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designation for ±40.23 acres from R (Rural Residential) to L-1 (Low Density Residential -1, and to rezone the 40.23 acres from A-1 (Agricultural -1 District to RS -3 (Single Family Residential District -1), was denied. Subsequent to the Board's denial of the request, Double R&D filed a lawsuit against the County. Attorney Glen then presented a summary of the action which led to the ongoing litigation, the alleged basis of the litigation, along with a proposed settlement supported by the County Attorney's Office. Chairman Davis's position was, this is inside the Urban Service Area; it is adjacent to the City of Sebastian; and it has never been an issue as far as the increase in density from the L-1 in the Comp Plan to the RS -3 (up to 3/units per acre). It was always his intent that we would not increase their density and then buy the right of way for a road. He was in favor of it, as long as we get right of way, but was not in favor of up -zoning it then buying it. Commissioner Wheeler said it looked like they were trying to shore up their position for a lawsuit against the County by saying we are requiring contract zoning. He did not think one could hold zoning over someone else's head to get something from them. County Attorney Collins agreed that you cannot hold zoning over their heads, but a Comprehensive Plan amendment is much more discretionary, which they have to get before they are entitled to an up -zoning. Commissioner Wheeler agreed that we need to move forward but wanted to make sure we are not setting -up ourselves, again. MOTION WAS MADE by Commissioner Wheeler, SECONDED by Vice Chairman Flescher, to approve staff's recommendation, and to move forward on the settlement along the terms proposed. February 17, 2009 32