MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

January 29, 1996

The Board of County Commissioners of Brevard County, Florida, met in regular session on January 29, 1996, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Mark Cook, Commissioners Truman Scarborough, Randy O?Brien, Nancy Higgs, and Scott Ellis, Assistant County Manager Joan Madden, and Assistant County Attorney Eden Bentley.

Commissioner O?Brien led the assembly in the Pledge of Allegiance.

Chairman Cook advised the Zoning Agenda has been done two ways; one takes all non-controversial items first, so the applicants do not have to sit for hours; and inquired if the Board has an interest in doing that. He stated he does not have a preference, but people have sat with engineers and attorneys for hours, then when it gets to the Board, it is approved immediately; and he is not considering it tonight, but in the future.

Commissioner Higgs advised her preference is to move through the Agenda the way it is, because it makes it more predictable for people.

Commissioner Ellis stated generally the Board took applicants with representatives; and it would be reasonable to take non-controversial items first; and that would be a good policy to go back to.

Chairman Cook stated the Board will do that in the future.

Chairman Cook called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on November 6, 1995, and tabled by the Board of County Commissioners on December 4, 1995, as follows:

Item 22. Carl W. Kuehner and Stephen A. Sawyer?s request for Small Scale Plan Amendment and change from GU to AU on 6+ acres located north of Curtis Boulevard at the northern terminus of Song Drive, which was approved for Small Scale Plan Amendment by the Local Planning Agency, and the P&Z Board approved AU.

Ms. Kuehner advised they met with Port St. John Homeowners, presented their case, came to an agreement, and resolved the issues as expressed in the letter to County Manager Tom Jenkins.

Zoning Official Rick Enos advised he received the letter and binding development plan committing to the same exceptions noted in the letter.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve the Small Scale Plan Amendment, and adopt an Ordinance amending Article III, Chapter 62, of the Brevard County Code, entitled "The 1988 Comprehensive Plan," setting forth the Second Small Scale Plan Amendment of 1996, 96S.2, also known as the Thirteenth Small Scale Plan Amendment of 1995 (95S.13), to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Future Land Use Map Series; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date; and to approve change from GU to AU with binding development plan agreement. Motion carried and ordered unanimously.

Item 9. Gary J. Coppola?s request for change from PUD w/CUP for water treatment plant, to RU-2-4 on 198.7? acres located at the west end of Senne Road, which was denied by the P&Z Board.

Attorney Dan McDermott, representing the applicant, advised the request was changed to RA-2-4 instead of RU-2-4 at the December 4, 1995 meeting, and was accepted by the Board and reviewed by staff. He stated the Board tabled the request on December 4, 1995; and since that time County staff reviewed it and found the request meets all the rezoning criteria. He stated there is no request for any exemption, variance, or deviation; it is a request to change to RA-2-4 category; and there is no development request at this time, it is simply a zoning request. Mr. McDermott advised according to Zoning Official Rick Enos, there are no exceptions to the Zoning Code which need to be addressed; and the rezoning review worksheet, which lays out the criteria that County staff looks at, has been reviewed by Mr. Enos, and found to be 100% consistent with County rules and regulations. He stated there have been comments made relating to septic systems, sewer systems, and other issues; and those are premature and not properly before this Board at this time. Mr. McDermott advised the request is consistent with the Future Land Use designation, the maximum allowable residential density, and the acceptable levels of service for the property. He stated since the request was changed to RA-2-4, it is entirely compatible with all the land uses surrounding the property. He stated as a result of concerns of the neighbors, Mr. and Mrs. Cragg, who are the potential developers of the property, met with those neighbors and talked about a binding development plan; that plan has been faxed to each Commissioner and provided to Mr. Enos and Mr. Jenkins; the conditions are laid out in that plan agreement; and one of the conditions is the 2.5 density cap which the applicant agreed to conditioned upon being able to use septic systems. He stated in the future, if development is to take place on the property, the current regulations relating to septic systems, availability of sewer, and availability to develop a package plant would all have to be addressed. Mr. McDermott advised if sewer connections or a package plant are necessary when development is to take place, the 2.5 density cap would be unrealistic and would place a financial constraint upon the developers of the property. He stated they agreed to limit themselves to single family or duplexes again conditioned upon the availability of OSSD systems; those are financial questions which cannot be adequately answered at this time; development of the property could be six months, two years, or five years down the road; and what is requested today is simply a zoning that is consistent with all County regulations and rules. Mr. McDermott stated the concerns of neighbors are general in character and not adequate to deny legal zoning; there are people here who were bussed in to express complaints and concerns; they need to have specific concerns which need to be addressed by the Board; and they need to be zoning concerns. He stated Rick Enos will tell the Board, if asked, that the request meets the Code 100%, and that there are no exceptions requested.

Mr. McDermott advised Leigh Stewart, 114 Sixth Avenue #3, Indialantic is here to answer any questions the Board may have.

Marie Bergamini, 7660 Great Bear Lake, Micco, Snug Harbor, advised there is no way 400 septic tanks to the north of Snug Harbor would not cause problems; they are paying taxes to clean up the lagoon; and inquired if the septic tanks overflowed, will the builder be around to pay for the clean up that will drain into the Indian River, or will the Board levy another tax on the people. She stated Florida Cities Water Company historically has not been concerned about the environment; it has been operating under consent orders in violation for more than ten years, discharging more than 600,000 gallons a day into the Sebastian River; and a recent study by St. Johns River Water Management District of 19 counties found four where the aquifers were at a dangerously low level due to human consumption of water, three of which were located in the Indian River and the fourth in Barefoot Bay. Ms. Bergamini advised of BellSouth?s change in rates which omitted Micco, and two schools planned for Palm Bay while more than 700 school children from Micco are bussed to Palm Bay, indicating Micco is always overlooked. She stated it is time for the Board to accept responsibility for the problems of septic tanks; and if it wants development, it should address building sewage and water treatment plants. She stated Micco is not included in the County?s 20-Year Plan for sewer and water, and to add more septic tanks in the area is ludicrous.

Mary Dobek, 5387 Hammerstone Court, Micco, agreed with Ms. Bergamini, and stated she is against the change to allow Crystal Bay to use septic tanks instead of a sewer treatment plant. She advised Florida Cities Water Company was suggested by the Board as an alternate plan; and according to Florida TODAY, Florida Cities Division Manager Bill Sansbury said no one from the development contacted him about expanding the plant; so that option has not been explored. She stated with Florida?s high water table, it would not take much for overflow to occur; it is not only dangerous to the Indian River Lagoon, but also to the communities; meningitis is a disease caused by a virus or bacteria present in fecal material; and when contaminated water is left standing above ground, it becomes a breeding ground for mosquitos which help to spread the highly infectious disease. She stated it can also be spread by coming in contact with the contaminated area; and read from an article in Florida TODAY, January 26, 1996 issue, regarding meningitis outbreak in Fort Walton Beach which took the life of one child and forced vaccinations for about 5,000 children in the target area. Ms. Dobek stated it is only one of many diseases that can occur from this problem; and inquired if the Board wants that to happen to its community.

Mafalda Walker, 7515 Boxelder Road, Micco, objected to RA-2-4, attached single family or duplexes or townhouses, and septic tanks; and stated 199 acres with over 400 homes would mean over 400 septic tanks. She stated the alternative to the septic tanks suggested by the Board last month of getting a franchise service from Florida Cities Water Company was said to be too expensive by Mr. Cragg; and if it was a County plant, Mr. Cragg or Mr. Coppola would not have a say in the matter and would have to hook up to the sewer system. She stated the attached single-family homes, duplexes, and townhouses would be nothing more than row homes; row homes are not compatible with the homes presently surrounding the property; it says no rental units are allowed; but her knowledge of a duplex home is two units owned by one person who rents one unit while living in the other. Ms. Walker stated a concrete wall should be in place prior to any construction commencing on the property that abuts Snug Harbor; and inquired if Mr. Coppola will be required to transfer the drainage easements to the County and to post a performance bond. She stated one plan Mr. Cragg showed them had 12 lakes; and inquired if they were lakes or retention ponds. She stated Mr. Coppola is an investor and has a right to develop his land; however, the Board has an obligation to the people who already live in the area.

John R. Smith, Sr., 1329 Tulip Court, Barefoot Bay, Director of the Board of Barefoot Bay Homeowners Association, stated zoning is dictated by and for the people the zoning affects; and the Barefoot Bay Homeowners Association objects to having 500 septic systems when there is a treatment plant in the area that can be utilized. He stated when the property was approved as PUD, the plan was for Florida Cities Water Company to provide wastewater treatment service; it had capacity then, but now they say it does not; however, the Company contends it has to raise rates because usage has declined, so they should be able to treat more customers now than they could a few years ago. Mr. Smith suggested the Board grant the zoning with the stipulation that Florida Cities Water Company be utilized for wastewater disposal, or the County buy the Company, expand the capacity to take care of South Brevard, from Grant to the Sebastian River, which will take care of concerns for drinking water, environment, Indian River, and wildlife. He stated Royal Sebastian plans to develop its property with septic systems because it has the zoning; that would mean about 400 more septic systems around them; when Barefoot Bay was developed the citizens of Micco were worried about it wanting septic systems; but their fears were put to rest when a wastewater treatment plant was built for Barefoot Bay. He stated they did it to protect the community, and they need that protection now; and requested the Board not allow South Brevard to be full of septic tanks.

Larry Resnick, 7679 Great Bear Lake Drive, Micco, advised Snug Harbor Lakes is adjacent to the subject property and consists of over 400 units; and he is in opposition to the change from PUD with CUP for water treatment plant to RU-2-4 which is low density multifamily residential. He stated it would not be compatible with Snug Harbor which has always been zoned TR-3 and only has single-family homes on lots larger than the minimum specified in the Zoning Code; and to allow attached housing adjacent to existing single-family housing would be a disservice to the residents of the existing single-family development and sends a clear message that investment in domicile in Brevard County is hazardous to a person?s well-being and way of life. Mr. Resnick stated while the developer says detached housing would constitute only 20% of his development, a zoning change would permit 100% and there would be nothing anyone can do about it except suffer the consequences of congestion, invasion of private streets, and possible lower property values. He stated the current zoning is PUD with a CUP for a water treatment plant; the PUD meant there would be a great deal of open space; and this developer wants to eliminate that open space and CUP for the water treatment plant that is currently required. He indicated if the development is permitted it would pollute the Indian River Lagoon with underground seepage from hundreds of septic systems because they will be only a few hundred feet away from the water?s edge; and it may pollute Snug Harbor?s potable water system. Mr. Resnick advised Snug Harbor is a single-family retirement community of approximately 500 homes; it meets the criteria for a federal adult community designation; and that means most of the residents have put their retirement savings into probably their last home and cannot easily pick up and move away because their neighborhood changed for the worse. He requested the Board not allow the development to happen, reject the proposal, and if it is inclined to grant the change, make it a conditional use permit. He stated since it is not compatible with Snug Harbor, he would request a six-foot high stucco cement block fence be erected by the developers as a divider between the communities. He noted Mr. Coppola said he would be willing to erect a wooden fence as a divider and make the maintenance part of the homeowners association documents, but they know the durability of wooden fences in Florida; and it would cause Snug Harbor residents a lot of money on lawyers and walls to keep their private streets as they are.

Ed Keeley, 101 Hydrangea Court, Barefoot Bay, advised they are concerned about the septic systems, the ponds or lakes, control of the overflow, and the six-foot fence. He stated he likes the breeze and does not know what effect the fence would have on it; and it should be more permanent than a wooden fence if they are going to have one. He stated the Board needs to think about the septic tanks now and not make it any worse than it already is.

Walter Schoueck, 622 Amaryllis Drive, Barefoot Bay, declined to speak.

Leigh Stewart, Stewart Engineering & Associates, 114 Sixth Avenue, Indialantic, representing David and Anita Cragg, explained an aerial photograph of the area, depicting Crystal Bay consisting of 400 lots, Barefoot Bay and Snug Harbor Lakes to the south, and Snug Harbor Village to the right. She stated they were told at that time capacity is not available; they proceeded with a conceptual layout plan that they could move forward with under the current rules and regulations of Brevard County; prior to December 4, 1995, she spoke with Larry Goode with Florida Cities Water Company because

there had been some confusion about whether capacity was available or not; and she was told again capacity is not available, the plant is sized only to handle Barefoot Bay?s current population and predicted future population, and Crystal Bay is not within the franchise area for that plant. Ms. Stewart stated in order for capacity to become available to Crystal Bay, the Company would have to apply to the Public Service Commission to expand the franchise area, undertake design, permitting, and construction of the plant expansion, and notify them that sewer capacity is now available for their use; they talked to the Company about this on several occasions; if capacity was available, they would gladly connect; that is their first choice; but it is not there for their use.

Mr. McDermott advised to clear up a mis-statement, the property is not changing from a PUD with CUP; the PUD zoning is gone and does not exist on the property; and Mr. Enos will confirm that. He stated another comment made was that zoning criteria is for the people; that is exactly right; and it is also for the people who own the property and meet every criteria set out in the 600 pages of zoning regulations. He stated there is no valid reason to deny the request; he understands the neighbors are concerned about development issues, but it is not zoning; and the fence is only an issue because Mr. Cragg met with the property owners and tried to come up with a solution to address their concerns. He stated it was included in the plan because they asked for it; the zoning would make the property compatible with all surrounding property uses; and Mr. Enos will confirm that. Mr. McDermott stated all the comments about row houses being incompatible is bogus; there is no validity to that; and the easements will exist on the property and must be honored, and nobody has the ability to remove those easements. He stated the general concerns expressed are not valid reasons to deny zoning; property rights allow an individual who owns property to zone it in accordance with the Zoning Codes; and that is all that is being requested here. He repeated there are no exemptions, exceptions, or variances requested, only the zoning that meets all the criteria.

Commissioner Higgs asked Mr. McDermott to identify on the map the locations of any public rights-of-way from Barefoot Bay that abut the subject property; and Ms. Stewart pointed out the area designated Crystal Bay above the word "County". Commissioner Higgs inquired if the properties abut the right-of-way served by sanitary sewer provided by Florida Cities Water Company; with Mr. McDermott responding yes, the ones inside Barefoot Bay. He stated what has been identified is Crystal Bay area and public right-of-way Ms. Stewart indicated as being an access way from Barefoot Bay running north/south into Crystal Bay; and it exists essentially right above the word "County" in Brevard County. Commissioner Higgs inquired if the developer intends to include a maximum percentage of multifamily versus single family in the binding development plan; with Mr. McDermott responding they have not included that in the binding development plan because Crystal Bay is a conceptual plan; they are not into the development stage; but what have been indicated are single family and duplex homes conditioned upon OSSD systems being available. Ms. Stewart advised the intent right now is to develop 400 lots of which approximately 98 will be duplex units for a total density of 2.5 units per acre. Commissioner Higgs inquired if the 98 duplex lots could be inserted in the binding development plan; with Ms. Stewart responding that is fine. Mr. McDermott advised the duplexes will be fee ownership and not rental units; and a deed will convey each half of the duplex. Commissioner Higgs inquired if there will be deed restrictions prohibiting someone from renting the units; with Mr. McDermott responding that is a development and ownership issue which is well out front of where they are at right now. Commissioner Higgs stated there is nothing presented that says people cannot rent their property. Mr. McDermott stated at this point that is true. He stated he wants to be sure several things are in the record, such as the aerial photograph, binding development plan, letter from Larry Goode indicating there is no capacity at Florida Cities Water Plant, and that the Board is addressing RA-2-4 zoning classification even though the Agenda says RU-2-4. Commissioner Higgs inquired if Mr. McDermott had discussions with Florida Cities Water Company since the item was tabled in November, 1995; with Mr. McDermott responding the letter from Larry Goode, Regional Manager of Florida Cities Water Company, is dated December 1, 1995; it is addressed to Leigh Stewart; and he read it as follows: "This is to verify our phone conversation this date concerning Florida Cities Water Company?s Barefoot Bay Wastewater Plant. Barefoot Bay Wastewater Plant will be on line in January, 1996 and is designated and permitted at 750,000 gallons per day which will handle only the present franchise area of Barefoot Bay. We would be willing to extend our present franchise area to include other areas, but our Wastewater Plant would have to be expanded to handle the additional flow." He stated that letter is in the record.

Commissioner Higgs stated there are a couple of issues she wants the Board to consider tonight: (1) what the Comprehensive Plan says in the Sanitary Sewer Element Policy 1.4; (2) what the Florida Statutes define in terms of availability; and (3) the contents of the proposed binding development plan and any concerns the County Attorney?s Office may wish to raise in regard to that. She stated Policy 1.4 states, "Brevard County shall permit the use of onsite sewage disposal systems only in areas where a sewer system is not available and then only when the system is consistent with the regulations found in Chapter 10.D-6, Florida Administrative Code." She stated that Policy seems to apply to the issues at hand; what is proposed in terms of the binding development plan seems to be inconsistent with the Comprehensive Plan; and inquired if the Board can consider Policies within the Comprehensive Plan in regard to awarding or not awarding zoning. Assistant County Attorney Eden Bentley advised the Board must consider the Policies of the Comprehensive Plan when considering zoning; zoning must be consistent with the Comprehensive Plan Policies; the binding development plan as written is somewhat problematic for a variety of reasons; and as to the sewer issue, which is the Policy Commissioner Higgs referenced, the binding development plan is written so the Board would allow 2.5 units per acre if septic tanks are allowed. She stated the way it is written, an argument could be made that the Board would be estopped from denying septic tank development; and that would be in violation of the Comprehensive Plan if it were discovered that sewer is available in the future. She noted the Board would need to revise the binding development plan to ensure there is not any problems. Commissioner Higgs inquired if Ms. Bentley is suggesting Item 2 on page 3 which says, "Provisions contained in here related to residential densities in single-family duplex residential uses. . ." to the end should be eliminated; with Ms. Bentley responding the entire paragraph should be eliminated; however, the first three lines are acceptable and part of the County?s standard provisions. She stated the other problem with the binding development plan as written is the sliding scale of density approval; they say 2.5 units per acre or 4 units per acre, depending on what the sewer capacity is; and the Board needs to consider one or the other.

Commissioner Higgs inquired if Policy 1.4 regarding sanitary sewer is a valid concern, what are the State?s requirements for a public utility providing service to potential customers and what does availability mean; with Ms. Bentley responding Chapter 381, Florida Statutes, provides that if there is sewer within one-quarter of a mile of the subdivision, accessible by existing public right-of-way, then sewer is available. She stated there also must be capacity; and the State law discusses capacity in terms of permitted capacity. Ms. Bentley advised she is not sure the letter from Mr. Goode addresses that issue since she has not seen it; and there are questions whether or not they can amend their franchise area or if they could provide capacity today. She noted she is not sure whether or not they are currently serving their entire franchise area; and there may be capacity still available within that area which they could move over to this project, but she does not know enough about their sewer capacity and permits to answer that question. Commissioner Higgs inquired if deleting paragraph 2 takes care of the zoning contingent on sewer being available; with Ms. Bentley responding if the Board is considering a density of 2.5 units per acre, then it would eliminate the majority of paragraph 2; it also does not need paragraphs 3.d. and 3.e. because those items would be covered by existing regulations; and paragraph 4.a. is a provision which needs to be revised if the Board is going to consider the binding development plan. She stated the Board needs to adopt an appropriate classification; it does not need to provide that it will allow specific project development or implement zoning; and it should simply adopt a zoning classification. Commissioner Higgs inquired if Ms. Bentley can further clarify public utilities requirements to serve potential customers; with Ms. Bentley responding the only thing Florida Statutes Chapter 381 provides is if they are within a quarter of a mile and have access to a public right-of-way then it is available, but there is a question of capacity as well, and the applicant feels there is none. She stated she does not know if County staff or the Public Service Commission had a chance to provide an answer to that.

Commissioner Higgs advised the Comprehensive Plan Policy requires that if sewer is available, they be required to use it and onsite sewage disposal systems would not be permitted; so she will not support the zoning request unless Policy 1.4 is upheld. She stated if the Board chooses to move forward, it has to deal with the legal issues and the binding development plan that is not in the County?s best interest, nor is it something the Board should agree to.

Chairman Cook advised there seems to be some confusion whether or not capacity is available; with Mr. McDermott responding the only evidence the Board has is the letter from Larry Goode who says it is not available. He stated he personally spoke with Richard Martens, Water Resources Director, and his opinion, although not written down, is that it is not available; it is not available because there is no capacity; but if sewer is available from the County, a city, or Florida Cities Water Company, his clients will hook up to it no matter what. He stated that is not a problem; and deleting paragraphs 3.d., 3.e. and 4.a. is not a problem also. He reiterated if sewer is available, they will hook up to it.

Commissioner Ellis inquired how can the Board prove whether sewer is available or not; with Ms. Bentley responding the permits for the facility would probably govern that; one of the items in the Florida Statutes is that the sewer system has adequate permitted capacity; so the Board would have to review the permits in order to determine that. Commissioner Ellis inquired if County staff would review the permits; with Ms. Bentley responding the Public Service Commission would.

Commissioner Higgs advised Mr. McDermott said he talked to Mr. Martens; she talked to Mr. Martens also and does not believe Mr. McDermott?s information about whether or not Mr. Martens would say it is available is consistent with the information she has; she does not see anything in writing; and her conversation with Mr. Martens did not indicate he was ready to say one way or the other that there was or was not sewer available. She stated they talked about a number of issues in terms of plant capacity and disposal capacity; he is not an expert and is not here tonight to present evidence one way or another; so that is not evidence the Board should consider. Commissioner Higgs stated there seems to be conflicting information coming from Florida Cities Water Company in terms of whether or not capacity is available; the applicant talked to Mr. Goode, and she talked to an official of Florida Cities Water who indicated a willingness to work with the applicant to take care of those issues; so there is some evidence that availability might be possible. She stated there is a rate case currently being debated indicating a decrease in the amount of treatment and decrease in revenues which led to the alleged rate increase; so if there are decreasing amounts of treatment at the Plant, then perhaps capacity is available in the existing Plant today; and that is the conflicting evidence the Board needs to be aware of.

Commissioner Ellis inquired why the Board cannot get a definitive answer whether it is available, and who is the definitive answer to come from; with Ms. Bentley responding the Public Service Commission would be the proper authority to answer that question because it is the final authority on something like that. Commissioner Ellis stated that would resolve the question about capacity. Commissioner Higgs inquired if it is the PSC or the Department of Environmental Protection which does some of the regulating in terms of capacity both to treat and dispose; with Ms. Bentley responding the County would probably have to contact both agencies because it has a franchise issue as well as environmental issues to consider. Chairman Cook stated one or the other agency should be able to give the Board a definitive answer whether or not capacity is available. Commissioner Ellis stated he would be more than happy to find out yes or no, but the Board needs to know who to ask. Ms. Bentley advised staff could look into it and return to the Board with answers from both agencies. Commissioner Ellis stated no matter what happens tonight, the Board needs that issue resolved because there are other places in the South Beaches with smaller treatment plants; and inquired if development is approved on the border of an area with a package treatment plant, how will the County determine if there is capacity available or not.

Commissioner Higgs advised the Comprehensive Plan speaks to the issue of private package plants in several ways; the plant at Barefoot Bay is owned by Florida Cities Water and is a different situation than private package plants because of its status with the Public Service Commission; and it is a permanent provider and treated differently than other package plants. She stated the Board needs an answer whether or not there is capacity available because that is the issue of most concern to the residents. Commissioner Ellis stated the Board needs to resolve who will give the definitive answer. Chairman Cook stated the Board needs to resolve that question one way or the other, because it may be looking at legal action if it makes a decision that is not proper. Commissioner Ellis stated it has to be resolved if it ends up in court because the judge will want to see something in an evidentiary proceeding; so the Board needs to determine who has the official say so. Commissioner Higgs inquired if the Board approves the binding development plan with the changes previously suggested and the applicant agrees to it and the percentage of single family units, could

that be included in the plan. She stated Mr. McDermott indicated the applicant said if sewer was available, his client would be willing to hook up to that. Ms. Bentley stated the applicant would be required to hook up to sewer if it is available.

Chairman Cook inquired if the applicant agrees to make that a part of the binding development plan; with Mr. McDermott responding they will absolutely agree in the binding development plan that when sewer is available, actually available, they will hook up to it, and will apply right now. Chairman Cook inquired if the Board can get a definitive answer and they say it is available immediately, would the applicant hook up to it; with Mr. McDermott responding absolutely, and the reason it has not been finalized is because it is premature; it is a development issue; and this is a zoning issue.

Commissioner Higgs inquired if "zoning is contingent on compliance with Policy 1.4 of the Comprehensive Plan," could be added in paragraph 3; with Ms. Bentley responding it would be acceptable to include if sewer is available the property owner agrees to connect to the sewer system immediately. Commissioner Higgs inquired if clarifying language regarding availability should be included; with Ms. Bentley responding the issue will be whether or not they can obtain a permit to expand the franchise area and serve the proposed development. Commissioner Higgs stated it could be either within their current permit or such permit that may be required. Chairman Cook stated the language could be inserted to require hook up immediately if it is available.

Commissioner O?Brien stated when it was zoned PUD, they were required to build their own treatment plant and leave Barefoot Bay and Snug Harbor?s plant alone; now they are not going to build a plant and cannot hook up to a sewer system and are going to use septic tanks for the entire development; and he has a problem with that. He stated in the PUD zoning, creation of their own plant for their own project was a starting point that did not affect anyone else; now the Board is saying they do not have to build a plant, and if they can hook up to Barefoot Bay?s plant, they will do that, but if they cannot, it is up in the air; and that is ludicrous.

Chairman Cook stated he has concerns about all the homes on septic tanks; but another concern is if a development meets all the criteria set out by the County and the Board denies it, it puts the County in a precarious legal situation which could end up costing the taxpayers quite a bit of money.

Commissioner Ellis advised of a court case involving the City of Melbourne and the Department of Community Affairs where the City denied zoning because sewer was not available, and Department of Community Affairs said the City cannot do that, so it had to allow the development on septic systems if it met all the State requirements for septic systems. He repeated the need for a definitive answer whether sewer is available or not; and suggested the County Attorney talk to Melbourne to review the case on the Woodson property (Lake Washington Estates).

Commissioner O?Brien advised the Department of Environmental Protection said septic tanks will do nothing more than kill the rivers; and the Board would not be looking at its environmental responsibilities if it does not address sewer treatment for this project. Commissioner Ellis advised this is a private plant, and the Board does not know if it can be expanded or not. He stated it is easy for the Board to determine if its plants can be expanded in Port St. John, Merritt Island, Suntree, or South Beaches, but it needs to know how to get a definitive answer on expansion of capacity for a plant that it does not control. Commissioner O?Brien stated the Port St. John issue was not a PUD or site plan for a specific area; this project is a concept; so something can be done before the problem occurs. Commissioner Ellis stated there are conflicting rules from the State; and if Rule 10.D-6. is followed, septic systems are safe. Commissioner O?Brien stated it would be irresponsible to continue septic tanks so close to the rivers in that amount. Commissioner Ellis stated what matters is the County?s case when it goes to court; if it does not have all the facts together, it will end up like the City of Melbourne; the Board cannot have conjecture in court, it has to have facts; and repeated that it needs to find out how it will get definitive answers on the capacity.

Chairman Cook advised the State allows septic tanks, but he has concerns about them; and it puts an added burden on local government in the sense of does it deny zoning for appropriate reasons.

Commissioner Scarborough advised there was an agreement in the Port St. John issue to go to the aerobic type system where there would be essentially a sewer type environment if certain conditions were met; that agreement was not only for Port St. John, it was a County Agreement which also impacted the Palm Bay area; subsequently, changes were made; and Department of Community Affairs was unhappy with the action extracted from another State agency. He stated it looked like it would go to a 120 hearing, then Department of Community Affairs said it will study the entire lagoonal system and see to what extent septic tanks may be contaminating the lagoon. Commissioner Scarborough stated the verdict is not back for the Board to say it is or is not contaminating the lagoon; so for the Board to definitively say tonight it will or will not contaminate the river is premature because it has agreed with Department of Community Affairs that additional study is required. Commissioner Ellis stated the Port St. John issue deals with existing lots and homes. Commissioner Scarborough stated it will give the Board results and let it analyze what is occurring; and it is a lagoonal study and not just for Port St. John.

Chairman Cook inquired if the Board takes all the exceptions and conditions and the applicant accepts those, what is the legal basis for denial; with Ms. Bentley responding if the Board considers the binding development plan, the applicant has to offer the restrictions and agree to them; and if it agrees to the binding development plan, it is approving the zoning with a density cap of 2.5 units per acre. Chairman Cook advised there is concern about wood fences being an inadequate barrier between two different types of zoning; and inquired if the applicant discussed that matter and has a concrete wall or stucco fence come up; with Mr. McDermott responding what is in the plan is a six-foot wooden fence with the homeowners responsible by deed restrictions to maintain that fence. He

stated there is no restriction or requirement in any Zoning Code to make that available; and the applicant is making it available to address some of the concerns of the residents. Chairman Cook inquired if he considered a concrete wall and decided it was not acceptable; with Mr. McDermott responding that is correct.

Commissioner Higgs inquired if the applicant is willing to agree to hook up to sewer; with Mr. McDermott responding yes. Commissioner Higgs inquired if that could be included in the agreement; with Mr. McDermott responding yes, they have no objection to that when the sewer is available. Commissioner Higgs stated the difficulty is in terms of being able to assure that is complied with and the definition of availability is an acceptable definition; with Mr. McDermott responding that is a Comprehensive Plan question when it is available, and the County has a Policy that states when sewer is available they will hook up to it. Commissioner Higgs stated the Comprehensive Plan says "Shall permit the use of onsite sewage disposal systems only in areas where sewer system is not available"; the Florida Cities Water Company?s Plant has a publicly franchised area that has the same status as a public plant; and although it is owned by shareholders and is private in a sense, it has a public responsibility for that area to service surrounding developments.

Chairman Cook inquired who will determine when the availability is there. Mr. McDermott advised if they are ready to develop a year from now and make application to the County for their development plan, that will include sewer, potable water, streets, sidewalks, fire hydrants, and all the development issues; to answer now if sewer is available or not is irrelevant; six months or a year

from now it may be available; and that is when the question could be answered. He stated there could be expansion of the franchise area and permits and other things taken care of.

Commissioner Scarborough inquired, if the study being done by Department of Community Affairs comes back very negative as to septic tanks, what would be the net effect of that after the County enters into an agreement for this project and it is underway with no sewer lines; with Ms. Bentley responding if permits are still issued for septic tanks, notwithstanding the outcome of that study, then septic tanks would still be allowed. Commissioner Scarborough inquired if an adjoining property owner has a right to enforce the deed restrictions of this project relating to the six-foot wooden fence; with Ms. Bentley responding only as a third party beneficiary to the binding development plan. She stated the Board could provide in the binding development plan that the property owner would concede that abutting property owners have standing to enforce the requirement of the fence. Mr. McDermott inquired if Commissioner Scarborough is suggesting abutting property owners have legal standing to bring action on the fence; with Ms. Bentley responding to require the fence be in place. Mr. McDermott stated the County would have that ability if it is in the binding development plan. Ms. Bentley stated under the binding development plan the County could, but it would not necessarily enforce that, and the property owners would. Mr. McDermott stated the County has rights by virtue of the agreement. Ms. Bentley inquired if Mr. McDermott is willing to provide that the abutting property owners have standing to enforce the agreement; with Mr. McDermott responding he would ask his client. Commissioner Scarborough stated as soon as the deed restrictions are recorded, it ends the County?s rights to enforce it; and it does not say the County has residual rights. Ms. Bentley advised the agreement says the fence will be erected, but it does not say the County has the right to require maintenance of the fence forever. Mr. McDermott stated the fence is an effort to accommodate the neighbors; if the abutting property owner has the right to enforce maintenance of the fence, the action would lie against the owner of the fence on whose property the deed restriction is on; and it is not a problem saying the abutting property would have the right of action

against that property owner whose land the fence exists on. He inquired if what Ms. Bentley said about state regulations relating to onsite systems is 10.D-6; with Ms. Bentley responding yes.

Commissioner Higgs stated under paragraph 2, page 3 of the binding development plan, after "as herein stated," and beginning "provisions contained," should be deleted; and paragraphs 3(d) and (e) relating to single family or duplexes not to exceed 98 duplex units would be deleted. Mr. Enos inquired if 98 means duplex units or duplex lots; with Ms. Stewart responding out of the 401 lots, 98 lots will contain a duplex structure. Chairman Cook advised about 25% of the project would be duplexes. Commissioner Higgs recommended adding (d) stating, "The developer/owner agrees to use sanitary sewer system"; and delete paragraph 4(a). She stated under (g) there should be language regarding the six-foot wooden fence; and inquired what language should be included. Ms. Bentley recommended "Abutting property owners shall have the right to require the owner of the property with the six-foot high wooden fence to remain in place and be maintained." Commissioner Higgs inquired if the person who has the fence on his or her property would be required to maintain it as opposed to the Homeowners Association; with Ms. Bentley responding yes, but if the Homeowners Association owns the lot with the fence on it, then it would be the Association. Mr. McDermott stated the Homeowners Association will maintain the right to enforce all the deed restrictions as to all the fences; and it does not alleviate the Homeowners Association stepping in. Chairman Cook inquired if the changes reiterated by Commissioner Higgs are acceptable; with Mr. McDermott responding there is one area they need to discuss on the duplex units that could lead to some inconsistency; the density cap is 2.5 units per acre for the entire property; and that would be 496 units. Chairman Cook inquired if it would still be 401 lots; with David Cragg responding he agrees to 2.5 density cap on the property and nothing greater than duplexes; they do not know how many lots at this time; if they did more duplex lots, they would have less lots overall and more open space; but they do not know what the mix is at this time. Chairman Cook stated someone said 98 lots; with Mr. Cragg responding it is a preliminary site plan, but the cap is 2.5 units per acre although they do not know what the mix will be. Commissioner Ellis stated they could not put more than 98 duplexes on the property without reducing the number of single-family homes. Mr. Cragg advised right now they can put 800 units on the property; they are agreeing to cap it at 496 units; but they are not agreeing to the mix because they do not know what it is right now. He stated if they have sewer available, they would get rid of the disposal and go up to four; but if they stay at 2.5, they may have to go with more duplexes because they would have to have more area to get rid of the disposal from the sewer. Chairman Cook inquired if the 25% figure is not true; with Mr. Cragg responding he does not know where that came from, but he never agreed to it. Mr. McDermott stated the question was asked what percentage of the development would be duplexes, and that is where the number came from.

Commissioner Higgs inquired if they cannot agree to a percentage of duplexes; with Mr. McDermott responding no. Commissioner Higgs stated she is beyond where she can go; she felt like they could deal with the sewer element and that they would be willing to agree to hook up to the sewer; and that the Board would have a cap on density which was reasonable. Mr. McDermott stated the cap is still there. Commissioner Higgs stated one of the concerns was compatibility with single family units, so the percentage was important; and since they cannot come up with that, she cannot support the potential zoning.

Chairman Cook stated he cannot support it for the same reasons; he thought they offered 25% on the duplexes because he heard someone say 98 lots versus 401 lots, but apparently he misunderstood it; so he will support Commissioner Higgs? denial of this item.

Mr. Cragg advised he will agree to 25% for duplexes. Commissioner Higgs stated if they can agree to the 25%, the deletions from the binding development plan, the use of sanitary sewer as required by the Comprehensive Plan, and the density of 2.5 units per acre and cap on the multifamily, it can be compatible. She stated the environmental issues can be protected with the sanitary sewer being required; the protection for the wood fence is there; and compatibility is there with almost the entire project being single family and 2.5 units per acre density which is reasonable abutting a higher density and transition between one unit per acre above it. She noted with those contingencies, the Board can approve the rezoning.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to approve Item 9 with the conditions mentioned above.

Commissioner O?Brien advised of covenants and restrictions against satellite dishes that were challenged in court by the Homeowners Association, but the judge ruled the property owner could keep it; so if the Board agrees to a wooden fence, and each lot owner has to maintain that fence, it will be difficult to enforce it. He stated the Homeowners Association should own a brick wall all the way across the property to be maintained by the Association; and that way it would not be contingent upon one household that does not care if it falls down.

Commissioner Ellis inquired how will they resolve the issue of availability without going to court. Commissioner Higgs stated the language says the development will use a sanitary sewer system; and that is the language she is suggesting. Chairman Cook stated that is if it is available. Mr. McDermott stated it is if and when it is available; with Commissioner Higgs responding she did not say that. Mr. McDermott stated that kills the deal because that is not what the discussion has been. Chairman Cook stated he thought it was if it is available; and inquired if Commissioner Higgs is saying that is not; with Commissioner Higgs responding she believes it is available. Chairman Cook stated if it is available they would have to hook up immediately, but if it is not available, is Commissioner Higgs stating they cannot proceed; with Commissioner Higgs responding the Comprehensive Plan says they will use sanitary sewer, not onsite sewage disposal systems; and she believes it is available.

Commissioner Scarborough advised of a study that is coming from the Department of Community Affairs, and he is only inclined to approve the rezoning if it has sewer because it has an environment where the County should push for sewers. He stated it is not something that has been around for 30 years; and it is not where people paid for years thinking they had a right to build then a government from above says they cannot. He stated he is not prepared to vote for this at this time because there may be some fundamental unfairness occurring.

Commissioner Higgs inquired if Commissioner Scarborough could support it if the language says it will use a sanitary sewer system; with Commissioner Scarborough responding he does not have a problem with it if they do not build unless there is a sewer system. Commissioner Higgs stated that is what she said. Commissioner Ellis stated once it is zoned, the Board cannot revoke it; and it will be going to court. Commissioner Scarborough inquired if Commissioner Higgs is saying there is no way they are going to build without having sewer; with Commissioner Higgs responding that is what she said. Commissioner Ellis stated the Board may as well go to court on the whole thing.

Chairman Cook advised the applicant has to accept the conditions; and he is not sure the applicant will do that. Ms. Bentley noted the binding development plan must be voluntary. Chairman Cook stated the motion by Commissioner Higgs is with sanitary sewer. Mr. McDermott inquired if it is only with sanitary sewer; with Chairman Cook responding apparently. Commissioner Higgs stated that was her motion. Chairman Cook inquired if that means the applicant does not accept the binding development plan; with Mr. McDermott inquiring if the Board will not allow zoning or development on the property unless there is sewer hookup; with Chairman Cook responding that is the motion. Mr. McDermott inquired if that is correct; with Commissioner Higgs responding yes. Chairman Cook inquired if that changes anything; with Mr. McDermott responding that changes the last two hours of discussion because all the discussion has been if sewer is available. He stated the Board cannot change Rule 10.D-6; it is subject to it just like every property owner; the County has a Zoning Code which his client has met every criteria of; and it is not fair to take property owners and drag them to court to make the County do what it ought to do under its Zoning Code. He stated not allowing zoning on the property and not allowing development in contravention of state law is illegal; and it is a taking of property and is not fair.

Commissioner O?Brien stated the Board has always considered impacts growth will have on schools, roads, and traffic; and inquired why is it being ignored for this project. Commissioner Ellis stated the

property abuts U.S. 1 which is four-laned. Commissioner O?Brien inquired what will happen if it creates enough traffic to need six lanes; with Commissioner Higgs responding it will not. Commissioner O?Brien inquired about the impact on schools; with Commissioner Ellis responding that is true with every project that comes to the Board.

Chairman Cook advised there are only two options; the majority of the Board appears not ready to approve it unless it is with the stipulation of sanitary sewer; the Board can do that or try to get a definitive answer; and apparently it is not acceptable to the applicant. Mr. McDermott stated what would be acceptable is they must connect to the sewer if it is available; and that is consistent with State law and is agreeable to the property owner. He stated there is no zoning on the property; and Mr. Enos has not been asked any questions, but he would like for him to state to the Board what the zoning of the property is. Chairman Cook inquired, if the applicant says he will comply with State rules and regulations and County zoning regulations and will hook up if available, what standing does the Board have, can it deny the zoning legally, and is that in compliance with other Codes. Ms. Bentley advised once the property owner establishes consistency with the Comprehensive Plan and compatibility with the surrounding area, the Board would need to have evidence before it showing there is a compatibility problem or that there is some inconsistency with the Comprehensive Plan; it is a shifting burden of proof; and with the sewer issue, it needs to show that either the sewer is available, therefore septic tanks are not appropriate, or proceed on the basis that they will provide it when available. She stated there may be other problems with compatibility that have not been examined at this point; this is a PUD that has expired; the Comprehensive Plan allows zero to four units per acre; so the Board can consider anything within that range as long as it is within the notice requirements and the property owner agrees to the change.

Zoning Official Rick Enos advised what Ms. Bentley said is correct; the PUD zoning has an expired preliminary development plan, so it would not be appropriate to deny the request outright; and the Board may choose to approve the request or approve an alternate zoning it finds compatible with the surrounding area if it feels the request is not compatible with the surrounding area. He cautioned the Board about denying the request outright. Chairman Cook stated so the Board cannot deny the request because it does or does not like septic tanks. Mr. Enos stated the problem is with the current zoning; if it was some other zoning classification, and the Board found the other classification to be consistent, then it could deny the request because it would fall back on the existing classification; but in this case, the existing zoning classification is invalid because the preliminary development plan has expired. He stated he would prefer the Board approve the request with the binding development plan, or find another zoning classification that is more appropriate if it feels the request is not appropriate.

Commissioner Scarborough inquired if the Board has to proceed by instructing an administrative rezoning at a level that would be compatible with septic tanks; with Mr. Enos responding the Board does not have to do administrative rezoning, it could do it as part of this request. Commissioner Scarborough inquired if the Board could do that without the applicant?s request; with Mr. Enos responding that is his understanding from the County Attorney?s Office. Ms. Bentley advised the applicant has a right to request that the Board proceed with the existing application, or he can change to a different classification. Commissioner Scarborough stated Mr. Enos said he cannot vote against the motion, but he can vote on something else; the County Attorney is saying he has to proceed with the current zoning and has to vote on an application and cannot vote no; he finds that unacceptable; and somebody is telling him the wrong things. Ms. Bentley advised the Board can suggest administrative rezoning to a different classification if it wants to; the problem is the property essentially has no zoning today; so the Board has to put some kind of zoning on it. Commissioner Scarborough inquired how would the Board proceed if it does not want to vote in favor of what the applicant has given, and should the item be tabled and requested for administrative rezoning; with Ms. Bentley responding the Board could approach it that way. Chairman Cook advised the Board cannot deny reasonable use of the property; and how to proceed is the question.

Commissioner Higgs inquired, if the applicant does not wish to suggest something that would be an appropriate consideration, where does that leave the Board. She stated north of Crystal Bay is Riverview Terrace at one unit per acre which is consistent with the Comprehensive Plan. Mr. Enos stated there are some one-acre lots to the north of this project, so anything between one-acre lots and maximum four units per acre is consistent with the Comprehensive Plan.

Mr. McDermott inquired if RA-2-4 is compatible with surrounding neighborhoods; with Mr. Enos responding the Comprehensive Plan Land Use Element describes compatible zoning classifications; and it has established RA-2-4 as being probably compatible with the surrounding zoning. Chairman Cook inquired if the classification requested is probably compatible; with Mr. Enos responding that is what the Comprehensive Plan says. Commissioner Higgs stated RA-2-4 is attached duplex, and there is no duplex across the southern border; to the east is GU not adjacent to U.S. 1; to the north is one unit per acre; and inquired where is multifamily; with Mr. Enos responding he does not believe there is any multifamily abutting the property, but he is not saying the Board cannot find it compatible because the Comprehensive Plan, which provides the Board guidance, states those classifications are probably compatible.

Chairman Cook stated the Department of Community Affairs supported a property owner against the City of Melbourne which had concerns with septic tanks; as long as the State allows septic tanks, it is tough to deny zoning on that basis alone; but there could be other considerations. Commissioner Higgs stated she will make a motion since there is no agreement on the binding development plan. Chairman Cook advised a motion is still on the floor.

Commissioner Higgs withdrew the original motion; and Commissioner Scarborough withdrew the second.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to deny Item 9 as recommended by the P&Z Board, and consider RR-1 zoning classification.

Commissioner Ellis advised RR-1 is rural residential with one unit per acre. Commissioner Scarborough stated he got conflicting comments on how to proceed; and the County Attorney would prefer for the Board to hold this in abeyance, table it, and proceed with administrative rezoning to a different classification rather than go ahead and vote at this time. Ms. Bentley advised Mr. Knox has advised that the Board can proceed directly without re-advertising; RR-1 allows horses which is a different use than would normally be seen in residential; so she has concerns about notifying the neighbors. Commissioner Higgs inquired if SEU is one unit per acre; with Mr. Enos responding yes and it does not allow horses.

Chairman Cook inquired if the Board could defer action until it finds out definitely whether or not hook up to the sewer system is there; with Commissioner Higgs responding this is the second time a lot of people have come to the meeting; she had hoped to resolve it with tightening of the binding development plan, but they are not getting there; RR-1 allows horses and SEU does not; so there are other zoning classifications the Board can consider. Mr. Enos advised SEU is one-acre lots and SR is half-acre lots, and neither will allow horses.

Motion by Commissioner Higgs, to deny Item 9 as requested, and approve SEU zoning classification. Motion died for lack of a second.

Commissioner Ellis inquired if a motion is necessary to deny the request or just move forward with a different classification; with Commissioner Higgs responding the Board has to take care of the request. Mr. Enos advised the motion can be to approve SEU, SR, or whatever the Board decides.

Commissioner Scarborough stated he has never seen the Board able to move from the applicant?s request and vote on something of lesser density; maybe it can, but it would be the first time he ever voted that way; and he feels very uneasy about doing it. He stated he understands there is a void and the Board has to put some classification on the property, but in every case the Board has moved on has been by advertising for administrative rezoning. Ms. Bentley advised that is the more cautious approach; that would be the safest way to go; but there has been advice to the Board that it can proceed in a quicker manner.

Motion by Commissioner Higgs, seconded by Commissioner Ellis, to approve SEU for Item 9.

Ms. Bentley advised the motion in effect denies the request. Chairman Cook inquired if the first motion is null and void because the applicant did not accept the conditions with the binding development plan; with Ms. Bentley responding yes.

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

The meeting recessed at 7:32 p.m. and reconvened at 7:46 p.m.

Chairman Cook advised the applicant for Item 26, Stanley A. Dowiat, requested the item be tabled to the next zoning meeting; however, there are cards from the public to speak to the item.

Discussion ensued on whether people wanted to speak tonight or wait until the item comes back.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to continue the public hearing until February 26, 1996 on Item 26, Stanley A. Dowiat?s request for CUP for alcoholic beverages on-premise consumption in IU zone on one acre located north of Stan Drive, north of Ellis Road, which was approved by the P&Z Board. Motion carried and ordered unanimously.

Chairman Cook called for the public hearing to consider the Planning and Zoning Board?s recommendation, made at its public hearing on September 5, 1995, on Item 3 which was tabled by the Board of County Commissioners on September 27, 1995, as follows:

Item 3. Lawrence Frazier Johnson, Charlene R. Johnson, and Tania Louise Johnson, as Tenants in Common?s request for Mixed Use District Expansion and change from RU-1-7 to BU-1 on 4.985 acres located on the southeast corner of Commodore Street and U.S. 192. The Local Planning Agency approved MUD expansion to the south line of Lots 209 and 235, and the P&Z Board approved BU-1 to the south line of Lots 209 and 235.

W. James Stevens, 10481 S.E. Banyan Way, Tequesta, Florida, Senior Vice President of Woahf-Nislay Company, advised he submitted a binding development plan to Attorney Bentley, and she sent it back requesting revisions; and that is before the Board now.

John Armstrong, 375 East Drive, Melbourne, opposed the rezoning; and stated the binding development plan requested many stipulations which may not have been met, goes beyond the depth of 360 feet set by the Board, does not have enough green area, is short on retention area, and the septic system is not going to work. He stated there are two entrances on Commodore Street which is a residential dirt street; the site plan says they will pave back 360 feet; there are no entrances planned off U.S. 192 or the other street marked vacated; and they would like to have one entrance only and not on Commodore. Mr. Armstrong stated the Comprehensive Plan does not allow the zoning change; the applicant talked about a Sears furniture store; and he wants to know if it is still in the planning, and if not what other type of store would be considered, and would it have a bearing on the depth of the zoning.

Commissioner Ellis and Mr. Armstrong discussed vacated Evergreen Street, and possible land locking of residential lots.

Attorney Charles Heim, 2040 A1A, Indian Harbour Beach, representing John Armstrong, Jr., owner of Lots 187 and 188, advised the 50-foot buffer ignores the incompatibility issue; Lots 159 and 189 cannot be developed; and his client will be looking directly across the buffer which is actually the retention area.

Mr. Armstrong stated the turn-around for trucks is beyond the 300 feet, and the 300-foot depth on the facility has parking and retention beyond that. Mr. Enos advised the current depth of the Mixed Use District (MUD) is 362 feet, not 300 feet. Planner II Todd Corwin advised on September 27, 1995, it was interpreted that the MUD followed the BU-1 which is approximately 362 feet, but staff did refer to it as 300 feet.

Mr. Heim advised there is leap-frogging going on; the applicant said the P&Z Board approved it based on the Lazy Boy?s property; however, that property was already MUD. He stated Sears Homelife Furniture Store was presented at the P&Z meeting and Board meeting; however, it is not in the binding development plan which says retail store. He noted a furniture store would have limited parking, and if it is any retail store, he may not be able to comply with the requirements.

Discussion ensued on use of a conditional use permit like the mini-warehouses, the binding development plan, dedicating property for a park, frequency of trucks, enforcement of the conditions, other uses that could be placed on the property, and the 50-foot buffer retention area.

Teresa Karolick, 1990 Commodore Street, Melbourne, stated she assumed the entrance would be from U.S. 192 and not from Commodore; and she thought they would have a cement fence around the building and nothing in front of their home but grass and a pond. She stated she would be happy with a furniture store on the lot but not in front of her house; and she would like to know what will happen to the residential land behind it, if the park will be a park and not just a piece of land, and if the street will be paved, ditches dug and streetlights installed.

John Armstrong, Jr. advised he is opposed to going past 362 feet and would like a guarantee that it will be a furniture store and the neighborhood will be a neighborhood and not a commercial area.

Mr. Stevens advised five months ago he came before the Board with the Sears store, and now he no longer has it; he has completed 27 stores and are doing two now, but Sears decided it does not want to be on U.S. 192; and losing Sears store does not preclude his need to meet all the Codes and laws of the federal, state, and local agencies. He stated the back building line is 265 feet from the south right-of-way line of New Haven Avenue; the retention area covers the entire buffer area; and what is shown is in excess of what will be needed. He stated he will put a retail store on the property; and promised not to put an adult entertainment facility or anything that would be offensive to the residents.

Commissioner Ellis advised the delay may have contributed to the loss of the best tenant Mr. Stevens had; and without something specific, he would not want to approve the MUD expansion. He stated in the future there can be far more annoying uses in the first 300 feet; residents complain about businesses on U.S. 192 that do not take up 200 feet of the property; and since the Sears store is lost, there is no guarantee what will be there.

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to overrule the Local Planning Agency and deny Mixed Use District Expansion for Item 3. Motion carried and ordered unanimously.

Mr. Enos advised it is a two-part request; one part was the MUD expansion, and the other for BU-1; the property is zoned RU-1-7, and denying it leaves the MUD at 362 feet; so the Board could consider a commercial use if it wanted to.

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to overrule the P&Z Board and deny BU-1 for Item 3. Motion carried and ordered unanimously.

Chairman Cook called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on January 2, 1996, as follows:

Item 1. Best F. Bet, Inc.?s request for CUP for temporary security mobile home in BU-2 zoning classification on 1.5 acres located on the east side of U.S. 1, north of Suntree Boulevard, which was approved by the P&Z Board for two years with three administrative renewals.

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to approve Item 1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 2. Malcolm R. Kirschenbaum, as Trustee?s request for change from GU to AGR on 38 acres located west and adjacent to SR 9 (I-95), which was approved by the P&Z Board.

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

Item 3. E. J. and Nora Jean Drown?s request for a CUP for a bed and breakfast inn in EU-2 zoning classification on 1.50 acres located on the east side of Turpentine Road, south of SR 46, which was denied by the P&Z Board.

Nora Drown, 2055 Turpentine Road, Mims, presented folders of information to the Board; and advised the petition presented had an influence on the Board; she was not given a copy to review; it was two pages long, but she does not have that many neighbors; and her husband spoke to many of the neighbors and none opposed the bed and breakfast. She stated the petition had traffic and safety, strangers in the area, commercial ventures moving in, changing the complexion of the area, property values decreasing, and country atmosphere being lost; but those are not valid concerns and were based on misunderstandings of how a bed and breakfast works and the Zoning Codes. She explained a map depicting her home and neighbors? properties, traffic patterns, and pictures of her home and other homes, and stated the traffic would be from SR 46 and would not affect other roads. She advised people call for reservations first if they go to a bed and breakfast; she has children and is concerned about safety; and in checking with others, there is no one who owns a bed and breakfast who had problems with guests. She stated she has a professional alarm system; neighbors feel a restaurant would come into the area if the CUP is approved; so they do not understand the Zoning laws. She stated they meet and exceed all the criteria that is required regarding land size, house size, ratio of room to square footage of the house, and parking.

R. S. McCartney, 4835 Lion Lane, Mims, advised he collected part of the signatures on the petition and no one requested removal of their names; Mr. and Mrs. Stiff called him to make sure their letter was received as they are against the CUP; and asking people to come into an area who are unknown is not a good safety factor for his children and grandchildren.

Howard Benziger, 2065 Turpentine Road, Mims, advised the Drowns came in and fixed the house and were good neighbors, but when he built his house, a bed and breakfast was not what he had in mind; and the area is rural residential, and that is where he wants to stay. He stated he is not too concerned about the bed and breakfast, but he has four children under the age of eight years old, and a bed and breakfast would tend to pull people into the area that they do not know; and requested the Board deny the CUP on that basis.

Jamal Hussein, 2020 Turpentine Road, Mims, advised he has four children and is concerned about their safety because of strangers who may come to the area; and although he is not sure, it may also devalue his property.

Commissioner Scarborough stated he would be concerned if a bed and breakfast moved in down the street from his home because it may be a fundamental change in the nature of the area; people coming in there have no relatives or friends; perhaps there are areas where it is appropriate; but in most residential areas it is not appropriate.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to deny Item 3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Ms. Drown advised she explained to her neighbor that a bed and breakfast is not a commercial change, but a CUP allowed in residential areas; and he did not understand that, but he did not have a problem with it or the traffic and safety concerns. She stated they purchased a repossessed home and did a lot of renovations to it; she does not see it as outside the norm of having relatives or guests come to her house and not impacting the area or causing pollution; and they meet every criteria necessary and stipulated by the County.

E. J. Drown advised they complied with all the County?s rules; they took an eyesore and put $25,000 of their money into it which increased the neighborhood?s safety and property values; he is going to retire from NASA and wanted to stay and help the community, but may have to sell his property and move away; and inquired if the Board wants him to move away and if that will help the neighborhood and Brevard County. He stated the Board made up its mind before the meeting.

Chairman Cook advised the Board did vote before he had a chance to re-address the issues, but it is not true that they had their minds made up before they got to the meeting. He inquired if anyone on the Board wishes to change the motion. He inquired if the Board needs to make another motion; with Ms. Bentley responding without a motion to reconsider, the existing motion stands.

Ms. Drown inquired what is the reason for denial; with Commissioner Scarborough responding he finds fundamental problems developing if they can have a bed and breakfast in that residential area; there are places that are residential where a bed and breakfast may be appropriate, such as near a downtown area; but this is a remote area where people do not expect to find a bed and breakfast. He stated if one is approved in that neighborhood, there will be nothing to preclude putting it in any

other neighborhood in Brevard County; and he does not think the Board would want a bed and breakfast in every residential neighborhood. Chairman Cook stated he supports the motion based on those reasons. Ms. Drown stated the Zoning Code does not state that; with Chairman Cook responding the County has minimum standards, but if it was automatic, she would not have to have a public hearing; the purpose of going before the P&Z Board and this Board is to afford an opportunity for someone applying for a CUP to present his or her case and other people who have an interest to comment; and the Board does not approve all rezoning requests.

Item 4. Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on which a development order had been submitted initiating a consideration of a change in zoning classification on 3.0? acres located on the southwest corner of Cidco Road and U.S. 1 which was approved as PIP by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 4 as recommended by the P&Z Board.

Commissioner Ellis inquired why was it recommended for PIP; with Mr. Enos responding the Comprehensive Plan states that PIP is the preferred of the three industrial uses and states that industrial properties within 660 feet of U.S. 1 should be PIP.

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

Item 5. Doris E. Lawson?s request for change from GU to RRMH-1 on 1.06 acres located on the north side of Camp Road, west of Burgess Avenue, which was approved by the P&Z Board.

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

Item 6. Jonathan M. and JoAnn Melton?s request for change from GU to AU on 2.23 acres located on the west side of Fan Palm Avenue, south of Date Palm Street, which was approved by the P&Z Board.

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

Item 7. Modern, Inc. and Harley and Bobbie Gheen?s request for change from GU, BU-2 and IU to PIP on 17 acres located on the west side of SR 405, north of SR 50, which was approved as PIP on property not withdrawn by Harley and Bobbie Gheen, Tax Parcels 1 and 1.2.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 7 as recommended by the P&Z Board.

Commissioner Ellis inquired why PIP instead of IU; with Commissioner Scarborough responding it was the request.

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

Item 8. E.K.S., Inc.?s request for CUP for land alteration in IU zoning classification on 10 acres located west of FEC Railroad, north of Golden Knights Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 8 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 9. E.K.S., Inc.?s request for CUP for land alteration in IU zoning classification on 10 acres located west of FEC Railroad and north of Golden Knights Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to approve Item 9 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 10. Virginia Nettleship and Atlantic Gulf Communities Corporation?s request for Mixed Use Expansion and change from RU-1-9, RU-2-10, and BU-1 to all BU-1 on 3.686 acres located on the west side of U.S. 1, north of Fay Boulevard. The Local Planning Agency approved Mixed Use Expansion; the P&Z Board approved BU-1 w/BDP and no access to Laguna or Magnolia, use to be medical-related business only, and existing drainage not be filled in or diverted.

Commissioner Scarborough advised he has notes about a binding development plan; with Mr. Enos responding the property owner offered a binding development plan to the P&Z Board; he just received it today; and in looking at it, it does not include all the issues that the P&Z Board included in its recommendation, so the Board may want to ask the applicant about it.

Chairman Cook advised he does not see anything about a binding development plan in the recommendations. Mr. Enos advised the P&Z Board?s recommendation was to approve with a binding development plan indicating there would be no access to Laguna or Magnolia, use limited to medical-related businesses, and the existing drainage not to be filled in or diverted; however, the binding development plan deals only with the access issue.

Attorney Jim Peeples, P. O. Box 757, Cocoa Beach, representing Atlantic Gulf Communities, advised the property is under contract for a medical center; there is an existing Parrish Outpatient Center there; the property surrounds it; and it will basically be an expansion of that. He stated the reason for the lateness of the binding development plan was that they were unable to meet until Thursday night with the Hospital Administration and homeowners; and after the meeting, the only issue that concerned the homeowners was not being able to access through the back of the property which is Laguna Street. He explained a map of the area; and stated they do not have a problem with the three restrictions.

Commissioner Scarborough stated in the docket it says no access to Laguna and Magnolia; with Mr. Peeples responding Magnolia is a paper street that has not been constructed and is solely on the property they are buying; and they have applied to have it vacated. Commissioner Scarborough and Mr. Peeples discussed the three conditions, and Mr. Peeples agreed to them.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Mixed Use expansion as recommended by the Local Planning Agency. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve BU-1 with binding develpoment plan providing for no access to Laguna or Magnolia Streets, use restricted to medical-related business only, and existing drainage not be filled in or diverted. Motion carried and ordered unanimously.

Item 11. Jack H. Bray?s request for change from BU-1 w/CUP for telephone switching center to BU-2 on 10.1 acres located on the northeast and southeast corners of City Point Road and U.S. 1, which was approved by the P&Z Board.

Commissioner Scarborough advised the parcel is on U.S. 1 just north of the interchange of the Beeline before entering Cocoa; there are a lot of comments about incompatibility; there does not seem to be consistent criteria for non-retail commercial land use; and requested Mr. Enos explain his concern with Policy 4.7.

Mr. Enos advised there are two issues that Policy 4.7 deals with; it states, "non-retail commercial land uses shall be limited to those areas where non-retail commercial or industrial characteristics are established or planned; and non-retail commercial land uses shall not be located in prominent locations along major transportation corridors except where such uses are buffered by vegetation or other appropriate methods." He stated that means that BU-2 might be appropriate on U.S. 1 where there is industrial use behind it, but it is not appropriate in this location unless the Board decides that the pattern is right, or approve it with a binding development plan voluntarily submitted by the applicant that would offer a landscaped buffer along U.S. 1. Commissioner Scarborough stated there is a substantial difference on the east side of U.S. 1 at High Point with expensive homes and on the west side with Cidco Park; and this parcel is in the area that leads into High Point.

Carmine Ferraro, 4265 Quechua Road, Cocoa, advised he represents Mr. Kirklin as a consultant; during the P&Z process, a notice was sent to people within 1,000 feet; only one individual from High Point was concerned about what they were going to do and how it was going to affect him; and when they talked to him and told him Mr. Kirklin wanted to build an automotive repair facility on a portion of the property, he was fine with that. He stated in terms of incompatibility, property directly to the north has BU-2 zoning; and it is on the east side of U.S. 1. Mr. Ferraro advised their desire is not to change the complexion of the area; it is consistent with the Land Use Plan and within the Mixed Use District; and they wanted to provide Mr. Kirklin a site so he can move his family business. He stated they will cooperate with any kind of binding development plan or anything; nothing was brought forward at that time; there was no request from the P&Z Board for a binding development plan; and it approved the application without that requirement. He stated if they thought they needed it, they would have brought it.

Commissioner Scarborough inquired if Mr. Enos advised Mr. Ferraro they needed a buffer; with Mr. Ferraro responding yes, and they want to cooperate with any vegetative buffering. He repeated they are consistent with the Comprehensive Plan, there is evidence of BU-2 on that side of the road; and they will cooperate in any way they can. He advised they need a decision this evening or will lose their right to go forward with the property; there is not much development in the area; and they will add to the tax base and do something useful. Commissioner Scarborough expressed concerns about compatibility, requirements of Policy 4.7 which are not met, and being the entrance to the City of Cocoa; and stated he cannot support it even if there was a binding development plan because of all the questions.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to overrule the P&Z Board and deny Item 11.

Commissioner Ellis stated that side of the road is leaving Cocoa; and going into Cocoa is BU-2 down the entire strip on the west side. Chairman Cook indicated he could consider it with a 50-foot buffer. Commissioner Ellis stated they have to put a wall up. Discussion ensued on the procedure of allowing speakers after the item comes to the Board, applicants addressing issues they are not aware of, comments from staff, and vote of the P&Z Board.

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

Item 12. Stephen Hupaylo, Raymond L. Brush, Duane A. Watson & Robert G. Milliken?s request for change from RU-2-10 to BU-1 on 0.36 acre located on the east side of U.S. 1, south of Thompson Avenue, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 12 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 13. Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on which a development order had been submitted initiating a consideration of change in zoning classification on 6.17? acres located at the southwest corner of Tulsa Boulevard and Corto Road, from RU-1-9 to RU-1-11, which was approved by the P&Z Board.

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

The meeting recessed at 9:13 p.m. and reconvened at 9:26 p.m. Chairman Cook recognized and welcomed former Commissioners Roger Dobson and Thad Altman.

Item 14. J.J.K. LC Company and Heinz Knobel?s request for CUP for private heliport in SEU zoning classification with CUP for barn and CUP for horses (limited to four horses) on 15.7 acres located on the west side of South Tropical Trail, south of Tequesta Harbor Drive, which was denied by the P&Z Board.

Attorney Jerry H. Trachtman, 1990 W. New Haven Avenue, Melbourne, representing Heinz Knobel, explained a map of the area depicting South Tropical Trail, the Banana River, Indian River, the 15.7-acre parcel owned by the applicant, the landing pad, the 17 properties within 1,000 feet that were notified; and noted only two property owners came to speak at the P&Z meeting, one wrote a letter, and none of the abutting property owners objected. He stated it is not an airport, just a private helicopter pad for personal use by the owner of the land; the process started in 1994 when the applicant went to FAA and FDOT and met all the requirements before coming here for zoning approval; and one of the things FDOT requires is a statement from the zoning authority acknowledging that the helipad is not inconsistent with the existing zoning. Mr. Trachtman advised in 1994 there was no ordinance; he asked for a written acknowledgment of one sentence saying it was not inconsistent with the present use which was talked about for months; that conversation went into 1995 when they were told the Board adopted Ordinance 95-04 on January 26, 1995 which controls the issuing of a CUP for a private helipad; and they reviewed it and said they would comply. He stated meanwhile FAA inspected the site and issued its approval strictly from a safety standpoint for use of air space and safety for people on the ground. He explained how the Ordinance came about, what it references, what the requirements are, and how his client meets or exceeds all the requirements. He stated FAA requirements are stricter and it approved it, and he wants to make the FAA letter part of the record, but did not give a copy to the Clerk. Mr. Trachtman explained FAA?s requirements limiting approach and departure routes strictly over the Banana River, mandating radio communication with Patrick Air Force Base tower, and safety issues. He stated there were concerns about operating at night, noise, fueling, and invasion of privacy; the applicant cannot operate at night or fuel his helicopter; and any airplane can fly over Merritt Island at 1,000 feet and be totally legal, so he does not understand the concern about invasion of privacy.

Joe Austin, 6255 S. Tropical Trail, Merritt Island, opposed the heliport because it would be a noise pollution, will harm the birds and animal sanctuary, and will affect his property value and insurance. He stated it is hard to monitor; Merritt Island Airport is six miles away; and he would appreciate any consideration the Board can give him.

Roger Dobson, 6245 S. Tropical Trail, Merritt Island, advised he lives next door to Mr. Austin who summed up his thoughts; his concerns are safety and noise; and for those reasons, he would ask the Board for denial of the application.

Mr. Trachtman identified Mr. Dobson?s and Mr. Austin?s residences on the map; advised 3/10ths of a mile is over 1,500 feet; FDOT is only concerned with anyone within 300 feet; and notices were sent to everyone within 1,000 feet, and included everyone up to the Subdivision about 1,500 feet to the south. He stated whether based at Merritt Island or Melbourne or any other airport, anyone can fly over Mr. Austin?s house without approval from the Board; arrivals and departures from the helipad have been restricted by FAA to a very narrow corridor to the northwest and southeast; and no landing or departure can be made without establishing radio communication with Patrick Air Force Base tower. He stated Mr. Knobel will be the pilot; FDOT deemed it safe; it has done everything to approve it except for having a decision from this Board; and those agencies that have looked into it with a lot more detail than this Board did have already approved it.

Commissioner Ellis inquired if all the process Mr. Trachtman initiated came before the Ordinance was passed; with Mr. Trachtman responding yes, but they have no problem complying; will limit operations to no more than three a day; it is not a business; and Mr. Knobel authorized him to offer that. Mr. Trachtman stated the application to the federal and state governments preceded the Ordinance; they asked for a statement from the County that it does not affect the existing zoning; they did not get that; months went by, then they were advised the County has an Ordinance; and that is the sequence of events.

Commissioner O?Brien advised the proposed CUP will result in detrimental impact on the surrounding properties; the degree of noise from helicopters is raucous; the odor from the fuel exhaust is very extensive; and the general nuisance factor of having helicopters flying in and out of a residential area would create a problem. He stated the proposed CUP is not reasonably compatible with the character of the surrounding properties which are mostly residential; there is insufficient buffering between the proposed heliport and adjoining properties, especially for noise which will affect the entire area; and the proposed activity has a definite adverse impact upon too many of the other properties in the surrounding area. He stated the CUP would not be in the best interest of the community; there is an airport within approximately six miles of the residence; and due to the noise, smell and general disruption of the peace and tranquility of the neighborhood, it would be incumbent upon the applicant to utilize the airport; so he will move to deny the application.

Motion by Commissioner O?Brien, seconded by Commissioner Scarborough, to deny Item 14 as recommended by the P&Z Board.

Commissioner Ellis inquired how does someone who applies for this CUP know what to do first. He stated if the Board was not going to approve this, they waste a lot of time and effort going through FAA and FDOT; and inquired if going to the County would be the first step; with Mr. Enos responding they need both permits which are independent of each other; so he could request either permit first or simultaneously. Discussion continued on which permit to obtain first. Commissioner Ellis stated it seems unfair that they went through all the hoops then the Board passes an Ordinance in the middle of the hoop jumping and they do not get the permit.

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

Item 15. Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on which a development order had been submitted initiating a consideration of a change in zoning classification in accordance with Future Land Use Element XIII, Policy 10.2, Brevard County Comprehensive Plan, on .448 acre located on the east side of Range Road, north of Dianne Drive, from BU-1 to BU-1-A with CUP for convenience store with gasoline sales, which was approved by the P&Z Board.

Motion by Commissioner O?Brien, seconded by Commissioner Higgs, to approve Item 15 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 16. Merritt Island Public Library District?s request for change from BU-1-A to GML on 2.56 acres located on the west side of North Courtenay Parkway, south of Grove Boulevard, which was approved by the P&Z Board.

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

Item 17. Tarmac Florida, Inc.?s request for change from GU to BU-2 on 5.5 acres located on the south side of Micco Road on the east side of FEC railroad right-of-way, which was approved by the P&Z Board.

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

Item 18. Brevard County Board of County Commissioners on its own motion, authorized administrative rezoning on which a development order had been submitted initiating a consideration of a change in zoning classification in accordance with Future Land Use Element XIII, Policy 10.2 of the Comprehensive Plan, on 1.098? acres located on the west side of U.S. 1, at the northwest end of Allen Hill Avenue, from BU-2 and IU to all IU, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 18 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 19. The Suntree Partners? request for change from PUD to BU-1-A on 3.04? acres located north of Spyglass Hill Road, east of Murrell Road, which was approved by the P&Z Board.

Attorney James Fallace, 1900 Hickory, Melbourne, representing the applicant, advised staff comments indicate the request is consistent with the Land Use Regulations, density restrictions, and surrounding land uses; the P&Z Board unanimously approved the request; and they have a letter from Suntree Master Homeowners Association indicating its unanimous consent to the request. He stated the concern staff had was Policy 4.3 requiring commercial clusters that should be located at collector intersections; and explained "should" versus "shall"; advised they will provide a buffer between residential and commercial use by a transitional down zoning between existing commercial BU-1 that abuts the three acres; and the existing wetland area will be additional buffer. He explained a drawing showing the green area and the entrances. He stated there were no objections; it is compatible; Suntree Partners owns all the residential area abutting the parcel; and the Eber property directly across Spyglass Road is the subject of rezoning to BU-1-A. Mr. Fallace stated there was a concern from the representative of Wuesthoff Care Center; and presented a picture of what people would see, which is the multi-story professional office building and then Wuesthoff?s facility. He stated their intention is to put in a medical office building similar to what is existing on Spyglass; Wuesthoff does not want a competing medical center on the road; they have concerns about it not being at an intersection; and requested approval because it is consistent and meets Policy 4.8 for strip center zoning.

Rebecca Colker, 1461 Victoria Boulevard, Rockledge, representing Wuesthoff Health Systems, objected to the rezoning request on the basis that it is not allowable under Policy 4.3 of the Comprehensive Plan, not consistent with the size and locational criteria for neighborhood commercial land use as found in the Policy, not located at an intersection, and does not appear to meet the intersection requirements. She stated it does not have access to two roads as required by the Policy; approval is premature, as it is not known at this time if the applicant will have the capacity to provide the necessary roadways and intersection; and Wuesthoff which has property on

this road has complied with the Policies of the Comprehensive Plan. She requested others also be held in compliance and that the Policies of the Comprehensive Plan be enforced.

Commissioner Ellis inquired what is the difference between the subject property and Wuesthoff?s property; with Ms. Colker responding their property is not zoned BU-1, it is zoned PIP and runs from Spyglass to the Care Center, with an intersection at Murrell and Spyglass that goes to Wickham Road. Commissioner Ellis inquired if it exits on Murrell Road; with Ms. Colker responding it exits onto Spyglass, but they have all the adjoining parcels out to Spyglass. Commissioner Ellis stated it is no different than Wuesthoff?s parcel; it has a driveway onto Spyglass like they do; so he does not understand why they are protesting.

John Haley, 557 Sweetwater Court, Melbourne, representing Suntree Partners, advised they own the land that is at the intersection; however, there is a wetland there and they do not want to disturb it. He stated in the absence of an approval, there will be residents on the property that will be forced to live next to BU-1 property; and they do not feel it is in the best interest of the Suntree PUD.

Chairman Cook advised he reviewed the parcel and found it will have a natural barrier which would be appropriate for the area; he finds no reason not to approve it; it was unanimously approved by the P&Z Board; it is consistent with the area and the types of things going on at Spyglass; so he will support the P&Z Board?s recommendation.

Commissioner O?Brien inquired if it is the green space of the PUD; with Mr. Haley responding no, it is part of a community that would be residential; and the St. Johns River Water Management District will be in favor of this because it will be less intense and will not require the road that was approved. Commissioner O?Brien stated he has no problem with the request, but has concerns about taking sections of a PUD and changing it which changes the action the Board took previously. Mr. Enos advised it is part of the 2,500-acre Suntree PUD which was rezoned in the 1970s; the tract was designated for multifamily use originally; they established separate open space tracts throughout the project independent of the residential tracts; so this portion would have been residential in the PUD. Commissioner O?Brien inquired about the impact on Murrell and Spyglass Roads; with Mr. Enos responding when staff has a request for rezoning of property in a PUD, they make sure what is left of the preliminary development plan for the PUD is still going to work according to the PUD regulations; and he is satisfied they do not have a problem taking this parcel from the PUD; but the Board needs to deal with whether BU-1-A meets the Policies of the Comprehensive Plan.

Commissioner Scarborough inquired if the use of Wuesthoff Care Center is more or less intense than the proposed use; with Mr. Enos responding more intense than any use allowed in BU-1-A. Commissioner Scarborough inquired if there was any opposition from residential property owners; with Mr. Enos responding no, only from the lady who spoke tonight representing Wuesthoff. Chairman Cook stated he is not aware of any opposition from homeowners.

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

Item 20. B. W. Simpkins, Trustee and F. A. Sheriff, Trustee?s request for CUP for alcoholic beverages on-premise consumption on 9.98? acres zoned TU-2 located on the southeast corner of Wickham Road and I-95, which was approved by the P&Z Board with a stipulation that business cannot be a stand alone bar.

Micah Savell, 3500 S. Courtenay Parkway, Merritt Island, advised he owns property adjoining the parcel on the east side and has no objections to the requested CUP.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 20, as recommended by the P&Z Board, with the stipulation that the business cannot be a stand alone bar. Motion carried and ordered unanimously.

Item 21. Gilbert A. Haddad, Michael R. Josephs, and Cheddar Investment Company?s request for CUP for additional building height in RU-2-15 zoning classification on 1.785 acres located on the east side of A1A, north of SE 1st Street, and south of Ocean Boulevard, which was approved by the P&Z Board.

Chairman Cook advised the request is in line with building heights of other structures in the area. Mr. Enos advised if all the zoning was RU-2-15, it would be, but because of GML to the south, it has to be a CUP.

Robert Lee, Lee Engineering, 1275 S. Patrick Drive, Satellite Beach, representing the developer Mel Schuster of Satellite Beach Developers, Ltd., advised the purpose is to have a depressed garage floor which will allow five livable stories; they have two different building height definitions; one is zoning and the other is height above ground; and with either scenario they would have a building with a height of 45 feet.

Chairman Cook inquired what are the heights of adjacent buildings; with Mr. Enos responding some of the higher density condos are multi-story buildings and consistent with the height of the proposed building. Discussion ensued on condos in the area; and Mr. Lee explained pictures of the area. Chairman Cook stated he has no problems with the request, as it seems consistent.

Commissioner Higgs advised Mr. Lee said he will set back the building an additional 17 feet to keep from blocking the view of the condo to the north; with Mr. Lee responding the condo will be 17 feet back from the existing condo to the north.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to approve Item 21 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 22. Swiss Lakes Development Corporation?s request for change from GU to BU-2 with binding development plan on 3.55? acres, and change from GU and RU-1-7 to AU with binding development plan on 26.0? acres located on the west side of U.S. 1, north of Tkacs Drive, which was approved by the P&Z Board with a binding development plan.

Timothy Stickrath, 9 Point View Place, Cocoa, President of A-1 Stop Landscape Depot, explained a drawing of exotic landscaping, and gave detailed descriptions of surrounding properties, elevations, natural buffers, and the landscaping planned for the property to attract people to the business which will sell exotic landscaping materials, trees, plants, lava rocks, and boulders. He stated they have no plans to alter 70 to 80% of the 12.5-acre lake; he wants to retain the front 200 feet for future development; and they plan to put displays of exotic landscaping borders out front. Mr. Stickrath advised water from Suntree and the County is dumping on his property and turning it into a wetland; he is working with County staff to resolve the problem and has dedicated a 100-foot easement; the 9.5 acres of the lake, which is approximately 24 feet deep, would be an excellent retention area for the County?s water; and he is working with FDOT, the St. Johns River Water Management District, and the County to purchase or in some way use the lake for processing of the water. He stated they plan to grow exotic flower blooming plants in part of the lake and will stock it with fish; they are expanding the company which has Divisions in Orlando, Kissimmee, and Cocoa; they only wish to increase value of property around them; and their intentions are honest and good.

Mark Minor, 6285 Bertram Drive, Rockledge, representing many residents in Indian River Isles, advised they are against the rezoning proposal due to environmental and ecological impacts; and presented a handout with almost 100 signatures to the Board. He explained the history of Melbourne Sand?s operation which caused destruction of the canals and affected wildlife in the area; and stated the existing lakes act as buffers from runoff destroying their canal. He explained the drainage in the area; noted Mr. Stickrath did not agree not to fill the lakes which could be detrimental to their canals and existing wildlife; and stated if he wants a landscaping company, then the small BU-2 parcel should be more than adequate or BU-1. He advised of residential areas in the vicinity; stated the existing company uses heavy equipment to move rocks and materials; and opposed heavy equipment on the land and what can be there if the business fails. Mr. Minor described businesses on U.S. 1; indicated it would not have a positive effect on his property value; and stated they have no knowledge of what will be developed on the remainder of the property. He suggested a binding guarantee that the lakes will not be filled and other conditions and restrictions for controlled growth be required so Brevard County does not end up like Miami if it is approved. He requested the Board use sound judgment and common sense and vote no.

Thad Altman, 361 Kilmarnock Place, Melbourne, explained aerial photographs of the area depicting the BU-2 parcel, proposed expansion of the BU-2, the lakes, and other uses in the area. He stated it is the only area in Central Brevard where people can live on the River east of U.S. 1; the west side is left green; and the cemetery and residential homes need to be protected from encroachment of commercial zoning. Mr. Altman stated they want to protect the high quality of Indian River Isles; there is no justification to expand the BU-2 as it is not compatible with residential areas; and it is another example of creeping commercialism which the County has worked hard to prevent. He explained the concerns about the lakes and lagoon; presented photos of the canals pumped full of silt from the mining operation that took place on the site; and stated it is an egregious example of environmental pollution which took legal action to stop. He stated the lakes were created to receive waters from the sand operation, serve as a sink for the silt and debris caused by the mining operation, and to absorb the large input of fresh water from Suntree that goes into the Indian River Lagoon. He stated the lakes should not be allowed to be filled and should be maintained to absorb the impact. He advised they oppose the request because it is creeping commercialism; BU-1 is adequate for plant nurseries, so there must be something more intense planned for the site; it is inconsistent with the residential area and the fragile environment; and if the request is considered, it should have a strict binding development plan to address those concerns.

Mr. Stickrath rebutted statements made by Mr. Altman regarding the area being residential when the property is located on U.S. 1, and that the lakes were created to take water that belongs to the County; stated that is a fabrication because they were created by excavation of fill material for development, with intentions of filling 100% of the wet areas with concrete; and Melbourne Sand had a permit to refill it with concrete. He again explained a drawing of the area; and stated if Mr. Waelti of Melbourne Sand were to testify, he would say they did not dig retention ponds to house County water. Mr. Stickrath advised the lakes were not created to give to the County to house water from Suntree; he is working with all entities to design drainage that will come through the lake; and his company recognizes the problem and is willing to do whatever it takes other than allow complete taking of his land. He repeated comments about the drainage problem and his intentions not to fill 80% of the lakes; and stated he will not bring heavy equipment to the property, as he owns 20 acres of IU-1 property in Cocoa with a heavy equipment yard that has been there for 26 years.

Chairman Cook inquired if Mr. Stickrath?s proposal is to buffer the entire length of the property on U.S. 1; with Mr. Stickrath responding he will buffer the front in phases. Chairman Cook inquired if he can operate in BU-1; with Mr. Enos responding he can operate a landscape nursery in BU-1, but storing of equipment on site and bulk storage of certain materials are limited; so the BU-2 was to make sure there would be no problems with his proposed operation. Mr. Stickrath stated the major issue is outside storage.

Commissioner Scarborough inquired why Mr. Stickrath did not provide a binding development plan; with Mr. Stickrath responding he confused a binding development plan with a site plan. Commissioner Scarborough stated he has difficulty voting on anything with complexities without having something reviewed by staff; and a lot of public concerns could have been answer if the binding development plan was part of the record.

Chairman Cook stated he cannot support the request under the present circumstances; a 350-foot buffer is not adequate lengthwise; and there is no binding development plan. He inquired if Mr. Stickrath was aware he needed to have the binding development plan; with Mr. Enos responding yes, when the P&Z Board approved the request with the binding development plan, staff sent a copy of the model plan to Mr. Stickrath and requested he get it back to them.

Commissioner Ellis stated there is a drainage nightmare at that point; at times it has closed U.S. 1 because of flooding from the pit; and something has to be done to correct the drainage because leaving it the way it is will not resolve the problem.

Mr. Stickrath requested an opportunity to submit a binding development plan which will extensively address the drainage problem and will be a benefit to the community.

Chairman Cook stated Mr. Stickrath had an opportunity to do that, so he will support denial of the application. Commissioner Ellis stated the property cannot be left as GU; with Mr. Enos responding if the Board finds GU to be appropriate zoning for the property, it is a legitimate classification and not totally out of the question; but it is one unit per five acres, and he would question whether it is appropriate for that parcel. Chairman Cook stated he can re-apply and return with a binding development plan; with Mr. Enos responding if denied, he would have to wait six months unless the Board waives the waiting period. Commissioner Ellis stated the Board can at least approve the property as AU. Commissioner Scarborough stated the Board does not have a binding development plan; questions have been raised; there is valuable property on the water; and he would prefer to table the item to review the binding development plan.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to table Item 22 until February 26, 1996. Motion carried and ordered unanimously.

Chairman Cook instructed Mr. Stickrath to get with the property owners, have a binding development plan prepared, reviewed by the Zoning staff, and submitted to the Board. He stated it is impossible to act without knowing for certain what is going to be there.

Item 23. Joseph G. and Paula A. Schulte?s request for change from GU to RU-1-13 on 2.37 acres located on the east side of U.S. 1, south of Tkacs Drive, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 23 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 24. Leonard G. Naylor?s request for CUP for metal salvage yard and junkyard in IU-1 zoning classification on 5 acres located on the east side of Korbin Avenue, north of Paint Street, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 24 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 25. Daniel J. Herman?s request for change from AU to RP on .95 acre located on the west side of Minton Road, south of Henry Avenue, which was approved by the P&Z Board.

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to approve Item 25 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 26. Stanley A. Dowiat?s request for CUP for alcoholic beverages on-premise consumption in IU zoning classification on 1 acre located north of Stan Drive, and north of Ellis Road, which was approved by the P&Z Board.

Tabled earlier in the meeting to February 26, 1996 Board of County Commissioners meeting.

Item 27. Sundance Development, Inc. and Professional Investment Group, Inc.?s request for CUP for additional building height (total 84 feet) in RU-2-15 zoning classification on 3.3? acres located on the east side of A1A, north of Boskind Road, which was tabled to the Planning and Zoning Board meeting of February 5, 1996.

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to table Item 27 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 28. Victor and Barbara E. Moss?s request for change from BU-1 also having CUP for mini-warehouses to BU-2 on 3.125 acres located on the southwest corner of Carlton Drive and Stewart Road, and on the north side of Aurora Road and west of Stewart Road, which was denied by the P&Z Board. Item 28 was withdrawn by the applicant.

Item 29. Zoning Official?s Report. None.

Upon motion and vote, the meeting adjourned at 10:58 p.m.

ATTEST: _________________________________

MARK COOK, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

_________________________

SANDY CRAWFORD, CLERK

(S E A L)