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Attorney Dill pointed out that the Board is not bound by the opinion given by Attorney O'Brien, and must base a decision on the evidence presented today. If evidence is presented today that the Board feels is substantial enough to warrant the decision that grocery sores and supermarkets are not the same, that decision can be made without going against the County Attorney's opinion. Attorney Vitunac stated that he agreed with that. Attorney Dill proceeded to present the legal criteria to be considered by the Board in making their determination today. REASONS TO REVERSE MR. KEATING'S POSITION THAT GROCERY STORES AND SUPERMARKETS ARE THE SAME USE Section 902.07(4) requires the following findings: (a) Did the reviewing official fail to follow the appropriate review procedures? - Yes (1) Failed to consider that the purpose of the CL District is only intended to accommodate convenience retail needs of area residents while minimizing the impacts of new uses on nearby residential areas. (2) Misinterpreted the use of the Standard Industrial Classification (SIC) Code by failing to consider the six (6) digit classification and improperly concluding that every item listed under a Major Group heading was intended to be a permitted zoning use. (3) Inadequate consideration was given to the following required criteria: traffic generation (delivery trucks and vehicles) visual impacts (property values) parking requirements hours of operation (lam - 10pm) noise (dumpsters, sweepers, diesel intensity of use trucks, generators, air conditioners) compatibility to surrounding land uses (odors, vermin, safety and crime) lighting (4) Staff failed to recognize the difference in its own definitions of grocery store and supermarket. (5) Staff failed to recognize that the LDR definition of "Retail sales, general" applies to general commercial uses and specifically listed "supermarkets". (6) Staff failed to adequately consider the uses appropriate in the CL district as controlled by the definition..."the CL district is intended to provide areas of restricted commercial activities. The CL district is intended to accomodate the convenience retail and service needs of area residents, while minimizing the impact of such activities on any nearby residential areas". (Emphasis added.) Section 911.10(2)(e)LDR. (b) Did the reviewing official act in an arbitrary' or capricious manner? NO (c) Did the reviewing official fail to consider adequately the effects of the proposed development upon surrounding properties, traffic circulation or public health, safety and welfare? Yes See reasons in items (a) (1) and (3) above (d) Did the reviewing official fail to evaluate the application with respect to the comprehensive plan and land development regulations of Indian River County? Yes See reasons in items (a) (1), (2), (3) and (5) above Upon making the above findings, the Board has the authority to make a Motion to reverse the decision of the Community Development Director, including his designee, which concluded that grocery stores and supermarkets are the same use, and you find that they are not the same use. Under Section 902.07(4) the Board may make additional finding of fact if it desires. 24 BOOK 92 P1 E �! Jib July 12, 1994