May 2, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on May 2, 2002, at 5:35 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O’Brien, Nancy Higgs, and Susan Carlson, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley. Absent was: Commissioner Jackie Colon.

The Invocation was given by Intern Pastor Scott Johnson, Trinity Lutheran Church ELCA, Titusville, Florida.

Commissioner Nancy Higgs led the assembly in the Pledge of Allegiance.

INTRODUCTION

Assistant County Manager Peggy Busacca introduced Sherry Williams, Section Supervisor of Office of Natural Resources.

REPORT, RE: DUCK RACE

Commissioner O'Brien stated he has seven rubber ducks in front of him; they are the ducks that Crosswinds sells for $5 each, which were entered into a race at the Indian River Festival in Titusville; and pointed out the differences in the ducks. He stated Crosswinds raised approximately $45,000 to $50,000 with the ducks; explained how the race was conducted; and advised of other races held in Tampa and West Palm Beach. He stated Crosswinds has centers for troubled teenagers, especially runaways; and described the program.

Commissioner Carlson inquired who won the race. Commissioner O'Brien responded he did not win; with Commissioner Carlson advising she did not either.

RESOLUTION, RE: FOSTER PARENT APPRECIATION DAY

Chairman Scarborough stated he had a request for a resolution for Foster Parent Appreciation Day.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution extending greetings and best wishes to all observing Foster Parent Appreciation Day on May 11, 2002. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE PLANNING AND ZONING BOARD
OF APRIL 8, 2002

Chairman Scarborough called for the public hearing to consider recommendations of the Planning and Zoning Board made at its April 8, 2002 meeting, as follows:

Chairman Scarborough stated he does not know if anyone is present, but there has been a request by Rodney Honeycutt to table Item 6 for Statewide Materials. He stated a letter from the Airport Authority was received today, and it raises issues that need to be discussed.

Item 6. (Z0204204) Statewide Materials, Inc.'s request for a CUP for Land Alteration in an IU zone on 12.28± acres approximately 476 feet north of Golden Knights Boulevard and 427 feet east of Tico Road, which was recommended for approval by the P&Z Board as an expansion of the existing borrow pit, eliminating the 50-foot buffer between borrow pits.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 6 to May 23, 2002 Board of County Commissioners meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATION OF THE PLANNING AND ZONING BOARD
OF MARCH 11, 2002

Chairman Scarborough called for the public hearing to consider recommendation of the Planning and Zoning Board made at its March 11, 2002 meeting, as follows:

Item 1. (Z0203201) Joel F. Wynne and Harvey A. Newman, as Trustees' request for change from AU, RU-2-10, and RU-2-15 to RU-1-7 on 42± acres on the north side of Via de la Reina, east of SR 3, which was recommended for denial by the P&Z Board.

Bo Bar-Navon, representing Mercedes Homes, stated this item was tabled from the previous meeting primarily to re-submit a new binding development plan for the Board's consideration; that binding development plan was submitted; and he threw in everything but the kitchen sink. He stated, after conversations with Attorney Eden Bentley, there are some items the Board may not agree to, specifically the item that references the developer's agreement for concurrency; and they will be happy to strike that item. Mr. Bar-Navon stated there are some things that have come up since the last meeting; at the last meeting they were surprised this item did not sail through as they anticipated; and some were surprised that the property could be developed today under the multi-family zoning without some of the constraints and conditions being requested as part of the downzoning. He stated they went back to the property owner and engineers, and started to develop a Plan B; and displayed an illustration of the Plan. He stated Plan B is a revised conceptual site plan, which reflects 165 townhomes, 30 feet wide with a lot depth of 100 feet; the units would be 30 feet by 68 feet; and they would be similar to what they are building in Melbourne Beach at Oceanside Village Estates. He stated under this plan, the design reflects the current status of the property; it includes the 60-foot setback that Pulte placed on the property even though it was not part of the binding development plan; the plan is permitting under the current zoning; and it is not a threat, but a viable plan. He stated they want to build homes; and if the downzoning is not approved, then they are looking to bring in 165 units. He stated even if they agree to a binding development plan tonight and the Board agrees to the downzoning, there is another problem in that the Board recently created a policy that says that Land Development cannot review any development projects until the zoning is completed; their contract with the seller of the property included a window to get all the environmental work and engineering done; and normally they would not have to close on the property until all the plans were reviewed and they got the permits; but the seller is not ready to record a binding development plan without knowing if they are going to buy the property. He stated even if they approve the binding development plan, if they have to buy the property before Land Development can look at the plans, that is a problem; and requested if the property is downzoned to RU-1-7 that the Board make a proviso to instruct Land Development to review the plans and move the process forward until the binding development plan is recorded. He stated otherwise he does not know if they will be able to proceed with the single family plan as it is presented. He noted they have the Ennis property under contract.

Chairman Scarborough inquired if the latest draft of the binding development plan has been provided to the people in the audience.

Arthur Hachtel stated they are plagued by developers; they do not want them; and the Homeowners Association built the entranceway with its own money, and at no expense to the County. He commented on discrimination in terms of property values, more cars leading to more accidents and contention, and neighbor problems. He stated the traffic from SR 528 is noisy; the developer will tear down the trees which are a sound barrier; and they will do away with the birds, snakes, and wildlife that are there. He stated they are going to take the money and run; the Board should say there cannot be any new developments until it catches up with services; the schools are overcrowded; the police department is overtaxed; and the streets are overtaxed. He further commented on making SR 3 six lanes, parking at schools, and creation of additional problems. He stated Commissioner O'Brien promised that a developer would not use Via de la Reina as an entrance to that property; and he hopes he has some clout because they do not want this developer to use their entranceway.

Tom Page stated it appears they are being coerced into taking the 120 units instead of 165 townhomes; in either case there will be between 700 and 1,000 vehicles dumped onto North Courtenay Parkway; and advised in order to go up North Courtenay, it is necessary to cross the Barge Canal. He stated several times since the last meeting the entranceway has been blocked; the bridge was down several times last week; and advised of the difficulties in making a U-turn to go back down Via de la Reina to Sykes Creek Drive to Pioneer in order to get out at a signalized intersection. He stated they are looking at approximately 80 days per bridge starting next month; they are going to raise one side and lock it up; there will only be two lanes, one going north and one going south; and he shudders to think what is going to happen when that is done. He stated when that is completed, the other side will be done; the traffic situation on North Courtenay is pitiful, and getting worse; and in the 25 years he has lived there, he has never seen it this bad. He stated at some point the Board will have to say there can be no more subdivisions until the situation is corrected; and commented on the overcrowding at Lewis Carroll Elementary. He stated the time is now; the problem is going to get worse; and the Board cannot ignore it. He recommended development be denied until the problems can be worked out.

Dorothy Wash, President of the Villa de Palmas Homeowners Association, stated since she was here last, there have been two fatalities on Courtenay Parkway just beyond the Barge Canal; and the situation is bad. She stated they are coming into hurricane season; and commented on evacuation measures. She inquired if the draft is the latest one.

Chairman Scarborough stated he has two copies of the plan; one has some notes on the back side of the first page; and inquired if there are any more current drafts; with Assistant County Attorney Eden Bentley responding she only has one draft, but Public Works marked through some language on paragraph four, and that is the second copy the Board has.

Ms. Wash inquired if there is a final draft; and inquired if the Board can rule on a draft which assumes something else final is coming. Chairman Scarborough stated if the Board adopts something, it has to do it as a Board and will have to have something before it to adopt; so it needs to talk about what the binding development plan is going to say. Ms. Wash stated the draft mentions that the developer/owner wishes to mitigate negative impact on abutting land owners and affected facilities; and that is ambiguous and vague because it does not say what will be done to mitigate the negative impact. She stated Item 2 mentions limiting the density to 120 units, but nothing about the size of lots or houses or the prices. She stated it says, "the developer shall provide access to the property from Courtenay"; that is the way they all access Villa de Palmas; and there is nothing included about prohibiting traffic through Via de la Reina, especially for construction vehicles. She stated Mr. Bar-Navon said he had a contract on the property that would allow him to put a road in; and inquired when would that be. She stated it further says, "the County will reserve owner/developer's concurrency in the traffic calculations per a separate development agreement"; and inquired what is that.

Chairman Scarborough stated normally when there is an agreement, all the attachments and references are a part of the agreement or there is really no agreement; and he finds this to be one of the more ambiguous points.

Ms. Wash inquired what allows someone to reserve capacity; and does everyone have that opportunity. Attorney Bentley stated the concurrency vesting procedures in the Code and Statutes provide for a developer's agreement; it has to be advertised and presented to the Board as an agreement; and the exact terms of the agreement are not set in stone; but that is not what is before the Board tonight. Chairman Scarborough stated if there is a road with just so much capacity, one developer can come in and take that capacity; and it goes to the point where there is no additional capacity. He stated as to the issue of capacity, it is one developer against another developer; and if there is only enough food for one child, but there are five children in the family, only the first one who comes to eat gets fed and the rest go hungry. He stated there are going to be developers going hungry; and that is going to be an issue that is independent of the zoning decision.

Ms. Wash stated it seems that some developers do not get that courtesy although others may. Commissioner Carlson stated there is no reservation of concurrency. Ms. Wash advised in both agreements the developer wants the County to agree to reserve it. Commissioner Carlson stated that is an element of the binding development plan that the developer would like the Board to pass, but that does not mean the Board will do so.

Chairman Scarborough stated this is in Commissioner O'Brien's district; and requested he touch on the history of Courtenay Parkway and where it stands with concurrency.

Commissioner O'Brien stated the corridor is hitting 100% of its ability to handle traffic; and if Mercedes gets something tonight and says it is going to build, at some point, if someone down the road builds another Target or K-Mart, the capacity of the road would be gone and so would their ability to continue construction until something is done to increase the flow on Courtenay Parkway. He stated Courtenay Parkway is quickly hitting that number; and there will be no other recourse but the County will not be issuing building permits.

Ms. Wash stated there should be a moratorium. Commissioner O'Brien stated if the Board puts a moratorium on further construction along Courtenay Parkway, it then puts itself in a legal position that cannot be defended; then it can not only be sued to allow building, but be sued for financial damages as well; so the Board cannot arbitrarily do that.

Chairman Scarborough stated there are levels of service that are hitting the maximum. Ms. Wash advised when it gets there, a moratorium must be put in place. Commissioner Carlson advised when it gets there, the moratorium has to go in place; and then the Board has to decide what it is going to do about that because it cannot keep it in a state of moratorium forever. Ms. Wash stated Mercedes is in a race with H&M and others; and inquired if each one is not given the right to reserve concurrency, where is the fairness. Chairman Scarborough stated that is why the Attorney said the Board cannot do that. Commissioner O'Brien stated it is proceed at your own risk as the Board is not going to reserve anything. Chairman Scarborough stated recently someone requested to reserve concurrency and hold it as an asset, and the Board said no; if there were two malls, and one reserved concurrency while the other could not, that would give the one greater value while the other's value would drop tremendously; and the Board should not use its power arbitrarily to give to one as opposed to the other, which is why the Board declined to do that type of agreement.

Ms. Wash stated Mr. Bar-Navon says it is not a threat to put in the townhomes, if the Board does not grant the zoning; and inquired about the road to Via de la Reina. Commissioner O'Brien stated there is also a road going to Venetian Way; Mr. Bar-Navon is going to tell the Board he has a contract on the Ennis property; and that is the solution because the roadway now allows people from Villa de Palmas to go to the light and proceed south on Courtenay instead of going all the way around and clogging Pioneer. Ms. Wash inquired if it is decided that there is going to be a light there; with Commissioner O'Brien responding affirmatively. Commissioner O'Brien stated FDOT is not going to put the light in front of Villa de Palmas; it is going to be at Venetian Way; and FDOT said if this project goes in, and that is where it connects, it is willing to take a traffic count test now, and possibly put in the light sooner than expected. Ms. Wash stated that should be in the agreement. Commissioner O'Brien stated it should be reworded to say he has to use that for construction; with Ms. Wash responding it should say he would not be using Via de la Reina for any purpose, whether it is construction or not. Commissioner O'Brien stated he is sure they will agree to that tonight.

Ms. Wash commented about traffic problems; and inquired about the plan for the development and the proposed name; with Mr. Bar-Navon responding it is Plan B, and has not been named yet.

Shirley Weinert stated she is happy with the 120 single-family residences; however, she wants them to go straight out to Courtenay Parkway and leave Via de la Reina alone. She stated there are 294 homes in Villa de Palmas; there are 200+ homes in Sykes Cove and a 22-unit condominium; and they all use Pioneer and Via de la Reina to get out. She stated if they build the new road, she hopes they are not going to block off Via de la Reina; and requested they leave Via de la Reina alone.

Barbara Capshaw stated she has lived in Villa de Palmas for 25 years; and she is not happy with the new development even if it goes straight out to Courtenay Parkway as the addition of 120 or 165 townhomes at this time will undermine the quality of life. She stated the Commissioners have been elected to manage growth; County regulations allow the Board to deny a rezoning request or a Comprehensive Plan amendment on the basis of road capacity, neighborhood compatibility, and school overcrowding; and all those things are going on. She stated she is counting on the elected representatives to say no until SR 3 is widened, the Barge Canal is taken care of, and the schools are taken care of.

Herman Skambraks read aloud a letter from his neighbor Dr. Rawal opposing the rezoning on the basis of traffic and school issues. He stated tons of houses are being built north of the Barge Canal; more traffic will all have to cross the Barge Canal and go up SR 3; there is no way of getting around it; the developments are in place; and they are building every day at a terrific speed. He stated he heard when the road around the Space Center is built so people north of the Barge Canal can go to Titusville without having to go through the gates that there will be an increase in industrial workers; and if it is true, the number he heard is 14,000 industrial workers.

Chairman Scarborough advised they are talking about 10,000 in the research park.

Mr. Skambraks stated at least 7,000 will be running up and down Courtenay Parkway; even if they six-lane it, the Barge Canal will still only have two lanes in each direction; and the bottleneck is not going to go away. He stated Mr. Bar-Navon said the townhouses could go in today; he does not believe they can because a lot of them are sitting on agriculturally zoned property; and he thinks it is just a threat. He commented on traffic problems in getting onto SR 3 in the afternoon.

Chairman Scarborough inquired about distinguishing between how concurrency with schools is being handled as a zoning item and how traffic is something that triggers itself as building permits are being pulled. Attorney Bentley stated the way the Ordinances are written, school capacity can be handled at the rezoning stage, but traffic is a different matter and comes up later at the permitting stage.

Commissioner Higgs stated school concurrency can be achieved in Brevard County at the time building permits are pulled only if the County and cities all agree to move forward; the County has sent letters asking for the cities' interest in the issue of school concurrency; but it has not received back a unanimous vote from the cities agreeing to move forward. She stated the County has no ability to move forward on its own on school concurrency.

Chairman Scarborough stated the developers are asking to have the right to hold the ability to use the last amount of traffic going on Courtenay Parkway; but it is set up that they do not have that right; so they must take the risk. He requested Mr. Enos comment on school capacity. Zoning Official Rick Enos stated the current zoning of the property would generate more residential units than the proposed zoning, so this would actually be a reduction of impact on the schools.

Attorney Bentley stated the applicant has already withdrawn paragraph 6; but paragraphs 4 and 5 are problematic as well. She stated paragraph 4 talks about requiring construction of the road and the County committing to that; that constitutes contracting away the Board's police powers and the Board is not allowed to do it under case law; and paragraph 5 involves a vacating, which requires a public hearing, so the Board could acknowledge plans to apply to vacate, but cannot commit to a future action that requires a hearing.

Mr. Bar-Navon stated the first thing he would like to raise is the connection to Via de la Reina; the homeowners have a desire not to see any connection to Via de la Reina; but it is the County's objective, regardless of what gets developed, to have that connection made. He stated under Plan A they are willing to not connect to Via de la Reina and come in off of Courtenay Parkway; but in order to alleviate the problem that will exist when SR 3 is widened and Via de la Reina gets cut off with the median, they are going to need that connection to get out to the four-way stoplight and take a left to go south on SR 3; and that is why they are showing the connection. He stated if the Board prefers they not connect to Via de la Reina, it is not a problem to go straight out to Courtenay Parkway; and they can make a cul-de-sac and put houses there; but then there will not be any other way for those people to get out when SR 3 is widened. He stated they are prepared to delete the request for the concurrency reservation; and the only thing that should have been in the binding development plan was the voluntary cap of 120 units because that is the only thing related to zoning.

Chairman Scarborough stated there was a lot of talk about traffic flow; that needs to be addressed if possible; and that is why he felt the binding development plan had to address the traffic flow. He stated many people do all kinds of things committing to improvements on the public right-of-way with deceleration lanes and things like that as part of the rezoning request; so that is not unusual.

Mr. Bar-Navon stated the understanding he had with Commissioner O'Brien was that if they purchased the property that ties into Courtenay, the County would make the improvement of that section of road from Courtenay to the property; they met with Mr. Minneboo and Mr. Thompson at DOT, and discussed what that entailed; and DOT brought up a number of issues. He stated DOT is not sure if a light is going to be required now; it will need a study to determine when that needs to go in; and he included in the binding development plan that the cost would be something the County would bear. He stated if this is not appropriate for a binding development plan, they are prepared to take the risk and take the County at face value, and that will be a side agreement or part of the development process. He stated if the Board only wishes to address the cap of 120 units, that is fair, and they can strike all the other items; and that would satisfy the needs of the document. He stated the two issues being raised in opposition are traffic and schools; as Mr. Enos said the school system should not be an issue because the impact is less than what is permitted; and per the County's Ordinances, it is only when the impact is increased, that comes into play. He stated there is no doubt that traffic is a problem that is not going to go away; whether this property is developed now or five years from now, traffic is going to continue to be a problem; and it is necessary to look at ways to resolve the big picture problem, and not put Band-Aids on it. He stated somehow the widening of SR 3 has to be moved up the list on the MPO's priority list; it is not very high on the priority list and they are talking about five years from now; so there are going to be problems for five years with the extra 700 trips or so. He stated his understanding based on talking to Planning and Zoning, Land Development, and the County Attorney's office is that when the road reaches 100%, the County does not stop building permits, but asks the permit applicant to pay his fair share of the additional improvement; his understanding is the County does not put in a moratorium; but if he is mistaken, he would like to be told that.

Assistant County Manager Peggy Busacca advised the Board can put a moratorium in place; however the Statute allows provisions that should someone come in and provide a way to mitigate the impact, the Board would then accept that mitigation; and if there is a moratorium in place, the mitigation would be done on a case-by-case basis.

Chairman Scarborough requested a memorandum from staff and the item put on the agenda for discussion.

Commissioner Higgs stated the County is now witnessing what level of service E means; the Board needs to get, as part of that memorandum, what options it has, not just on this road but on other roads before they get to level of service E. She inquired if level of service D is different, and what would it be; and noted the Board has not revisited this issue in a long time.

Chairman Scarborough stated he was asked if it goes to total gridlock where no traffic moves, would there be no traffic counts, because basically the counts would cease to exist if nothing moves; and if there was perfect gridlock, the level of service would indicate the reserve, that there was no traffic on it. He stated at the last meeting people indicated a total incapacity to get out of their subdivisions and go to the south; and he would like that addressed as part of the memorandum, where the data reverses itself and the Board would have the wrong information.

Commissioner Carlson stated if the Board applies a moratorium, it cannot apply forever; there is a limited time frame to create a plan to lift the moratorium; and if the Board could have something back on that, it would be nice.

Mr. Bar-Navon stated on the first-come, first-served philosophy, time is of the essence; and even if the Board approves the binding development plan, if they cannot get the engineering and land development process started, he is not sure they can proceed and may have to go to Plan B, regardless of the vote.

Commissioner Carlson stated the net benefit is the same, whether the applicant gets the rezoning tonight or goes by the old zoning, when they meet that level of 85% where the County is giving out CO's. Mr. Bar-Navon stated that is why they want to put through whatever project they can get through the system as quickly as possible.

Chairman Scarborough stated when Mr. Bar-Navon came up earlier, he said he had a problem with the binding development plan coming into effect. Mr. Bar-Navon stated they were turned down for a pre-application conference on another piece of property where the Board unanimously approved the zoning but the binding development plan was not recorded yet; and they were told until the binding development plan is recorded, the zoning has not taken effect, and Land Development cannot review plans. Chairman Scarborough stated normally when there is a binding development plan, it is part of the zoning. Attorney Bentley stated the zoning does not take effect until the binding development plan is in place; but what Mr. Bar-Navon is speaking about is the change in procedure in Land Development. She stated Land Development used to pre-approve pending a zoning item; staff would look at the engineering and all that, and say okay, if this were zoned RU-2-10, for instance, it could be approved; and when the applicant got the zoning, the next day they could get their site plan approval under the old system; however, now everything is required to be in place before the approval process starts.

Chairman Scarborough inquired if what is being requested is a zoning tonight, but the zoning change would take place without the binding development plan. Mr. Bar-Navon responded no, zoning would happen once the binding development plan is recorded; but he is asking for a break in the policy or procedure to instruct Land Development, in this instance, to go ahead and review the plans, but that it not take effect until the zoning takes effect. Chairman Scarborough inquired if under Mr. Bar-Navon's proposal the zoning would be approved with the binding development plan, but the zoning would not take effect until later; with Mr. Bar-Navon responding the zoning takes effect when the binding development plan is recorded, just as with any other parcel; but the owner of the property is unwilling to record it until they buy the property. Attorney Bentley advised the applicant wants the review to occur and be in place, so they can get their site plan or subdivision approval, and on the last day, they will record the binding development plan at the closing, but they will have the permits in place before that. Mr. Bar-Navon stated it does them no good to buy property they cannot develop; and they want to know they can get through at least some level of approval.

Commissioner O'Brien stated it is reserving capacity. Mr. Bar-Navon responded it has nothing to do with capacity; he is paying his fees and doing everything just like the old system six months ago would have happened; the new policy was not done by ordinance; and he is not asking the Board to break the law, but just waive the policy.

Commissioner Carlson requested Ms. Busacca explain what brought about the policy; and inquired if it was a Board action. Ms. Busacca advised it was not a Board action; staff, in reviewing the land development process, realized that it was stepping out somewhat in front of the zoning actions; it was reviewing site plans and subdivisions on proposed zoning actions; and because the requirement in the Code is that it meets the zoning requirements literally, sometimes staff did not know what the setbacks would be or minimum lots because the zoning was not in place. She stated in trying to be tighter, which the Board had requested, staff decided the appropriate action is not to review something until the zoning is in place.

Chairman Scarborough stated at the last meeting on the prior plan and current zoning, there was a buffer and binding development plan. Mr. Bar-Navon stated it does not, but there is some language that restricts the property; and under the current zoning and what Pulte attempted to get approved, there was a 60-foot buffer. Chairman Scarborough stated the issue came up at the last meeting; and inquired if Mr. Bar-Navon will offer any buffer as part of his binding development plan. Mr. Bar-Navon responded the Board is already restricting the development to 120 units; and requested the Board appreciate his position. He stated potentially the retention could be relocated to the south, but that is probably a net loss of eight to ten units, because units are lost when the road is extended. Chairman Scarborough stated there was some discussion at the last meeting.

Commissioner O'Brien stated he had a meeting this afternoon with Mr. Thompson and Mr. Enos; they looked over the binding development plan and the concept; one of the speakers said they would rather see single-family homes than townhomes; and this is a reduction to 120 units from 165 units, which is substantial. He inquired if Mr. Bar-Navon has the Ennis property under contract; with Mr. Bar-Navon responding yes. Commissioner O'Brien noted the Board moved the Pineda Extension to save someone else's entranceway; and it should make sure that the ingress/egress using Via de la Reina is very restricted. He inquired if Mr. Bar-Navon will agree to only use the Ennis property for ingress/egress for all of the construction vehicles and things; with Mr. Bar-Navon responding yes. Commissioner O'Brien stated the people do not want big trucks going down Via de la Reina; with Mr. Bar-Navon advising the reality is it is easier to access it off Courtenay Parkway.

Ms. Wash inquired if Mr. Bar-Navon is going to change the plans to show that he does have a cul-de-sac there and not a road coming out; he mentioned five years from now that SR 3 will be widened and the people will have to go out and make a right-hand turn; but the people are not worried about five years from now. She stated they were told when the road is widened they will have to make a right turn and then a U-turn to go back down; they did not like it, but accepted it; and now they are being told that for their safety, they are going to put a road to come out into Via de la Reina. She stated they do not need it, and can get out of the development as they do now; they have been told by DOT at every meeting that there was no changing that, so they have accepted it; and if they cannot get out that way, they will go down and around and out Pioneer, and will have a traffic light.

Mr. Bar-Navon stated they would be happy to agree not to connect the last ten feet; but they will dedicate it until such time as the County wants it. Ms. Wash recommended putting a cul-de-sac there with a house so the people will know it will not be coming through. Mr. Bar-Navon advised at some point the County is going to want to connect; with Ms. Wash disagreeing. Commissioner O'Brien stated they are going to want to connect because the light is going to be at Venetian Way, and even he would not want to have to scoot across three lanes of moving traffic to make a U-turn. Ms. Wash inquired if Commissioner O'Brien knows what the people do now; with Commissioner O'Brien responding they take their life in their hands to cross two lanes of traffic. Ms. Wash advised those who do not want to go down and around and out Pioneer. Commissioner O'Brien stated if there is this connection, the people will come right out to the light, and make a left hand turn. Ms. Wash stated as far as the people are concerned, it should be left alone because it only creates a problem; the entranceway is short; and if a road is put in there, there will be a problem with the cars coming around Via de la Reina and having a car coming out in front of them. Commissioner O'Brien stated that is why there will be a stop sign; everyone who lives there would want to use their own entranceway through this section of the Ennis property; and that is where they are going to go.

Discussion ensued on creating a dangerous situation, the views of the people, leaving the entrance alone, whether additional cars would use the entrance to Villa de Palmas or use their own entrance, no connection to gas station, and vagueness of binding development plan.

Commissioner O'Brien stated the Board is going to ask for more specifics tonight; the current binding development plan is just a draft; and the connection should be made for safety as there is going to be a traffic light, which will save lives. Ms. Wash stated she wants the Board to know that this is the way the majority of the neighbors want it, and for good reason.

Commissioner O'Brien stated number 3 on the binding development plan presently reads, "the developer shall provide access to the property from Courtenay Parkway"; and he would like to add the words, "directly opposite Venetian Way" so it lines up. Mr. Bar-Navon advised that is not a problem. Commissioner O'Brien stated paragraphs 4, 5, and 6 are deleted; a new paragraph 4 is inserted saying that the developer may request impact fee credits for the construction of the access road to Venetian Way; and a separate agreement is needed to do impact fee credit for construction of the roadway to Courtenay Parkway. Commissioner Higgs stated there is an impact fee program that is very specific in regard to these things; and she does not think it needs to be part of the binding development plan because it is in the Code. Attorney Bentley stated it would not be required; but it could be an acknowledgment that he can go through the process. Commissioner Higgs stated it does not have to be included; with Chairman Scarborough advising he does not want to acknowledge things that are obvious.

Commissioner O'Brien stated he will strike that; and the new number 4 will be that all lots that abut properties in Villa de Palmas shall be the same width as the lot they abut. He stated in other words there are lots presently existing in Villa de Palmas; and the abutting lots behind them should be the same width. Chairman Scarborough suggested instead of saying the same width, saying "no less than" as they could be larger. Commissioner O'Brien stated the wording would be "all abutting lots to Villa de Palmas will be no less than the width of the abutting lots." Mr. Bar-Navon inquired what if there is a separation and they are not abutting. Commissioner O'Brien stated there is a 15-foot natural vegetative buffer that is required, but the intent is there in the wording; and inquired if staff agrees. Mr. Enos stated he understands if what Commissioner O'Brien is saying if there is a 15-foot buffer between them, they would not be required to be the same; with Commissioner O'Brien advising he is saying there would still be the requirement. Mr. Enos stated the applicant is asking how wide the buffer would have to be before he would not have to comply with that provision. Commissioner O'Brien stated he is talking about any properties that align with the lots in Villa de Palmas; those lots should be the same width or larger than the abutting lot; and the reason is no one wants to open their back door and see two houses.

Chairman Scarborough stated the Ordinance requires a 15-foot buffer for subdivisions; and inquired if the 15 feet counts into it and it still applies. Ms. Busacca suggested saying the southernmost tier of lots, and then it would not matter whether they directly abut. Commissioner O'Brien inquired about the ones on the west. Mr. Bar-Navon stated assuming there is still a road to the south, the plan can be redesigned so the road separates the two subdivisions; and that is a simple fix instead of having homes backing up to other homes. He stated the width of the lot is what determines density and yield; and inquired what is the fear and why is width suddenly a significant issue. Commissioner O'Brien responded on the west side are three houses with five lots shown behind them; that is what he is talking about; and that property is higher than the properties in Villa de Palmas. Mr. Bar-Navon stated it might not be higher by the time they are done with it. Commissioner O'Brien stated he prefers to put three lots along that area to align with the properties in Villa de Palmas. Mr. Bar-Navon stated every negotiation has give and take; and inquired if he agrees to that, will the Board agree to give the instruction to Land Development. He stated in the determination of a project, there are a lot of factors that come into play; one of them is timing, and another is risk; and it is not always which project makes the most money, but sometimes is which one can get on the ground faster. Commissioner O'Brien stated that is where he wants to go. Mr. Bar-Navon inquired if the only constraint being requested is the width of the lots abutting or facing the existing subdivision of Villa de Palmas; with Commissioner O'Brien responding yes, on lots that face Villa de Palmas on the south and west. Mr. Bar-Navon stated that is the new paragraph 4, with paragraphs 4, 5, and 6 deleted, and paragraph 3 modified; and inquired if that is something the Board is going to vote on.

Chairman Scarborough stated there has been a discussion about connectivity to the south; and inquired how is Commissioner O'Brien leaving that, and is it part of the plan. Commissioner O'Brien stated it is not clear; in opposition to the Homeowners Association, he strongly feels that there should be a connection; and when SR 3 is expanded and the light goes in, the people will stop condemning him and thank him for saving lives. Chairman Scarborough recommended obtaining the land so the Board can make the decision subsequently; and stated it is not an issue until SR 3 is improved. Mr. Bar-Navon stated they will deed it to the County, and only build as much as is necessary to access whatever they get; and staff will review and approve this. Commissioner O'Brien stated they are saying they will not connect to Via de la Reina until the County, at some future time, says they want to connect to their road to get to that light; with Mr. Bar-Navon advising they will dedicate the right-of-way, but the County will put in the improvement at the time it needs it. Commissioner O'Brien stated right now it would not connect to Via de la Reina; with Mr. Bar-Navon agreeing not to connect to Via de la Reina. Chairman Scarborough advised it would be a Board decision when the connection finally arises. Mr. Bar-Navon agreed to add that to the binding development plan.

Traffic Engineering Director Dick Thompson stated he concurs with what is being said; if they are going to put homes along the north/south portion of the roadway, they are going to have to have a cul-de-sac anyway; and it could end at the north existing right-of-way of Via de la Reina, so it abuts, and at some future time, when it is warranted, the connection could be made.

Ms. Busacca expressed concern that when the cul-de-sac has been constructed, people will assume the roadway will never go through; and recommended there be some notice of the potential that those people in the future may be living on a through street rather than a cul-de-sac. Mr. Bar-Navon stated they would agree to add that to the plat and provide notice to buyers.

Ms. Wash inquired what would stop people from using that, and will there be some kind of barrier; with Commissioner O'Brien responding it will not be connected. Mr. Bar-Navon advised it will have curb and gutter around it. Commissioner O'Brien suggested planting trees. Commissioner Carlson inquired how far is it; with Mr. Thompson responding 20 to 25 feet; the cul-de-sac would go down to the north right-of-way line, and could be taken within the right-of-way a little way; and the roadway connection could be made at some time in the future. Ms. Busacca inquired if a barrier could be constructed; with Mr. Thompson advising that is another option, but it is something to maintain. Commissioner Carlson suggested putting a stub there and a fence. Ms. Wash advised there are trees there. Chairman Scarborough stated a landscape barrier would probably augment the values of both properties; with Commissioner O'Brien agreeing that would be better for both sides. Chairman Scarborough inquired if Commissioner O'Brien wishes to add that; with Commissioner O'Brien responding affirmatively.

Commissioner Higgs stated the review of the plan is an unresolved issue; and inquired if the fees were paid and the Board voted to adopt the plan, could the plan include agreeing to allow staff, if and when their fees are paid, to begin to review it, but not approve it until all items are finally recorded; with Ms. Busacca responding staff is comfortable with that. Commissioner Higgs stated that would put it clearly in the binding development plan, and does not do injustice to the current policy other than this is part of this plan for this property.

Commissioner O'Brien stated if the applicant agrees to all the points made on the binding development plan, he will move for approval.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve Item 1 with Binding Development Plan modifying paragraph 3 to add "directly opposite Venetian Way" to "developer shall provide access to the property from Courtenay Parkway"; delete paragraphs 4, 5, and 6; insert new paragraph 4, providing that all lots that abut properties in Villa de Palmas shall be no less than the width of the abutting lots; developer agrees not to connect to Via de la Reina at present time and dedicate right-of-way to County to allow connection to Via de la Reina in the future; agree to add to plat and provide notice to buyers of the potential for connection of Via de la Reina; provide a landscape barrier at end of cul-de-sac where potential connection would be made; and if fees are paid, allow review but no final approval until items are recorded. Motion carried and ordered unanimously.

The meeting recessed at 6:54 p.m. and reconvened at 7:18 p.m.

Item 1. (Z0204301) Leonard D. and Desiree A. Hearndon's request for change from AU, RU-1-11, TR-3, and PUD with an existing CUP for a Water Treatment Plant to all AU, removing the CUP on 15.14± acres on the south side of Senne Road, which was recommended for approval by the P&Z Board with a Binding Development Plan only for those properties currently zoned RU-1-11, TR-3, and PUD, and with agreement that the owner meet with the surrounding property owners to agree upon the limited uses.

Commissioner Higgs stated Mr. Hearndon is present; there were some discussions during the recess with some of the neighbors; and they are trying to work with a binding development plan. She stated the neighbors had concerns because of the residential property and possible incompatibilities; Mr. Hearndon has a large AU parcel in the middle, and wishes to change the zoning on the smaller TR-3 parcel and a PUD parcel.

Leonard Hearndon stated he is willing to do a binding development plan on the piece being rezoned; the original thought was the binding development plan was going to be on the whole parcel, which he does not want; and he is willing to give a 25 or 50-foot buffer on the south side and do the things that were previously agreed to during the recess. He stated it is a 2.5-acre piece, which is 240 feet additional property that abuts.

Commissioner Higgs stated what Mr. Hearndon is suggesting is a binding development plan that would put a 50-foot buffer across the south property line on the property that is currently zoned AU; and inquired if the buffer would also include the TR-3 parcel; with Mr. Hearndon responding affirmatively. Commissioner Higgs stated Mr. Hearndon agrees to restrict the uses on the parcels the Board is considering tonight to a single-family detached dwelling; and if it were an AU use, it would exclude the packing, processing, and sale of commodities raised on the property, and would restrict the raising and grazing of animals, fowl, and bees to one per acre on the proposed property but not on the total property. She stated he would further restrict the property to plant nurseries, but no retail sales on the property proposed for rezoning; any private golf course would be for personal use only; and there would be no dude ranches. She stated permitted with conditions would be a mobile home residential dwelling, power substation, and telephone exchange and transmission facilities; preexisting uses would be private parks and playgrounds, temporary living quarters during construction, tenant dwelling mobile home, and tenant dwelling one unit permitted for each five acres, which would have to come back before the Board. She advised Mr. Hearndon deleted from the proposal private camps, foster homes, group homes level one and 2, churches, fish camps, landscape businesses, sanitariums and convalescent homes.

Assistant County Manager Peggy Busacca inquired if there is a specific limitation on the buffer; and would it be left in its natural state. Mr. Hearndon responded right now there is not much of a buffer, but he plans to put in oaks and myrtles all the way across the back of his property to create a buffer along with the natural grass; and he would maintain that.

Chairman Scarborough inquired if that is the basis for the agreement.

Mr. Hearndon inquired about putting a barn on the piece zoned TR-3; with Zoning Official Rick Enos responding that would be fine.

Commissioner Higgs stated it may be easiest to write down all the provisions so there is no confusion; and suggested tabling the item to the next meeting. Mr. Hearndon advised he is in no rush. Commissioner Higgs noted Mr. Hearndon is also requesting some property be vacated; with Mr. Hearndon advising that will be coming to the Board on July 23, 2002, but prior to that he would like to get a permit to build the barn.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to table Item 1 to May 23, 2002 Board of County Commissioners meeting to allow staff to review the Binding Development Plan on the portion of the property being rezoned, including a 50-foot vegetated buffer on the south property line of the property currently zoned AU and TR-3; restricting AU the uses on the current TR-3 parcels; excluding packing, processing, and sale of commodities raised on the property; restricting grazing and raising of animals, fowl, or bees to one per acre on the rezoned property, but not the total property; allow plant nurseries, but no retail sales on the rezoned property; allow private golf course for personal use only; exclude dude ranches, private camps, foster homes, group homes-levels 1 and 2, churches, fish camps, landscaping business, sanitariums, and convalescent homes; and provide that mobile home residential dwelling, power substation, telephone exchange transmission facility, pre-existing use, private parks and playgrounds, temporary living quarters during construction, tenant dwelling mobile home, and tenant dwelling one unit per five acres be permitted with conditions, with Board approval. Motion carried and ordered unanimously.

Item 2. Removed from Agenda.

Item 3. (Z0204101) Johnny L. and Terrie Lynn Canada's request for change from RR-1 to RRMH-1 on 1.35 acres approximately 290 feet south of South Orlando Avenue, which was recommended for denial by the P&Z Board.

Terrie Canada stated she submitted paperwork earlier. Planner George Ritchie advised nothing was dropped off today; but there may be something in the file. Ms. Canada stated it included information from doctors and pictures. Mr. Enos advised those letters have been included in the packages. Ms. Canada described the photographs showing the doublewide mobile home; and stated they had temporary permits for two years for the doublewide. She stated the intention was to take it down, but her mother-in-law and father-in-law became ill, and they had to move them nearer to them so they could take care of them; her father-in-law will be 83; her mother-in-law passed away at the end of March 2002; and described her father-in-law's physical condition with heart and breathing problems and legal blindness. She stated what they are asking for is temporary zoning so her father-in-law can spend the rest of his life there where they can take care of him; and advised she has letters from his doctors verifying he is terminally ill, and was predicted to live only two years more one year ago. She stated they would like to see him live there with independence and be able to live in a comfortable environment; and he is basically confined to his home. She submitted copies from the Brevard County Property Appraiser's office showing the values and taxes on the homes on Orlando Avenue and pictures showing most of the homes. She stated the street does not have the most expensive homes like are on Grantline, although there is a new home that is surrounded by an orange grove, which she was unable to photograph. She stated from the year 2000 to 2001 her home did not decline in property value because of the doublewide; and the doublewide is behind the home and hard to see from the street. She stated this is a rural area; the streets are about three-tenths of a mile apart; the homes are back to back, separated by woods; the people on Grantline Road did not buy homes in a gated community; and there were no requirements for size or cost of homes. She stated one mile south of Grantline Road, there is a mobile home park; and going north to Aurantia Road, there are mobile homes all over the area. She requested the Board allow her father-in-law to spend the rest of his remaining time near them so they can take care of him. She noted they have not told her father-in-law that he may be put out of his home; he just lost his wife in March; and they did not know what effect this would have on him.

Richard Brantley stated he owns the home in the orange grove, and probably owns more property on that road than anyone else as he owns 20 acres, which he bought in 1976. He stated when the Canada's put the trailer in two years ago for their parents, he checked with Planning and Zoning and was told it was grandfathered in; but he has owned property there since 1976 but never saw a trailer there. He stated the area is not the most desirable in the world; there are some old houses, which in his opinion, should be torn down; and there is an old trailer a little bit to the east that is grandfathered in because it was there in 1976. He stated he does not feel there should be trailers there; but if the Board rezones this property for trailers, he can rezone his for trailers, although he does not plan to do that. He reiterated this is not an appropriate area for trailers.

Carlos Springfield stated he has lived in this area since 1964, and has seen the development of it; it has grown significantly in the last two or three years; and while there are older homes in the area, there are also a number of new homes that are very expensive. He stated he has seen the older homes; people are trying to improve them with siding, etc.; and it has turned into a nice area. He advised there are mobile home parks in the area, but those areas are designated for mobile homes; and he does not see mobile homes intermingled in the area being discussed. He stated on Grantline Road, he probably sold those lots; and in order to maintain continuity and compatibility with the area, there were deed restrictions on the lots so the homes have to have 2,000 square feet under air and a number of other things. He stated most of the homes are in the neighborhood of $200,000 to $250,000; most are financed; and the people think they are pretty secure there, so they invested their life savings in something that should reap more money if they want to sell. He stated he has nothing against mobile homes or the Canadas; he has sold lots for mobile homes in areas designated for mobile homes; and commented on lack of size requirements for mobile homes. He stated people have invested a lot of money in their homes; this property is within a couple of hundred feet of the homes; and it does not seem appropriate for it to be there. He stated he feels bad speaking against the Canadas; he was not aware of their problem; but he has undergone similar problems and it is not a pleasant experience, but is something that must be accepted. He stated he would not like to see a precedent started; as Mr. Brantley said, people can make money selling mobile home lots; but inquired what does that do to people who have invested their life savings in their homes.

Terrie Canada stated she is not looking for permanent zoning; the people in the area obviously do not feel the mobile home is appropriate; and described the 1,800 square-foot structure. She stated she wants her father-in-law to live there for the remainder of his life; and then they are willing to tear it down. She commented on their loss of investment and ignorance of the law; and requested approval of the request.

Chairman Scarborough stated the people are speaking to two issues; one is the physical presence of the structure; but the other is the change in the zoning map, which creates a precedent; and that seems to be of as much, if not more, concern. He inquired about the history and whether there has been a Code issue. Mr. Enos responded the mobile home was permitted under a provision that allows temporary mobile homes during the construction of permanent residence; that permit is good for a maximum of two years; and to his knowledge, this is not a Code issue. Chairman Scarborough inquired as this came forward with the zoning, did the notices go out; with Mr. Enos responding that is correct. Chairman Scarborough stated he does not know of any temporary zoning.

Commissioner Higgs inquired if there is any way to have a binding development plan to allow it for a certain period of time, such as during the life of the current occupant, and then the applicant agree to an administrative rezoning. Attorney Bentley stated the Board needs to determine the land use issues on the face of what is there on the map, and what is compatible and appropriate.

Chairman Scarborough stated he does not like clouding the record; if the Board wants to do something like that, he would prefer to abate any action for a period of time, but leave the maps intact. He stated that would be safer than changing the map and creating confusion. He suggested the Board deny the rezoning, and if it wishes, discuss abating enforcement.

Commissioner Carlson inquired if it is possible to abate Code Enforcement on that item. Ms. Busacca stated in the past the Board has abated enforcement of a particular Code or for a particular property under certain circumstances such as hardship; so it is possible the Board could say it will abate this for a period of time or until a circumstance occurs that changes it. Chairman Scarborough stated he would prefer to have a time. Ms. Busacca stated the Board can abate for a time certain; it would be put into a file; and then it would come back up. Commissioner Higgs inquired if an additional year could be given on the construction trailer; with Mr. Enos responding no, the Code says it is a maximum of two years or ten days after completion of the home. Chairman Scarborough stated he cannot support the rezoning.

Chairman Scarborough passed the gavel to Commissioner O'Brien.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to deny Item 3 as recommended. Motion carried and ordered unanimously.

Commissioner O'Brien passed the gavel to Chairman Scarborough.

Chairman Scarborough inquired if there is a way to legally set a time limit; with Ms. Busacca responding if the Board gives a date, enforcement action can be abated until that date arrives. She stated the item can either return to the Board at that time or staff can simply move forward. Chairman Scarborough stated this is not a zoning matter; and inquired if it would be appropriate to take a motion on it this evening. Attorney Bentley stated she has no problem with it.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to direct that Code Enforcement be abated for one year due to hardship. Motion carried and ordered unanimously.

Ms. Canada inquired if they are being given one year; with Chairman Scarborough responding yes. Ms. Canada inquired what will happen if after one year her father-in-law is still alive. Chairman Scarborough responded the Board has gone as far as it can; and if something else happens, the Board will deal with it in one year.

Item 4. (Z0204102) Jeffrey R. and Susan M. Dixon's request for change from GU to RRMH-1 on 1.1 acres on the north side of April Lane, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve Item 4 as recommended. Motion carried and ordered unanimously.

Item 5. (Z0204103) Space Cats Club, Inc.'s request for change from AU to AGR on 9.76 acres on the north side of SR 46, east of Plum Lane, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve Item 5 as recommended. Motion carried and ordered unanimously.

Item 6. (Z0204104) Statewide Materials, Inc. Tabled earlier in the meeting to May 23, 2002.

Item 7. (Z0204201) Leo Gerard and Elizabeth Roy's request for change from AU to RU-1-7 on 0.21 acre on the southwest corner of Moore Avenue and Grandview Drive, which was recommended for approval by the P&Z Board.

Leo Roy stated he is currently living in Rhode Island, and expects to move to Brevard County in approximately four years; and they plan to improve the property. He stated the setbacks right now are ten feet; they would like to extend their house along the existing line, which is six and one-half feet from the property line; and that is the reason for the requested zoning change.

Commissioner O'Brien advised Robert Markman visited his office today.

Robert Markman submitted documents to the Board; and stated he is opposed to the requested change. He stated the site plan shows the side facing Grandview Drive to be 69 feet, one inch from the existing house; the setback requirements for AU classification are 25 feet; and this means they can add 34 feet to the existing structure facing Grandview Drive. He stated the addition is ten feet; the existing structure is 6.6 feet from the south property line; and at the LPA meeting they said there was the possibility of a variance. He stated the property owner's concern was the addition with the setback from the property line was ten feet; and a variance from the Board of Adjustment would solve the problem. He stated he does not want an arbitrary change of the map.

Ron Carter stated he has lived in the area since 1969; since 1934 the whole section has been AU; and now the applicants want to change that. He submitted a petition signed by 19 people opposing the change. He stated it is just a little street; the river is right there; but years ago, 25 feet of the river was closed off for these people and the next-door neighbor, so the people have no right to even go to the river. He stated they installed a No Trespassing Sign on a tree on County property; when his daughter-in-law went down there, she was told she was on private property, but she was actually on County right-of-way; and the sign is still there. He stated the people across the street like to walk down and look at the river from the top of the hill, but have been told they cannot do that. He stated everyone is against the change because of the setting of the area, that has been there since 1934.

Elizabeth Roy stated Mr. Carter spoke to the change in the property in 1966; they bought the property in 1995; what is there is what they bought; and they had nothing to do with the 25 feet from the river. She stated the sign was put up by a tenant; they currently live in Rhode Island; and the house is a rental now.

Leo Roy stated the 25-foot vacating that occurred in 1966 is not a matter here; the end of the street had been unkept by the County for a very long period of time, and was completely overgrown; and his sister and the neighbor cleaned out the edge, so now they do have a water view. He stated some neighbors have come down the road; one gentleman and his son were invited to fish from their dock; and advised of problems the neighbor had with kids parking at the end of the street, drinking, etc. He stated at the time the neighbor's elderly mother-in-law lived in the house; she would call the police and was told nothing could be done as the people were on public property; and the sign was put up to discourage riffraff from coming down. He noted the edge of the road is only six feet from his neighbor's window; and the previous owner had signs on the trees indicating it was private property.

Commissioner O'Brien stated the area is all AU with EU to the south; this raises a variance issue more than a zoning issue; and he does not want the Board to set precedent by rezoning this property. He stated the setback change from 25 to 20 feet would also be inappropriate for the adjacent property owners. He stated the Board tonight should deny the item, and remind the property owners they should request a variance, which they will probably get.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to deny Item 7. Motion carried and ordered unanimously.

Commissioner Carlson inquired if the applicant is aware he can go in for a variance. Commissioner O'Brien stated that is the appropriate venue. Mr. Roy stated they realize they can apply for a variance; the whole issue in applying for a variance is the demonstration of hardship; and it was suggested by people in the real estate business that they would have difficulty showing hardship for three and one-half feet.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE LOCAL PLANNING AGENCY
OF APRIL 8, 2002 AND NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT
BOARD OF APRIL 11, 2002

Chairman Scarborough called for the public hearing to consider recommendations of the Local Planning Agency, made at its meeting of April 8, 2002, and the North Merritt Island Dependent Special District Board, made at its meeting of April 11, 2002.

Item 1. (NMI120401) Anthony and Jenny L. Falanga's request for Small Scale Plan Amendment to change the Future Land Use Designation from Planned Industrial to Residential and change from PIP to AU on 10 acres on the south side of D'Albora Road, east of SR 3, which was recommended for approval by the Local Planning Agency and the North Merritt Island Dependent Special District Board.

Commissioner O'Brien stated the request was approved unanimously by the LPA and the North Merritt Island Dependent Special District Board.

Tony Falanga stated they have already met with the North Merritt Island Advisory Board and Planning and Zoning; and they unanimously agreed on the rezoning; there are ten acres of PIP land that he would like to rezone to agricultural; when he purchased the land, he was told it had an agricultural classification; and like a lot of the other neighbors, they did not find out until closing that the zoning was PIP. He stated he would like to address the issue in two parts; one is for himself; and he has letters from neighbors abutting his property within the 500 feet and some even further. He stated he spoke with the North Merritt Island Advisory Board and the Planning and Zoning Board; and everybody thinks it would be a great idea. He stated he wants to put his home on his property; and his concern is that the PIP zoning would allow things such as recycling facilities, and a lot of things he does not want next to his new home. He stated as PIP has BU-2 zoning, the density would allow one house per acre; and the reason he is moving from North Merritt Island further north is to have more land around his home. He stated rezoning of the property around his home to agricultural is the best option. He stipulated that he is not representing the neighbors; and stated the other homeowners purchased land on both sides of D'Albora Road under a similar pretense. He stated they were under the assumption that the home sites they bought were going to allow single family dwellings with a minimum size; a deed restriction was put on their mortgage deed; but his attorney advised him those stipulations were nothing more than a gentleman's agreement, and that if someone wanted to put in a boat facility or recycling facility next to his home, they could do so. He stated he wants a buffer; he wants ten acres so at least on either side of him, he will know what he has; and the other homeowners feel the same way. He stated they understand that there are some people in the area who have PIP zoning and want to keep it; and they have no problem with that. He stated the homeowners understand that other than their own private buffer, there may be someone putting in a 7-Eleven or something of that nature; and they do not have a problem with that. He submitted letters from neighbors; and stated some of the parcels are as big as ten acres; and one owner has 20 acres. He stated he contacted everyone in the area to make sure they did not have a problem with what he wanted to do; it was brought up by the North Merritt Island Advisory Board that there could be an administrative rezoning of the property back to its original zoning, which was agricultural; and that was continued at the Planning and Zoning meeting. He stated he knows that is not the issue tonight; but he would love to see those parcels that were sold under the pretense they were home sites administratively rezoned.

Charles Moehle, representing Modern, Inc., submitted paperwork; stated Modern, Inc. owns Parcels 405 and 504; and pointed out the area of concern on the map. He stated the area he is particularly concerned about protecting is north of D'Albora Road; but he wants to talk in general about the complications of the protections of downzoning the industrial property and the borders. He stated this is located very close to NASA; across North Courtenay Parkway is the Big Three Gas production facility that has been there since the late 1950's before there was zoning; and it has industrial zoning as does their property across the street and the property surrounding it. He stated this was determined to be good land planning as an industrial area in 1986-1988; and advised he is not representing the gas plant. He stated at the earlier meeting, the gas plant was represented by a gentleman who was concerned about the fact that theirs is a very noisy operation; the applicant and others acknowledged they would be able to hear the plant, but knew it was there; and it would be like people moving next to an airport. He stated he thinks the gentleman did not come tonight because he was satisfied that nobody was going to bother him and his company; however, when they downzone and affect the boundaries around them, that creates a problem. He stated in particular there could be a problem in view of the additional performance standard ordinances the Board has been approving in the last few years; he stated the gentleman mistakenly thought he did not have a problem; but the performance standard based zoning ordinances will take effect when the industrial property is changed to residential. He stated the residential line will move next to the industrial use; and the use that is next door to the residential or agricultural property may be prohibited by these ordinances, and these businesses may have to shut down or their intended use in the future may be subject to not being allowed. He stated there is an overriding factor here; no one is objecting to what the gentleman wants to do with his property; but they are objecting to approving this without conditions such as what was represented at the meeting where the applicant got unanimous approval but said they would not object to the industrial use on their property. He stated they want the illusion of buffer and protection on the other person's property; and that is the problem. He stated they can do what they want to do, building residential houses, on the property without changing the industrial use; and they acknowledge that; but when the zoning is changed, it is not that simple, particularly with all the new regulations and burdens the Board has been putting on different uses.

Chairman Scarborough inquired what is Mr. Moehle suggesting. Mr. Moehle responded this should not be approved until the Board has redone the zoning or performance standards to take care of a situation like this or do it on a case-by-case basis. He suggested if the zoning is changed, a condition be included that it does not change the effect of the performance based zoning or any other zoning that would come into play when an industrial property line is changed to a residential property line.

Attorney Bentley stated the Board cannot waive an existing Ordinance and the way it operates with the performance standards; it may be possible to get a variance or something like that on the adjacent property; but the Board cannot just waive the Code requirements.

Chairman Scarborough stated he is not ready to move on this item tonight; these classifications play off each other; he does not think there is incompatibility; but he understands what Mr. Moehle is saying. He stated he does not know the implications.

Commissioner O'Brien stated he has been gnawing on this one as well after reading it; it is a double-edged sword; and advised of problems with his factory in Cape Canaveral. He stated the property abutting his factory was also zoned light industrial; but a developer built eight townhouses on the property; during the Exxon Valdez incident, his factory had to work 24 hours a day, seven days a week; and the neighbors started complaining about the noise, lights, etc. He stated the City said he could not use his machinery after 10:00 p.m. in accordance with the Noise Ordinance; but he pointed out his factory was there long before the townhouses. He stated when they built the townhouses, they knew what they were getting into; but it worked adversely the other way. He stated when the County plans for industrial parks, hopefully, it will not plan for residential to be there among it because there could be 100 different things with small industrial plants that could annoy people; and all of a sudden someone with a good company could be forced to shut down.

Commissioner Carlson stated she agrees with Commissioner O'Brien and Mr. Moehle; Mr. Enos advised during the briefing that there is an overabundance of industrial in the County; and suggested if the Board is going to do a small scale amendment, it do it for a larger area. She stated it is just like allowing someone to build near an airport; they are bound to complain; the IU piece already has a gas plant; and this does not seem to be compatible.

Chairman Scarborough stated earlier the Board had the item with Ms. Canada, and was able to make it work; and the Board needs to spend a little more time on this item; with Commissioner O'Brien agreeing. Commissioner O'Brien stated the Board is very aware of the growth at Kennedy Space Center with the new road being put in; some people may not want to be onsite, and may wish to work offsite for some governmental regulation reasons; and that happens quite often. He stated this property is zoned PIP; the Board did the right thing in saying there would be future industrial use there; it is prime for that, especially right now; and it is right outside the gates of KSC. Commissioner O'Brien stated companies may not be involved in research, but may want to supply food or whatever to the research centers; and he would be adverse to approving this item. Chairman Scarborough suggested not saying no, but tabling the item to allow the Board more time to figure out some options.

Mr. Moehle stated he needs to ask one more question of procedure about the business of the Advisory Board recommendation; they were recommending that the Board take action, and that anybody putting in a letter by May 2 could be rezoned to agriculture; and inquired about the proper procedure. Chairman Scarborough stated he does not want to get into that discussion now; the hour is late; and the Board is going to table the item to get into more substantive issues.

Tony Falanga stated the piece of property Mr. Moehle just showed is probably 1,200 feet from his property; and the plant that was mentioned is separated by a divided four-lane highway as well as a County-maintained dirt road, with no plans for paving. He stated he knows the Board is looking at the big picture; and displayed a map showing his property, the liquid gas plant, the four-lane highway, and the properties of the individual homeowners interested in the change. He stated his property is also separated by D'Albora Road from everything that has been talked about; his property abuts agricultural property; and advised of a working orange grove that is abutting.

Commissioner Carlson inquired if the grove has PIP zoning; and stated there can be a small scale plan that covers all the people in the area who want their property to become AU because they already have their homes there.

Mr. Falanga stated if the item is tabled and the rezoning does not take place, he has invested a lot of time and money. Chairman Scarborough noted he is not saying it is not going to happen. Mr. Falanga stated he wants to make it clear that the piece of property he is looking to rezone is surrounded by AU property; and Mr. Moehle's concerns are a good distance from where he is. Chairman Scarborough stated he understands where it is going, and it may all come together beautifully; and commented on previous items. He advised before the Board makes a change from industrial to agricultural, it needs to take a deep breath; it is not saying that cannot be done or will not happen; but the Board does not need to take it in little bits and pieces. He stated Commissioner Carlson is right on the money; when this is done, the Board needs to know how all of those will be done; but there needs to be some understanding of other people and the implications.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to table Item 1 to May 23, 2002 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Upon motion and vote, the meeting was adjourned at 8:25 p.m.

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ATTEST: TRUMAN G. SCARBOROUGH, CHAIRMAN BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK

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