what she gets in terms of a vote.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item V.B.1., for a CUP for beer and wine with restaurant use only.

Mr. Enos inquired if the motion includes the eight-foot wall; with Commissioner Carlson responding yes. Ms. Bentley noted provided it is in compliance with the Code.

Chairman Pritchard called for a vote on the motion as amended to include the eight-foot wall if in compliance with the Code. Motion carried and ordered; Commissioner Colon voted nay.

Item V.B.2., (Z0505402) Linda Mueller’s request for community commercial boundary expansion and change from RU-1-7 and BU-1 to RP on 0.20 acre located on the southwest corner of Albert Avenue and Martindale Lane, was tabled to May 23, 2005 earlier in the meeting.

Item V.B.3. (Z0505501) Indialantic Beach Plaza, Inc. as Trustee (Philip F. Nohrr, Esquire)’s request for change from BU-1 to RU-2-8, removing existing CUP for alcoholic beverages (Z-7224) on 7.84 acres located on the west side of Highway A1A, north of Flug Avenue, which was recommended for approval by the P&Z Board with a Binding Development Plan limiting development to 54 townhouse units and two-story buildings.

Chairman Pritchard advised he has a lot of speaker cards and is sure everyone wants to speak; however, if they feel the person who spoke in front of them said what they would like to say, they can say they agree with that person and the Board will accept that.

Attorney Philip Nohrr, representing his client Indialantic Beach Plaza, advised they wish to rezone the property from BU-1 to RU-2-8 plus removal of a conditional use permit for alcoholic beverages; the property is a former Winn-Dixie Store on the west side of A1A; it is north of the incorporated area of Indialantic; and it is generally in a rundown condition. He stated their expert Rochelle Lawandales provided each Commissioner a memo, which he would like introduce into the record. He explained a proposed site plan of a townhouse type of product, and identified the Pizza Hut on the southeast corner and a Mobil Gas Station on the northeast corner; and stated the property immediately to the north has RU-2-10 zoning, the property immediately to the south has RU-2-15 zoning, and the property across the way has primarily RU-2-15 zoning on the east side of A1A, which is a distance away. He stated behind the property is RU-1-9, which is single-family residence to the west, developed at a density of six units per acre; and their proposed townhouse project would be developed at 6.9 units per acre, which is clearly compatible with the surrounding neighborhood. He stated the Board has pictures of what the property looks like; explained the pictures of the gas station sign and rear of the Center; and stated in order to help insure the compatibility issue, they submitted a draft of a Binding Development Plan that may also be in the Commissioners’ packages, saying they would limit the number of stories on any townhouse to two stories. He stated since that was submitted, he has been able to get a little more definition and is pleased to say the height will not exceed 28 feet in addition to the limitation of two stories; so if there are concerns about a mid-rise or high-rise, that is off the table, as it will be maximum two stories and maximum height of 28 feet. Mr. Nohrr stated the product would be a minimum of 2,000 square feet of living area each; and to help reduce the concerns of the neighbors to the west and south, they will build a six-foot high concrete block wall to provide the neighbors additional buffering, and will stucco it on both sides, and paint it. He stated there was some concern about the very westernmost part of the units; since it is a two-story building, owners have the opportunity to look down on the neighbors to the west; and they have put in the Binding Development Plan that they would make any windows on those four units a minimum of six feet high and transom-type windows on the second story, which are really not meant for viewing. He stated that will give additional protection to the extent they feel they need protection. He stated in addition to that, they will also heavily landscape and buffer with trees that will also preclude any invasion of privacy; there has been some concern as to whether or not they would be providing sidewalks; he believes the Code requires sidewalks; and they are committing to provide sidewalks on their north property line on Boskind Road. Mr. Nohrr stated the project will be a gated community and ingress and egress will be from both Boskind Road and A1A; the center was built in the early to mid-1980’s before anywhere near the requirements they have now on retention; it is basically concrete; and when they come in and redevelop, they will have to bring it up to the existing Codes. He stated the drainage issue will be significantly increased as they have to retain it on site; and environmentally it will be a much friendlier and compatible type of use than what is currently there. He stated the staff report on traffic says the existing development can generate 3,412 trips a day; the proposed development, based on 62 units, and they are proposing 54 units would generate 363 trips per day; and basically that is a 90% reduction in potential trips on A1A. He stated the Board may hear that it does not take into account some recapture; that is absolutely right; that number may come down a little bit because of recapture; however, the bottom line is the amount of traffic and trip generation will be significantly reduced. He stated the report from their consultant Rochelle Lawandales, who has testified before the Board on many occasions, concludes that residential next to residential is more compatible than commercial against residential; so by the County Code’s definitions and just by common sense, the proposed use is more compatible than what is currently there, which is a rundown center. Mr. Nohrr stated they met with the residents and tried to reach out; he wishes they were more successful, but they were not; the Board will hear from some folks as to some of the concerns they have about the rezoning request; and one of the things they have heard is they want a grocery store there. He stated his client purchased the property with the idea of getting a Publix in there; they did not purchase it until December 2004; if there is any indication or any suggestion that somehow they have run down the property, that is not true; they have only owned the property for four or five months; it was in deplorable condition before they bought it; nonetheless, they tried to get Publix and were denied. He stated they tried to get Wal-Mart and were denied; the property was developed as a Winn-Dixie; Winn-Dixie moved out and to the north about two miles; another half a mile to the west is the current Publix; and now Publix is going to move from its present location to a larger location, which precluded it from considering coming back into the center. He stated there is another shopping center that used to have a food store, an IGA perhaps; that closed and reopened and closed for the last time about three years ago; and the bottom line is there is not going to be a grocery store on the property to the extent that some of the residents wanted. He stated they wish they could provide it because that is what it was bought for and it would be more profitable; but it is not in the cards; what is there is a rundown center; and they have an excellent opportunity to clean that up. He noted there were a number of residents who filled out cards and a number of them have left; that is the good news; but they still have some; and if he could ask them to stand that may also expedite the item. He requested those in favor of the project stand; and several residents stood to show their support. Mr. Nohrr stated in the package are in excess of 40 letters from people within 500 feet of the property who support the project; there are people in the neighborhood who are opposed to it; but they do have support also in the neighborhood. He read a letter from Pastor Richard Phelps as follows: “I will be unable to attend the hearing scheduled tonight for the townhouses that Mr. Coy Clark has petitioned to build on A1A; however, I would like this letter to be accepted into the hearing speaking in support of the project. I believe that the project will remove the blight and add great value to the real estate in the area; therefore, I ask that you approve the project tonight.” Mr. Nohrr stated he has other things that were handwritten by folks who were here; he will put that in the record, not that it is overwhelming, but there is significant support; and when the Board looks at the petition that was submitted in opposition he would request it also look at the addresses as a lot of the addresses are from Rockledge, Palm Bay, Melbourne, and the mainland area and many are not within 500 feet of the property. He noted there are some within 500 feet, and he acknowledges that; but he just wanted to point that out to the Board. He stated the request meets concurrency; they believe it is clearly more compatible than its existing uses and what can go in there as BU-1 use; and it will clean up an eyesore. He stated there will be no additional height. He stated the language used in one of the notices put out by some of the residents was technically correct; they said avoid the possibility of a mid-rise or a high-rise; that is not going to happen; it is limited to two stories and limited further to 28 feet in height; so any suggestion of a mid-rise is not there. He stated it will be a gated community; there are no concurrency issues; they believe it is an improvement; and they respectfully request the Board’s approval. He requested permission to rebut at the end of the public comments. Chairman Pritchard stated Mr. Nohrr will have five minutes for rebuttal.

Commissioner Colon stated one of the concerns is since it has second floors, folks may be able to look into people’s backyards and affect their privacy that they currently have; and inquired if Mr. Nohrr’s client considered moving the building. She inquired if they would pay impact fees per unit; with Mr. Nohrr responding they will be subject to impact fees but he does not know if it is the same $4,500 or less for townhouses; but it is at least $2,800. Mr. Nohrr stated what they have done to resolve the issue of privacy invasion by the four units is put the height of the windows six feet from the floor of the second floor so that it is not the type of window one can walk by and look out from. He stated they will be transom-type windows, long narrow type of window and not made for viewing the outside and made more for light to come in; and in addition to that, they will buffer further and put trees that will be in the line of sight between the units and the wall so there will not be an invasion. He stated the restrictions they are putting on the height are less than their neighbors have; under their zoning of RU-1-9, they can go to 35 feet; his client has limited it to 28 feet; so they have limited the ability and taken away from those four units being intrusive. He noted it is only the four units on the end that could conceivably be an issue as far as looking down on other residences. Commissioner Colon stated Mr. Nohrr mentioned they only had the property since December, which is not a long time; and inquired if he has something in writing to prove that he was very diligent in trying to get a Publix or Wal-Mart or something of that sort. She stated with all due respect, those are the questions that are coming out; and she wants to be able to substantiate some of those comments. Mr. Nohrr stated he has seen that document; he was not involved with it, but has seen it briefly; Mr. Clark’s partner, Mr. Joiner, who has developed 33 Publix Stores throughout the State was brought into the development with the idea he would hopefully entice Publix to come in; they even went so far as a handshake deal to bring Publix in; but Publix had the opportunity to move across the street and build a larger store versus a smaller store in the center so it backed out and said it is not interested and is not coming. He stated Mr. Clark has all kinds of documentation on that; and he will be glad to submit it. He stated Mr. Clark is from Arkansas and grew up with the Walton family and was involved in developing the first 15 or 20 Wal-Marts in Florida; he has excellent connections with Wal-Mart; and he was told that the Wal-Mart Neighborhood Market is not a concept for the beach area, so it would not be coming. He stated a lot of effort and time went into trying to get those tenants; they will provide all that documentation to satisfy Commissioner Colon; the developer would develop retail, but there is a reason why the center has stayed vacant and has been in its current condition since the late 1980’s. He stated Mr. Clark has some documents; and inquired what particular documents would Commissioner Colon want to see. He requested Mr. Clark hand the documents to Commissioner Colon to give her some idea of the efforts that he went through to get a grocery store in the center. He noted they even have concepts they went through such as Key West Design and things of that nature. Commissioner Colon stated one item is a site plan for a Wal-Mart; and inquired if the others are proposals to Wal-Mart and Publix; with Mr. Nohrr responding they have proposals to Wal-Mart and Publix and those are all there for the record; and the rendering is a requirement by the Wal-Mart folks.

Coy Clark stated he submitted a rendering of the shopping center that he had done by his architect; both Wal-Mart and Publix required renderings of the shopping center before they would consider locating in it; and they also submitted site plans for Publix and Wal-Mart and the packages that were sent to Wal-Mart and Publix. He stated they also had a traffic study done by Sans Lassiter, but he does not have it with him. He stated the traffic study was done for Publix; they hoped to put a traffic light at A1A and Boskind Road, which was required by Publix; and he has it highlighted in the report.

Commissioner Voltz inquired, besides the two grocery stores, did they consider a Walgreen’s or CVS and a different kind of anchor store. Mr. Clark stated he lives about a half a mile from the shopping center, has been there 20 years, been in Brevard County 35 years, and developed numerous communities in the area; Mr. Joiner and he teamed up because he is a shopping center developer; he does small neighborhood shopping centers, but Mr. Joiner does large shopping centers and has done 33 Publix shopping centers, one of which is Post Commons on Wickham Road; and he would be better to answer that. He stated he believes without a grocery store the center would not exist as a small retail type of center because it would not draw the volume of people to the center that is required to survive.

Commissioner Carlson stated not far from there on South Patrick Drive they have had difficulty keeping shopping centers; one shopping center became a community center; and she thinks it was Kash N Karry or something; so it does not seem the area is providing enough traffic. Commissioner Carlson stated the Wal-Mart Store on the corner of Eau Gallie Boulevard and A1A is not a superstore; it seems like the appropriate spot to put something like that; and inquired what did Wal-Mart base its decision on. Mr. Clark stated they do not have enough population for Wal-Mart; its expression was 50% of the market is fish and the ocean and they do not shop; so they said there are not enough people there; and that is what they said when he met with Rob Walton who is Chairman of the Board. He stated they also did not think beachside was their type of clientele for a neighborhood store; but he is not sure he agrees with them. Commissioner Carlson inquired how do they define clientele; with Mr. Clark responding they felt the beach was more affluent and would be more of a Publix shopper than a Wal-Mart shopper for the grocery store.

Attorney Kim Rezanka, representing a number of residents in Ocean Park Subdivision, presented documents to the Board but not the Clerk. Commissioner Colon stated she will have copies made of the documents from Mr. Clark for her. Ms. Rezanka stated she is not sure she can rebut anything they said so she is not sure it would be that useful. She stated they are opposed to changing the existing BU-1 to RU-2-8; the existing shopping center has had vacancies since Winn-Dixie left, but they do have existing leases currently; the community still has a need for commercial uses; and perhaps Wal-Mart and Publix will not come in, but there are a lot of commercial developments along A1A, nice restaurants, specialty shops, law firms, and real estate companies; so there is a need for commercial development in the area as shown on the County’s Comprehensive Plan. She stated what they have right now is a 20-foot or 15-foot building with at least 60-foot setback from the property; the shopping center had limited hours of operation; and even when it was fully occupied, it had less adverse impacts than what they believe will happen with the residential development. She stated additionally there are health, safety, and welfare issues that must be considered by the Board; and when it looks at the factors to be considered by the Board when reviewing rezoning requests, it looks at Section 62-1151(c)(1), the character of the land use of surrounding property being considered. Ms. Rezanka stated they have one-story to the west, south, and north all on the same side of A1A; there are condos on the other side of A1A; in zoning matters, it is appropriate to consider whether proposed zoning is consistent with what is there; and what is there right now is one-story buildings. She stated Section (c)(2), refers to change in conditions of the land use of the property; and there are none because there are still existing uses; it is the last large parcel of commercial property on the beachside; everything else is being torn down; Shoppers World is being torn down; and the residents want to maintain the commercial uses. She stated maintaining existing zoning accomplishes a legitimate public purpose because of the need for commercial development. She stated page 1 of the package she gave the Board, which is its Future Land Use Map, shows the area zoned community commercial, which has the idea of being there, under the Board’s policies, to provide adequate and appropriate lands for commercial land uses; and Objective 2, Policy 2.7 says, “community commercial is intended to serve the neighborhood and regional areas and provide an array of retail personal and professional uses.” She stated they have umpteen condos going in; once the hotels reopen, they will have tons of visitors; and the Shuttle is coming back so there is going to be an increased need for commercial uses in that area. She stated under Policy 2.1.3, which she misread because she assumed it would be what was existing, the RU-1-9 was the most current property next to this potential rezoned property to Residential 15; but what is there is residential six units per acre, one-story structures. She stated residential development in community commercial is permissive, not mandatory; Section (c)(4) is the compatibility of the proposed zoning classification with existing land uses; commercial use makes good planning sense; they need a mix and there will be no mix in the area if they get rid of the shopping center. Ms. Rezanka stated page 4 is a graph from the Comprehensive Plan; it may not be there any more; and it is Appendix A, Exhibit 1 to the Future Land Use Element from December 1998. She stated if they take the vertical RU-1-9 up to the RU-2-8, they get a two, which is a possible incompatibility; it is the standard that was used by the Board for a number of years; and there is a possible incompatibility by the County’s one point Comprehensive Plan standard. Ms. Rezanka stated Section (c)(5) is where they have the greatest concern, the appropriateness of the proposed zoning classification based upon consideration of health, safety, and welfare; the Mobil Station has been there since 1957; it has been assessed as a contaminated site; their groundwater is contaminated; and looking through the reports of GWL Environmental Consultants, there are petroleum compounds that have been found. She stated the site has not been tested since 1995; and she spoke to Natural Resources Management Office and they could not find more recent reports than 1995, which showed that there had been an increase in ground contamination at the Mobil site. She stated it is a huge concern when the County considers placing 54 families on the commercial site, because when they start digging up the development site, they are going to be churning up possibly contaminated soil; they do not know what is there right now; they are going to have irrigation wells and a large retention pond; and they may contain contaminated water. She stated the soil conditions have not been tested since 1995; they do not know if that is at the Mobil Station or how extensive the contamination extends; and because of the toxic hazard possibly presented by the Station, the developer has not met his burden to show the appropriateness of residential development under Section 62-1151(c)(5). Ms. Rezanka stated they believe the zoning request is solely economically based; they knew about the hurricane damage when they bought it; they did make efforts to bring in a grocery store; but there are other things that can go there that are commercial, feasible, and makes sense. She stated the developer is not entitled to the highest and best use of the property; denial of the zoning request is not invalid because it prevents use, which is most economically advantageous; and if the Board determines it is appropriate to put residential there, the residents request a lower density category and additional conditions in RU-1-9 and RU-2-4, such as limit of height to 20 feet, which is what is there now, and a 60-foot setback from the western edge of the property. She stated additionally, the Board should define the types of trees along the western edge, how close they will be, and how tall they will be; it has required that of her clients in the past; and they have to be 12 feet in height and everything else. She stated the Board has the power to adopt zoning regulations, which preserve the character of the neighborhood; it is a mixed use neighborhood; and by approving the rezoning change, it will change the character of the neighborhood. She stated the fact that the beachside has experienced a headlong plunge into multifamily residential does not justify its continuance; and requested if those who stood up for Mr. Nohrr that were in favor of the project if they live in the area west of the development, to stand. She stated those are not the people who would be impacted; and requested the Board deny the rezoning request. She stated also in the package are the Aquifer Conservation Element and Stormwater Management Element of the Comprehensive Plan; and those are the only things that even identify hazards, waste, or protection of the water base.

Chairman Pritchard stated he has a lot of cards and does not know if everyone is still here; and requested those who are here to come down front as he calls their names.

Andrew Cameron stated he is speaking not only as a resident and constituent but as a licensed realtor as well, so he would first like to say that just like the people who are opposing Mr. Clark, at first he really did want to see the building as commercial as well. He stated there is a lot of usage for commercial; they need commercial on the beachside; however, Mr. Clark has exhausted every effort to show those people that he tried to bring in substantial stores to keep it as commercial property. Mr. Cameron stated without Publix, Wal-Mart, or a substantial anchor store, the property is going to continue to be a doormat; that is what it showed for many years; there was a Winn-Dixie in there, but that is gone; Publix is moving across the street and down the way; people are driving past Winn-Dixie to get to Publix; and it shows the power of Publix. He stated Publix would put whoever Mr. Clark would bring in out of business again, making it a doormat; they could have some bars, but that is not a good idea; and if they bring in a bunch of Joe Schmoes again, it is just going to be a doormat again. He stated there will not be any well-known grocers or commercial industries that would come in there because there are simply not enough people on the beachside to cater to their sort of business. He stated privacy issues were brought up; he realizes they will be two stories and they will be overlooking people’s backyards; but if they go another 200 feet to the east, there are six, seven, and eight-story condos that see clear to the Indian River and can see in everyone’s backyard on the beachside if they bring some binoculars; so he does not see how that is a privacy issue. Mr. Cameron stated Brevard County’s beachside property is already going up, but it is still underprice for a beachside community; the property taxes are not going to stay low; he is from the northeast and beachside property up there is twice as valuable as it is down here; and beachside property in California is twice as valuable as it is here. He stated eventually it could catch up to that and keep raising the property taxes; so if they fear property taxes now, they are just going to continue to go up so they might as well pack now. He stated the benefit of the development is it will raise property values; as a new homeowner in the area, he wants to see his property value go up and does not want to look at the back of a dormant shopping center any more; he wants to see something that is going to be beautiful and people are going to drive past and say, “look at that, I want to live there”; and that is what Mr. Clark will bring. He stated it will bring less traffic; Mr. Clark provided substantial information to prove that; it would improve the drainage and runoff as depicted by the studies; and he is a local builder and lives right behind the complex. He stated Mr. Clark has a prestigious reputation and has built places such as Baytree Golf Course and Portofino Bay; Mr. Clark’s experience and previous accomplishments leads him to believe he is only going to produce type-A quality work; and he hopes the Board sees the same thing.

Commissioner Colon inquired how far from the site does Mr. Cameron live; with Mr. Cameron responding around the corner and down the street, less than a mile.

Steve Davis stated as a local business owner and resident, he is dumbfounded by some of the objections he heard tonight; Mr. Nohrr spoke so eloquently earlier, and he hates to contradict anything he may have said, especially when he addressed the issue of shopping center spaces, grocery stores, and things like that, which are available and have been available; he currently occupies the space that was talked about a quarter of a mile south that used to be a Super Fast Food; he had that space for three and a half years; it sat empty for three years prior to his taking that space; and prior to that the grocery was owned by the owner of the plaza. He stated rather than lose money as a grocery store, he closed it down and it sat vacant for three years; he heard comments of Shoppers World and different locations that sat empty for seven years since he has been there; and someone spoke of CVS and Wal-Mart, but in that same quarter-mile radius from the shopping plaza, there is a CVS that was an Eckerds and less than a half-mile north there is a Walgreen’s, so the chances of either one of those coming into the area are nil. Mr. Davis stated there are 26 businesses in the plaza where he has his business; of the 26 businesses, he got 22 positive signatures for this development; and it is the closest plaza to the proposed development. He stated the space sat empty since 1997; there was a K-Mart next door, which was closed and demolished; the shopping center Publix is moving from is 60% vacant; so the need in the area is not for commercial space, but for families and people to support the businesses that are there now. He stated a gentleman spoke of an article in Florida TODAY, which stated that Brevard County’s home prices have increased 43%; the average home price in Brevard County was $180,000; beachside is more than two and a half times that; and they cannot support the businesses in the area because there are not enough people there. He stated they need residences and the people to live in them to keep the businesses open; he was in negotiations for space in that plaza four years ago and it was in terrible condition; due to hurricanes that have taken place since then, he imagines it is in even worse condition; there are currently three tenants in that plaza; and Blender’s Café has been opened and closed by three different owners since then and is now sitting vacant. He stated it is not that a Winn-Dixie cannot survive in there, it is that they need more families to support the businesses.

Molly Simmons stated she has lived in the area 17 years; their Attorney Rezanka provided the Board with legal arguments supporting their position; it is her job to stand before the Board and prepare it for the arguments her neighbors and she are about to present; and before she gets started, she would like to point out to the Board that those speaking, including Attorney Rezanka speak not just for a few disgruntled citizens, but for a large group. She stated some have left but she would like to ask the rest to stand and be counted for on the record; approximately 17 people have left; and requested if they could have a count. Chairman Pritchard advised Ms. Simmons to continue with her speech. Ms. Simmons stated they had previously submitted a petition with 179 signatures opposing the rezoning at the P&Z Board meeting; she has 119 more signatures for the record; and at least 80 of those signatures represent households that fall within the 500-foot radius of the property. She stated they are fully aware their petitions and opinions alone will not justify denial of the request, so they have prepared fact-based arguments to present. She stated when they went before the P&Z Board, they were ignorant of their burden to provide the facts; and they have met with each Commissioner individually to discuss their concerns although they were unable to meet with Commissioner Colon due to her busy schedule; but they did meet with her staff member Evelyn. Commissioner Colon stated she was in the hospital. Ms. Simmons stated it is their position that the property was zoned community commercial for a very important reason; and from the Comprehensive Plan they know that commercial property is necessary to provide goods and serve the needs of not just the residents in the community, but in adjacent communities as well and visitors to the area now and in the future. She stated their argument is based on fact, not emotion; one specific issue she would like to address is why they as a group have gone through all the trouble to oppose this application; they heard from many how unusual, peculiar, and even unheard of it is for a community to oppose the rezoning of a commercial piece of property to a less intense residential use; and the fact is all of them who have lived there in the past ten to twenty years have had to travel up and down A1A to buy their groceries, go to the dry cleaners, get their hair done, go to the gym, and dine out, and have experienced the increased traffic on the roads, the long lines in the stores, and the long waits in the restaurants due to the increased residential land uses. Ms. Simmons stated they also realize it is the last large commercial parcel over five acres between the Causeways; and once it is gone, there is no hope for a business such as a grocery store or large retailer in the area to provide competition and alternatives to those already available. She stated it is a fact that they pay more beachside at Publix than on the mainland; and an increase in the number of residents competing for goods and services along with the loss of needed commercial property does not serve their better health and welfare as required in the Comprehensive Plan.

Patricia Hobby stated her property directly abuts the property that is up for discussion; she has lived in the home for 17 years; and she came to tell the Board the facts regarding the property. She stated it is her backyard; in 1983 the property was developed by the owner who had a vision of the need for commercial; at that time they were told as a neighborhood it would better for their community to have a plaza, which would be occupied by Winn-Dixie; and while Winn-Dixie was a tenant, the plaza was fully occupied and well-maintained. She stated during the time it was occupied, there were issues they had as a neighborhood living behind a commercial plaza, such as the deliveries at 4:00 a.m.; but that was solved by a simple phone call to the manager of Winn-Dixie requesting he have his deliveries at 7:00 a.m. to abide by the Noise Ordinance. She stated another one was the air conditioning units; and a phone call to the owner in New York resulted in studies on the noise of air conditioning units and silencers put on the units for the residents. She stated another issue they brought to the Board when Commissioner Voltz was their Commissioner was the traffic and speeding; they requested help and the Board installed speed humps to help reduce the speeding; so in 1997 or 1998, Winn-Dixie relocated to the location Mr. Nohrr presented, but maintained its lease for five years. Ms. Hobby stated the lease did not expire until December 26, 2004; the owner of that property was unable to lease that space; so the little stores, which relied on the anchor store for foot traffic moved out; and gradually the plaza ended up in the neglected state that it is in now. She stated they as a group spoke to current and recent tenants confirming the fact that due to conflict, either legal or personal, they would not appear tonight. She stated in 2003 Mr. Clark’s management company was contracted to lease and manage the plaza; it would be difficult to attract an anchor or any new tenant in the neglected state the plaza was in; and pictures have been provided to the Board hopefully by the P&Z staff; but despite the difficulties in the condition of the property, Mr. Clark purchased it in December 2004. She stated now that he is the owner for this short period of time, he is requesting rezoning from commercial to RU-2-8, low density multifamily that will permanently change the character of the neighborhood directly affected. She stated the zoning that is there now is consistent with the character of the west side of A1A from Sixth Avenue to Palmetto Avenue in Indialantic, which is a 1.6 mile area; the west side of A1A is all commercial; and changing the zoning from commercial to residential will change the open space currently there from approximately 75 feet to 25 feet for all the residences located behind the property. She stated currently they have a 23-foot high building approximately 70 feet away from the existing wall; they are not sure if that wall will be staying; and there were some gray areas about the project even after they met with Mr. Clark. Ms. Hobby stated if the rezoning is approved, the structures will be 30 to 35 feet tall with 25-foot setbacks; and they feel the zoning he is requesting will affect the quality of life for those living directly behind the proposed development. She stated they attended a meeting with Mr. Clark this past Saturday; he invited them to hear the neighborhood concerns; at the meeting they informed Mr. Clark that commercial was their first choice; and he informed them that commercial was not an option. She stated with that she asked him why he chose RU-2-8 low density multifamily, and asked if he would consider single-family one-story residential RU-1-9, which they feel would fit the character of the area and be compatible with the neighborhood that would be affected the most and that has been there since 1955; and his answer was no, because he would lose money. She stated as a neighborhood, they came to the meeting willing to compromise and accept single-family height restricted residential community but were told he would not consider anything but RU-2-8; so with all the facts that she has given the Board, she concludes by asking it to adhere to the Comprehensive Plan that states it should take all the facts into account when looking at how the health and welfare of her, her family, her neighbors, and the whole beachside community will improve with this rezoning request.

Ruth Wallen stated they live directly behind the old Winn-Dixie and brought pictures to show the Board what they propose; she and her husband have been on the beachside for over 50 years; they cannot believe what is happening; it is uncontrolled growth; and if Commissioners would take a drive from Ocean Avenue to Eau Gallie Causeway and look at what has happened, they would notice they started on the east side and now they want to start on the west side. She stated the development is not compatible with their neighborhood; some of the figures of speakers for Mr. Nohrr were not accurate as far as distance; but there are too many things that have already been said that do not need to be said again. She stated it is really going to change their lives drastically.

Commissioner Colon stated a gentleman just gave her the pictures showing what a one-story would look like and how it would affect their backyard, and then the two-story; so the Board can see the difference of how it would affect them. Chairman Pritchard inquired what backyard is it, and is it the backyard of the shopping center; with someone from the audience responding yes. Ms. Wallen stated the property has been neglected for years; nothing has changed; now it is strictly for money; it is all about money; and she does not think they have actively tried to occupy that shopping center. She stated things on the beach have changed in the last eight months.

Dr. Regina Kaufmann stated she lives one-half mile due west of the property; she has lived beachside since 1991 and has worked as a physician in the area for 14 years; and even though Attorney Rezanka has given her legal arguments, she wants the Board to understand that as lay people, they as a group do understand the difference between emotional pleas and facts and substance of arguments on the interpretation of the Comprehensive Plan. She stated she has done some research and knows the Board probably is familiar with it; she has shared with her colleagues and neighbors how the Florida Supreme Court in Brevard County versus Snyder in 1993 stated it is the Board’s burden; so they are here to try and help it to fulfill that burden. Dr. Kaufmann stated they are trying to give the Board the argument that demonstrates that maintaining the existing classification with respect to the property accomplishes a legitimate public purpose. She stated the Board, or the residents in this case, have the burden of showing that the refusal to rezone the property is not arbitrary, discriminatory, or unreasonable; they know if the Board carries the burden, or they in this case, the application should be denied; so their goal is to provide the Board with the legitimate public purpose argument. She stated the Board hears others, their attorney has done a lot, and she does not want to repeat everything since it is so late; but they also understand that the court has, and the Board will listen to lay testimony if it is fact-based in its consideration, so she has the facts. She stated within the rezoning worksheet that was put together when she reviewed the record for the Planning and Zoning hearing, the comment was typed in “yes” of whether existing zoning could be considered under the Future Land Use designation; in other words, they know the current zoning has already been found to be consistent with land use regulations; so according to the Comprehensive Plan there does exist a legitimate purpose for the property. She stated in fact, the Board can quote from the Comprehensive Plan Future Land Use section, which Attorney Rezanka has done, that the County is to allow for adequate and appropriate land for the location of commercial land uses to serve the needs of projected residents and visitors to this County and to this area. Dr. Kaufmann stated that brings her to the second fact they already alluded to; it is the last large parcel between Eau Gallie Boulevard and north of Ocean Avenue that is zoned commercial; in all due respect to those who spoke before her in support, they are commercial people who deal with commercial properties and commercial businesses so the limitation of more spaces would limit competition; and that brings her to the Comprehensive Plan Future Land Use designation Policy 2.7, which states, “Community commercial development activities are intended to serve several neighborhoods and provide an array of retail, personal, and professional uses.” She stated the list provided within the Comprehensive Plan is extensive and includes existing strip commercial, non-retail commercial, and very importantly, institutional and recreational uses; she is arguing that once the property is rezoned residential, the Board will eliminate permanently any potential to consolidate retail services or to offer any competition to the existing large grocers; and Florida is not necessarily only going to have Winn-Dixie or Wal-Mart in the future. She stated there could be other people coming in besides those companies; but they will never have a plot to put their business on if the Board eliminates it. She stated she would support this position even further by citing the strip commercial development Policy 2.15 of the Future Land Use Element of the Comprehensive Plan, which says that the “creation of strip pattern of commercial development shall be discouraged. Infill within established strip commercial areas preferred.” She stated by removing this large parcel, the Board encourages the continued presence of small strips on the one to three-acre parcels along A1A; and it removes the possibility of an innovative developer who could design and build an attractive L-shaped center that would bring in those businesses that are currently occupying all of the commercial spaces along A1A. She stated the purchase of the property could have been contingent on successful rezoning; Mr. Clark is a savvy developer who put the cart before the horse in purchasing it; and now he is telling them he cannot fill it, and needs to get it rezoned to multifamily. She stated it is all attached to the ability and the possibility that there may be other commercial uses for the land in the future; she wanted to bring and hoped to present a local commercial real estate expert to speak with the Board regarding the needs and potentials for alternative commercial uses for the property; however, after speaking with five different well-respected professionals in the field, and explaining her request to them, they all politely declined to appear. Dr. Kaufmann stated as a professional she understands conflicts of interest and professional courtesy; she hopes the Board takes that into consideration as to why she cannot bring in an expert to support what she is about to tell the Board; but they did help her when she asked questions and off the record they stated things that she knows in a legal court may be hearsay. She stated she found out there is not a high vacancy rate; the occupancy is well established; Lowe’s is going into Shoppers World; and that was told to her by a professional commercial developer in the area. She stated she was told also by a commercial real estate agent that the current rents range from $12 to $13 a square foot on A1A and up to $20 and $30 a square foot on Eau Gallie Boulevard and U.S. 192; and Holiday Inn and Hilton Hotels along with Melbourne Suites time-share hotel, which are being renovated, are not even open for business yet. She stated there are multiple four to six-story condominiums; she can list five that either recently finished, are under construction, or are proposed along with 14 single-story duplexes going in across from the Holiday Inn; and she found out today from another commercial developer that there is a plan to tear down the plaza behind Ichabod’s and make that duplexes and residential. Dr. Kaufmann stated she has one more minute. Chairman Pritchard stated she does not tell him how much time she has, he will ask her how much time she needs. Dr. Kaufmann stated she was trying to let the Chairman know that is what she would take and wanted to say could she have it please. Chairman Pritchard checked with the Commissioners and no objection was heard. Dr. Kaufmann stated even though the current owners may have had difficulty finding renters, she is arguing that the already high-density residential land uses in place warrant a preservation of commercial zoning. She stated she wants to address a discussion she had with Mr. Clark’s partner, Mr. Joiner, at the meeting she attended; after explaining why they feel so strongly about this issue, and that they are over-populated in their living space, why he is bringing in higher prices for goods and services, and ultimately turning their community into those of South Florida; and Mr. Joiner, who is a commercial property developer and expert in that area, as Mr. Nohrr has stated, responded that he lives in South Florida, and said, “Melbourne will be there in ten or so years.” She stated she asked him why Vero Beach has been able to successfully maintain its quality of life on the beachside; and his answer was zoning; so in summary, the Board can see why they feel that this is so important; she understands there are ways to interpret the Comprehensive Plan; and they are asking the Board to understand their position, consider it, and hopefully agree.

Tacy Daniel stated she is a property owner within 500 feet of the subject shopping center; she has been a Brevard County resident for 33 years; and she has been a property owner on Shannon Avenue for 24 years. She stated a lot of what she had to say has already been said; in addition to some of the things that Dr. Kaufmann said with respect to residential properties, she did a count on new properties within the last year; and they are looking at something like 75 new residential units in the immediate area that are completed, including the new Claridge Condominiums and another eight units across the street. She stated two hotels, one of which is in the County and one in the Town of Indialantic have been leveled and will be permanent residential units and no longer hotels. She stated the articles she gave the Board talk about the future of the plaza as uncertain, the plaza having been sold in December; in January the new owners were running the existing tenants out and trying to exercise a clause in their lease to terminate it; and in the same breath Mr. Joiner was quoted as saying commercial development is leaving the island and Indialantic Plaza may end up being a great commercial site. Ms. Daniel stated Mr. Joiner was also quoted as saying the building is not sustainable and is an eyesore; she does not think anyone in the neighborhood or anyone who is opposed to the development wants the Plaza to stay as it is; it has not been maintained; and at the P&Z meeting she chastised them about where is Code Enforcement. She stated they go into neighborhoods and have an obligation to enforce the Codes; and she was interested in some of the earlier discussions on some of the new Ordinance changes that will place a burden on the County to enforce those as well. She stated she talked with Bob Kempf; Mr. Kempf is the owner of the Mobil Station; he was traveling today but sent a letter to Commissioner Colon’s office, which she was not able to get a copy of; but he is also opposed. She stated as a business owner there Mr. Kempf has concerns on what the proposed wall will do to this business; and he is concerned about the drainage and a lot of issues, so he is against it. She stated they have been told that they had great efforts to lease the property; but at the same time, they were getting information that there were people who wanted to move into the plaza and they could not manage to get it done. She stated Tim Philips, who owns Big Island Burrito, which is located just a little south of the Winn-Dixie Plaza, said he had a letter of intent and was going to give her a copy but he could not locate it; he said last year he tried to move in and was put off, so he finally located across from Long Doggers where he is now; and one of the reason he said he could not find the letter is that he was expanding and is actually moving into the Path Shopping Center, so there are businesses available. She stated there is a need for businesses; she is concerned about the lack of opportunities for entrepreneurs; Matt’s Tropical Grill started in the Winn-Dixie Plaza and has done very well; and he suffered a little bit from the hurricanes, but she is sure he will be back. She stated another article she gave the Board is from April 18; it says, “beachside businesses booming”; and there are the new Starbucks, Coldstone Creamery, and the Crispers on the Causeway. She stated they are renovating the old ABC structure that has been abandoned and are very positive about opportunities. She stated the last article is about Publix moving; the article went on to say there are a number of businesses in that plaza that are being displaced by Publix; so they will need somewhere to move to. She stated she was hoping some day the plaza would be there and her first grader would have an opportunity for his first job.

Ralph Manning stated he lives within 500 feet of the proposed development by Coy Clark and his partner; he supposes the Board knows about the aerial view; and inquired if it noticed something missing. He stated he started counting all the white things and believes they are sidewalks to the residences; they do not really show where all the cars go or where they park or how many there are going to be; and basically it is boiling down to multifamily residences. He stated their residences where they live in Ocean Park are single-family residences that go back in the 1950’s; the density is 1.6 houses to the acre or something like that; now they are getting a multifamily going in; and they do not need any more multifamily on the beach. He stated the big picture is what everybody is missing; 1995 does not sound that long ago; and inquired what were people doing in 1995. He stated once the property is zoned residential, they will never ever have their commercial space that will be needed in the future; and inquired what makes the Board think that in the future they will not need commercial space. Mr. Manning stated everybody is worried about the grocery store; and inquired who cares about a grocery store; he cares about a grocery store, but it is really not going to change what is going to happen in the future; the future is going to warrant more commercial space; and this is one of the largest parcels left. He stated if they take it away, as the future comes with a more densely populated area there will not be adequate commercial sites. He stated today he was interested in finding something in the newspaper; when he opened the newspaper, there was a brochure on how to get in touch with the different parts of government, community, and points of interest that the public might need; and one of them was the Board of County Commissioners. He stated printed on it was the Board’s vision; and he would like to read a couple of things from it. He stated it is the Board’s vision not his; he did not produce it; he would imagine the Board had something to do with it or a spokesperson of the Board; and it said, “providing for the health, safety, education, and social needs of our community. Protecting the environment and conserving our valuable natural resources. Building a diverse strong economic base with needed infrastructure to support quality lifestyle. Creating cooperative partnerships between government, businesses, community organizations, and/or residents.” Mr. Manning stated he did not do it; it is the Board’s vision; he would imagine Mr. Clark is a very intelligent man; he purchased a piece of commercial property that he knew was zoned commercial; it is evident; and he would imagine the man also looked at the property before he bought it, knowing the condition. He stated he is surprised to find out this evening that it has not been that long since he purchased it, not to mention what he found out from Mr. Nohrr, that his partner is supposedly a specialist in building commercial sites. He stated now they come across a roadblock; he does not see the advantage for any of the residents; he has no idea what advantage it will be for them; but preserving the commercial site might be advantageous.

Terence Cowart stated he has been a resident of the neighborhood for over 20 years and has seen it grow; he cannot imagine not having commercial property around the corner; and they do not need any more multifamily developments. He stated they say there will not be any more traffic, but the traffic that will be there will be more; they will not go down A1A to get to the Causeway; and they will go down Riviera through two school zones in a residential neighborhood. He stated he does not find that very appealing; he believes the condition of the property was intentional for one purpose and that was this project. He stated he believes the trustee and the property owners, if they had wanted to, could have improved the property and enticed the businesses to come in and make it a go, but they did not want it; they wanted the multifamily; and he does not believe that it is necessary. He stated he would be upset if it went through; those are is concerns; and he feels they are valid.

Russell Hobby stated he lives directly behind the shopping center; he is with all his neighbors who have appeared before the Board and spoke; and he does oppose building of the multifamily project.

Joy Campbell stated she is confused about a couple of things Mr. Clark mentioned; he has managed the property for over ten years and yet he describes it as severely rundown; and inquired if she heard that correctly; with Chairman Pritchard responding no. Ms. Campbell stated he has owned it since December but he was the manager for two years and it is severely rundown. She stated he has exhausted every avenue, yet he only mentioned Wal-Mart and Publix; and there is a Wal-Mart two miles north of the shopping center. She stated the realtor mentioned something about taxes going up as far as the houses, and if they cannot afford to live there, then they should move to the mainland; and she is just amazed that it has happened in the world today, the greed that is around, and that the American dream is only for the rich. She stated her father bought the house that is behind them over 30 years ago and retired with 37 years with BellSouth; and he deserves to stay there and should not be run out because of taxes. She stated the gentleman asked the shopping center people and 22 apparently opposed it; another shopping center would be competition; and he also mentioned more housing. She stated others said if one drives up and down A1A, there are condos, townhomes, and subdivisions going in everywhere; she grew up directly behind the Winn-Dixie Plaza; and since she has lived there she is not aware of any parks that were ever added for their children. She stated she remembers land being taken away from her for Winn-Dixie; now there is nothing; Indialantic Elementary and Hoover Middle School are becoming overpopulated; and she has a friend who works for Indialantic Elementary as a teacher who said they just renovated the school and she will be in a portable within two years; so she does not see how they can fit more people on the beach.

Mr. Nohrr stated he will try to respond to some of the specific comments that were made and wrap it up. He stated when the shopping center was acquired, they did a Phase II study; it came back clean; so the Mobil Gas Station is not an environmental concern; he stated the Phase II study does more than investigate surrounding usage; they go in and dig through the soil and see if there are any pollutants; and he cannot vouch for what is going on at the Mobil Station, but their property is clean. He stated the shopping center is just a sea of asphalt; they are going in and redeveloping it to the current standards with all the different retention and catch basins; so if there is a concern about pollutants, one of the best ways to do something about it is for them to go in and develop the property. He stated someone asked about the height of trees; they will put in heavy vegetation; the height of the trees will be at 15 to 20 feet; and those are the trees they will commit to putting in. He stated Sans Lassiter has done a traffic study, which goes along with the issue of whether or not they tried to get Publix; and presented copies to the Board but not the Clerk. He stated Mr. Lassiter, in using the ITE Trip Generation Manual, which is what they all rely upon, was looking at the redevelopment of the site as a 70,000 square-foot center with a Publix; the total trips from Publix were 5,402; what he said earlier was 3,600 trips; so if they are serious here about saying there is too much traffic and too much congestion on the beachside, they are going to put a halt to it; but what the opposition is doing is trying to keep it alive to ultimately produce more traffic, which will degrade the lifestyle they are seeking to protect. Mr. Nohrr stated the beachside, for all practical purposes, is built out; there are not going to be any more large-scale developments on the beachside; so the hordes are not going to come in; and the only way they are going to get more bodies in is through redevelopment. He stated the folks who spoke are well-meaning; their properties that abut the subject property are mostly single-story; there are some two-story homes; but when the time comes for them to sell or develop their parcels, they have the absolute right to go up to two stories and 35 feet. Mr. Nohrr stated the property to the north is RU-2-10; the property to the south is RU-2-15; so it is not all commercial; there is a mixture; and when those come in for redevelopment, they have the right to go to 35 feet, so they are not doing anything as far as bringing in a different category of height, and as a matter of fact are willing to limit it. He stated they are willing to put in a Binding Development Plan that they will not go over 28 feet, which will be far better than what their neighbors have the potential to do. He stated as far as setbacks, if it is kept as a shopping center, whoever the eventual developers are can go to within 15 feet; those are the Board’s setbacks; they are talking substantially greater than that; and the wall will be stuccoed and maintained on both sides. He stated the picture Chairman Pritchard held up is the property to the south; it is a duplex complex that is developed at 12 units an acre; they are talking about six or 6.9 units per acre; and ultimately if it could be developed as a commercial center economically, they would not be here and it would be a commercial center. He stated if the Board wants to get into the economics, he could have Mr. Clark respond; and there is a lot more money in a commercial shopping center than there is on the townhouse development. He stated as for vanishing lands; the shopping center to the south is three acres of vacant commercially-zoned property; there are three acres sitting there waiting to be developed; but they are not being developed because there is no demand. He stated they know a little bit about Long Island Burritos; it did not come into the shopping center not because the owner was frightened away; but because the rent was a lot cheaper in the other shopping center in the Path Food store. He stated he could talk about the square footage price but does not think it would be fair to the gentleman. He stated currently there is illegal activity going on there; they have homeless people in there; it is a bad situation; and those folks spent a lot of money boarding it up to try and run the homeless out because they do not belong there. He stated they can talk about the Comprehensive Plan all day long, but common sense will say residential by residential is going to be more compatible than commercial by residential; if they get what they want, they do not know what they will be getting; and they know what they had in the past was a Winn-Dixie, which could not make it there and ran at the first chance it got to move up to an intersection where those types of developments should be. He stated there is a CUP for alcohol there; when one looks at the permitted uses in BU-1 and the setbacks, commercial is not compatible with their way of life; and he respectfully submits it is contrary to what they all know as good planning. He requested a favorable vote on the application.

Commissioner Colon stated when she first looked at the project, it looked wonderful, but there is a lot of history and testimony that has been given today. She stated a lot of businesses were hit by the hurricanes on the beachside, but there are a lot of new ones coming in and a lot of restaurants; there is a shopping center on A1A where there is a movie theater, boutiques, and all those things; and she cannot confirm the history of that shopping center, but there has been previous management that allowed it to deteriorate to the condition that it is in right now, which is not good. She stated it does not say a lot about the management of that shopping center if that is the case, based on what they told her; and Mr. Nohrr confirmed that himself; so that is not good. She stated she always says at zoning meetings that it is not her job to make anybody money; they need to get that straight; in this case, the attorney said he would make more money if it was commercial; so it is her job to make him more money in this case because if it stays commercial obviously it will be more beneficial; and it is between the two Causeways. Commissioner Colon stated it looks really positive at first look; right now the area looks almost blighted and empty; but the trend on beachside is a positive trend where responsible developers are not just focusing on anchor stores such as Publix, Winn-Dixie, Wal-Mart, etc. She stated she does not want them to tell her they are going after them and not show her proof; today they have shown proof; but the Board needs to step back and really look at the entire picture, not just this neighborhood, and look at the whole. She stated the Board has always been very careful to make sure it protects the integrity of neighborhoods; she asked Mr. Nohrr to go back and meet with the residents; hopefully there would be a way of compromising; and she told them not to come before the Board if it is not clean and if there are no compromises. She stated she does not think at this point, after hearing all the testimony, that it is worth bringing the two parties together again to try and see if they can come to some kind of compromise; and having heard the testimony given today, she has no intentions of supporting the project. She stated she was hoping they would be able to sit down, speak to the residents, find out their concerns about a second story, and go ahead and do one story, less units or whatever the case may be; but by the information that has been given to her today, she feels comfortable not supporting this project. She noted that was not the case at first; when she first looked at it, it looked pretty good and it would help the integrity of the community; but once she started digging a little more, then she realized what they were really doing; and that is how she feels and that will be her motion.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to deny Item V.B.3.

Commissioner Scarborough stated he met with Mr. Nohrr and Mr. Clark, then with the residents; he told them they have some residential coming in; and sometimes the most impressive thing is when the people who stayed this late, are they seeing something that he did not see. He stated there was a Winn-Dixie Store there; sometimes when they move a store they continue to pay the rent because they do not want somebody to move into the store because the historic customers keep going there; he does not know if that is the case here; and there are some dynamics into leasing, particularly larger companies, but that may not be an issue. He stated development is going to go on in the beach areas because Brevard County is very unique; it is going to create a commercial need there; Mr. Clark owns the property now and perhaps can move it; and inquired if the community loses commercial capacity, what would that mean. He stated it would mean the people from the beaches would pay more for their food and things because they would have to go to the mainland; if they go to the mainland, that means they are crowding the roads on the Causeways and the roads going to the mainland; and he does not think that serves the transportation needs, and the ability to service the beach community correctly. He stated it was not an easy one for him, but Commissioner Colon knows what she is saying.

Commissioner Carlson stated she also met with Mr. Clark, Mr. Nohrr, and the residents; she suggested to the residents to look at it from a factual basis and try to present something based on facts; and that seems to be where the residents get more clout than if they just come up and complain that they do not want whatever it is in their backyard. Commissioner Carlson stated they did a reasonable job in that regard; her issue is mixed use and the future of the beachside; looking at the properties in the vicinity, it looks like it is built out; she does not know if it is but knows the applicant said there were three acres a little ways south that were ready for commercial but commercial has not come because there has not been a market; and she thinks the developer could work harder in getting businesses. She stated the whole idea of mixed use has been discussed before; it was put in the Code because the Board wanted mixed use; where people are is where commercial uses need to be; and moving this into multifamily not only is incompatible with the surrounding area even though it looked good at first glance, but there is other multifamily in the area and it seems the Board wants to retain commercial for the future because it does not know what the future is. She stated it is curious that someone could make a comment that Fort Lauderdale is coming because that is what they have been saying they do not want and it is almost built out; Brevard County does not have the density that Fort Lauderdale has in its beach areas nor will it have it in the future; and the Board needs to look at how the Comprehensive Plan was laid out originally, to have some commercial uses, neighborhood commercial, and community commercial; and wiping out part of that is probably going to be a detriment to the community, so she would go with the motion.

Chairman Pritchard stated when he raised the argument a couple of years ago when Commissioner Higgs was on the Board about having commercial development in the South Beaches, everyone had the argument they do not want commercial development down in the South Beaches; so it was the argument that was on the opposite side. He stated it is a dilemma; he met with Mr. Clark, Mr. Nohrr, and some of the neighbors; and he said to the neighbors, “Are you nuts? You are telling me you’d rather have 4,000 trips per day instead of 340?”; and they said they would rather have something commercial. He stated he told them they would not get a Publix, Winn-Dixie, or Wal-Mart; they are marketing giants and do what their marketing directors tell them to do; a neighborhood is not going to say they want them to build a Publix there; and inquired does that mean they are not going to get something else. He stated he does not know because he is not a marketing director; the cost of food will be more if it is something smaller; that is generally the way it goes; and they pay more for a loaf of bread at a mini-mart than they would at the bigger store because the bigger stores buy in bulk and pay less. He stated that does not mean they will all run to the mainland because they have Publix and whatever on the Causeway. He stated the question of highest and best use of the property is a real dilemma because the neighborhood does not want the project; the neighborhood says that it wants something commercial; and he questions why the neighborhood wants to have something with 4,000 trips per day, or if it is a Publix at 5,400 trips per day. He stated that is what they expect in order to be a viable operation; and the neighborhood is saying give it 5,400 trips per day, it wants it; and he wonders why does it want that kind of trips per day.

Commissioner Carlson stated part of the dilemma is that maybe the citizens are looking for something a little more creative than just trying to turn it into a profit.

Chairman Pritchard stated they want 4,000 trips per day; he wonders why they want that; there has to be a reason; it does not make a whole lot of sense to him, but they apparently want that; so he will support the motion also. He stated it is not going anywhere so it does not make any sense to him why the neighborhood wants to have a commercial center there instead of 54-unit townhouse community with 4,000 trips per day; but the people have spoken, so he will support the motion.

Commissioner Colon stated when Chairman Pritchard’s constituents come to see her, she is very respectful and does not call them nuts, so just for the record, she did not appreciate him calling her constituents nutty. Chairman Pritchard stated he did not say they were nuts; he asked are they nuts; and that was in more of the generic term because it was going from 400 trips to 4,000 trips a day.

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

Item V.B.4. (Z0505502) Nieman Investments Company, LLC, Carolyn J. Clark, as Trustee, Platinum Investments of Brevard, Inc., Thomas Downs and Downs Investment properties, Inc. (Philip F. Nohrr, Esquire)’s request for change from RU-2-15 and BU-1-A to all RU-2-15 with removal of the existing Binding Development Plan (Z-10925) on 2.52 acres located on the east side of Highway A1A, north of Watson Avenue, which was recommended for approval by the P&Z Board.

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

Item V.B.5. (Z0505101) Michael D. and Laura K. Cummings’ request for change from GU to AU on 1.2 acres located on the south side of Genoa Street, west of Grissom Parkway, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item V.B.5. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item V.B.6. Removed.

Item V.B.7. Removed.

Item V.B.8. (Z0505104) Real Estate Investment Depot, LLC (William Mayo Stinson, Manager/Member)’s request for change from AU to RU-1-11 on 7.68 acres located on the north side of Main Street, west of Hammock Road, which was recommended for denial by the P&Z Board.

Item V.B.8. was tabled to August 4, 2005 earlier in the meeting.

Item V.B.9. (Z0505105) Pytha Development, LLC (Danny A. Hatoum, Manager)’s request for change from AU to RU-2-10 with Binding Development Plan limiting development to 96 units on 11.2 acres located west of Carpenter Road at the northeast terminus of Birdie Eagle Avenue, which was recommended for approval by the P&Z Board with a Binding Development Plan limiting development to 72 units as amended by the applicant.

Attorney Jim Fallace, representing the applicant, advised he has been involved in the preparation of a Binding Development Plan and thinks they have come to an agreement on that; it was submitted to Assistant County Attorney Eden Bentley and Zoning Manager Rick Enos; and they agreed, even though the proposed rezoning would allow 106 units, to limit development to 72 units and to split the units along the Future Land Use designation north and south lines, limiting the amount of units to 36 on the north and 36 on the south. He stated Doug Robertson is an expert in his field and has a great deal of information; there are a number of people here to speak; he has letters that exceed ten in support of the application; and the Planning and Zoning Board unanimously approved it. He stated there were no speakers in opposition at the P&Z Board meeting; there was some concern brought up about traffic so they had a traffic study done; and Mr. Robertson will review that for the Board. He stated County staff indicated it is compatible with the Comprehensive Plan and Future Land Use Element; and requested approval of the rezoning.

Doug Robertson of Robertson & Associates, stated he hopes the brochure got in the Commissioners’ packages because he will be referencing some of the tabs to make it quicker. He stated the property is located approximately one-half mile south of SR 46 and one-third mile west of Carpenter Road; and it is a 12-acre parcel located within Sherwood Golf Course. He stated the site is surrounded on three sides by fairways and on the north by a conservation area, so it is well buffered from any surrounding uses; and there is a one-story house on the site, which will remain as part of the project. He stated the property is almost evenly divided on the north and south on the Future Land Use Map; it indicates that the north portion of the property is designated Residential 4, which is four units per acre; and the south portion is designated Residential 15, which is 15 units per acre. Mr. Robertson stated the existing zoning is AU; and since the Future Land Use Map indicates higher densities are warranted in the area, and since AU designation perhaps is not appropriate for the location, their request is to rezone the property from its current classification to RU-2-10. He stated the second part of the request is to enter into a Binding Development Plan that would limit the number of units on the property to 72; that is 34 units less than what the Future Land Use Map indicates is appropriate, which would be 106 units; the application may have reflected 96 units; but based on meetings with surrounding property owners and Homeowners Association, it was reduced to 72. He stated it is only six units per acre overall, so it is not a high density classification; the project will consist of 72 golf course frontage condominium units ranging from 900 to 2,100 square feet of living space; and staff’s report indicates the project is consistent with the Comprehensive Plan, is compatible with surrounding areas, and does not exceed any determined levels of service. He stated the P&Z Board supported the request; there was no opposition; and the Board received copies of perhaps ten letters.

Commissioner Scarborough stated he received 19 letters and about 30 phone calls. Mr. Robertson stated they met with Commissioner Scarborough but did not discuss traffic because it was not an issue; as he read the letters, the majority of the objections cited traffic generation as their important issue; they also have several letters in support; and traffic was mentioned as being a non-issue. He stated they have it on both sides, but more specifically from a competent evidence standpoint, they have submitted a traffic report that was done by Traffic Planning and Design, a competent reputable traffic engineering firm. Commissioner Scarborough stated he does not want to belabor the issue, but Bob Brenneman, Vice President of the Sherwood Homeowners Association is here; he met with Doug Robertson and the applicant but did not know the problems at that time; and since then everything has gone wild. He stated this is an opportunity for Mr. Brenneman to call a meeting with staff, the community, and the developer because it is a divided situation as he has more in opposition by some magnitude. He inquired if Mr. Brenneman would undertake that task; with Mr. Brenneman responding yes; and he does not know how the traffic thing got blown up. Commissioner Scarborough stated it is best for him to assume he does not know until he does know; unfortunately it came up so rapidly that he has not had a chance to find answers; so if it is acceptable to everybody, he will table the item so they can meet. He inquired if they could meet at the Country Club; with Mr. Brenneman responding the dining room has not been repaired since the hurricanes; and the last time they met was at the Catholic Church on Holder Road, which they probably could get again. Commissioner Scarborough requested Mr. Brenneman try to do that to get near the community and get staff up there to go through all the things. Mr. Brenneman inquired if he will not be able to say anything; with Commissioner Scarborough responding he can, but the item will be tabled because he has a whole stack of letters he has not been able to get to yet and he cannot ignore what people are saying.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to continue the public hearing on Item V.B.9. to the August 4, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item V.B.10. (Z0505106) Foster M. (II) and Susan S. Lytle (Joel Wells and Lee Blair)’s request for change from AU to RR-1 on 2.50? acres located on the south side of Grantline Road, east of U.S. 1., which was recommended for approval by the P&Z Board.

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

Item V.B.11. (Z0505201) Donald W. Renfroe, Jr. (Donald W. Renfroe, Sr.)’s request for change from GU to SR on 0.64 acre located on the west side of North Range Road, south of S. Stratford Drive, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item V.B.11. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item V.B.12. (Z0505202) Howard J. K. Fichtl (Yane Zana, Management Member, Carlyle Development of Crescent Beach, LLC)’s request for change from TU-1 to RU-2-15 on 0.67 acre located on the east side of Highway A1A, south of Crescent Beach Drive, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to approve Item V.B.12. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item V.B.13. (Z0505301) Sea Grape Manor Associates, LLC (Robert L. Beals, Esquire)’s request for change from TU-1(6) to RU-1-9 with Binding Development Plan limiting development to three residential units on 1.61 acres located on the east side of Highway A1A, north of Turtle Bay Place, which was recommended for approval by the P&Z Board with a Binding Development Plan limiting development to three residential units.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to approve Item V.B.13. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item V.B.14. (Z0505302) Brevard County Board of County Commissioners, on its own motion, in regular session on February 22, 2005, authorized initiating a Small Scale Plan Amendment (05S.4) and an administrative rezoning on property owned by Grant Volunteer Fire Department of Brevard County, Inc., from Residential 4 to Community Commercial; and GML(I) to BU-1 on 0.94 acre located on the southeast corner of First Street and Old Dixie Highway, which was recommended for approval as Community Commercial by the LPA and BU-1 by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to approve Item V.B.14. as recommended by the LPA and P&Z Board, 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 Fourth Small Scale Plan Amendment of 2005 (05S.4) 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 XVI(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. (See page for Ordinance No. 05-24.)

(See pages for Zoning Resolutions.)

PUBLIC HEARING, RE: ADMINISTRATIVE REZONINGS

Chairman Pritchard advised Item V.E.1., administrative rezoning of 5.33 acres owned by Happy Landings Homes, Inc. in Section 19, Township 26, Range 37, was tabled to August 4, 2005 earlier in the meeting.

PUBLIC HEARING, RE: ORDINANCE AMENDING CAPTIVE WILDLIFE ZONING
REGULATIONS

Chairman Pritchard called for the public hearing to consider an ordinance amending captive wildlife zoning regulations.

Dr. Thomas Blue of Satellite Beach, representing Thunderhawk Big Cat Rescue, stated he is a practicing dentist in West Melbourne and has been for 23 years; and he would like to move for a continuance of this matter so they may have the opportunity to retain counsel and obtain expert testimony on the subject. He stated he understands wildlife regulation is the exclusive jurisdiction of the State’s Fish and Game Commission; they did not realize this was coming to a final vote this evening; their attorney just returned to town; and they do not have the funds for another attorney as their attorney works pro bono for the organization. He stated very few people in the wildlife rehabilitation community knew about this sweeping legislation the Board is about to pass; he has been practicing dentistry in Brevard County since he graduated from the University of Florida in 1983; his wife and he are both dentists; and they volunteer with Thunderhawk Enterprises and are also on the board of directors. He stated Thunderhawk Enterprises is a sanctuary for endangered animals and a Native American operated charity with 501(c)(3) status; the organization does excellent conservation and public education work and is out every weekend providing educational programs to the public. He stated they reach thousands of people per weekend and since their inception in 1996, have reached hundreds of thousands of Florida residents and tourists. He stated the founder of the organization, Ray Thunderhawk, is uniquely suited to lead this sanctuary; and in addition to having been the head curator at theme parks for many years, his animal experience spans some 35 years. He stated they are regulated by the U.S. Department of Agriculture and the Florida Fish and Game Commission; the organization is highly regarded by both agencies; and animals are placed in their sanctuary by individuals, humane societies across the United States, and the U.S. Fish and Wildlife Service, which participated directly in many of their educational programs. He stated the State has honored the organization and thought highly enough of it to place confiscated illegally imported animals and contraband with them to care for and educate the public of the United States. He stated they are frequently a refuge of last resort for the animals; and their organization was named and was instrumental in obtaining the declawing ban law on the great cats that passed the California Legislature and was endorsed by Governor Arnold Schwarzenegger and is a law in that State. He stated Ray Thunderhawk has testified as an expert witness in several court cases involving the great cats in the State of Florida; the organization maintains a perfect safety record and holds public safety at the highest level; their security is impeccable; and their emergency preparedness plan functioned perfectly through an unprecedented three hurricane strikes in the summer of 2004. He stated at no time did they ever portray the great cats as pets and in fact constantly emphasize they are not pets and should be handled by expert facilities such as their own; all of their staff are highly trained; their animals do not perform tricks but are simply walked out on a table and an educational talk is given about that species; and the animals are extremely well cared for. Dr. Blue stated they are an all volunteer group and funded solely by donations; no one draws a salary; the public is enthusiastic about their message of conservation; and the organization is a viable asset of the community and has broad public support from citizens and businesses. Dr. Blue stated there may be a vocal minority who are detractors, but the majority of people support them and their message; he is very proud to be associated with the organization and the work that they do; and requested the Board table the ordinance until they are able to have their attorney review it as it is a sweeping legislation.

Dr. Kevin A. Wiltz II of Orlando, representing Thunderhawk Enterprises, stated he is a practicing pharmacist from the Orlando area; the issue is not about cats or land, it is about fear of the unknown and unpredictable; but the fear of the unknown and unpredictable must be challenged, assessed, and researched if they are to grow as a species. He stated he has flown across the country and visited sanctuaries; and the reason he has stuck with Thunderhawk is because it is one of the best. He stated it is not just his opinion that dictates so; and U.S. Fish and Wildlife, a federal agency, has given them the contraband to be used in education, such as leopard skins, ivory tusks, ocelot belts, and things that people do not see. He stated most people do not understand the situation they are dealing with; and no other sanctuary in the country has ever been given such material. He stated the Florida Fish and Game Commission has seen fit to use their facilities in their current state as training grounds for their officers; they are the only non AZA accredited facility that was allowed to participate in a drug trial learning about tiger contraception; and they helped save the lives of over 50 big cats. He stated no member of the public has ever been injured or come close to being in danger; the organization is far more than that; it brings people together from all walks of life and ideologies for the purpose of service; and the organization has built community character and responsibility in its members. He requested they be allowed to continue their work without the unnecessary impediments, and allow them to continue to grow as an educational institution, be a beacon for all walks of life, and provide education for the world to learn about the power of nature.

Patricia Chauvin of Mims, representing Florida Alternative Livestock Association, stated she helped put the organization together and is concerned mainly to protect the rights of people who want to raise animals because they recognize there is a need for it. She stated other third world countries in particular have populations that are growing and the forests are practically gone; without a doubt she agrees with the National Geographic folks that most animals will face extinction or be threatened in 15 years; and they need to keep the ball rolling especially in Florida because there are a lot of species that are subtropical being raised here that cannot be raised in other places. She stated she has a Class III animal that other people have trouble raising, but she has no problem except that she has to keep building cages to keep her population down and under control; and people who live further north do not have the luck that she has. She stated zoos are not the primary thing to save animals; they are primarily educational but not primary in existence and continuance of species because they have space constraints as well; and they have to trade animals off to other zoos or have them neutered so they do not propagate. She stated zoos are mainly for education and display, which is wonderful; but it does not serve the needs of continuance of the species; there are so many regulations on captive wildlife, especially Classes I, II and II; and she does not see what the need is to reinvent the wheel. Ms. Chauvin stated they are already regulated and should not have to respond to another building inspector or anyone else; and there is no reason to keep this ordinance going. She stated they consider themselves the farming enterprise because of their status; years ago, when they formed the organization, she asked the Commissioner of Agriculture what he felt about alternative livestock and exotic animals being farm animals as an agricultural enterprise to pursue; and he agreed that it was an agricultural pursuit; so if anything comes in to try and hamper it, she is going to rely on the State of Florida to help them out. She stated they are concerned about animal rights activists and where their motives are, as well as the motives of anyone who seems to side with limiting the rights of animal ownership because it is their goal to eliminate that. She stated they are working through everybody to do that; and she is afraid more regulations will come up and move involvement will be there. She stated they are going to run into people who would not be politically in favor of them and would give them a hard time; the Board needs to stay out of it; the State and federal governments have it wrapped up; they issue USDA licenses and have USDA and Fish and Game inspectors; and she does not see what the County’s advantage is by getting into it. She stated the Board should let the issue drop.

Commissioner Colon stated the ordinance focuses on the five-acre minimum, 35-foot buffer, and a license, which are all required by Florida Statutes; and it will give the County more teeth in case it has to go to court by making sure it is in the books, so she will move the ordinance.

Motion by Commissioner Colon, seconded for discussion by Commissioner Scarborough, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida, pertaining to animal-related regulations; specifically amending Section 62-1102 definitions by amending the definition of pets to delete reference to monkeys and to specifically exclude Class I and Class II wildlife; and retitling the definition of wild animals and poisonous reptiles to captive wildlife; amending Sections 62-1332(3), 62-1333(3), and 62-1334(3), relating to the Property Appraiser, AGR, and AU classifications, respectively, to create a conditional use permit listing for captive wildlife; amending Section 62-1958, Conditional Use Permit Requirements, for captive wildlife to add licensure and minimum site size, spacing, and buffering requirements; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code.

Commissioner Scarborough stated he asked to have the ordinance tabled twice and met with the people; and one thing he would like to see incorporated in the ordinance is that previously approved CUP’s be specifically grandfathered in. He stated he understands there are federal regulations, but last week in the meeting there were a number of people who walked away understanding that the area was designated by all jurisdictions; and that is the zoning issue, so they would not have wildlife in the middle of a community. He noted he guesses in Palm Bay there was an occasion with lions, tigers, and bears; but the Board is not looking at the animals as such but the complexion of the neighborhood and saying certain classifications by the State should not be in a tightly confined neighborhood, which makes common sense. Commissioner Scarborough stated the Board is not saying people cannot have animals in any place of the County; but that would be the only thing he would like added to the motion. He inquired if Commissioner Colon would accept the amendment; with Commissioner Colon responding yes.

Chairman Pritchard called for a vote on the motion as amended. Motion carried and ordered unanimously. (See page for Ordinance No. 05-25.)

Upon motion and vote, the meeting adjourned at 11:49 p.m.

ATTEST:
________________________________
RON PRITCHARD, D.P.A., CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK

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