The Board of County Commissioners of Brevard County, Florida, met in special session on October 19, 1995, at 5:01 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, Assistant County Manager Stephen Peffer and Assistant County Attorney Eden Bentley.

REQUEST, RE: CHANGE IN AGENDA ORDER

Commissioner Scarborough requested the Board proceed with items on which there are no cards first.

REPORT, RE: RAIN IN DISTRICT 2

Commissioner O'Brien stated it stopped raining in District 2 for one day; the sun finally came out; but people are having to use boats on North Merritt Island to get out of their driveways. He stated the situation is the same in Cocoa; and it is supposed to rain again tomorrow.

ANNOUNCEMENT

Chairman Higgs advised of the procedure to address the Board; and stated if there are no cards submitted on an item, she will move quickly through the items.

PUBLIC HEARING, RE: ORDINANCE RELATING TO MAXIMUM LOT COVERAGE AND STORAGE WALLS IN INDUSTRIAL ZONING CLASSIFICATIONS

Chairman Higgs called for the public hearing to consider an ordinance relating to maximum lot coverage and storage walls in industrial zoning classifications.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to adopt an Ordinance amending Chapter 62, Article VI, Code of Ordinances of Brevard County, Florida, amending Division 4, Subdivision VIII, Sections 62-1542(6), 62-1543(6), and 62-1544(7), each titled ?Maximum Lot Coverage,? and Sections 62-1542(8)(B), 62-1543(8)(B), and 62-1544(9)(B) each titled ?Storage,? specifically amending the definition of maximum lot coverage and redefining the requirement for storage walls in the PIP, IU, and IU-1 zoning classifications; providing for conflicting provisions; providing for severability; and providing an effective date. Motion carried and ordered unanimously. (See page _____for Ordinance No. 95-46.)

Chairman Higgs advised Mr. Savell submitted a card to speak to the item, but she did not get it until after the vote. She noted Mr. Evans is still present. Commissioner Scarborough suggested the Board hear the speaker, and then decide if it wishes to reconsider. Chairman Higgs advised the rest of the items will be taken in order.

Micah Savell, 1370 Sarno Road, Melbourne, stated he does not have a problem with the proposed ordinance, except for the stacking; it says if the land is zoned industrial, you cannot stack anything higher than six feet, even beyond the fence; and if that is the intent, he opposes that one provision. He stated he sees no problem with having a six-foot opaque fence; but the reason people buy industrially-zoned property is to stack stuff; and it is unreasonable not to allow them to go beyond the height of the fence. He stated the proposed ordinance also prohibits the parking of storage trailers and other things unless they are within a building; that is an unreasonable restriction; and inquired if they cannot park on industrially-zoned land, where can they park.

Commissioner O'Brien stated he is a manufacturer; some of the products he makes require outside storage for a short period of time; and some of them are nine to twelve feet tall. He stated even a storage container without wheels is eight feet tall; and people buy industrially-zoned property so they can manufacture and have outside storage.

Mr. Savell stated the only place left for people to do this type of activity is in industrially-zoned land; and it appears the Board is trying to remove that. He noted he does not manufacture; the last piece of industrial land he rezoned to BU-2; the proposed ordinance does not apply to him; but there will be a lot of businesses which are adversely affected.

Commissioner O'Brien stated Mr. Savell?s observation is correct; and he missed that when he read the ordinance.

Chairman Higgs inquired what are the two things Mr. Savell wishes the Board to consider. Mr. Savell responded he did not have time to get a complete copy of the ordinance, but it talks in several places about the fence. He stated it is wrong where it says people cannot stack things higher than the fence; and that is not an appropriate restriction. Chairman Higgs noted that is the existing Ordinance. Mr. Savell stated what he is talking about is making a modification; and if a modification is going to be made, these are things the Board needs to consider adding to it. He stated the other thing has to do with the storage trailers and other things that are there; a land clearing contractor, under this ordinance, could not park his truck with an empty trailer because it could be seen over the six feet; and he could not stack surplus materials because it would be higher than six feet. He stated the six-foot barrier is not a problem; but the owners should be given the liberty to do things on the property because there is no other place left for them.

Mr. Evans stated Mr. Savell has good ideas; but the ordinance under consideration just changes from a masonry wall to an opaque barrier; the provisions Mr. Savell is discussing are already in the ordinance; and it would be necessary to start the process from scratch. Assistant County Attorney Eden Bentley advised the advertisement is very limited; and a new ad would be needed to accomplish what Mr. Savell is requesting. Chairman Higgs stated the Board cannot deal with Mr. Savell?s issues tonight; and suggested holding them to see if someone wants to bring them forward. Commissioners Ellis and O'Brien indicated interest in having staff bring this back before the Board. Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to direct staff to come back with information on the stacking issue and vehicle storage issue.

Chairman Higgs stated staff will bring that back with language for the Board to consider. Motion carried and ordered unanimously. Chairman Higgs stated there is no reason to go back to the earlier motion or take other action.

PUBLIC HEARING, RE: ORDINANCE PROVIDING FOR CATTLE GRAZING IN LIGHT INDUSTRIAL AND HEAVY INDUSTRIAL ZONING

Chairman Higgs called for the public hearing to consider an ordinance providing for cattle grazing in Light and Heavy Industrial Zoning.

Friley Knight, 889 Indian River Drive, Cocoa, stated he has nothing to add to the issue at this time; and is present to answer any questions and encourage the Board to adopt the change to the ordinance that has evolved.

Kim Zarillo, 760 Cajeput Circle, Melbourne Village, stated as she was going through the proposed ordinance, it says cattle grazing is an appropriate temporary use of property that is planned for industrial use but is awaiting development; that implies there is a desire to develop as industrial property; it says cattle grazing is not incompatible with permanent industrial uses; and inquired if it is compatible with adjacent property owners. She stated she is wondering how much this has been looked into and whether neighbors of these types of properties know of the possibility of the land having cattle. She stated when property is developed for industrial purposes, there may be large structures somewhat insulated by landscaped areas; and it may not be as invasive as having animals with their run-off, noise, etc. She stated neighbors need to be notified, and this needs to be looked into. She stated the ordinance says that it is awaiting permanent industrial use and would be subject to a formal site development plan; but her understanding is that may be changed. She stated it implies there is a planned use for industrial; there needs to be a formal site plan and a land clearing permit; and as the Land Clearing Task Force is evaluating the issue, it is inappropriate to not have that requirement on the owners. She stated land clearing for the purpose of cattle grazing shall be limited to not more than 10 acres or 50% of the parcel; but that may change to just 50%. She inquired on what basis is there a need for 50% to be allowed for grazing; and inquired if that is based on how many cattle there will be or is it an arbitrary figure. She inquired what kind of information was used to make a decision; and stated she does not see much forethought into this. She stated it says it is a temporary use; and inquired what is a temporary use, noting there is no clause in the ordinance that ends the temporary use. She stated if someone wants to use industrial land as industrial, he would use it as such, submit a site plan, and pay the taxes for the privileged extra use which heavy and light industrial gives the property owner, or change the zoning to agricultural if he wants to be in the cattle business. She stated temporary may mean different things to different people. She stated there may be conflicting provisions under Section 4; and inquired what ordinances or other requirements were reviewed for conflicts and comparisons. Ms. Zarillo stated she hears a lot about government revenue and loss of taxes to the County; many people have spoken against property being purchased by the government; this allows for property to be taken off the tax roll; and it is a decrease in revenue. She stated the ordinance seems to be for a particular group without notifying nearby property owners and circumventing land clearing regulations or other issues that may be on properties.

Commissioner O'Brien stated he agrees with Ms. Zarillo especially about the word ?temporary?; and it bothers him that there are no restrictions and it is ambiguous. He stated it should say a formal site development plan including the land clearing permit shall be required prior to the commencement of use of property for cattle grazing; otherwise it would contradict to say that 50% of the parcel could be cleared. He stated if someone has a footprint for a formal site development plan, why would he want to take out 50% of the foliage in the area; and he has conflict with that.

Commissioner Ellis stated if there was a footprint for an industrial site, the individual would not be looking at putting cows out there; normally someone would bring cows out because he does not have a buyer for the property or a plan for it; and there are thousands of acres in the County which are currently in agricultural use, but are not agriculturally zoned. He stated what those owners did was have agricultural use, and then rezone to something else, keeping the cows out there. He stated Mr. Knight would rezone to agriculture, put the cows on the property, then come back and rezone as industrial; and that would give him the same situation as the rest of the County.

Commissioner O'Brien stated his question is why does the County not do that, help Mr. Knight get zoned to agricultural and if there comes a time when the property can be developed industrially, come back and rezone to industrial. Commissioner Ellis stated Mr. Knight would not even have to wait. Commissioner O'Brien stated the County caused the problem; his could be a Pandora?s box; and the loss in revenue would be approximately $1 million. Commissioner Ellis stated the Property Appraiser is assuming there will be cows on every acre of industrial property in the County. Commissioner O'Brien stated if someone owns industrial property and this was in effect, they would do this, greenbelting it until there is a sale. Commissioner Ellis stated it is not possible to greenbelt it without a viable agricultural operation. Commissioner O'Brien stated if someone buys five cows and throws them on the property, it is green belted. Commissioner Ellis stated if he only had one or two acres of industrial, he could not put any cows on there and make it a go; and there has to be a certain size parcel in order to get by with the cattle operation. Commissioner O'Brien inquired where does it say a certain size parcel; with Commissioner Ellis responding in the beginning it talks about cows per acre. Chairman Higgs stated the Board talked about that but it is not in the ordinance. Commissioner Ellis noted he is reading from the ordinance, ?The Board requested the number of cattle that could be grazed per acre.? Chairman Higgs reiterated it is not in the ordinance; with Commissioner Ellis responding he does not think it will be in the ordinance. Commissioner O'Brien stated there are arguments on both sides; and suggested waiving the fee to change Mr. Knight?s property to agricultural to solve his problem. He stated Mr. Knight brought his problem forward, and the Board is trying to amend the Ordinance which will be Countywide rather than solving the specific problem. Commissioner Ellis suggested making it a conditional use permit so it would come before the Board each time, and that would also notify surrounding properties.

Micah Savell, 1370 Sarno Road, Melbourne, stated zoning and use in the County is not dictated locally; it is dictated out of Tallahassee with the Growth Management Plan; and what may have been a viable industrial use a few years ago is not that way today. He stated there are a number of different property owners who have industrially zoned property; the properties around them are zoned industrial; some are in the boondocks, but others are not; and the carrying costs on this property is extremely burdensome. He stated it could be made somewhat productive; to grant people an agricultural exemption does not mean they get a completely free ride; they get a reduced value provided it is a productive, approved operation; some people will do that, but others will not; and he does not know many people who could make this work as far as putting cows on the property. He stated if it was going to be an across the board thing, and he wanted to set up a nursery or some other activity, there would be a much broader base of people who would rush to claim this kind of exemption; but he does not think that will be the case. He stated there will be a few isolated instances that this would apply to; and it will be a benefit to those particular owners. He stated on Item 3.A, a formal site plan should be submitted and developed; there are properties that have been zoned industrial for ten to twenty years, that are no more viable today than they were then; and he does not think those people should be required to submit a development order until they are ready to do something with the plan because they do not know if they will need an 8,000 square foot building or a 180,000 square foot building. He stated on Item B, that land clearing for the purpose of cattle grazing should be limited to not more than ten acres on any one parcel or more than 50% of the parcel, he would like to see the 50%; if a person owns twenty or thirty acres, he needs to be able to do something because he may have to carry that land another fifteen years; and he is unfairly penalized. He stated on Item C, in order to insure the use is temporary in nature, no permanent agricultural structures associated with cattle grazing are to be permitted; if he was going to graze cattle, he would need a covered place to store his hay and feed; he would not build a huge barn, but would build some kind of structure to assist him to accomplish that goal; and that should be allowed. He stated if he had to tear down the structure in five years, that would be a cost of doing business because he might not have that use in five years. He requested the Board consider his comments; stated he reviewed the letter concerning the $500,000 loss in tax revenues; he does not know if that was a total right-off against those properties or if it was assessed in it, and whether it was 100% of every possible property. He stated there are a number of things that are being considered in the County that are a 100% right-off; and the amount is more than $500,000. He stated going back to priorities, the Board needs to not only look at this but to balance all of those and put them all in one pot so it is not looking at $500,000 but $3.5 million; and it has to be made up somewhere.

Charles Moehle, 65 Country Club Road, Cocoa Beach, distributed copies of a fax sent earlier to the Commissioners; and stated it goes into issues that have been brought up in favor of taking this action. He stated the concern about tax relief should not be a factor; unless it is industrial use there is no tax benefit being received; it is an unfair tax; and it is like taxation without representation. He stated a number of industrial uses throughout the County have been put on lands like other uses have been put on lands by the Land Use Management Plan; people need some temporary relief; and he does not understand why there should be a limitation as to the amount as the larger the parcel, the more noxious things that can go onto a neighbor. Mr. Moehle stated most of the parcels of any size that this would happen to are probably located along corridors like I-95, SR 50, or SR 520; they are places that are accessible and usable for industrial use; and most of those uses were determined by someone else. He stated the County is looking to bring more industry in; and the people that have these properties need some opportunity for interim relief.

Commissioner Cook stated he has concerns with the wording; the conditional use idea might be a valid way to address this; and if there is any type of industrial use on the property, it should not be considered for an exemption. He stated he is not sure how to designate what is a permanent industrial use and what is a temporary industrial use; the term temporary in nature is so broad that he is not sure what it means; and that would have to be tightened up. He stated conditional use might be an option.

Commissioner Ellis stated the reason he thought conditional use might be an option is because there may be an industrial parcel in a developed industrial park; cattle would not make as much sense there than if it was a vacant parcel surrounded by other vacant parcels; and many times that is interspersed with agricultural parcels.

Commissioner O'Brien stated if there are vacant parcels next to vacant parcels, and they are zoned IU, there would not be any problem with zoning them AU. He stated if they are already into an industrial zone where there are factories already built and only two vacant parcels, he would not want his factory next to a bunch of cows.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to deny the ordinance providing for cattle grazing in light industrial (IU) and heavy industrial (IU-1) zoning.

Commissioner Cook stated he shares Commissioner O'Brien?s concerns; but he thought if there was a conditional use there might be certain circumstances where cattle grazing would be acceptable. He stated he had asked Mr. Ford for the letter that advises that if all industrial property reverted to agriculture, it would have a significant impact on the tax base; but Mr. Knight and some others have problems that he would like to address if possible. He stated by making it a conditional use, it would be possible to have notification of surrounding property owners and not have a wholesale amount of people coming in demanding that they get an agricultural exemption.

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

PUBLIC HEARING, RE: ORDINANCE PERTAINING TO PRE-EXISTING USE PROVISIONS OF THE ZONING CODE

Chairman Higgs called for the public hearing to consider an ordinance pertaining to pre-existing use provisions of the Zoning Code.

Kim Zarillo, 760 Cajeput Circle, Melbourne Village, stated on the other issue, rather than having an ordinance to address the concerns of a couple of people, if the Board wants to alleviate the burden of taxation that the property owner cannot meet for the zoning, the ratio of the taxation could be changed. She stated the problem she has with the proposed ordinance is the LPA recommendation about pre-existing use not to be re-established, changing it from one year to three years. She stated # 5 says support facilities may be expanded where necessary to bring the site into closer compliance with the County Land Development Regulations; and inquired what kind of fiscal impact would that have on sites if the three years is going to be allowed, and has the three years been expended from the time they need to have started the clock. She noted the Board has been working on the Comprehensive Plan for some time, and now more time is going to be added. She inquired instead of increasing the size of support facilities, why cannot it go through the existing system of permitting; and stated she does not see a need to change that.

Dan McDermott, 1970 Michigan Avenue, Cocoa, inquired if he can have an opportunity to respond to Board discussion; with Chairman Higgs responding no, the Board is allowing public comment at this time. Mr. McDermott expressed desire to know what the parameters of the discussion will be. Commissioner O'Brien stated he does not like the system either; but that is how it is. Mr. McDermott stated it is frustrating to have issues brought up without the public having an opportunity to talk about them. He advised he faxed a memorandum to the Commissioners addressing two of the issues on the pre-existing use ordinance. He stated one of the issues is abandonment, and whether the idea of discontinued use should be included; the property owners would like the language to be limited to abandonment which involves some degree of intent; but with the discontinued use there are a tremendous amount of circumstances that may arise that are beyond the owners control so the use would have to be discontinued for a certain period of time. He stated the property owners would like to have the language as recommended by the LPA which is abandoned for a period of three years or more; some of the property owners would like it to be unlimited; some neighbors would like it limited to two months or one week; but the three years is a reasonable number which was recommended by the LPA after consideration of economic factors and other issues. He stated these are small property owners who run their own businesses; if they are sick, out of town, or have to sell the property, there is no one else to step in and do the job; and the property owners urge the Board to accept the LPA recommendation. He stated the second issue is the expansion onto abutting properties; the LPA recommended these properties be allowed to expand onto abutting property only if there was common ownership of the properties at the time of the passage of the Comprehensive Plan or Amendments affecting that property; and that makes sense if someone owns two parcels side by side. He stated this is an issue that has been before the Board for a long time; a lot of the problems were created years ago; and the Board is taking steps to remove some of the discriminatory treatment the people have, and it is appreciated. He stated the intent of the people is to be treated like the other properties on the South Beaches or up and down the coast; they would like to be able to use their properties to the fullest extent possible, to enjoy the economic benefits of it, and to enjoy their investment; and the ordinance is a step in the right direction. He stated one of the LPA?s recommendations was to remove the 15% limitation; the LPA recommended unlimited expansion, limited by other Land Development Regulations or zoning; and that is consistent with property owners up and down the coast. Mr. McDermott stated the property Commissioner O'Brien owns as a business man can be expanded to the extent provided by law; and that is what the people are looking for. He stated he would appreciate passage as recommended by the LPA; and in the future, if there are adjustments that need to be made, that can be accomplished. He noted although the rules do not allow him to speak to the Board about questions, he will be available to answer any questions.

Chairman Higgs stated she appreciates Mr. McDermott?s frustration; there are others who feel that; but if she afforded the privilege to Mr. McDermott, she would have to do the same to everyone which would be difficult.

Michael Gooch, 5110 Seiler Street, Melbourne Beach, representing BIPPA, stated this has been a thorny issue; and it has to be dealt with in the Comprehensive Plan framework as that dictates the existing land use and meets the needs of the community. He stated as a former member of the Planning and Zoning Board and the LPA, he appreciates the consensus building and efforts that went into developing land usage concerns in the South Beaches, which is a unique area of the community; but the proposed ordinance creates problems for BIPPA and other concerned property owners. He stated plans need to evolve and consider all issues over a period of time; property owners have the right to use their properties, but that usage should be only within guidelines and parameters that are imposed on them by civilized society; and the alternative to that is anarchy. He stated Chairman Higgs has proposed changes to the ordinance which BIPPA finds acceptable; and the changes are a compromise that would assist the property owners and the residents of the South Beaches as a means to find this action to be acceptable. He stated the changes are not substantial, but are a compromise that will allow the original intent of the Citizens Resource Group, Small Area Plan, and the previous action within the structure of the growth management concerns to meet everyone?s needs; and the alternative to that would be going back to a case by case base, reviewing the growth of the area, and going back to a patchwork approach to growth management concerns. He requested the Board consider the changes; and inquired if the other Commissioners are in receipt of Chairman Higgs? changes. He stated on Page 34, Section 73, there is reference to substantial expansion of a pre-existing use; this section should be included in the ordinance; the effect is to provide for public input into the process by allowing the Board to consider substantial expansion; and that is the crux of the issue. He stated Page 34, Section 72, Section 62-1839.7, Paragraphs 5 and 6, would be combined and moved to the section below; Paragraphs 5 and 6 refer to expansions and eliminate the needs for Paragraph 2 in Section 62-1949.7; and this would allow support facilities such as parking, drainage facilities, landscaping, signage, etc. to be expanded where necessary to bring the site into closer compliance with the County?s Land Development Regulations, and expansions on abutting properties may be permitted if the property was owned at the time of Comprehensive Plan adoption or amendment which made the use eligible for pre-existing use designation. He stated all this does is bring it before the Board instead of staff considering those issues associated with that use; it would allow public input and community involvement; and the changes would take the concept of pre-existing use out of non-conforming status and put them into permitted uses. He stated it would also allow public input on an ongoing basis to the expansion of abutting properties, if the expansion supports existing uses and if the abutting property was under the same ownership at the time of the Comprehensive Plan change; it would allow expansions to the limits of the Land Development Regulations including zoning on the existing site after public hearing and Board approval; and it would allow a 15% expansion by administrative action. He noted that would be above and beyond the original agreement through the Citizen Resource Groups, and would allow the business property owners to be able to continue to fulfill their needs to make a living and serve the needs of the area.

Ernie DeSantis, 6580 South A1A, Floridana, stated he would like to see the ordinance adopted as the LPA recommended; and the one problem is with the word ?discontinued? because a lot of the property owners run the businesses by themselves. He stated if he had to leave his business, his family does not live in Florida, and if he could not find someone else to run his business, it could be considered discontinued; he would not be abandoning the motel; but he might have to discontinue use due to circumstances beyond his control, and that would be the case with a lot of the small owners. He stated he wants the right to be treated equally; he does not want to be treated uniquely; but residential property owners can build or put additions on as long as it is within the proper zoning without getting neighbors to agree; and if he could get his zoning back, he could do things within the proper zoning without getting permission from everyone to do it. He stated that would make everything fair to the property owners and the surrounding residents.

Commissioner Cook stated the discontinued use would have to be for three years under the proposed language; with Assistant Growth Management Director Peggy Busacca advising that is correct.

Gary Coppola, 7035 South A1A, Melbourne Beach, stated this issue concerns his business and touches something within him that he has believed since kindergarten and learned the Pledge of Allegiance; the most popular reason for our ancestors risking their lives to come to America was to get away from religious persecution; but what is just as valid is the underlying issue of property rights. He stated the U.S. Constitution makes reference to this in Article 5 which states ?no person shall be deprived of life, liberty or property without due process of the law, nor shall private property be taken for public use without compensation?; Article 14, Section 1 says ?no government shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any government deprive any person of any life, liberty or private, nor deny to any person the equal protection of the law?; and the issue being discussed today strikes at the roots of the foundation of the United States. He stated even the Pledge of Allegiance refers to it, ?with liberty and justice for all?; he believes this; he defended these beliefs all his life; and the key words are ?deprived of liberty, property, and justice.? He stated the restriction of use of property is a deprivation of liberty and property; and unequal treatment is unjust. He stated the restrictions placed on the use of property must be considered a taking for public use without just compensation because what has been happening has not been for the property owners? use; he is not sure why the County is doing this; he assumes it is being done for the public good; and he has not been offered any compensation for the taking. He stated the next key word is ?equal?; the Constitution guarantees all citizens equal treatment under the law; pre-existing properties have been made so through unequal treatment which is discriminatory; other established businesses were not made non-conforming and have not been restricted; and although some residents may have a concern, most of the pre-existing uses were there before any of the houses were built. Mr. Coppola stated the businesses should be allowed to be continued and should be able to expand to the limits of the setbacks which rule the other people they compete with. He stated everyone pays taxes; 58% of the County land has been taken off the tax rolls according to Senator Charles Bronson; and that puts a bigger burden on the property owners because taxes are double what they would be if the other 50% were paying taxes. He stated Aquarina just expanded tremendously; it put in an 18-hole golf course and 1,000 units; and that is a business, but it has not been limited in what it can do. He stated the small businesses need to expand in order to compete in the difficult business climate; and requested the Board uphold the Constitution, by fairly and justly considering what the needs are.

Chairman Higgs stated when the Board directed staff to go forward to make changes to the PEU Ordinance, she felt those should be to put the businesses which were existing on the South Beaches and in other places in a legal status that would allow them to be understood more fully, particularly by financial institutions; and that was where the majority of the Board was directing staff to go. She stated as the ordinance exists today with the amendments, it has gone far beyond that; due process, property rights and equal protection are discussed; but moving so much into an administrative realm is taking away the property rights of many people who surround the properties. She stated there are always two sides to every story; and the other side is there are other property owners who also believe they have property rights and should be afforded due process. She stated regarding the Aquarina development, it has a PUD arrangement that was established a long time ago; and it has been allowed its due process to proceed with the approved plan. She stated she has a couple of amendments she would like the Board to consider; the Board knows of some of the pre-existing uses, but not all; and it is necessary to envision the effect of the ordinance on the many people who are not present. She stated to take the section of the Code out of the non-conforming area and put it into the permitted use area does that; and that was the Board?s intent to start with. She stated the Board has to allow public input, particularly in regard to expansion to abutting properties; and to do that, it would be necessary to include Section 73 on Page 34. She stated on Page 34, Paragraphs 5 and 6 need to be combined and moved under Section 73 below regarding expansion to abutting properties; and those would deal with support facilities for the existing pre-existing use to allow it to be expanded if it brings it into closer compliance. She stated expansion by administrative review of 15% should be included; and the substantial expansion should continue to be with the approval of the Board. She stated in Section 73, the Board would not pass the LPA recommendation which is listed as #6, and would re-establish the 15%. Commissioner Ellis inquired if there are copies the Board can look at; and stated it is not easy to follow. Chairman Higgs stated on Page 34, Subsection C would be amended to read ?expand by administrative review and approval of 15% of the floor area so long as the expansion meets all County Land Development Regulations.? Commissioner Ellis inquired if the 15% is being put back in; with Chairman Higgs responding affirmatively. Commissioner Ellis stated that is right back where it started. Chairman Higgs stated it would be back in; then #5 and #6 under the current Ordinance would be moved under Section 73; and it would be amended to provide that substantial expansion would be a use that would be approved by the Board, and 15% administrative expansions would be fine. Commissioner Ellis stated this is back where it was with the 15%; support facilities have been moved into the substantial expansion area; and by the time #5 and #6 are moved back under Section 73 and with the 15%, it is where it started. Chairman Higgs stated it has been moved out of the non-conforming category which was a major concern and continuing to allow the expansion to the abutting properties; she has no difficulty with the language on abandonment, and does not have serious concern about the three years; however, she has serious concerns about allowing staff to approve amendments to the Comprehensive Plan without there being proper hearings before the Board. Commissioner Ellis stated staff is not making an amendment to the Comprehensive Plan. Chairman Higgs stated in essence the Comprehensive Plan, as it exists, would be amended by the action of staff without public hearings. Commissioner Ellis stated he does not understand that. Chairman Higgs stated the Comprehensive Plan is residential, and that is what created the problems. Commissioner Ellis inquired if pre-existing use was inserted in the Comprehensive Plan; with Chairman Higgs responding pre-existing use is in the Comprehensive Plan. Ms. Busacca stated there is a policy that says that pre-existing use is distinct from non-conforming use. Commissioner Ellis stated if pre-existing use is in the Comprehensive Plan, he does not understand what Chairman Higgs means that every time they invoke pre-existing use, they change the Comprehensive Plan. Chairman Higgs stated when properties that are not in compliance with the Comprehensive Plan are allowed to expand significantly, particularly to abutting properties, it is making changes that are significant and it is being allowed without the public being a part of that process. She stated the LPA language about expanding to abutting properties in total is not acceptable. Commissioner Ellis stated someone could only expand on the property if he owned it at the time the Comprehensive Plan changed; and if someone bought the property after that time, he could not use it for expansion. He noted when the Comprehensive Plan started, these were mixed use areas, so all this is doing is restoring what they had before the Comprehensive Plan. Chairman Higgs stated this is not just these properties; there are properties all over the County that are affected; and the Board does not understand the full extent. Commissioner O'Brien stated he and Commissioner Scarborough have the same problem; and there are properties in their Districts that would be difficult. Commissioner Ellis stated a 15% threshold is ridiculous. Commissioner O'Brien stated it would appear that way, but the applicant could still come before the Board and seek approval. Commissioner Ellis stated that is a lot of paperwork for 15%. Commissioner Cook inquired if Commissioner Ellis would consider 25%, noting he agrees 15% is pretty nominal. He stated he sees Chairman Higgs? idea that major expansion should be noticed and come back to the Board. Commissioner Ellis stated the only major expansion is #6, going to an abutting property. Commissioner Cook stated he would like to expand the 15% to 25%; and that is reasonable. Commissioner Ellis stated #6 is substantial because the person is moving onto vacant property; but C and #5 are on the original parcel; and inquired how substantial can an expansion be on the same parcel. He inquired why there has to be a percentage. Chairman Higgs stated on some of the properties, they could expand 10,000 square feet. Commissioner Scarborough stated #6 is just trying to help the owner who acquired property from two separate owners; that will not apply to a lot of people; and the main thing is how much of the available property has been developed and is 15% or 25% reasonable. He stated there is probably a threshold point where it should come back to the Board. Commissioner Cook concurred; and stated he would like to see 25% as a threshold to come back to the Board. Commissioner Ellis stated someone living in the South Beaches can double the size of his home without appearing before the Board. Commissioner Cook stated a commercial endeavor is somewhat different. Commissioner Ellis stated it is restaurants and motels; there are no manufacturing facilities, etc.; and there are numerous homes that are bigger than the businesses.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to amend the threshold percentage from 15% to 25% under C.

Chairman Higgs stated it would allow expansion by administrative review 25% of the floor area as long as the expansion meets all County Land Development Regulations. She called for a vote on the motion. Motion carried and ordered. Commissioners Scarborough, O'Brien, Higgs, and Cook voted aye; Commissioner Ellis voted nay.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to move Paragraphs 5 and 6 under Section 72, to Section 73 to be numbered Paragraphs 5 and 6.

Commissioner Ellis inquired how can 5, which talks about support facilities such as parking, drainage, landscaping, signage, etc., be moved. Chairman Higgs stated under the existing Ordinance it says support facilities to support the existing pre-existing use may be expanded where necessary to bring the site into closer compliance with the County?s Land Development Regulations; so, right now the support facilities can be expanded. Ms. Busacca advised that can be done administratively. Commissioner Ellis stated they cannot be after the change is made; with Ms. Busacca advising that is correct; and what the Board is talking about now would require public hearing. Commissioner Ellis stated that would make it worse than it is now. Chairman Higgs stated she is willing to leave it where it is as long as the substantial expansions come back to the Board. Commissioner O'Brien stated that is fair, and he will amend the motion to approve the LPA recommendation, to be #5 under Section 73.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve the LPA recommendation to be numbered #5 under Section 73.

Chairman Higgs stated #5 would be left where it is and #6 would go under Section 73 under #2. She called for a vote on the motion. Motion carried and ordered. Commissioners Scarborough, O'Brien, Higgs, and Cook voted aye; Commissioner Ellis voted nay.

Commissioner O'Brien inquired on Page 34, #7, it says security trailers may be approved; under Section 73, #3, it says the same thing; and inquired why it is there twice; with Ms. Busacca responding it is a mistake. Ms. Busacca stated #7 should be under conditional use permit because it does discuss a public hearing, and it is incorrect under permitted use. Commissioner Cook stated #7 should be moved to Section 73. Motion by Commissioner Cook, seconded by Commissioner O'Brien, to eliminate #7. Commissioner Ellis inquired if #7 or #3 apply to GML property. Ms. Busacca inquired if that is for security trailers. Commissioner Ellis stated it says ?after two years the applicant must have provided for permanent security?; and he wants to be sure the County does not have a trailer sitting in any parks. Chairman Higgs stated this would only apply to pre-existing uses. Ms. Busacca stated PEU is considered to be a permitted use within GML; staff could not see an opportunity for that to be utilized; however, it wanted to make that opportunity available should it need to be there. Commissioner Ellis inquired if GML is not PEU; with Ms. Busacca responding PEU can be a permitted use within GML but staff did not see the need for it because GML permits such a wide array and typically those uses are not made inconsistent by the Comprehensive Plan. Commissioner Ellis inquired if the Comprehensive Plan identifies government-owned parcels as GML or as residential; with Ms. Busacca responding either, but that would be consistent. Ms. Busacca stated government-managed lands are permitted within a variety of land use categories. Commissioner O'Brien inquired if this is like saying ITT, ATT, GML, PEU and DCA; with Commissioner Ellis responding there is a double set of rules.

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

Chairman Higgs inquired if the provision for the three motels is in the current draft; with Ms. Busacca responding it is. Commissioner Cook inquired if that takes care of that; with Ms. Busacca responding it does.

Ms. Busacca inquired if the Board decided about the abandonment issue; with Commissioner Cook responding the Board decided to leave it as abandonment with three years per the LPA recommendation.

Commissioner Scarborough stated Ms. Bentley had some concerns about the legal definition of abandonment. Assistant County Attorney Eden Bentley stated abandonment is interpreted by the courts to require a proof of intent; if the Board uses the word ?discontinued?, there are two lines of cases; some of the courts require proof of intent if you use ?discontinued? but some of them interpret it straight; and if a property is not used for that particular use and it has been discontinued for three years, the right to operate would terminate which would require no proof of intent. Commissioner Scarborough inquired if actual non-use would be sufficient to show intent or could a person speak about other matters. Ms. Bentley stated most of the cases she saw required something beyond just the statement that the owner intended to come back and use the property; and usually they were applying for some kind of permit or it was for sale and they were showing it. Commissioner Scarborough stated if the owner has not used it, they have to show something beyond; with Ms. Bentley responding the case law has indicated that. Commissioner Cook inquired about the word ?discontinue.? Commissioner Scarborough stated he was concerned about proving someone?s intent; but is more comfortable with what Ms. Bentley is saying; and he does not have a problem with the word ?abandonment.? Chairman Higgs stated on #6 where there is the LPA recommendation to move down out of the previous Section 72 into Section 73, in the current language how can people expand to the abutting properties, under what conditions, and do they have to have the ownership at the time. Ms. Busacca responded yes, they do under the existing language; and it would have to have been owned at the time the Comprehensive Plan amendment or adoption made the use eligible for pre-existing use. Chairman Higgs inquired if that is the current PEU; with Ms. Busacca responding that is not the current PEU; the current policy is the only expansion can be for support facilities to adjoining property; and there is no discussion about time of ownership. Chairman Higgs stated the way the LPA recommended expansion to abutting properties is a serious problem for her; just moving #6 down without any kind of changes makes it more restrictive than the way it exists today; and she is comfortable if the expansion to the abutting property is part of the public hearing process, even if that property was not owned at the time of the Comprehensive Plan adoption. She stated she is not trying to change the existing Ordinance. Commissioner Cook inquired if Chairman Higgs is saying she does not have a problem with expanding to adjacent property even though it may not have been owned at the time of the Comprehensive Plan adoption. Chairman Higgs responded that is what people can do, but it must come to the Board; if it continues to come to the Board then she is comfortable with the existing Ordinance; and inquired if that is what the existing Ordinance says; with Ms. Bentley responding yes. Commissioner Cook stated if the Board does not do that, the people would have had to own the property at the time of adoption of the Comprehensive Plan. Commissioner Scarborough suggested striking the language about the property being owned at the time of Comprehensive Plan adoption or amendment.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to strike the language requiring the property to have been owned at the time of the Comprehensive Plan adoption or amendment. Motion carried and ordered unanimously.

Commissioner O'Brien stated the word ?abandon? is used; and inquired if there would be any problem if it said ?abandon? would also include that there had been no repairs or maintenance of the structure for the period of three years, or no reasonable maintenance. Ms. Bentley stated language should be added; but she would take not maintaining the building as evidence of intent to abandon. She stated the Board can insert language like that, but there will always be some answer to that like it did not meet it; and the County will end up litigating the intent question anyway. Commissioner O'Brien inquired if inserting language would be helpful; with Ms. Bentley responding she does not know of any language that would encompass all the situations that will be encountered, and the case law addresses the issue.

Commissioner Cook inquired if the letter Mr. McDermott sent to him on October 16, 1995 was sent to the entire Board; with Mr. McDermott responding yes. Mr. McDermott stated the 15% limitation was initially imposed; the 15% does not make any economic sense at all; and he does not think 25% gets there either by the time the costs are paid. Commissioner Cook noted it is better than 15%. Mr. McDermott stated 50% would be more acceptable and economically reasonable, although he would prefer it the way it was written. He stated if someone wanted to expand a hotel to put a dining room on, it would be more than 25%; and by the time the costs were paid, it would not make any sense. He stated the people have property that is difficult to repair now; but with those limits, it will replicate property that is declining in value when what is wanted in the South Beaches is upscale, nice places; and so, he is not sure 25% helps achieve the goals the Board wants to achieve. He stated it would be helpful to have an opportunity after Board comments to have some additional public input. Mr. McDermott stated what he addressed was not what was brought up; and he was not aware these issues were going to be brought up. He stated 50% would at least be a compromise issue.

Chairman Higgs stated she understands Mr. McDermott?s frustration with the process; but others want to talk too; and also nobody was ready for some of the issues Mr. McDermott brought before the LPA. Commissioner Ellis stated from the LPA, it comes to the Board; but there was no foreknowledge at all about what came up tonight. Chairman Higgs stated that is always the case. Commissioner Ellis stated this is not dealing with a bunch of 100-unit motels; it is four, six or eight-unit motels; 25% expansion on a four-unit motel is only one unit and on a six-unit motel, it is one unit; and inquired what are you getting for that. Commissioner Scarborough stated if this just was about the South Beaches, it would be acceptable; but it is not; and that concerns him. Commissioner Ellis stated this has been advertised, and no one ever shows up but the South Beaches. Commissioner Scarborough stated when the Board touches something, it never knows where the ripples will end up; and he knows of problems that may occur in his District from this ordinance. He stated if it goes much beyond 25%, there may be an entirely different group from another area of the County which did not realize tonight the Board was discussing something that could adversely affect the quality of life. Commissioner Ellis stated he understands Commissioner Scarborough?s point; but his point would be the reason the Board is here tonight is because it touched things that have been in place since the 1950's; the Board initiated the changes, not the people that had the businesses and buildings since the 1950's; and those people are just trying to get back some of what they had. Commissioner O'Brien stated he and Commissioner Scarborough have some pre-existing uses, especially on adult entertainment clubs; if it goes beyond this, it would adversely affect the entire community; and Teasers is a good example of something in pre-existing use.

Ms. Busacca inquired if it is abandonment for three years or one year; with Chairman Higgs responding it is for three. Ms. Busacca stated expansions on abutting properties may be permitted is the entire paragraph; and there was a deletion concerning the ownership; with Commissioner Cook responding yes, to make it comply with what it is now.

There being no further objections or comments, motion was made by Commissioner O'Brien, seconded by Commissioner Cook, to adopt Ordinance amending Chapter 62, ?Land Development Regulations?, Code of Ordinances of Brevard County, Florida; amending Article VI, Code of Ordinances of Brevard County, Florida; deleting Section 62-1190, pre-existing use designation within the non-conforming use provisions; amending unimproved agricultural and residential zoning classifications, general use (GU), productive agriculture (PA), agriculture (AGR), agricultural residential (AU), rural estate use (REU), rural residential (RR-1), suburban estate residential use (SEU), suburban residential (SR), estate use residential (EU, EU-1, EU-2), single family residential (RU-1-13, RU-1-11, RU-1-9, RU-1-7); single family attached residential (A-2-4, RA-2-6, RA-2-8, RA-2-10), residential professional (RP) to add pre-existing use as a permitted use with conditions and to add substantial expansion of a pre-existing use as a conditional use; specifically amending multiple family residential zoning classifications low density multiple family residential (RU-2-4, RU-2-6, RU-2-8), medium density multiple family residential (RU-2-10, RU-2-12, RU-2-15), high density multiple family residential (RU-2-30) to add pre-existing use as a permitted use with

conditions and to add substantial expansion of a pre-existing use as a conditional use; specifically amending mobile home residential and recreational vehicle park zoning classifications rural residential mobile home (RRMH-1, RRMH-2.5, RRMH-5), single family mobile home (TR-1 and TR-1-A), single family mobile home (TR-2), mobile home park (TR-3), single family mobile home cooperative (TRC-1), recreational vehicle park (RVP) to add pre-existing use as a permitted use with conditions and to add substantial expansion of a pre-existing use as a conditional use; specifically amending planned unit development (PUD) zoning classification to add pre-existing use as a permitted use with conditions and to add substantial expansion of a pre-existing use as a conditional use; specifically amending commercial zoning classifications restricted neighborhood retail commercial (BU-1-A), general retail commercial (BU-1), retail, warehousing and wholesale commercial (BU-2) to add rep-existing use as a permitted use with conditions and to add substantial expansion of a pre-existing use as a conditional use; specifically amending tourist commercial and transient tourist use zoning classifications general tourist commercial (TU-1), transient tourist commercial (TU-2) to add pre-existing use as a permitted use with conditions and to add substantial expansion of a pre-existing use as a conditional use; specifically amending industrial zoning classifications planned business park (PBP), planned industrial park (PIP), light industrial (IU), heavy industrial (IU-1) to add pre-existing use as a permitted use with conditions and to add substantial expansion of a pre-existing use as a conditional use; specifically amending special zoning classifications environmental areas (EA), government managed lands (GML) to add pre-existing use as a permitted use with conditions and to add substantial expansion of a pre-existing use as a conditional use; specifically amending subdivision 5, permitted use with conditions, creating Section 62.1839.7 to establish criteria for pre-existing use as a permitted use with conditions; specifically amending Subdivision 5, conditional uses, creating Section 62-1949.Y to establish criteria relating to substantial expansion of a pre-existing use; providing for conflicting provisions; providing for severability; and providing for an effective date, as amended. Motion carried and ordered unanimously. (See page _____ for Ordinance No. 95-47.)

Commissioner Ellis stated it is better than what was existing; and if he has the choice of getting both arms chopped off or one, he would rather only give up one.

Chairman Higgs stated the three motels will not be able to apply for the pre-existing use; for those who have a pre-existing use, it moves it from non-conforming to a permitted use, a category of conforming; and for those who are concerned about expansion, it went from 15% to 25%. She stated if someone wants a substantial expansion, application can be made and it will be brought to the Board. She stated there are provisions so the small motels on the beach have the opportunity to come forward and be approved. Commissioner Ellis noted the last time they came forward, they got smoked four to one; and he is just being realistic about what happened. Chairman Higgs stated there were other issues in terms of the BU-1-A.

The meeting recessed at 6:30 p.m. and reconvened at 6:48 p.m.

PUBLIC HEARING, RE: ORDINANCE AMENDING PLANNED UNIT DEVELOPMENT PROVISIONS OF THE ZONING CODE

Chairman Higgs called for the public hearing to consider an ordinance amending the Planned Unit Development provisions of the Zoning Code. She inquired if Mr. Moehle wishes to speak; with Charles Moehle responding he only wishes to speak on transfer of development rights.

There being no further objections or comments heard, motion was made by Commissioner Cook, seconded by Commissioner O'Brien, to adopt an ordinance amending Chapter 62, ?Land Development Regulations?, Code of Ordinances of Brevard County, Florida; amending Article VI, Division 4, Subdivision V, planned unit development; amending Section 62-1441 pertaining to definitions and rules of construction; amending Section 62-1442 pertaining to purpose and intent; amending Section 62-1443 pertaining to permitted uses; amending Section 62-1444 pertaining to conditional uses; amending Section 62-1446 pertaining to land use regulations; striking Section 62-1447 pertaining to classification of applications and reserving the Section number; amending Section 62-1448 pertaining to approval of preliminary development plan and tentative zoning; amending Section 62-1449 pertaining to approval of final development plans; amending Section 62-1450 pertaining to review of physical layout, architectural characteristics and amenities; striking Section 62-1451 pertaining to issuance of building permits and reserving the Section number; striking Section 62-1452 pertaining to classification of applications and reserving the Section number; amending Section 62-1453 pertaining to termination of PUD zone; striking Section 62-1454 pertaining to enforcement and reserving the Section number; providing for conflicting provisions; providing for severability; providing an effective date. Motion carried and ordered unanimously. (See page _____ for Ordinance No. 95-48.)

PUBLIC HEARING, RE: ORDINANCE AMENDING SELECTED CONDITIONAL USE PERMITS PROVISIONS OF THE ZONING CODE

Chairman Higgs called for the public hearing to consider an ordinance amending selected conditional use permits provisions of the Zoning Code.

Charles Moehle, 65 Country Club Road, Cocoa Beach, read aloud a letter as follows:

This ordinance should not be eliminated. In its present form it has limited potential use (South Beaches). It should be revised to make it usable in other areas than the South Beaches and high density situations. It has the potential of being a useful tool as an inducement to preserve environmental areas on a large scale, among other positive possibilities to resolve development and environmental conflicts in other areas of the County.

Mr. Moehle stated one of the reasons he heard that it was being brought up for elimination was that it was never used; but it is not used because those looking at it cannot see how they can fit it into their situation, although they would like to. He stated the maps and districts were created for the South Beaches only; it was created some time ago before mitigation and mitigation banks were used as a compromise or solution for development and preservation of environmental areas. He stated the ordinance should be reviewed to accomplish that; and it will be a useful tool. Chairman Higgs inquired what page is that on; with Commissioner Ellis responding Page 5, Section 11.

Commissioner Scarborough stated ever since the discussion on transfer of development rights (TDR) came up, it has never made sense to him; if he had a right to build a unit on the South Beaches and someone gave him the same right to develop as someone in Canaveral Groves, he would kill them because the development in one area does not equate to the development in another area; but if he was in an area where he had a right to develop so many units per acre, and someone was going to be allowed to develop twelve units per acre because he was transferring development rights, he would say it does not make sense. He stated if there is a maximum that the area can take, he does not understand how someone can transfer units into an area. He stated there may be other things that play, but he has never understood it.

Charles Moehle, 65 Country Club Road, Cocoa Beach, stated the ordinance leads to dealing with smaller properties and transfers between ownerships with some distances between the properties when, in fact, a larger piece of property could easily take care of this and compromise on an environmental area that could be permitted but could be given up on a large piece of property.

Commissioner Scarborough stated somewhere there may be something that would work, but he has been unable to visualize it.

Mr. Moehle stated the Section is poorly written to be utilized right now. Chairman Higgs inquired if Mr. Moehle is saying to leave it in, but have someone look at it so that it can be enhanced to be more usable; with Mr. Moehle responding yes.

Kim Zarillo, 760 Cajeput Circle, Melbourne Village, stated she agrees with Mr. Moehle; in reading this, it seems complicated; and this is one of several mechanisms to allow for transfer of development rights. She stated originally it was started in the 1970's; and there were examples of how this was used in Maryland, New Jersey and Massachusetts. She stated if it is simplified, she would request the Board direct staff to look into examples throughout the country where this has been utilized to determine how it can best be utilized to make it more flexible for property owners. She stated it is just one tool of many, but to eliminate it is like throwing the baby out with the bath water.

Commissioner Ellis stated he agrees with Commissioner Scarborough; he does not see how an off-site TDR would work; but he understands how it may be done on-site. He stated if he owned a 100-acre orange grove, in the Comprehensive Plan at one unit per acre, he may be able to build the 100 homes on 40 acres and keep the 60 acres of orange grove there; it does not have to be orange groves, but could be scrub jays, wetlands, etc.; and he understands transfer of density within a parcel. He stated to go off-site does not make sense. Commissioner Scarborough stated it has not made sense to him. Commissioner Ellis stated on-site, if he had wetlands on the back half of a parcel, he could build twice as many houses in the front, and leave the back alone. Chairman Higgs stated it has some economic value in regard to the opportunity for owners to consider it in the assessment and appraisal of land; and when people are offering environmentally sensitive properties for sale, a TDR can represent an economic consideration for appraisers in their valuation of the land. Commissioner Ellis inquired how it would work off-site. Chairman Higgs responded there is a receiving parcel or a receiving area; and if the zoning there is such and the Comprehensive Plan is such, then those can be transferred; and she understands some appraisers are providing economic value for the TDR?s.

Commissioner Scarborough stated there is a development right, and it has a certain value; but what he is trying to look at is the correct balance for any particular property to have as far as total development; once the balance is hit, a person should be able to expand to the point where he does not begin to adversely affect his neighbor and the greater community; and inquired once someone hits that, how can additional TDR?s be transferred into this area. Chairman Higgs advised it may not be zoned to the maximum; and those kinds of things could be allowed to transfer in. Commissioner Scarborough stated if someone has not zoned to the maximum, he should be allowed to zone to the maximum and not be required to transfer TDR in; and it should be a matter of right and not a matter of an economic transaction. Commissioner Ellis stated the only reason he would ever transfer in a TDR is if he was already zoned to the maximum. He stated if he was in the Lake Washington area that is all zoned at one acre rural residential homes, and it is in the Comprehensive Plan, he knows all he can get is one to the acre zoning; but if he sells property in Palm Bay and brings the TDR?s to the Lake Washington area, then he can go two units to the acre or four units to the acre; and he would have essentially rezoned. Chairman Higgs stated those kinds of things cannot be done. Commissioner Ellis inquired if a TDR could only get someone to the maximum zoning allowable. Chairman Higgs noted she is not an expert on TDR?s. Commissioner Ellis stated he does not mind leaving something in the ordinance, if the Board is going to come back with something useful. Chairman Higgs stated there are people on both ends of the spectrum who are saying not to do this in.

Mr. Moehle stated all of those things have to be taken into consideration to allow under the existing Ordinance; and he does not think they would be disallowed under anything that would be revised. He stated the existing Ordinance calls for specific areas to be able to be transferred into and others to be transferred out of; there are maps for those; but they are only South Beaches maps. He stated all the things the Board was concerned about are taken care of in the ordinance if the other areas of the County are included and it is coordinated with the Comprehensive Plan. He stated it could be made very useful and it does afford a way for landowners to compromise in development with the permitting districts, such as DER or St. Johns River Water Management District, to be able to accept the economic results of what the landowners want to do; and the landowner may be able to set aside more environmental area. He stated it is a tool to allow more flexibility and be more fair to everyone to help accomplish what they want to do at a more acceptable cost. Commissioner Cook inquired why someone would entertain this unless he was maximizing the use of his land. Mr. Moehle stated if someone has an area shown on the Comprehensive Plan as one unit per five acres, right next to it there are five or ten acres that are one unit per acre, and next to that is an area that is two units per acre, it may be permittable; however, there may be problems because the environmental experts want it all to be preserved; and it would be necessary to fight for your rights to develop it. He stated it is impossible to move it to the other area because the zoning does not exist there; but with transfer of development rights within that area, wherever it is, as long as it meets the criteria of not overcrowding the roads, solid waste facilities, etc., it allows for a great deal of flexibility. Commissioner Ellis stated he sees it more on the same parcel than moving it to a different parcel. Mr. Moehle stated he can see that too, but it is not the only possibility because two people who have properties that are causing them problems, putting them at loggerheads with the County and other agencies, could possibly work it out so it meets all the criteria and does not overload anything. Commissioner Ellis stated it is a trade of density.

Commissioner Scarborough commented on the disparity of development rights worth $1,000 on Satellite Boulevard in Canaveral Groves and $50,000 on the South Beaches. He stated it is like having two paper bills; one is $1 and one is $50; and no one would just shift them around because they are both paper bills because they have different values attached to them. He stated likewise development rights in different areas have different values; and there have to be appraisals of development rights as a means of setting the calculation for the exchange.

Zoning Official Rick Enos stated the reason that staff has recommended elimination of this is because there are already two other successful means of transferring development rights, PUD?s and Binding Development Plans. Chairman Higgs stated that is on-site; with Mr. Enos responding it is also off-site; and that has happened. He stated the reason staff is recommending elimination is because this option is never chosen; developers who wish to transfer development rights choose one of the other two means; and staff felt this had become an unnecessary part of the regulation. He stated this means may be two restrictive and the other two means tend to be more attractive to those who are doing transfer of development rights; and staff would have no objection to looking at this again to see if it can be broadened and generalized. He stated one of the problems now is it only applies to the South Beaches, and it was written at a time when the South Beaches was at four units to the acre; a lot of the transfer rights that are included are four units to the acre, and are not applicable anymore; and even if this is left in, it does not relate to what the South Beaches looks like in the current Comprehensive Plan. Chairman Higgs stated any TDR?s to be used need work; and if the provision is left in, staff could come back to the Board with a recommendation. Commissioner Ellis stated it could be taken out. Commissioner Cook stated the proposal is to remove it; this is pass?; developers do not choose this option; and with the new property rights legislation from Tallahassee, he can understand the thinking. He stated he has no problem with directing staff to take a look at it.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to direct staff to come back with recommendations on transfer of development rights. Motion carried and ordered unanimously.

Terry Rosenberger, 250 Imperial Street, Merritt Island, stated the LPA recommended one direction, CUP?s for temporary living quarters over one-third acre but under one acre would be permitted with conditions; but staff?s recommendation differs. He noted he concurs with either one; it is suitable that people do not have to come for a three-month process for a start on a residential building; however, he has difficulty in that on page 13, Item 4, the whole thing is written without considering someone who is constructing a residential RRMH-1 site in a one acre or greater capacity. Mr. Rosenberger stated these are one acre in size, 165 feet away from each other; and in the case of West Canaveral Groves, there may not be any temporary power or things of that nature suitable to build and then return whenever possible. He noted mobile homes require an extensive process of permitting and applications as well as standard site built homes; and with the larger size lots, there might be a consideration that staff could address a different segment by rewriting it, rather than throwing something new to the Board tonight for consideration. Chairman Higgs stated there was an amendment to this Section; and at the last meeting it was suggested a conditional use permit shall not be required on lots equal to or exceeding one acre in size. Mr. Rosenberger stated he agrees with that, but there is no provision for mobile home setups; if someone is setting up a mobile home, temporary living quarters require a slab and plumbing which is essential for a mobile home, but there is also electric and landscaping development. He stated if someone is working a regular job, they can only develop the property on the weekends and in the evenings; someone could live on site in a recreational vehicle; and there should be some provision for that.

Commissioner Cook stated he does not think someone would be precluded from doing that. Mr. Enos stated the intent would be to apply it in mobile home classifications as well. Chairman Higgs stated there is nothing that excludes the mobile homes.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to adopt an Ordinance amending Article VI, Chapter 62, ?Land Development Regulations?, Code of Ordinances of Brevard County, Florida; Section 62-1904, amending the conditions for the conditional use permit (CUP) for agricultural pursuits; Section 62-1905, amending the conditions for the CUP for airplane runways; Section 62-1909, amending the conditions for the CUP for automobile and motorcycle repair (major) and paint and body work; Section 62-1910, amending the conditions for the CUP for bait and tackle shops; Section 62-1911, deleting the conditions for the CUP for barns; Section 62-1912, amending the conditions for the CUP for bed and breakfast inns and boarding houses; Section 62-1913, amending the conditions for the CUP for boarding of horses and horses for hire; Section 62-1914, amending the conditions for the CUP for boat building facilities; Section 62-1915, amending the conditions for the CUP for boat sales; Section 62-1924, amending the conditions for the CUP for convenience store as accessory use to recreational vehicle park; Section 62-1925, deleting the conditions for the CUP for development rights receipt and transfer; Section 62-1926, deleting the conditions for the CUP for drive-in theaters; Section 62-1928, amending the conditions for the CUP for farm machinery sales and service; Section 62-1931, amending the conditions for the CUP for gasoline service stations; Section 62-1932, amending the conditions for the CUP for guest houses or servants? quarters; Section 62-1935, amending the conditions for the CUP for horses; Section 62-1935.5, amending the conditions for the CUP for lambs, keeping of as a youth project; Section 62-1941, deleting the conditions for the CUP for off-site parking separated by public road right-of-way; Section 62-1942, amending the conditions for the CUP for package treatment sewer facilities; Section 62-1947, amending the conditions for the CUP for single-family residential second kitchen facility; Section 62-1950, amending the conditions for the CUP for tourist uses and tourist efficiencies; Section 62-1955, amending the conditions for the CUP for truss manufacturing and assemblage plants; Section 62-1957, amending the conditions for the CUP for water plants; generally deleting or moving to permitted uses with conditions certain listed conditional use permits within certain zoning classifications; providing for conflicting provisions; providing for severability; and providing an effective date. Motion carried and ordered unanimously. (See page _____ for Ordinance No. 95-49.)

Mr. Enos advised there was discussion at the previous meeting about the bed and breakfast issue. Commissioner Scarborough stated he assumes that was incorporated. Mr. Enos stated he put together a memorandum about it; and inquired if the intent of the motion was to include that definition. Commissioner Scarborough stated it has been incorporated. Commissioner Cook inquired if it is incorporated in the Ordinance as it is tonight; with Mr. Enos responding no. Commissioner Scarborough stated the memorandum advises it has been incorporated into the Ordinance; and inquired if the Board needs to reconsider. Commissioner Cook inquired what is the change. Mr. Enos stated the Board asked staff to provide information about how a bed and breakfast might be defined; in the memorandum, he provided that information; but it was not included in the Ordinance; and if it is the Board?s intent to do that, that is all he needed to know. Chairman Higgs requested Mr. Enos read the definition so the Board can decide if it wants to reconsider the Ordinance to include it. Mr. Enos stated the definition as it was written in the memorandum says ?a bed and breakfast inn is a structure originally built a single-family residence or a new structure which is designed as and appears externally as a single-family residence where short-term lodging rooms and meals, usually breakfast only, are provided to overnight guests. The use is an accessory use to the primary use as a single-family residence of the operator who shall live on the premises.? He noted he also added additional locational standards and other conditions as directed by the Board as follows: ?Location standards, bed and breakfast inn shall be located in areas with convenient access to natural amenities, tourist attractions, areas of historical significance, or other areas that are likely to draw tourists or short-term visitors. The structure shall have direct access to a street other than a local street. Other conditions, the number of guest rooms shall not exceed the density of the zoning classification and the Comprehensive Plan density guidelines. No cooking facilities shall be permitted in the guest rooms, and a central dining area shall be provided for guest meals. Meals shall be provided to overnight guests only. Rentals are typically on a daily or weekly basis and no guests shall stay for more than 30 consecutive days.?

Commissioner Cook stated he has concerns about the locational standards; what would be a historic or natural amenity would be open to interpretation; but the locational standards are the only thing he has a problem with. He inquired if the facility would have to have a primary access other than a local road. Mr. Enos stated he tried to provide a shotgun approach of everything staff could come up with in other municipal regulations. Commissioner Cook stated he likes the Ordinance as it is; this is trying to pass a law for any kind of eventuality; and it could get too restrictive. He noted in Rockledge, there are bed and breakfast inns that are improving the old section; people are spending money on houses built in the 1890's; and it is profitable for them to live there and rent out some rooms as a bed and breakfast. He stated they may not be on the river, but they are still improving the neighborhood; and he has a problem changing the motion to include the locational standards. Chairman Higgs inquired about the definition. Commissioner Cook stated he does not have a problem with the definition which Mr. Enos read in the beginning. Commissioner O'Brien stated the house in Rockledge would have historical significance. Commissioner Cook stated he hates putting that in; there could be a debate about one house built in 1880 and another built in 1920; and it is too restrictive.

Chairman Higgs stated she does not have a problem with the definition; she understands the concern about the location; and she does not think she has a problem with the conditions.

Commissioner Ellis stated he does not understand about the density conditions; and inquired if he has a home with three bedrooms for the bed and breakfast, will he have to have an RU-2-4 zoning. Mr. Enos responded no, but it would be necessary to have a lot that was of such size that it could have been broken up into three lots under the zoning that it has; and that is the intent of the density being equivalent. Commissioner Ellis stated that is tough if your home does not have a big lot or could not be broken into other lots. Mr. Enos stated that standard is already in the current provision on Page 4, Section 6, #1; and all he did was rewrite what is already in the Ordinance. Commissioner Ellis inquired if people actually conform to that now; with Mr. Enos responding yes. Commissioner Ellis stated someone would have to have property with a home on it that could potentially be subdivided for one home for every room that is to be rented out; with Mr. Enos advising that is what is happening now. Commissioner Ellis stated it would be more profitable to sell off the vacant lots. Mr. Enos stated the intent is to keep the bed and breakfast inns, where they are in single-family neighborhoods, compatible with the character of the neighborhood by having them on larger lots if they are going to have guests. Commissioner Ellis stated the big issue with the definition is the owner has to live there; and that might be an incentive. Commissioner Cook stated that is better because some of the older homes were built on very small lots in Rockledge; and he does not like the conditions; but the definition is good.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to reconsider the Ordinance amending selected conditional use permits provisions of the Zoning Code. Motion carried and ordered unanimously.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to include the definition of bed and breakfast inns in the Ordinance amending selected conditional use permit provisions of the Zoning Code.

Commissioner O'Brien read aloud the conditions; and noted they are not the locational standards. He inquired if Commissioner Cook would amend the motion to include the conditions. Commissioner Ellis stated he does not want to include the density provision. Commissioner Cook stated Mr. Enos advises that is in the Ordinance. Mr. Enos stated the provision on the density is in the Ordinance, but the others are new. Commissioner O'Brien stated they are important, especially no cooking facilities in the guest rooms. Chairman Higgs stated if the Board passes the motion, the only thing being added is the definition. Commissioner O'Brien inquired if the conditions are already included; with Mr. Enos responding there are some conditions in the Ordinance; the density, parking, signage, common dining facilities, occupational license, and distance between establishments conditions are already included on Page 4. Commissioner O'Brien reiterated the part about no cooking facilities is important. Commissioner Cook inquired if that is in the Ordinance now; with Mr. Enos responding it is included. Commissioner O'Brien inquired about meals being provided to overnight guests only; with Mr. Enos responding that is not in the Ordinance now. Commissioner O'Brien stated he would like to add that. Commissioner Cook inquired if a relative is over, can he not be given a meal; with Mr. Enos responding there is no provision that would prohibit a bed and breakfast facility currently to serve a meal to someone off the street who did not stay there overnight. Commissioner Scarborough stated he does not think it will be that much of a problem; and there will not be that much dining space. Commissioner Ellis noted he has not had a complaint in three years on this. Commissioner O'Brien stated in Key West there were bed and breakfasts in town that started serving breakfasts to anyone; it got out of hand; and it took forever to turn that back a little bit. Mr. Enos stated there are bed and breakfasts that are full-service restaurants as well. Commissioner O'Brien stated Key West had a serious problem with that along the main streets. Chairman Higgs suggested ?meals shall not be sold to anyone other than overnight guests.? Mr. Enos stated that is the next to last condition he is proposing. Commissioner Cook stated that would be all right; but the Board is trying to anticipate something that he does not think will be a problem. Commissioner O'Brien stated you never can tell; there are parts of Merritt Island that could easily become a bed and breakfast; someone could decide to sell breakfast on his front porch; and he is already getting phone calls about a boarding house that may not be licensed and has AIDS patients living there. Commissioner O'Brien stated if you start traveling down a road and there is nothing to prevent it, things can occur, and then it is too late to do anything about it. He stated he would like it to say ?meals shall be provided for overnight guests only?; family members would be included as a matter of common sense; but he does not want a B & B to be selling breakfast to anyone who drives by. Commissioner Cook stated he does not think a B & B can do that anyway; and if it starts selling meals, it puts it in a different classification. Commissioner Ellis inquired about children selling lemonade, and will they have to get an occupational license. Commissioner Cook inquired if there has been a problem with this so far. Mr. Enos stated there are not that many bed and breakfast inns so far. Chairman Higgs suggested ?meals shall not be sold to anyone other than overnight guests?; and stated that allows the owner to serve whoever he wants for free.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to amend the ordinance to include the definition, no cooking facilities in guest rooms, a central dining area, and meals shall not be sold to anyone other than overnight guests. Motion carried and ordered unanimously.

There being no further comments or objections heard, motion was made by Commissioner Cook, seconded by Commissioner Scarborough, to adopt an Ordinance amending Article VI, Chapter 62, ?Land Development Regulations?, Code of Ordinances of Brevard County, Florida; Section 62-1904, amending the conditions for the conditional use permit (CUP) for agricultural pursuits; Section 62-1905, amending the conditions for the CUP for airplane runways; Section 62-1909, amending the conditions for the CUP for automobile and motorcycle repair (major) and paint and body work; Section 62-1910, amending the conditions for the CUP for bait and tackle shops; Section 62-1911, deleting the conditions for the CUP for barns; Section 62-1912, amending the conditions for the CUP for bed and breakfast inns and boarding houses; Section 62-1913, amending the conditions for the CUP for boarding of horses and horses for hire; Section 62-1914, amending the conditions for the CUP for boat building facilities; Section 62-1915, amending the conditions for the CUP for boat sales; Section 62-1924, amending the conditions for the CUP for convenience store as accessory use to recreational vehicle park; Section 62-1925, deleting the conditions for the CUP for development rights receipt and transfer; Section 62-1926, deleting the conditions for the CUP for drive-in theaters; Section 62-1928, amending the conditions for the CUP for farm machinery sales and service; Section 62-1931, amending the conditions for the CUP for gasoline service stations; Section 62-1932, amending the conditions for the CUP for guest houses or servants? quarters; Section 62-1935, amending the conditions for the CUP for horses; Section 62-1935.5, amending the conditions for the CUP for lambs, keeping of as a youth project; Section 62-1941, deleting the conditions for the CUP for off-site parking separated by public road right-of-way; Section 62-1942, amending the conditions for the CUP for package treatment sewer facilities; Section 62-1947, amending the conditions for the CUP for single-family residential second kitchen facility; Section 62-1950, amending the conditions for the CUP for tourist uses and tourist efficiencies; Section 62-1955, amending the conditions for the CUP for truss manufacturing and assemblage plants; Section 62-1957, amending the conditions for the CUP for water plants; generally deleting or moving to permitted uses with conditions certain listed conditional use permits within certain zoning classifications; providing for conflicting provisions; providing for severability; and providing an effective date, as amended. Motion carried and ordered unanimously. (See page _____ for Ordinance No. 95-49.)

Commissioner Cook stated boarding houses are not always bad, and there is a need for them. Commissioner O'Brien stated there is a need, but if they are not well regulated, they are nightmares. He noted there are two in Cape Canaveral that are nightmares; but the way they are shown in the movies is a different ball game.

PUBLIC HEARING, RE: ORDINANCE ESTABLISHING ECONOMIC REASONS AS A HARDSHIP FOR A VARIANCE IN CERTAIN CIRCUMSTANCES

Chairman Higgs called for the public hearing to consider an ordinance establishing economic reasons as a hardship for a variance in certain circumstances.

Commissioner Ellis stated on Page 2, Paragraph A, the clause and sentence following the semi-colon are unnecessary. He stated the first sentence is a variance may be granted when it will not be contrary to the public interest and when literal enforcement results in unnecessary and undue hardship; and that should be adequate. He inquired if what is being done is not contrary to the public interest and it is going to result in hardship, why are further clauses needed. Commissioner O'Brien stated medical reasons shall not be considered as grounds for establishing undue hardship; and that is important. He stated there was one in Merritt Island when he first came on board; it could have easily been a medical hardship to create a CUP in the house; it was splitting up the house to make an apartment on one side; it changed single-family residential into a duplex; and it would have had a detrimental affect on the entire street. Commissioner Ellis stated the first sentence clearly states ?when it will not be contrary to the public interest.? Commissioner O'Brien stated if the medical part is left in, that is very specific; and specificity is necessary. Commissioner Ellis inquired if what someone does is not contrary to the public interest, what right does government have to stop it. Commissioner O'Brien responded it is subjective rather than being objective; to be objective, it should say ?personal medical reasons shall not be considered as grounds for establishing undue hardship?; it is specific; and without being specific, this week the Board will say one thing, and next week another Board can say another. Commissioner Ellis stated if someone went to court on personal medical reasons, the County would be struck down under ADA; and if he was disabled and the County would not grant him a variance because of his disability, it would be a real case. Commissioner O'Brien stated it depends on what the case is; other cases are more predominant; and the answer is they would not be shot down at all. Commissioner Ellis reiterated the first sentence says it will not be contrary to public interest; and inquired why does the government have a right to stop an individual from what he is doing if it will not be contrary to the public interest. Commissioner Cook stated taking this out does not say a variance will be granted because there is a medical problem; it will not be compelling anything; and it will just be exempting the part that is very specific where it says it will not be considered. He stated there might be some public interest to granting a variance and taking into consideration the medical reason. Commissioner O'Brien described a situation where someone with a medical reason expanded the sidewalk to the swimming pool by four feet beyond and over the easement then died; stated the pool is a permanent structure; it is within three feet of the neighbor?s back yard; and that is the kind of thing that will be hit because of medical reasons. He stated if someone is blind or something, they should have constructed or bought a house knowing they could survive in it. Commissioner Cook inquired what if someone has lived in a house for 30 years and then goes blind. Commissioner Ellis reiterated it clearly states it will not be contrary to public interest.

Commissioner Scarborough stated the last time this was discussed Ms. Bentley advised of legal reasons why medical reasons cannot be considered as a reason for a variance. Assistant County Attorney Eden Bentley advised case law provides that hardship in the context of variances to the Zoning Code has to relate to the land not to the owner of the land. Commissioner Scarborough stated if the Board struck the ability to look at medical reason, it still could not look at medical reasons; with Ms. Bentley advising the advertisement only talks about striking the economic requirement or limitations. Commissioner Cook inquired if the Board cannot strike this; with Ms. Bentley responding it would be highly questionable to do it at this stage. Commissioner Ellis stated he thought when this was advertised, it was possible to be less strict, but not more strict. Ms. Bentley stated that is correct, but depending on who you are, there may be a different interpretation of what is more and less restrictive; and there could be an abutting property owner who might feel that deleting the personal medical reasons created a change in his position and that he would have a right to come in and talk about that. Commissioner Cook stated the Board has changed Ordinances all the time. Commissioner Ellis stated under that interpretation, the Board could only pass what is advertised, no more no less, no matter what it is because there is always someone on either side of the fence. Ms. Bentley advised what the advertisement says is specifically amending the requirements that the hardship demonstrated not be economic. Commissioner Ellis stated earlier when the Board did the pre-existing use Ordinance, it was made more strict by moving it from an administrative action to a public hearing; and he did not hear that argument come up. Ms. Bentley advised all the advertisement talked about was substantial increases and criteria for that, but it did not say what the criteria would be, whereas the advertisements for this ordinance is more specific. Commissioner Cook stated the ads should be such that they will allow some flexibility. Ms. Bentley stated this ordinance was advertised this way because it was thought this was all the Board was concerned about. Commissioner Ellis stated he does not buy that; and he does not see why the Board cannot strike that out. He noted the first sentence after the semi-colon says it all; and the rest is redundant. Commissioner Cook inquired if Ms. Bentley is saying that medical reasons cannot be considered anyway; with Ms. Bentley responding the way the ad is today, that could not be deleted; however, if the provision is deleted, the case law is going to read it in anyway. She stated in other words if the Board re-advertises it to delete personal medical reasons, it could be done and would not be illegal, but the case law will read into it that a variance cannot be granted just for personal medical reasons.

Chairman Higgs suggested doing what is legally advertised and directing staff to bring it back. Commissioner Ellis inquired how many times does the Board have to go through the same thing. Commissioner O'Brien stated the sentence is in there; it is already covered in the first sentence; and suggested leaving the sentence in because it is not going to hurt to leave it in. Commissioner Ellis stated it negates the first sentence; and reiterated the first sentence states when it will not be contrary to public interest, it may be granted. He stated even though a variance may not be contrary to the public interest, if the variance was for medical reasons, according to the clause after the semi-colon, it cannot be granted; and inquired if Ms. Bentley understands the contradiction in the two sentences. Ms. Bentley advised she understands; but her problem is the case law reads hardship to relate to the land and not to personal items. She stated she understands that without the case law background, it would seem to be contradictory, but it does fit the case law. Commissioner Ellis stated that may be the legal terms, but it is contradictory.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to strike the clause in Paragraph A after the semi-colon and strike the new sentence which was added.

Commissioner O'Brien stated if the added sentence is deleted, that is what the Board started to do in the first place, and this is striking it. Commissioner Cook stated that is not being stricken; with Commissioner O'Brien disagreeing.

Commissioner Scarborough called a point of order; and requested the Chairman strike the motion. He stated it was not advertised; and the motion cannot be accepted because it cannot be voted on. Commissioner Cook inquired if that is Ms. Bentley?s opinion that the Board cannot do that legally; and stated he thought she said it would not be illegal. Ms. Bentley stated if it was correctly advertised, it would not be illegal to delete that provision; however, today all that has been advertised is the economic item that is being deleted; so it would not be appropriate to delete personal medical reasons today although it might be done in the future. Commissioner Scarborough advised the Chairman cannot accept an illegal motion. Commissioner Ellis stated the Board should have thought of that when it did pre-existing use. Chairman Higgs inquired if it is true that the Chairman cannot accept an illegal motion; and stated she will not support the motion tonight. Commissioner Cook stated the Board can vote on anything; but he sees the point; and if Commissioner Ellis wants to change the motion to have staff come back, that could be done. He noted this is the first time he has run into this since he has been on the Board. Chairman Higgs admitted it is a new one for her. She inquired if the motion can be accepted. Commissioner O'Brien stated the Board came to add the one sentence; and suggested the Board pass it with the one sentence and not worry about it. He stated otherwise it is the same as it always has been. Chairman Higgs stated she would prefer for the Board to act on the motion; she is not sure whether she can accept it or not; the County Attorney is not advising specifically that she cannot; and she will accept the motion.

Chairman Higgs called for a vote on the motion. Motion did not carry. Commissioner Ellis voted aye; Commissioners Scarborough, O'Brien, Higgs and Cook voted nay.

Commissioner Ellis stated the Board has gone through many things and not done exactly what was advertised. Ms. Bentley stated she is not saying the Board has to do exactly what was advertised, but it has to be in the general broad parameters, and this was too narrow.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to direct staff to advertise ordinances to give the Board the most leeway legally possible.

Commissioner Scarborough stated he thinks this is right; but this issue came up when Mr. Evans brought an issue up and Mr. Savell addressed it; the Board was unable to touch on what Mr. Savell wanted because it had not been advertised; so, this is not a new argument. He stated there are advertisement requirements and it is not new to the Board in any sense. Commissioner Ellis stated he did not agree the Board could not handle Mr. Savell?s issue; but no one wanted to handle it without a staff report. Assistant Growth Management Director Peggy Busacca stated staff attempts to advertise as broadly as it can; but when it comes for permission to advertise, that may be a time for the Board to look at that in more detail to insure it is being advertised as broadly as possible. Commissioner Cook stated if staff confers with the County Attorney?s Office, there should be some language that will give some flexibility. Ms. Busacca stated staff always attempts to do that; but the permission to advertise is the last chance the Board may have and that may be a second or third stop gap protection for that.

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

Motion by Commissioner O'Brien, seconded by Commissioner Ellis, to adopt an ordinance amending Chapter 62, ?Land Development Regulations?, Code of Ordinances of Brevard County, Florida; amending Article II, Division 4, Section 62-253 ?Prerequisites to granting of variance, specifically amending the requirement that the hardship demonstrated not be economic, providing for conflicting provisions; providing for severability; and providing an effective date. Motion carried and ordered unanimously. (See page _____ for Ordinance No. 95-50.)

Commissioner Ellis stated he would like to take a look at removing the clause after the semi-colon completely; and it is not just redundant, but is contradictory to the first clause. Commissioner O'Brien inquired if the Board wants to spend more money to advertise that just to cure one sentence in the Ordinance. Commissioner Ellis stated the Board should vote on it tonight, and not waste money advertising. Ms. Busacca stated she will be coming to the Board on Tuesday requesting permission to advertise another ordinance; it is possible the Board could direct that the next time an ordinance is being heard, it could be put on that ordinance; it does not require two night meetings; and it can be done at a day meeting, so it can be done as quickly as possible. Commissioner Cook stated it would not require additional advertising; with Ms. Busacca responding it could be added on to the next one; it could go to the LPA in November; and it could come to the Board as early as December 12, 1995, which is the date she is requesting advertising for the other ordinance, so there would be no appreciable cost.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to direct staff to advertise the medical issue. Chairman Higgs inquired if the economic issue should be advertised as well; with Commissioner Ellis responding the Board has already done the economic issue. Chairman Higgs stated Commissioner Ellis was talking about both sentences after the semi-colon; with Commissioner Ellis responding he only wants to do the second clause dealing with the medical issue. Commissioner Scarborough stated he brought it up at the first meeting about why medical was included; but if the courts are going to read it in there, by removing it, people on a variance board will think they can consider it; and it will lead to a great deal of additional discussion. He stated the law is not just what the Board does; it is a whole body of law beyond this body; and every time something is done, it is necessary to read the Florida Statutes, U.S. Code, case law, etc; and the Board can pretend it is God, but it is not. He stated the truth is the Board having staff re-advertise and it probably going to lead to additional debates that will go nowhere. He inquired where Commissioner Ellis wants to go with this; and stated it will not change the law. Commissioner Ellis stated many times under court challenge, laws are changed. Commissioner Scarborough inquired if Commissioner Ellis wants to challenge the law; with Commissioner Ellis responding he does not want to go to court over this; however, if the interpretation is that if the Board gives a variance for medical reasons and someone else wants to take it to court, they can go there. Commissioner Scarborough stated the County Attorney is going to have to advise the Board, regardless of whether it is in the Ordinance or not, that Florida law has to be followed; and the advice the variance board is going to hear is about the case law. He stated the County Attorney has an obligation to advise people what the law of the State is. Commissioner Cook inquired if the medical reasons be a consideration rather than the only reason; with Ms. Bentley responding if there are other valid legal reasons, the fact that personal medical problems were brought up will not invalidate the variance; but there would have to be other valid reasons. Commissioner Cook stated he would be looking at it more as one of the reasons to grant the variance and not the sole reason.

Chairman Higgs called for a vote on the motion. Motion did not carry. Commissioners Cook and Ellis voted aye; Commissioners Scarborough, O'Brien and Higgs voted nay.

PUBLIC HEARING, RE: ORDINANCE RELATING TO SECURITY MOBILE HOMES

Chairman Higgs called for the public hearing to consider an ordinance relating to security mobile homes.

Terry Rosenberger, 250 Imperial Street, Merritt Island, stated it has been difficult to interpret the totality of mobile home tenant dwellings and mobile home permanent structures. He stated AU zoning allows one tenant dwelling per five acres; he is not sure if someone can own just five acres and have that; but the ordinance as proposed is going to require 20 acres for an AU zoning to have a tenant dwelling. Zoning Official Rick Enos stated currently a tenant dwelling is a conditional use in an AU zone on 20 acres; the proposal is to make it permitted with conditions on 20 acres; and this is removing the public hearing process for a tenant dwelling on 20 acres of AU with the conditions the same. Mr. Rosenberger inquired if it would be possible to have one per five acres if someone owned 20 acres. He stated his other concern was the setback; and in one case there was a setback from a primary residence of 200 feet from property lines. Chairman Higgs inquired where is Mr. Rosenberger reading from; with Mr. Rosenberger responding he is reading from his notes. Commissioner Ellis stated on Page 3 there is an underlined sentence, ?one tenant dwelling for each 20 acres of improved agricultural use may be permitted. Mr. Enos advised it would be necessary to have 20 acres per tenant dwelling. Commissioner Ellis stated if someone had 20 acres, he could only put one trailer on it; and that is the way it is now. Chairman Higgs advised it is one tenant dwelling; and there can be a primary structure and a tenant dwelling. Mr. Enos advised that is correct; it is also being proposed under AU that the mobile home can be the principal residence if there are 10 acres; and if both of the provisions are approved, on 20 acres, someone could have a principal residence which is a mobile home and a tenant dwelling which is a mobile home. Mr. Rosenberger inquired if he understands that all current AU zoning with 20 acres can have one unit per five, such as a primary residence and four tenant dwellings; with Mr. Enos responding no, currently in AU zoning, someone may have a single family residence if there are at least two and one-half acres; and in order to have a mobile home tenant dwelling, it is necessary to have 20 acres, but it is a conditional use permit. Mr. Enos stated the 20 acres is not changing; but what might be causing confusion is a tenant dwelling on five acres is permitted if it is not a mobile home. Mr. Rosenberger stated AU is being restricted to one tenant dwelling, if someone wants to do mobile homes. He stated the setbacks seem to be varying and the wording in some cases is from property lines. He stated for security mobile homes, it is 100 feet from road right-of-way, and then it is 200 feet from a residence of a different ownership; and there were a lot of variables. He stated if the property line was the standard, it might be less confusing. He inquired why is the size of security trailers being limited to 600 square feet. He stated as it is written now in AU, the Board is allowing additional structures but not in a church where the Board is allowing a longer term security mobile home; and if it was opened up to larger security mobile homes, it would allow, at the termination of a security time, more places where the mobile home could be relocated.

Chairman Higgs inquired how Mr. Rosenberger would amend it to change the size limit. Mr. Enos advised the security trailers are 1,000 square feet; at one time it was 600 square feet; but that was amended a few years ago. Chairman Higgs stated the ordinance does what Mr. Rosenberger is asking. Mr. Rosenberger noted there are doublewide units that go up to 1,400 to 1,500 square feet. Commissioner Ellis inquired why size is included; with Mr. Enos responding the intent of the maximum is to assure that the security trailer, which is intended to be temporary, can be moved off as soon as permanent security is provided. Mr. Enos stated the intent was to discourage large mobile homes which people would consider to be their permanent residence; in situations where they are becoming permitted and no longer conditional, that limitation would not apply; and it would only apply to the security trailers where they continue to be a conditional use.

Commissioner Cook stated he agrees; the original intent of the Code was that these would be temporary; this is not a mobile home park or primary residence; and if there is a need for constant security, it encourages putting something permanent there. He stated that is why the current restrictions are good and needed.

Mr. Enos suggested on Paragraph 10, on Page 5, it could be changed to read ?the maximum size permitted for security mobile homes as a conditional use shall be 1,000 square feet? to assure it is not talking about where it is permitted.

Commissioner Cook stated it would otherwise be permitted anyway as a primary residential structure. Mr. Enos stated that is how he would interpret it, but to make it clear, the language could be added.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to adopt an ordinance amending Chapter 62, Article VI ?Zoning Regulations?, Code of Ordinances of Brevard County, Florida; amending Section 62-1332, ?productive agricultural, PA?, to add ?mobile home residential dwelling? to the list of permitted uses, to add ?tenant dwellings:mobile home? to the list of permitted uses with conditions, and to remove ?mobile home residence? and ?mobile home tenant dwellings? from the list of conditional uses; amending Section 62-1333, ?agricultural, AGR? to remove ?mobile home tenant dwelling? from the list of conditional uses; amending Section 62-1334, ?agricultural residential, AU? to add ?mobile home residential dwelling? and ?tenant dwellings:mobile home? to the list of permitted uses with conditions, and to remove ?tenant dwellings:mobile home? from the list of conditional uses; amending Section 62-1482, ?general retail commercial BU-1", to add ?security mobile home? to the list of permitted uses with conditions; amending Section 62-1483, retail warehousing and wholesale commercial, BU-2", to add ?security mobile home? to the list of permitted uses with conditions; amending Division 5 Subdivision II entitled ?permitted uses with conditions? by creating Section 62-1831.7, providing for permitted use with conditions for security mobile homes; amending Division 5 subdivision II entitled ?permitted uses with conditions? by creating Section 62-1837.75 providing for permitted use with conditions for mobile home residential dwellings; amending Section 62-1843, adding the zoning classifications ?productive agricultural, PA? and ?agricultural residential, AU? to the provision for permitted use with conditions for the tenant dwelling mobile home; amending Section 62-1946, by reducing the administrative renewal for security mobile homes; amending Section 62-1951, repealing the conditional use permit for tenant dwellings; providing for conflicting provisions; providing for severability; and providing an effective date, amended to provide that the maximum size for a security mobile home as a conditional use is 1,000 square feet. Motion carried and ordered unanimously. (See page _____ for Ordinance No. 95-51.)

Upon motion and vote, the meeting adjourned at 7:53 p.m.

_____________________________

NANCY N. HIGGS, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

ATTEST:

___________________________

SANDY CRAWFORD, CLERK

( S E A L )