The Board of County Commissioners of Brevard County, Florida, met in regular session on September 13, 2000, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Sue Carlson, and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Reverend Leroy Eldridge, Temple Baptist Church, Titusville.

Commissioner Helen Voltz led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve the Minutes of the July 25, August 1, and August 8, 2000 Regular Meetings. Motion carried and ordered unanimously.

REPORT, RE: MOSQUITO CONTROL

County Manager Tom Jenkins stated there have been complaints about a severe mosquito outbreak; Mosquito Control is working seven days a week; and if they need additional manpower, trucks, etc., Mr. Hunt will come back to the Board to do whatever is necessary to insure the level of service is being maximized.

Commissioner Scarborough stated sometimes it is beneficial to get something in the newspaper to educate the public. Commissioner O'Brien stated it is important to educate the public about the mosquito problem.

REPORT, RE: CLOSING OF MENTAL HOSPITALS

Commissioner Scarborough stated he has heard about the issue of closing mental hospitals in Florida and how it can impact the County; he has some information; and requested staff prepare a letter for the Chairman's signature expressing concern, and bring it back to the Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to direct staff to prepare a letter expressing concern about the closing of mental hospitals in Florida, and bring it back to the Board. Motion carried and ordered unanimously.

REPORT, RE: CHANGE IN AREA CODE

Commissioner Carlson stated she received a letter from the Public Service Commission, and there is an article in the newspaper this morning regarding the end of the permissive dialing period; and beginning October 1, 2000 the 321 area code will be the only one that can be used for Brevard County.

REPORT, RE: NEW FLIGHTS AT MELBOURNE INTERNATIONAL AIRPORT

Commissioner Carlson stated Melbourne International Airport has announced the start of its new non-stop flights to Ronald Reagan Airport in Washington, D.C. with Spirit Airlines.

DISCUSSION, RE: BROADCASTING CANDIDATE FORUMS ON SPACE COAST GOVERNMENT TV

Commissioner Carlson stated she received a request from the League of Women Voters to see if the Board would pass on to the Space Coast Government TV (SCGTV) channel a request to broadcast a candidate's forum they want to do after the second primary.

Commissioner Voltz stated BCC is also doing a forum. Chairman Higgs noted the Chamber of Commerce is also doing one; and if the Board wants to consider using the channel for that, which is a diversion from what has been done with the channel, it should be put on an Agenda for formal consideration.

Commissioner Carlson read aloud from the policies of the SCGTV, "unless determined to be relevant by the Station Manager, Assistant Station Manager, and/or Program Manager or the SCGTV Council, declared candidates or their representatives are not permitted to make partisan political statements on SCGTV, except as part of a forum, a meeting of candidates, or programs meeting equal time guidelines." She stated she is confused about the procedure.

Commissioner O'Brien stated there are so many different campaigns, that a lot of people running for office would be irrelevant to a huge portion of the County; Commissioner Scarborough's race in District 1 would not be of interest to people in Micco; and the government channel should not be used for campaign purposes by anyone. Commissioner Voltz stated she agrees. Commissioner Carlson inquired if the Board should send information to the SCGTV Council to have the procedure changed.

Motion by Commissioner O'Brien, to authorize sending a letter to the SCGTV Council, referring to page 12, item O, paragraph 1, stating that the Board may be against allowing the government channel to be used for campaign purposes.

Commissioner Carlson stated the Council will be meeting on September 21, 2000; and they can take that issue up if the Board sends a letter of consideration. Commissioner Carlson seconded the motion.

Chairman Higgs stated if policies are going to be changed, it should be on the Agenda and done in a more thoughtful manner. Commissioner Carlson stated the motion was for the Council to review the suggestion because the Board does not have the authority to make that decision. Chairman Higgs stated the policy seems to be permissive in terms of allowing it, and the intent of the motion is to say no, so it is changing the policy. County Manager Tom Jenkins stated the Board would just be making a suggestion to the Council; and the Council makes the decision. Chairman Higgs stated the Board adopted the policies; with Mr. Jenkins advising the Board accepted the policies.

Commissioner Scarborough stated if the Board opens the door to one group, then any group can come to the Board, and that gets into the political issue. He stated he does not have a problem with the language that the channel is not to be used for campaigning, but when an impartial third party is conducting a question and answer, it is not campaigning so much as it is giving the community an opportunity to see and understand the issues; and he would prefer to send this to the Council without comment.

Commissioner O'Brien stated the Board should take a stronger position; and the government channel should be kept non-political.

Commissioner Carlson stated the Board should get the idea of what this particular program means and what the Board's power is to approve or disapprove; and inquired why there is a Council, if the Board can override it. She requested Commissioner O'Brien amend the motion to say that the Board will ask for the Council's comments on the request.

Commissioner O'Brien amended the motion as Commissioner Carlson requested.

County Attorney Scott Knox stated if the Board is going to take a strong position on the issue, it needs to be concerned about the public forum issue because if it opens the door for one group, it opens it for every group; and it would be walking a fine line between government and private groups. Commissioner Carlson stated an interpretation is needed.

County Manager Tom Jenkins advised if the Board approved this for one group, which may be perceived as a neutral third party, there may be other groups coming along with their own agenda trying to do the same thing, which could be difficult to deny.

Chairman Higgs stated she believes other groups would come to the Board; the content of the forum is controlled by the questions of the people who are conducting the forum; so there could be a considerable divergence in the content. She requested Commissioner O'Brien clarify the motion.

Commissioner O'Brien stated the motion is to send a letter to the SCGTV Council asking for an opinion on how to interpret Item O, subparagraph 1 on page 12 concerning political programming; and when an answer is received, the Board can put the issue on the agenda for discussion. He noted Time Warner Cable gives almost every candidate a 15-minute broadcast that goes Countywide; BCC does the same thing; so people running for office have an opportunity to be seen by a broad audience in the County.

Commissioner Voltz requested clarification on the criteria for allowing someone to do a candidates forum. Mr. Jenkins stated he does not think the Board can distinguish between groups; and if it lets one group do it, then it opens it up for anybody. He stated the Council may want to revisit the whole policy.

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

Commissioner O'Brien requested a copy of the Council's minutes of that discussion.

REPORT, RE: MEETING ON OLEANDER POWER PLANT

Commissioner Carlson stated a meeting was held last week concerning Oleander Power Plant for concerned individuals to make sure all of their questions and misinterpretations were answered; she has gotten a copy of the tape, and each Commissioner should have received a faxed copy of the minutes from the meeting. She requested the County Attorney go over a few issues regarding the meeting.

County Attorney Scott Knox stated Commissioner Carlson introduced the meeting, but left shortly thereafter because it is foreseeable that the Board will be considering the site plan appeals in the future; if a Commissioner sits as a member of the Board in that capacity, he or she sites as a quasi-judicial Board member; so Commissioner Carlson was not allowed to stay to listen to the comments of staff or the audience. He stated staff spent an hour answering questions from the people interested in the Oleander issue; several people who have appeared before the Board on frequent occasions to complain about Oleander chose not to attend the meeting last week; but the ones who did attend asked questions which were answered. He advised there were a couple of questions that needed research, but they have been completed; the tape is available for anyone who wishes to listen to what actually transpired; and the tape is being transcribed by the Clerk's Office, so anyone who does not want to listen may read the minutes.

Commissioner Carlson stated there were three individuals who have come before the Board consistently to talk about the Oleander issue who refused to come to the meeting because one specific individual was not going to be present.

PRESENTATION, RE: SAVE THE BEACH INITIATIVE

Commissioner Carlson introduced Barbara Debrinsky from the Satellite Beach Women's Club; and invited her to address the Board about the partnership of the Women's Club and the City of Satellite Beach regarding the Save the Beach Initiative.

Barbara Debrinsky presented each Commissioner with a flyer; stated the goal is to raise $100,000; they had the kickoff last Thursday; and there are two signs in the City of Satellite Beach to show that they have now raised $11,700. She stated they will have fund raising events from now until the end of May, 2002; the City has been working with grants; and last Wednesday a contract was signed to purchase property on the south end of Pelican Beach Park. She advised of current and planned fund raising efforts; and stated if they reach their goal before 2002, they will continue to raise more money. She stated the documents show how much beachfront property the grants have already purchased; there is a piece of property now where there is a grant that specifically mentions the building; and it states that the Sea Turtle Preservation Society and the City of Satellite Beach will use the building for environmental education. She noted that grant expires in January, 2001, and if there is some way to get the $200,000 that is needed for that property, they would be thrilled.

Chairman Higgs stated the Board is glad to hear of the organized effort to preserve and protect the beach; and it is a priority of the Board.

Commissioner Voltz inquired if Beach and Riverfront money could be used. Commissioner Carlson stated that has been addressed to some extent. County Manager Tom Jenkins stated it would be necessary to check with Mr. Nelson. Commissioner Carlson stated they are attempting to figure out where to get some dollars up front so they do not lose the grant dollars. Parks and Recreation Director Charles Nelson stated staff is going over the allocation at this point to confirm how much money has been appropriated to specific properties and how much would be available for that purpose. Commissioner Voltz stated there is quite a bit of money in her Beach and Riverfront fund, but she does not have a lot of beach or riverfront in her District; and she would be willing to give some of those funds. Commissioner Carlson stated that would be great; and if anyone else has money in their Beach and Riverfront funds that can be put in a pot to help Satellite Beach so it does not lose some of its initiatives, she would appreciate it. Chairman Higgs stated the referendum restricted it to certain areas, and the Board needs to be careful. Commissioner Voltz stated Mr. Nelson will figure it out.

DISCUSSION, RE: MEETINGS IN SOUTH BREVARD FOR REFERENDUM EDUCATION

Commissioner Voltz inquired if there will be meetings in the south part of the County for the Parks and Recreation referendum to let everyone know what it is all about. Parks and Recreation Director Charles Nelson stated staff has been running a series of meetings. Commissioner Voltz stated nothing has been done for the general public. Commissioner Carlson advised of meetings that have been scheduled in her District; and stated one will hopefully be in the south part of her District. Commissioner Voltz stated she was thinking of having several meetings in the south part of the County; and requested Mr. Nelson check into that. Commissioner Carlson stated there is a group of citizens that has organized, so hopefully they will be able to come to some of those meetings to talk to the citizens.

REPORT, RE: PROPERTY VALUATIONS

Commissioner Voltz stated she received several telephone calls regarding the valuation of the Florida TODAY property and what the Board's responsibility would be in looking into something like that. She inquired if it is the Board's responsibility to look into those types of issue.

County Attorney Scott Knox advised the Property Appraiser is a separate Charter officer; he runs his own office, and is responsible under Florida law to do certain things in the assessment of property; and there is no issue that would allow the Board to get involved in that. Commissioner Voltz stated the possibility exists that the County is missing quite a bit of money through the taxes. Mr. Knox stated he can look into that issue to see if the Board has any standing to make a challenge to any assessment; but he cannot think of anything that would allow the Board to do that. Commissioner Voltz stated it is not specifically the Florida TODAY building, but in general what is the Board's role in something like that. Mr. Knox responded there may be some kind of State avenue through the Department of Revenue, and he will research it. County Manager Tom Jenkins advised the Department of Revenue is the one that approves the Property Appraiser's tax roll; and the Board does not have any way to do that. Commissioner Voltz stated it is a question of what the Board can or should do, and what its role is regarding any assessment that could potentially cause loss of hundreds of thousands of dollars.

RESOLUTION, RE: PROCLAIMING REHABILITATION WEEK

Chairman Higgs read aloud a resolution proclaiming the week of September 17-23, 2000 as Rehabilitation Week.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to adopt Resolution proclaiming the week of September 17-23, 2000 as Rehabilitation Week in Brevard County with the theme, "Celebrate the Successes of People with Disabilities. Motion carried and ordered unanimously.

Chairman Higgs presented the Resolution to Vernona Mosely of HealthSouth. Ms. Mosely presented balloons to the Board; and invited the Commissioners to tour the Sea Pines facility. She stated they are the only rehabilitation hospital in the County; and their patients range from one to one hundred years of age.

RESOLUTION, RE: COMMENDING SCAT AND ITS DEDICATED EMPLOYEES

Commissioner Voltz read aloud a resolution commending Space Coast Area Transit (SCAT) and its dedicated employees.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to adopt Resolution commending SCAT and its dedicated employees for winning several first place awards in Group 1 in the Twenty-first Annual ADWheel Awards Competition. Motion carried and ordered unanimously.

Commissioner Voltz presented the Resolution to Transit Services Director Jim Liesenfelt. Mr. Liesenfelt expressed appreciation to the Board; and presented the Commissioners with stress reliever buses.

RESOLUTION, RE: PROCLAIMING JOHN BARRY DAY

Commissioner O'Brien read aloud from the resolution proclaiming September 16, 2000 as John Barry Day; advised of a ceremony that will be held at the John Barry statue in Jetty Park in Port Canaveral; and stated there will be a reading of the resolution in its entirety at that time.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt Resolution proclaiming September 16, 2000 as John Barry Day. Motion carried and ordered unanimously.

ITEM MOVED REMOVED FROM CONSENT AGENDA FOR DISCUSSION

Commissioner Voltz requested Item III.A.12 be removed from the Consent Agenda for discussion.

FINAL PLAT APPROVAL, RE: VIERA, TRACT L, PHASE 2, UNIT 4

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to grant final plat approval for Viera, Tract L, Phase 2, Unit 4, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.

FINAL ENGINEERING APPROVAL, RE: BAYHILL SUBDIVISION, PHASES 2 AND 3

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to grant final engineering approval for Bayhill Subdivision, Phases 2 and 3, subject to minor changes as applicable and developer responsible for obtaining all necessary permits. Motion carried and ordered unanimously.

FINAL ENGINEERING APPROVAL, RE: VIERA PARCEL W & Q

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to grant final engineering approval for Viera Parcel W & Q, subject to minor changes as applicable and developer responsible for obtaining all necessary permits. Motion carried and ordered unanimously.

FINAL ENGINEERING APPROVAL, RE: GRANT LAKE SANCTUARY

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to grant final engineering approval for Grant Lake Sanctuary, subject to minor changes as applicable and developer responsible for obtaining all necessary permits. Motion carried and ordered unanimously.

ESCROW AGREEMENT WITH CROSS CREEK LAND DEVELOPMENT COMPANY AND ADMIRALTY BANK, RE: CROSS CREEK SUBDIVISION, PHASE I IMPROVEMENTS

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Escrow Agreement with Cross Creek Land Development Company and Admiralty Bank guaranteeing improvements in Cross Creek Subdivision, Phase I. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH NANCY AND WILLIAM MEYERS, RE: GARVIN LAKE DRIVE EXTENSION B

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Unpaved Road Agreement with Nancy and William Meyers for construction of a road in existing County right-of-way known as Garvin Lake Drive, Extension B. Motion carried and ordered unanimously.

ACKNOWLEDGE CITY OF COCOA ANNEXATION APPLICATION, RE: VOLUNTARY ANNEXATION OF AUTO DEALERSHIP PROPERTY INTO CITY

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to acknowledge receipt of the City of Cocoa's application for voluntary annexation of the auto dealership located on the north side of King Street, adjacent to the City's Police Station. Motion carried and ordered unanimously.

RESOLUTION AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE: PRELIMINARY ASSESSMENT ROLL FOR WROBEL PLACE WATER MSBU

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution acknowledging preparation of the Preliminary Assessment Roll for Wrobel Place Water MSBU; and grant permission to advertise a public hearing on October 10, 2000 to consider confirmation of such Preliminary Assessment Roll. Motion carried and ordered unanimously.

AMENDMENT NO. 1 TO AGREEMENT WITH STOTTLER STAGG AND ASSOCIATES ARCHITECTS ENGINEERS PLANNERS, INC., RE: MELBOURNE BEACH PUBLIC LIBRARY

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Amendment No. 1 to Agreement with Stottler Stagg & Associates Architects Engineers Planner, Inc. (SSA) in the amount of $6,500 for additional architectural/engineering services for the Melbourne Beach Public Library. Motion carried and ordered unanimously.

AMENDMENT NO. 1 TO AGREEMENT WITH THADDEUS CHEN ARCHITECTS, RE: SOUTH MAINLAND (MICCO) COMMUNITY CENTER GYMNASIUM

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Amendment No. 1 to Agreement with Thaddeus Cohen Architects in the amount of $6,360 for additional architectural/engineering services for the South Mainland Community Center Gymnasium. Motion carried and ordered unanimously.

CONTRACT MODIFICATION NO. 1 FOR C & D CONSTRUCTION, INC. AND FINAL PAYMENT, RE: RENA AVENUE PEDWAY PROJECT

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Contract Modification No. 1 with C&D Construction, Inc. in the amount of $4,008.33 for the Rena Avenue Pedway Project; and authorize final payment of $10,909.45. Motion carried and ordered unanimously.

APPROVAL OF CHANGES TO POLICY BCC-34, RE: SIGNAL CONSTRUCTION - RECOVERY OF ADMINISTRATIVE AND INSPECTION COSTS

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve changes to Policy BCC-34, Signal Construction-Recovery of Administrative and Inspection Costs, to allow the County to recover administrative and inspections costs associated with the use of the County's traffic signal maintenance/construction agreement by other agencies. Motion carried and ordered unanimously.

PERMISSION TO SUBMIT GRANT APPLICATION, RE: SCHOOL ZONE SIGNAGE PROGRAM

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute a grant application to the Florida Department of Transportation Highway Safety Office for $41,500 to implement the Brevard County School Zone Signage Program. Motion carried and ordered unanimously.

AGREEMENT WITH CIRCLES OF CARE, INC., RE: BAKER ACT SERVICES

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Agreement with Circles of Care, Inc. for Baker Act Services for children and adults from October 1, 2000 through September 30, 2001 at $1,139,348. Motion carried and ordered unanimously.

AGREEMENT WITH HEALTH DEPARTMENT AND DENTAL SOCIETY, INC., RE: ADULT DENTAL CLINIC

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Agreement with the Health Department and Dental Society, Inc. for the Adult Dental Clinic from October 1, 2000 through September 30, 2001 at an amount not to exceed $25,000. Motion carried and ordered unanimously.

AGREEMENT WITH MEDICAL SOCIETY, INC., RE: WE CARE PROGRAM

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Agreement with Brevard County Medical Society, Inc. for the We Care program from October 1, 2000 through September 30, 2001 at not to exceed $25,000. Motion carried and ordered unanimously.

APPLICATION TO FLORIDA DEPARTMENT OF STATE, DIVISION OF LIBRARY SERVICES, RE: STATE AID TO LIBRARIES FOR FY 2000-2001

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Application to the Florida Department of State, Division of Library Services for State Aid to Libraries for FY 2000/2001 which is anticipated to be $1,233,467. Motion carried and ordered unanimously.

AGREEMENT WITH TITUSVILLE RIFLE AND PISTOL CLUB, INC., RE: USE OF HATBILL ROAD GUN RANGE

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Agreement with Titusville Rifle and Pistol Club for use of Hatbill Road Gun Range from October 1, 2000 through September 30, 2010; and authorize the Parks and Recreation Department to include in the Agreement any future Board-approved contract clauses. Motion carried and ordered unanimously.

AWARD OF PROPOSAL #P-2-0-17 AND AGREEMENT WITH NEW YORK STYLE HOT DOGS, RE: MOBILE CONCESSION SERVICES FOR LORI WILSON PARK

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to award Proposal #P-2-0-17, Mobile Concession Services for Lori Wilson Park, to New York Style Hot Dogs at 15% commission of gross sales, less sales tax, to Parks and Recreation, Central Area Parks Operations-Merritt island/Beaches Service Sector; and execute Agreement with New York Style Hot Dogs for the service. Motion carried and ordered unanimously.

EASEMENT TO FLORIDA POWER & LIGHT COMPANY, RE: KABBOORD SANCTUARY

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Easement to Florida Power & Light Company along the east side of the Kabboord Sanctuary; and authorize recording said easement subject to the following easement conditions being met: (1) FP&L receives easements from the Canaveral Port Authority and NASA, (2) Payment of $10,000 to the County to be used for scrub management activities on the Kabboord Sanctuary, with the provision that the $10,000 will be returned to FP&L should the easements from NASA and Canaveral Port Authority not be received by FP&L, and (3) FP&L presents a letter to the EEL Program stating that only Garlon 4 will be used within the easement area, and then only on invasive exotic plants, and that FP&L will place signs along the easement instructing its employees and contractors to contact the EEL program prior to performing easement maintenance. Motion carried and ordered unanimously.

MEMORANDUM OF AGREEMENT WITH FLORIDA COMMISSION FOR THE TRANSPORTATION DISADVANTAGED, RE: COORDINATED TRANSPORTATION SERVICES

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Memorandum of Agreement with the Florida Commission for the Transportation Disadvantaged for Space Coast Area Transit to provide coordinated transportation services to the Brevard community from October 1, 2000 through September 30, 2003. Motion carried and ordered unanimously.

PERMISSION TO NEGOTIATE AND ACQUIRE, RE: REMAINING EASEMENTS IN PHASE II OF SHORE PROTECTION PROJECT

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to authorize staff to negotiate and acquire remaining easements in Phase II of the Shore Protection Project. Motion carried and ordered unanimously.

TASK ORDER NO. 97-20 WITH WCG ENGINEERING, INC., RE: APPRAISAL SERVICES

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Task Order No 97-20 with WCG Engineering, Inc. for appraisal services at a cost not to exceed $80,000. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 WITH STAR BASE DEVELOPMENT COMPANY, INC. AND FINAL PAYMENT, RE: CENTRAL LANDFILL ROADWAY EXPANSION PROJECT

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Change Order No. 1 with Star Base Development Company, Inc. for Central Landfill Roadway Expansion, increasing contract price by $11,973 and time by 148 days; and approve final payment to the Company for the project. Motion carried and ordered unanimously.

PERMISSION TO DISBURSE FUNDS, RE: MITIGATION AGREEMENT WITH ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve transfer of $305,658 to the St. Johns River Water Management District to acquire 168.4 acres within an existing wetland enhancement project undertaken by the St. Johns River Water Management District in northern Brevard County to mitigate for impacts to two existing isolated wetland systems for expansion of Sarno Road Landfill. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 WITH CHAMPION CONTRACTING COMPANY, RE: SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT PLANT CONSTRUCTED WETLANDS

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Change Order No. 1 with Champion Contracting Company for construction of the South Central Regional Wastewater Treatment Plant wetlands, decreasing contract amount by $216,376.43 for direct purchases. Motion carried and ordered unanimously.

REJECT PROPOSAL FOR PROPOSAL P-1-0-36, AND RENEW CONTRACT WITH CIGNA GROUP INSURANCE, RE: LONG-TERM DISABILITY COVERAGE

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to reject proposal from UNUM for Proposal #P-1-0-36, Long-term Disability Insurance Coverage, and approve renewal of Contract with Cigna Group Insurance effective January 1, 2001, with a one-year rate guarantee. Motion carried and ordered unanimously.

AWARD CONTRACT TO AFLAC AND RELIASTAR, RE: ADMINISTRATIVE SERVICES AND GROUP TERM LIFE INSURANCE

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve award of Flexible Spending Account Administrator to AFLAC effective January 1, 2001 with a three-year guarantee, and authorize the Chairman to execute the Contract and Plan Document; and approve award of Group Term Life Insurance to Reliastar effective October 1, 2000 with a nine-month guarantee, and authorize the Chairman to execute the Contract. Motion carried and ordered unanimously.

APPROVE RENEWAL OF FEES FROM HEALTH FIRST HEALTH PLANS, INC., RE: ADMINISTRATIVE SERVICES

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to authorize renewal with Health First Health Plans, Inc. to provide network development and maintenance, medical management, case management, customer service, claims administration and grievance and appeals services, at the same rate of $18.09 per member, guaranteed from January 1, 2001 through December 31, 2001. Motion carried and ordered unanimously.

APPROVE RENEWAL OF FEES FROM HEALTH FIRST HEALTH PLANS, INC., RE: PREMIUMS FOR GROUP MEDICARE HMO PLAN

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve the recommendation of the Employee Benefits Insurance Committee to accept the $95.00 premium presented by Health First Health Plans, Inc. subject to HCFA approval, for the Medicare HMO Plan effective January 1, 2001. Motion carried and ordered unanimously.

APPROVAL, RE: NEGOTIATED WORKERS' COMPENSATION SETTLEMENT WITH JAMES SHERMAN

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve the negotiated settlement of the Workers' Compensation claims of James Sherman for $60,000 including attorney's fees, general release for all accidents, and voluntary resignation from employment with Brevard County. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING DRAW FROM FLORIDA LOCAL GOVERNMENT FINANCE COMMISSION TAX EXEMPT COMMERCIAL PAPER PROGRAM TO FUND LAKEMONT ROAD WATERLINE MSBU PROJECT

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution authorizing a draw of $120,000 from the Florida Local Government Finance Commission Tax Exempt Commercial Paper Program to fund the Lakemont Road Waterline MSBU Project; authorize the Chairman to execute all documents necessary to close the commercial paper loan; and authorize the County Manager to make necessary budget changes to implement the action. Motion carried and ordered unanimously.

PERMISSION TO EXERCISE SECOND YEAR RENEWAL OPTION, RE: BID #B-2-9-95, MULCHING SERVICES FOR TRASH AND OTHER VEGETATION

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to grant permission to exercise second-year renewal option for Bid #B-2-9-95, Mulching Services for Trash and Other Vegetation, for Option 4 at $14.27 per ton for mulching and Option 5 at $14.27 per ton for disposal of vegetation with Florida Recyclers of Brevard, and Option 4 at $2.92 per cubic yard for mulching with Environmental Mulch. Motion carried and ordered unanimously.

ACKNOWLEDGE, RE: SUNSET REVIEW REPORTS FOR OFFICE OF NATURAL RESOURCES MANAGEMENT, AND AGRICULTURE AND EXTENSION SERVICES AND HOUSING AND HUMAN SERVICES DEPARTMENTS

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to acknowledge receipt of the Sunset Review Reports for programs and services within Departments of Agriculture and Extension Services and Housing and Human Services, and Office of Natural Resources Management. Motion carried and ordered unanimously.

WRITTEN NOTIFICATION OF CONTRACT RENEWALS WITH BELLSOUTH AND BREVARD BUSINESS TELEPHONE SYSTEMS, RE: TELEPHONE AND SYSTEMS EQUIPMENT

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Notifications of Contract Renewals with BellSouth (Contract #98006) and Brevard Business Telephone Systems (Contract #97002) for one-year extension of maintenance of the County's telephone and systems equipment at $13,269.76 per month for BellSouth and $2,514.67 per month for BBTS. Motion carried and ordered unanimously.

RESOLUTION, RE: PROCLAIMING NATIVE AMERICAN HERITAGE MONTH

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution proclaiming November 2000 as Native American Heritage Month. Motion carried and ordered unanimously.

PERMISSION TO SUBMIT GRANT APPLICATION TO FLORIDA DEPARTMENT OF TRANSPORTATION, RE: AGGRESSIVE DRIVING ENFORCEMENT PROGRAM

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to authorize the Sheriff's Office to submit a grant application to Florida Department of Transportation for $55,625 to fund an Aggressive Driving Enforcement Program, and to accept the grant funds. Motion carried and ordered unanimously.

PERMISSION TO SUBMIT GRANT APPLICATION CONTINUATION TO FLORIDA DEPARTMENT OF TRANSPORTATION, RE: DUI ENFORCEMENT PROJECT

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to authorize submittal of a grant application to the Florida Department of Transportation for funding in the amount of $149,596 with a local match of $146.063 for the DUI Enforcement Project for FY 2000/2001; and authorize the Sheriff to accept the grant funds. Motion carried and ordered unanimously.

ACCEPT, RE: INVESTMENT ACTIVITY REPORT AS OF JULY 31, 2000

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to accept the Investment Activity Report as of July 31, 2000. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: INTERNAL AUDIT OF ROAD AND BRIDGE

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to acknowledge receipt of Internal Audit of Road and Bridge for the period from October 1, 1995 through February 28, 1998. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Bills and Budget Changes as submitted. Motion carried and ordered unanimously.

DISCUSSION, RE: SPAY/NEUTERING OF ADOPTABLE ANIMALS FROM SHELTERS

Commissioner Scarborough stated he works closely with the SPCA in North Brevard, and the Board needs to hear their thoughts on the issue of spay/neutering of adoptable animals from shelters. He stated right now there is no assurance that animals leaving the shelters are not creating a problem. Chairman Higgs stated the State law covers this issue. Commissioner Scarborough stated when the Board has initiatives from the public, it normally hears from them, and then it can get a staff report; the current State law can be implemented to a greater extent in the counties; and the Board should get an analysis of what other counties are doing and how it works elsewhere.

Commissioner Carlson stated she looked at adoption agreements for animals she adopted, and there is a question whether they are following the law.

Commissioner Scarborough stated after the public comments, if the Board is interested in pursuing the issue, it could direct Dr. Ward to proceed.

Tracy Eberhardt advised for ten years she was the Assistant Executive Director for the Central Brevard Humane Society; the majority of animals are spayed or neutered before leaving the Humane Society Shelter; and if every animal that left the Shelter was spayed or neutered it would not address the problem of where the overpopulation is coming from. She advised of newspaper advertisements for pets for sale, indiscriminate breeding of animals, breeder's licenses, and number of animals taken in by shelters. She stated the only way to guarantee all animals get spayed or neutered is to have an on-site spay/neuter facility which is specifically prohibited in the contract with the County. She recommended the County have a differential licensing fee to encourage people to spay or neuter their pets, offer free spay/neuter surgeries or a sliding scale of fees, and have a mobile spay/neuter clinic to enter the neighborhoods where help is needed the most. She stated people breeding pets should have to pay for the contributions to the pet overpopulation problem; and commented on euthanasia of animals, unadoptable animals, and the Vet Rescue and Pay for Spay Programs.

Gerald Koch, member of the Board of Directors of the Central Brevard Humane Society, advised the problem of overpopulation is not due to animals coming from the shelters; but from people who obtain animals from neighbors, friends, breeders, and pet stores. He advised of the Humane Society policy of sterilizing as many animals as possible; and stated they are a charity and receive no money from the County for this purpose. He stated they require anyone adopting an animal that is not sterilized to sign an agreement to have the sterilizing done on a mutually agreed upon date; and they follow up on the agreements, and prosecute those who fail to comply. He stated the procedure is particularly appropriate for young animals where the risk from surgery is high; and an ordinance that mandates the sterilization of all animals before adoption is unnecessary and may be counterproductive. He suggested restoring the license fee incentive for neutered pets, and the money from the extra fee be made available to the shelters to defray the cost of sterilization. He advised of the need to eliminate puppy mills and back yard breeders; and suggested breeders be required to obtain permits, and the money from the permits go to inspect the breeding facilities. He stated education is the key to the problem; and suggested using the County's web page and pamphlets to educate the public.

Commissioner Carlson inquired if Mr. Koch has documentation to support his statement about compliance with the sterilization agreement; with Mr. Koch responding he does not have that with him today, but they do follow up and prosecute if necessary. Commissioner Carlson requested Mr. Koch get information for the Board on the percentage of compliance.

Mary Tees commented on the Central Brevard Humane Society and its support of a spay/neuter program. She inquired if the County is interested in equipping, staffing, and funding a spay/neuter clinic; and suggested the South Brevard facility be used. She stated the Cox Road facility is short on space; and advised of the plans for the new facility. She recommended the County address the licensing of all back yard breeders at $300 a year; offer a differential license for all unneutered animals starting at $25 and $5 for neutered; and if an unneutered animal breeds, the cost should go to $300. She recommended addressing the problem of pet shops that regularly offer sick and malnourished animals. She stated no animal over the age of six months leaves the shelter without being neutered unless there is some medical reason; and if an animal is under six months in age, a contract is signed promising to spay or neuter, and they do follow up. She stated local veterinarians offer their services on Pet Rescue to neuter/spay free of charge; and others offer the services at a reduced rate. She requested the Board address all the issues, not just spaying/neutering animals.

Melinda Buschur stated Humane Society standards require proving that 90% of the animals are sterilized; and the general public does not have that information. She stated she is constantly called into Palm Bay to trap feral cats; and by spaying or neutering all animals before they leave the shelters, they insure that no Humane Society will be responsible for adding to the overpopulation problem. She advised of her experience in rescuing animals; and stated the most important thing that should be done today is to decide whether the shelters should spay and neuter the animals which come there.

Elaine McClung stated there is a loophole in the Statutes which allows adoption of an unaltered animal with a written agreement to alter before sexual maturity or within 30 days; and non-compliance is high. She stated there was a task force seven years ago which did a 20-month study; public education will not work; and advised of the work of the task force. She stated Pinellas County requires that all animals from their shelters be altered; and the only exception is on the recommendation of a veterinarian that the animal would not make it through surgery. She commented on conflict with the Florida Statutes; stated a County law can be stronger, but not weaker than the Florida Statutes; and enumerated other Florida counties which require all animals to be spayed or neutered. She stated she supports mandating all shelters to require altering prior to adoption; noted that is only part of the problem; and advised of animals from rescue groups, pet shops, and advertised for sale in the newspaper that are not altered.

Deborah Copeland stated current public policy is to address the pet surplus by ignoring the possibility of prevention, then rounding up, housing and killing the excess animals; and the community-based programs need to shift emphasis to prevention and education. She commented on Florida law, loopholes in the law, and compliance rates with adoption agreements. She stated as more pressure is applied to pet owners to take responsibility for their contributions to pet overpopulation, they must insure that everything possible is being done for the animals in their care; and the most important thing is to sterilize them. She stated all national animal organizations, Humane Societies, and animal protection groups agree that the policy of neutering animals before adoption is the single most important thing that can be done to address overpopulation. She advised of other counties and organizations that sterilize prior to adoption.

Mona Motz, member of the Feral Cat Network, stated education of the public and early spay/neuter programs are the primary issues; and the public can be shocked into awareness by making the numbers of euthanized animals public. She stated early spay/neuter has been proven to have no ill effects on animals; and advised of her activities through the Feral Cat Network.

Sherri Wanda, Director of the SPCA, stated she spends much of her time educating the public about responsible pet care and the importance of spay/neuter; they encourage and expect people to do the right thing; and the County must also do the right thing. She stated she sees the animals that fall through the cracks, the ones that are adopted and forgotten; and advised of excuses for not spaying/neutering. She stated she has polled surrounding counties, and all have a neuter at adoption policy, while in Brevard County animals are still adopted unneutered. She stated the proposed ordinance will ultimately reduce euthanasia and the number of animals entering shelters.

Mary Kofil, representing the SPCA, advised of organizations that, after thorough examination of the procedure of early age spay/neuter, follow it and endorse it. She stated if they profess to be humane organizations and have vowed to prevent cruelty, there is no excuse for not insuring that every animal is sterilized. She stated any animal that is adopted and not sterilized represents their failure to fulfill their mission. She stated as they apply more pressure to pet owners and breeders to take responsibility for their contributions to pet overpopulation, they must insure they are doing everything possible for the animals in the SPCA's care. She stated the shelter's policies or failures should never add to the crisis; and they should be able to guarantee that every animal that is adopted is sterilized.

Commissioner Carlson inquired what is the total number of euthanized animals in the County; with Animal Services and Enforcement Director Joe Ward responding it is approximately 14,000 to 15,000.

David Smart stated if one or two animals a month are allowed to breed, it does not take long before there are over 100 animals that someone has to capture and euthanize; and every animal that is neutered is a big step in the right direction for the overpopulation problem. He stated it is important to get all of the animals neutered early rather than relying on voluntary compliance.

Dr. Robert Watts stated he was a veterinarian for the Rockledge Emergency Clinic for four years; and advised of his experiences. He advised of a high rate of noncompliance with the adoption agreements which contributes to overpopulation; and the system where the animals are spayed/neutered before they leave is 100% effective.

Chairman Higgs inquired when they implemented the spay/neuter policy before the animal is adopted, did the fees go up for the adoptions or how are the costs covered; with Dr. Watts responding those costs should be incurred by the person who is adopting as it is part of responsible animal ownership. Chairman Higgs inquired if the fees go up, does the rate of adoptions go down; with Dr. Watts responding anyone who is reluctant to pay $20 to get their cat spayed does not need an animal. Commissioner Carlson inquired if Dr. Watts has any problem with early spay/neuter; with Dr. Watts responding he does not; many renowned veterinary groups support early age spay/neuter; and he has seen no problems with it in his practice.

Joyce Phillips, volunteer with the SPCA, stated even before Dr. Watts came, they were still spaying/neutering animals; and the adoption fee includes the cost of spaying/neutering. She advised of her experience with an unspayed dog that had three litters of puppies even though there was an adoption agreement; and stated it should never have happened. She stated the ones who are most aware of the overpopulation problem are those who work in shelters and are forced to kill animals because there are no homes for them; and other government agencies are beginning to address the problem of pet overpopulation in the only humane way possible by spaying and neutering. She stated requiring the County shelters to spay/neuter is a step in the right direction; and urged the Board to do the right thing.

Arthur Dollmatsch stated uncontrolled breeding of dogs and cats results in the production of many more puppies and kittens than are needed to replace pet animals or provide pets for new owners. He stated in one shelter in the County, there were 843 dogs and cats euthanized during the period of January through May, 2000 at taxpayer expense, rather than education, sterilization, and adoption. He recommended mandatory sterilization of all animals prior to adoption from any public or private animal shelter; and stated it would not cause a drastic reduction immediately, but would save tax dollars in the future. He stated surrounding counties have already adopted this policy; and Brevard County should follow suit.

Clara Gunde urged the Board to do the right thing; and stated the Central Brevard Shelter is the only one that has statistical data going back more than 30 years. She stated those people who say more animals are being euthanized are incorrect; she became involved with the Humane Society as a volunteer; and the first month she was there 1,648 cats were euthanized. She stated the problem in Central and South Brevard is being addressed in a different manner than the SPCA has chosen; they have chosen to work with their area veterinarians; there are 20 clinics which provide spay/neuter services at no cost; and there are other veterinarians who are now involved in a Spay for Pay Program. She stated in 1968 they began the first spay/neuter assistance program in the County; and they have chosen a path of education. She advised of activities including placing of billboards urging spay/neuter and education on licensing requirements. She stated there will never be an answer to the problem unless they educate the public; and advised of misunderstandings concerning spaying and neutering. She commented on the new facility, operating the south shelter from a County facility, lack of spay/neuter facilities, and first trap-neuter-release program. She urged the Board to do a complete analysis of the problem, and consider education, differential license fees, puppy mills, pet stores, and animals advertised in the newspaper.

Commissioner Carlson inquired about data on euthanization; with Ms. Gunde responding she can provide data going back to 1966. Commissioner Carlson stated she is curious about the date from 1991 because that is when the 21 issues came forth from the Task Force. She inquired if the adoption rate has increased since 1991; with Ms. Gunde responding it has gone up somewhat as the population has increased, but they would like to see it higher.

Chairman Higgs inquired if the Board implemented a policy where an animal could not be adopted until it was spayed or neutered and the cost was passed to the adopting family, would adoption rates go down. Ms. Gunde stated if the intent is to pass along all the cost, it probably would deter some adoptions, but there are solutions to the problems.

Commissioner Scarborough stated having heard that other counties are doing things, he would like Dr. Ward to bring back information to the Board on what other counties are doing. He stated it is critical to work with the shelters; and Ms. Gunde needs to be an integral part.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to direct Dr. Ward to bring back to the Board information on what is being done in other counties on spay/neuter of adoptable animals.

Commissioner Carlson requested Dr. Ward also bring back information on the interpretation of Chapter 823.15(2)(b), Florida Statutes; and read aloud from the Statute concerning adoption agreements. She stated she has a 1994 receipt from adoption of an animal from the South Brevard Humane Society; and she does not see anything that allows for a deposit. She stated she also has something from last year where she adopted from the Central Brevard shelter and it does not require an agreement. She stated in the Task Force recommendations that were brought forth, one of the reasons given why Brevard County government would benefit from overcoming the pet overpopulation problem is decreased animal control costs; it cites that in 1985 the budget for Animal Control was $496,000, in 1991 it was $895,000, and it projects the cost to $1.4 million in seven years; and at this time the budget is $2.24 million. She stated she would like to know if there is a correlation between some of these issues and having the cost go up. She stated she is hearing that the euthanizing rates and adoption rates have not been changed; and inquired why the County is spending so much money on something that does not seem to be changing. Commissioner Scarborough stated he will add that to his motion.

Commissioner O'Brien advised the statement was made that in Brevard County, 16,000 animals are euthanized per year; and inquired how many facilities in the County euthanize animals. Dr. Ward responded the animal shelters do, and veterinarians and miscellaneous groups do as well. Commissioner O'Brien inquired if the figure is for all; with Dr. Ward responding that was not his figure. Ms. Gunde advised that figure is only for shelters. Dr. Ward advised there are four primary shelters including the SPCA adoption center. Commissioner O'Brien commented on the number of animals euthanized; and stated he would like accurate numbers to work from. He stated the County is spending $2.2 million, but it is not just about dogs and cats, but wild animals and farm animals; and requested the numbers be clarified. He stated the Board needs to take a hard look at what must be done to get costs down.

Commissioner Carlson requested data on the number of animals adopted from all shelters, number of animals that are delivered to the four shelters, and the number of animals euthanized. Dr. Ward stated they do that on a monthly basis, but he does not have the figures with him today.

Chairman Higgs stated the Board heard a figure on cost for implementation of the ordinance and policy; and she would be interested in getting a good estimate of the costs prior to the budget hearing.

Commissioner Scarborough stated if there is an increased animal population, there is a cost, but there is also a cost benefit; and requested Dr. Ward provide that factor as well. He stated critical in making this work is having the physical capacity for spay/neuter on premises and knowing how the cost is borne and the impact on the adoption rate.

Chairman Higgs inquired when would the Board get the report back; with County Manager Tom Jenkins responding 30 days.

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

DISCUSSION, RE: CLERK OF COURTS EXPENDITURES

Clerk of the Circuit and County Courts Sandy Crawford advised the estimated shortage for the fiscal year will be approximately $600,000 which has come about by the implementation of new systems including the SAP and the Progressive System, where there have been a lot of problems. He stated he just received today from Tiburon, a release of 68 of the 91 problems; and they say it is running well. He stated the people in the Clerk's Office have been through a miraculous amount of work, and done a miraculous job in keeping up with the manual processing of the paperwork. He stated this started before he came into office; there was a $70,000 study done which has been used by his office, by the Florida Association of Court Clerks and people all over the State to determine what needs to be done to become Florida compliant with Criminal, Civil, Traffic, and Juvenile. He stated the update to the new system, which has brought about the real problems, started on November 17, 1999; his staff worked to bring the backlog to zero by that date; and at that point, they went into a conversion effort to convert everything to the new system. He stated they found that it took a lot longer to convert 50 million records than anticipated; and from that point forward, the people in the Clerk's Office have been processing manually and trying to satisfy everybody. He advised of the difficulties and complexity of inputting 6,000 docket items per day; and stated his staff has done an excellent job. He stated they have gone from mandatory overtime that caused rebellion because people could not put in all those hours to hiring students; and at one point there were more than 75 students on board to process the documentation. He stated documents, papers, and cases were stacked all over the Viera Courthouse; and advised of difficulties in trying to find cases for people and have them ready for the courts. He stated right now, the original vendor is in the process of process of bankruptcy and closing of the company; his first notification that was happening was on May 29, 2000; and at that time he brought in seven people from the company and got the software code from the vendor. He stated the cost to bring those people down to keep the programming running was $52,000; the first thing they fixed was traffic citations; the next thing they worked on was disposition of cases, which is what they are in trouble on right now; and explained the lock box operation. He stated 90,000 traffic citations at $150 each equates to approximately $13 million which is coming in and being disbursed to different agencies; the problem now is that he cannot disburse that money until the cases are closed; and he was unable to close cases until approximately a month ago. He stated closing cases is a tedious demanding operation which requires trained people; and the effect of not being able to close the cases resulted in the inability to allocate the funds. He stated this affects the County and the amount it gets, and all the cities; and the last estimate is that they will not be caught up until March 2001. He stated payments are being made; they are estimating what the payments were last year, and sending out payments for that amount for the next year; and the letter with the last payment went out on Friday to all cities. He stated he spent $272,000 with the first vendor, PSI; he is in the process of negotiating with the second vendor Tiburon; and Tiburon just produced a bill with 68 fixes on it. He stated when he contracted with PSI, it was for a Florida compliant system; in order to have such a system, there were 91 outstanding items; right now 68 have been fixed; another 25 items have been added to the original 91; and those things need to be done to be Florida compliant. He stated the vendor has given an estimate of 1,156 hours to become compliant; the new vendor did not taken on the burden of making his office Florida compliant; and he does not know how this will work with the new vendor. He noted his office is involved with eight other counties trying to get the Criminal system done; the other counties do not want to expend money to do this; they have not gone live on Criminal; but Brevard County is live, and things must be done to make the system work and get the data caught up. He commented on problems putting charges on a case; and advised it will take Tiburon an estimated 660 hours to fix that. He stated he came to the Board first on May 8, 2000 and estimated he would be $212,000 behind; on May 29, 2000 when PSI went belly up, he talked with the Commission Offices; on June 30, 2000 Chief Deputy Clerk Jim Giles at the budget hearing advised the figure was $440,000; and right now he is estimating it to be $600,000. He stated they are supposed to get a $417,000 grant from the Office of State Courts Administration; they are supposed to get $100,000 of that before the end of the fiscal year, but in order to get the grant moving, he has to get a contract from the vendor to perform the necessary steps to do that, so the $100,000 moved into next year, if they can get it at all. He noted the $52,000 he had to pay to keep the people from the first vendor working on the job was not an expected expense before the vendor went out of business.

Chairman Higgs stated the Board has a request for $600,000, and the staff recommendation is to do it in the form of a loan to be paid in subsequent years; and inquired if that solution will work; with Mr. Crawford responding he does not know if he can sign a loan and obligate the office for more than one fiscal year. County Attorney Scott Knox stated he did research on that issue; the only thing he found was an Attorney General Opinion that indicates non-charter counties cannot loan money to independent agencies; but the Board's situation is a little different. He suggested getting an expedited opinion from the Attorney General on the issue.

Mr. Crawford advised that could not be done quickly enough; the end of the fiscal year is in three weeks; and if he does not get the funds, he will have to shut his office for approximately 12 days, until September 30, 2000.

Commissioner Scarborough stated from fiscal year to fiscal year, the Board does departmental loans; but while the Clerk's Office may be viewed as a department, Mr. Crawford has chosen not to run, and someone else will be Clerk, who will be walking into some complex agreements. He stated for political reasons the State of Florida has independent constitutional officers; and it is not appropriate for the Board to get into complex discussions prior to Mr. Crawford's successor being part of the dialogue. He stated he does not know if it is a legal issue as much as how business is done in Florida with independent constitutional officers.

Mr. Crawford noted he has no method to repay such a loan; he gets 60% of his budget from the Board, and the other part comes from fees; and there is nothing he can do to increase fees as they are dictated by State laws and local Ordinances. He stated the only control he has is personnel which is approximately 85% of his cost; the only way he could cover a $200,000 a year payment would be to reduce the number of people; and that is not in the offing at this time.

County Manager Tom Jenkins stated the Board is faced with a dilemma where there is not a reasonable option other than to fund this because if it does not, it will close the Clerk's operation for three weeks, which would bring the court system to a halt. He stated whether Mr. Crawford can legally bind his office after he leaves office is a matter of debate and legal research; if Mr. Crawford makes a commitment to attempt to do that, it may be optional when the new Clerk takes office in January, 2001; but the Board can hope that the new Clerk would honor the commitment and continue to try to reimburse it. He stated the source of funding they are referring to is excess fees; in many instances those excess fees are used to buy additional computer equipment or software; and this would be an opportunity for the future Clerk to use some of the excess funds, if they are available, to reimburse the General Fund.

Commissioner Voltz inquired if it would be possible to call the Attorney General's Office to get an expedited opinion; with Mr. Knox responding if he can contact the right people in the Attorney General's Office, it may be possible to get something pretty quickly under the circumstances. Commissioner Voltz stated last year the Clerk requested the Board continue to fund an additional 21 people who had been hired with excess fees, and the Board chose not to do that.

Mr. Crawford advised if the County grants a 3% or 5% increase, it only funds 60% of the 3% or 5%, and he has to cover the increase on the other 40% out of the fees he gets; and the only way he can do that is to reduce the amount of people or streamline the operation. He noted when he came into office, there were 324 people in the Clerk's office, and as of January 1, 2000, there were 305, even though three judges and five special masters have been added, and each requires two court clerks. He stated in that time, the population has increased by approximately 150,000 people, the case load has gone up, and the load his office is handling is greater; but they are handling it in a more judicious and economical manner in order to cover the increases and the cost of the portion which the Board does not fund. Commissioner Voltz advised there were excess funds to hire people last year, so there may be excess funds again.

Chairman Higgs stated there is obviously a need that has to be funded; and there is General Fund Reserve to do that. She stated whether there is a formal agreement on how the money will be recaptured over the next several years or whether there is simply an understanding that it is the intention of the Board to recapture that in subsequent years, it is necessary to move forward. She recommended taking action with the understanding it is the Board's intent to recapture the funds in subsequent years; and stated she does not see any other thing to do. Commissioner Voltz stated the alternative is to close the court system for 12 days; with Chairman Higgs advising that is not a real option. Commissioner Scarborough stated as to repaying it, it is like putting it in one pocket, and taking it out of another because Mr. Crawford indicated the Board funds the Clerk; and the new Clerk may be happy to pay the Board back, but request the money for the repayment or increase fees; and there are a lot of things to be discussed. He stated rather than tying Mr. Crawford to an agreement which will lead to conflict with the new Clerk, it would be best to fund the $600,000 and then have a dialogue with the new Clerk on the recapture methodology.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve a loan of $600,000 from the General Fund for over-expenditure of the Clerk's Office budget due to overtime and expenses incurred in implementation of the new court software; and advise of intent to discuss recapture methodology with the new Clerk. Motion carried and ordered unanimously.

Mr. Crawford apologized for having to bring this to the Board.

Commissioner O'Brien stated by cutting the workforce by only ten employees at $8 an hour, $200,000 a year could be saved. Mr. Crawford advised he will do that as much as he can, but right now he does not know the level it will be staffed at. He stated when things are fixed and everything is working, he hopes to have less people; and that is the only way he would be able to cover the increases for the 40% the Board does not fund. Chief Deputy Clerk Jim Giles stated for the last four or five months, they have been closely tracking student employees versus overtime because they want to bring them in at $6 and $7 an hour figure and not pay time and a half; but they are getting into more complex aspects of disposing of cases, and it is increasingly hard to let students do that. Commissioner O'Brien stated if the Clerk is paying students $6 to $7 an hour, he can not hire 12 students for one year to repay the $200,000. Mr. Giles stated he understands, and they are taking those steps. Mr. Crawford advised he will have to get over the manual processing before he can do any of that.

RESOLUTION, RE: APPROVING ISSUANCE BY HOUSING FINANCE AUTHORITY OF REVENUE REFUNDING BONDS FOR LANDINGS AT PALM BAY APARTMENTS PROJECT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution allowing the issuance by the Brevard County Housing Finance Authority of revenue refunding bonds for a currently financed multi-family project, Sun Pointe Bay Apartments, now known as Landings at Palm Bay Apartments. Motion carried and ordered unanimously.

RESOLUTION, RE: APPROVING ISSUANCE BY HOUSING FINANCE AUTHORITY OF SINGLE FAMILY MORTGAGE REVENUE BONDS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution to allow the Brevard County Housing Finance Authority to apply for an allocation with the Florida Division of Bond Finance, and to allow for the issuance of Single Family Mortgage Revenue Bonds during the first 155 days of 2001. Motion carried and ordered unanimously.

RESOLUTION, RE: APPROVING ISSUANCE BY HOUSING FINANCE AUTHORITY OF REVENUE REFUNDING BONDS FOR VININGS AT PALM BAY

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution allowing the issuance by the Brevard County Housing Finance Authority of revenue refunding bonds for a currently financed multi-family project, Palm Place Project, now known as Vinings at Palm Bay. Motion carried and ordered unanimously.

The meeting recessed at 11:01 a.m. and reconvened at 11:13 a.m.

PUBLIC HEARING, RE: ORDINANCE AMENDING SECTIONS 62-3691 THROUGH 62-3699, WETLAND PROTECTION

Chairman Higgs called for the public hearing to consider an ordinance amending Sections 62-3691 through 62-3699, Wetland Protection.

Assistant County Manager Stephen Peffer stated the Board addressed this item on August 8, 2000, and a number of questions arose; and what is included in the Agenda package is staff's effort to clarify how the amendments were made. He stated they are attempting to incorporate recent changes to the Comprehensive Plan regarding wetlands into the Wetlands Ordinance; and at the Board's direction, they have included those portions of the Comprehensive Plan which are changes to the Wetland Ordinance, and they have clarified where that occurs. He stated in other cases things have been included that have come in from other parts of the Comprehensive Plan that relate to wetlands and wetland regulation. He stated one of the items that was discussed had to do with underground pipelines; there is language that is included in the document which references underground pipelines; but recommended the Board consider more specific language which speaks to the classification of pipelines, and would be narrowly constructed to make it clear that they are only referring to specific types of underground pipelines. Chairman Higgs requested Mr. Peffer read the specific language. Mr. Peffer stated Chapter 62-3694, Section 4, Permitted Uses, Section A states, "The following uses shall be permitted provided they do not adversely affect the functions of wetlands within the County or result in the permanent degradation or destruction of the wetland." He stated several items are listed; and recommended including, "underground natural gas pipeline linear facilities as classified under NAICS Codes 2212 and 486, which are not considered a land use, are permitted. Any adverse impact, degradation or destruction of wetlands must be mitigated as provided in Section 62-3696." He stated the Board directed staff to chronicle the other items discussed by Board members, so they may be considered; and the last page shows some recommended changes from the meeting on August 8, 2000. He stated the direction was to make reference to them, but not include them in the ordinance, and the Board will decide today how it wants to handle those.

Chairman Higgs stated Section 4 says the following uses shall be permitted, and the statement was that this was Policy 5.3(a); but in looking at Policy 5.3(a), she is not sure that is in there. Natural Resources Section Supervisor Debbie Coles recommended language under number 5 that says, "underground utility corridors with appropriate mitigation" be stricken, and Item (f) be created on page 7 to include the language Mr. Peffer read. She noted the change is at the recommendation of the County Attorney's Office. Chairman Higgs reiterated it says the source of the permitting is Policy 5.3(a) in the Comprehensive Plan, but she does not see that; and requested staff review that.

Commissioner Voltz inquired if anything is being changed or is it just combining language to make it more readable. Ms. Coles advised with the exception of the pipeline language, nothing is new.

Paul Chipok, Gray Harris and Robinson, representing Buccaneer Pipeline, inquired if the language that Mr. Peffer read is intended to be in Section 5(a) or in Section (f) under 62-3694. Mr. Peffer stated that is correct; and a memorandum was prepared for the Board that clarifies that instead of adding language to 62-3694(a), a new paragraph (f) will be added to the same section. Mr. Chipok stated he concurs with staff's recommendation.

Kim Zarillo, representing Florida Native Plant Society, stated staff has done a good job of referencing the sources, and she is pleased with the ordinance. She requested the substitution of the language of the September 11, 2000 memorandum be included in the ordinance; and advised Section 4 under Section 62-3694, is actually Policy 5.2.g in the Conservation Element.

Dolores Kane stated staff says there are no additions, but it appears there are additions. She stated it says "no wetlands lost"; sometimes a wetland can be just water in the roots of trees or plants; and it appears what is proposed is more restrictive and prohibitive than the St. Johns River Water Management District regulations. She stated she can see significant wetlands, but some things are going too far with government regulations. She read from a publication of the EDC of Florida Space Coast, "Florida Ranks 95th In Business Vitality Review." She stated they ranked 121,000 companies in small metropolitan areas; Naples is third in Florida, Lakeland is eighth, Daytona Beach is 23rd, Ft. Pierce is 30th, Sarasota is 71st, Pensacola is 74th, and Brevard County is 95th; and commented on attempts to get space industry to the area.

Martin Lamb objected to the changes; stated if the changes are not doing anything, he does not know why the Board is doing them; and the changes are very significant when they are read line by line. He stated an objection has been filed that would cause the Board's action, if it went forward today, to be illegal by Florida Statutes; and requested the County Attorney address that.

Commissioner O'Brien requested Mr. Knox's opinion. County Attorney Scott Knox stated the Board adopted the changes, which are in effect until the Department of Community Affairs tells the County otherwise, so the Board can implement the provisions of the Comprehensive Plan that it has adopted with a development regulation, which is what the Board is working on today. He stated somewhere down the road, if the Governor and Cabinet decide that the Department erred in determining the County was in compliance, that can be addressed at that time. Commissioner O'Brien stated previously when there were intervenors in the lawsuit, the County elected not to discuss the plan or make any changes; and inquired why is that different. Mr. Knox stated there are different parties involved in this challenge; and explained the difference. Chairman Higgs inquired if the parties intervened between transmittal and adoption of the Comprehensive Plan changes; with Mr. Knox responding he thinks that is when they came in. Chairman Higgs stated the Board adopted, as DCA also accepted the changes, and DCA was part of the process.

Mary Todd, representing Sierra Club-Turtle Coast Group, stated the Group was under the impression that the intervention that was filed was in reference to the 1999B Comprehensive Plan amendments that included the Conservation Element, but the change to the Conservation Element had nothing to do with the wetlands language. She stated staff was very careful not to make any changes to the wetlands policy in the updated Conservation Element, and she does have paperwork from their attorney that advises the cutoff date for any intervention was back in February, 2000. She stated nothing was changed in the 99B regarding wetlands, so they should be off limits for appeal. She stated Sierra Club-Turtle Coast Group is pleased with the wetlands ordinance in the Agenda package, provided the revised language clarifying the underground pipeline situation is included. She noted that language, which was discussed by Mr. Peffer, Ms. Coles and the attorney for Buccaneer, forces Buccaneer to locate its above ground structures on uplands; and Mr. O'Higgins, who is an engineer for Buccaneer, said they were prepared to do that. She stated on August 8, 2000 several changes were suggested by Commissioners; and requested in considering the suggestions, the Board keep in mind that the ordinance must reflect and be consistent with the Comprehensive Plan. She stated definitions found in the ordinance must be compatible with definitions in the Comprehensive Plan; and it would be most unwise to change the ordinance's definition of "substantially surrounded" or the language referencing the definition. She stated another suggested change was to reinstate the language in Section 5.a.4; the section starts by saying, "all other development except as provided in Section 62-6394 should be prohibited in functional wetlands unless . . ."; and it was suggested that condition 4, approved for deletion at the LPA meeting be reinstated. She read aloud condition 4, "the activity enhances the function of the wetland"; stated the condition fit in with the old wetlands language, but is in direct conflict with the new Policy 5.2.f.2, and would provide a way of circumventing the new restrictions on commercial and industrial development in wetlands; and the deletion of the condition is necessary to bring the ordinance into agreement with the Comprehensive Plan which allows no loopholes for development in wetlands on parcels designated as commercial or industrial on the Future Land Use Map after February 23, 1996. She stated the Sierra Club and the County agreed to a change to the definition of wetlands on August 8, 2000; the definition acknowledges the County's acceptance of the State's wetlands delineation methodology; and requested the last sentence, which says, "threshold and connection requirements of FDEP and St. Johns River Water Management District will not be applicable," be deleted. She stated the deletion is necessary to have the definition agree with the new Comprehensive Plan Policy 5.1; and inquired if staff has prepared information for the Board's review about the ramifications of the threshold and connection language.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to allow the speaker additional time. Motion carried and ordered unanimously.

Ms. Todd stated what she said is in agreement with what is included in the Agenda package if the pipeline language is added; and a written department procedure is needed dealing with not only the threshold issue, but other aspects of the new wetlands language as well. She stated the written procedure should address how the flux code should be obtained for parcels affected by the new Policy 5.2.f.3; it should spell out the method for determining buffer size for the wetlands and parcels falling under new Policy 5.2.f.2; and new software may be needed by the Office of Natural Resources. She stated the new wetlands language is clear as far as what is prohibited and what is allowed; it lends itself easily to advanced software applications that can quickly output information for staff or residents; and if new software is needed, it should be budgeted immediately. She requested a written department procedure on the wetlands policy details be provided to supplement and support the ordinance being considered today. She stated the ordinance update should not be postponed; and requested the Board approve the amendments proposed in the Agenda package with the inclusion of the revised language addressing underground pipelines.

Dick Thompson stated he wants to address why the no net loss policy is wrong; the Board is talking about wetlands in uplands areas that have water quality considerations; but under any of the wetlands is rancid water in the shallow ground water system, so there is no improvement to water quality by having puddles of muck being called wetlands, or improvement to water quantity since the muck is relatively impervious and does not allow recharge of the ground water system to a significant degree. He stated having muck areas and sand pits that children can fall into is not wise; but of major significance is the health hazard from mosquitoes that are known to breed on the mud puddles. He stated by the Board's action of no net loss of wetlands, it will assume the responsibility for health hazards from expanding mosquito breeding population; 700 million diseases are carried by mosquitoes; one out of seventeen people in the world suffer or die from mosquito breeding epidemics; and endemic to this area are such things as encephalitis, dengue fever, yellow fever and malaria. He commented on increased exposure to certain diseases from transient population, concern of Dr. Heshmati, and lack of notification to Dr. Heshmati; and requested the Board eliminate the permitting of so-called wetlands and the no net loss provision, and concentrate on getting rid of mosquito breeding areas. He noted he is not talking about wetlands adjacent to the rivers, but those wetland areas that are merely puddles, and are not connected with the river systems. He requested the Board consider the large diked area in South Brevard that was purchased with taxpayer money as mitigation for all the upland muck holes in the County; and advised there are 20 square miles of five to six-foot waters created by dikes that have not been considered in the no net loss criteria.

Charles Moehle, President of Modern, Inc., stated the commercial and industrial lands that he represents have concurrency; they are not pristine or forested wetlands; and the lands are in compliance with the Growth Management Act to limit urban sprawl. He stated he is not talking about lands that are pristine that are adjacent to the river or in the river floodplain. He stated citizens and property owners have the right to know with certainty and without confusion or criteria being interpreted by changing personnel what they can do with their property; and the County should not be unnecessarily growing their departments, especially the Office of Natural Resources, by duplicating the permitting requirements of the St. Johns River Water Management District and Florida Department of Environmental Protection. He commented on the requirements of the County, FDEP, and St. Johns River Water Management District; stated the problem has been discussed for at least a year or two; during that time there has been a forested wetlands maps and identification of classifications of wetlands; and concerns of thresholds that are less than the St. Johns River Water Management District and FDEP should be limited to those instead of keeping up a confusing and ongoing battle. He stated the ordinance is premature until a final determination of the Comprehensive Plan is made. He requested on page 1, under the definition of substantially surrounded, "zone or shown on the Future Land Use Map" be added after the word "developed" on the second line, and at the end of the sentence "or abut a highway or street that separates the otherwise commercial or industrial lands." He stated there are lots of lands that have been approved and are in use that are across the street, and they do not abut; and the language will clarify the intent.

Chairman Higgs noted Mr. Moehle's time has expired.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to allow three additional minutes for the speaker. Motion carried and ordered unanimously.

Mr. Moehle advised the language, "threshold requirements of FDEP and St. Johns River Water Management District shall not be applicable" that is proposed to be eliminated should be eliminated. He stated in the next paragraph it should be made clear that the forested wetland map is the one generated by the County, not by some other agency. He stated on page 4, section 3, the first sentence should not be added because it puts the burden on someone doing a development to have the knowledge, detailed information and engineering of the existing lands when they have no ability to get that information. He advised of a typographical error in Section 3(1), whereby "of" should be "or." He stated Section 3(3), mandates the Natural Resources Management Office to be involved; and inquired why the County should be in the middle of this.

Chairman Higgs advised Mr. Moehle's time has expired.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to allow an additional five minutes for the speaker. Motion carried and ordered unanimously.

Mr. Moehle read aloud Section 4(a) concerning permitted uses; and stated it should be eliminated as it adds further subjectivity as to what permanent degradation and destruction is. He stated Section 4(c) concerning maximum density should be changed to insert the words "in wetlands" after "intense land use"; and in Section 4(c)(1), insert "in wetlands" after the word "uses." He stated under Section 4(c)(1), the words "residential properties recorded in new subdivision plats" should be inserted to clarify that the regulations apply to new residential areas. He stated Section 4(3)(a) should be changed in accordance with the requested change concerning "substantially surrounded"; and in the same line after the word "developed", the words "or zoned or designated on future land use maps zoned as commercial or industrial." He requested Section 4((3)(c) be changed from "for wetlands specified" to "for wetlands classified"; and advised of an error in the Brevard County Code Section given. He stated under Section 5 there has already been a request to put back in the activity enhances the functional wetlands; and requested 1 through 4 be put back in. He stated under Section 7 under Penalties, it says the Director of the Natural Resources Management Office shall be responsible for viewing and approving; that is an onerous responsibility, and is also confusing because it seems the Board should have the ultimate authority; and recommended that be changed to "recommending" rather than "approving." He stated there is the same problem in Section 9; it is too much power for arbitrary and capricious decisions to be made by one person if there is a zero threshold; and those decisions should be ultimately approved by the Board.

Maureen Rupe stated she supports Kim Zarillo's and Mary Todd's comments; the added pipeline language is acceptable; and urged the Board to adopt the ordinance.

Lillian Banks stated she understands at one of the workshops it was proposed to raise Mosquito Control from 2.17 mills to 2.25 mills; and inquired if this is correcting the excessive environmental regulations by costing the taxpayers more money. She stated she is not a big land owner or developer, but wants to live in the County and have reasonable taxes. She stated regarding the proposed amendment to the Wetland Protection Ordinance, it appears the Florida Statutes are not being complied with; and this is interesting in view of the fact that the Board was immediately able to determine that the three petitions from the citizens were unconstitutional, but the same diligence to detail is not so great when it is an ordinance the Board wants to institute. She stated the St. Johns River Water Management District wetland policy inflicts enough problems for private property and it is not necessary for the Board to get into the act. She stated in her opinion the Board is driven to grow government and micromanage every inch of Brevard County's soils and waterways; and she sees a certain amount of arrogant, "I'm in charge" attitude. She stated a few months ago a Commissioner made a statement that a piece of property on Wickham Road near the Baytree development where Albertson's wanted to build would not happen because a survey had been conducted and there were "x" number of grocery stores within a five-mile radius; and that seems to be an overstepping of authority and lack of knowledge of economics. She inquired if this is just another example of the Board using the environmental issues and ordinances for power and control for other than environmental and community benefit. She stated competition keeps prices competitive and is good for the community; she has been in real estate for approximately 20 years, and knows when a site picked for a business, it is located near other like businesses; and stated no one will go to four grocery stores in one location and then drive ten miles to Albertson's. She stated it was explained to her that the amended ordinance could make it easier for some people with a certain type of wetland to develop without so much hassle; but she fails to see how any hassle is eliminated since the ordinance duplicates the cost and permitting already levied by the St. Johns River Water Management District and the Florida Department of Environmental Protection. She stated even a one-inch by one-inch mud hole can subject a property owner to costly County permitting; she was informed that only 160 parcels cannot be developed; and inquired what happens to the owners of the 160 parcels, and will the County pay them for rendering their property useless and worthless. She stated the Board is going too far with the ordinance; it smacks of power and control; and when 16,000 citizens sign six different petitions without hesitation, it might give the Board a clue that the natives are getting restless.

Mike Moehle, representing Citizens for Constitutional Property Rights, stated isolated wetlands have been found by the St. Johns River Water Management District and Florida Department of Environmental Protection to have an inconsequential effect if they are eliminated; there may be a problem with mosquito breeding from these areas; and the Board has not adequately investigated. He stated the ordinance imposes additional requirements that are not even a part of the existing permitting of the St. Johns River Water Management District and the Florida Department of Environmental Protection such as the need to assess the functionality of wetlands that are adjacent to the property; there is no minimum threshold for the size of wetland; and the wetlands being discussed are not pristine, swamps or bogs, but what have been referred to as mud puddles. Mr. Moehle stated the cover page of the report that was prepared by staff and given to the Board on August 8, 2000 says the fiscal impact is the cost of advertising public hearings and staff time to compile revisions; that cannot be the cost of implementing the ordinance; and he does not think an evaluation has been done. He stated he would not be surprised if it was necessary to build an additional building at the Government Center to house the bureaucracy that will be required to impose the ordinance on people; and noted the County's lack of soil scientists. He commented on need for a cost assessment; and stated the Board gives lip service to funding infrastructure and other things, but then does things that are contradictory like the ordinance. He stated it is Mr. Knox's opinion that the challenge to the Comprehensive Plan amendments has no effect on the ordinance; the August 8 document says as part of the Stipulated Settlement Agreement, the Comprehensive Plan was recently updated to include changes to Policy 5 of the Conservation Element; those changes became effective January 14, 2000; and those changes are the ones that are currently being challenged. He stated the report goes on to say that staff was directed during the adoption hearing to update the ordinance; but Assistant County Attorney Eden Bentley agreed that the changes have not become effective as of January 14, 2000 and will not until they are approved by DCA.

Commissioner O'Brien requested Mr. Knox respond. County Attorney Scott Knox stated he has the petition Mr. Moehle filed in front of him, and does not see any challenge to the wetlands policies being considered by the Board today. Mr. Knox stated if the petition Mr. Moehle filed challenges amendments that incorporate the changes that came out of the Stipulated Settlement Agreement, Mr. Moehle may be correct that they may not be in effect formally unless DCA has rendered a final order; but he does not think that is the case. He stated that does not change the fact that the Board is implementing the policies of the Comprehensive Plan that it adopted; and he does not think there is anything to stop the Board from doing that. He stated if it is determined later that the policies that were challenged by Mr. Moehle are not in compliance, then the Board can revisit the issue. Commissioner O'Brien inquired how the Board can draw the ordinance from the Comprehensive Plan which may not be in effect or may be affected by the lawsuit. Mr. Knox responded in his view the policies the Board is dealing with today are not affected by Mr. Moehle's petition.

Discussion ensued on the petition, drawing the ordinance from the Comprehensive Plan, difference between ordinance and plan language, and petition dealing with different policies than the ones being considered today.

Mr. Knox stated no matter what the Governor and Cabinet do down the road on Mr. Moehle's petition, it is not going to impact what the Board is doing today because it is not the same policy.

Mr. Moehle stated the document says the changes that became effective January 14, but that is inaccurate because it does not comply with the Statute which says, "Plan amendments shall not become effective until the State Land Planning Agency issues a final order determining the adopted amendment to be in compliance." He reiterated staff was directed during the adoption hearings to update the ordinance; and that update is based on the amendment that is being challenged. Mr. Knox stated Mr. Moehle may be right in terms of procedure, but in terms of substance of the policies the Board is working on, they are not being challenged.

Commissioner Carlson commented on Charles Moehle's request to add "or abut a highway" to the definition of substantially surrounded, the Board's previous discussion on the definition, and her suggestion to put in something to the extent of "on two sides not including a highway." She stated if the Board looks at how it is being used for forested wetlands and the exception that Commissioner Scarborough discussed on specifics around interchanges, it might want to consider making a change.

Chairman Higgs inquired what language does Commissioner Carlson want to insert and where; with Commissioner Carlson responding the definition of substantially surrounded means when a parcel of land is bordered on two sides, not including a roadway, by land developed as commercial or industrial. She stated it could also be said "does by land developed as commercial/industrial include a highway; and in that case it would be just two sides. Commissioner O'Brien stated Mr. Moehle is trying to say if a property abuts a highway or street that separates an industrial or commercially zoned parcel; in the Board's definition of substantially surrounded, it does not include if there is a road and across the street is also industrial; and that is what he is trying to say. Chairman Higgs stated Mr. Moehle is trying to do something different than what Commissioner Carlson is talking about. Commissioner Carlson requested Mr. Peffer clarify. Mr. Peffer stated they are trying to get at how the Board would view a highway, and whether it would be included as an industrial or commercial use or be considered neutral in the context of substantially surrounded. He stated the Board may want to consider what is on the other side of the highway; if the highway divides industrial uses, perhaps that should be considered one of those sides; it might be looked at differently if it was a residential use on the other side of the highway; and Commissioner Carlson is trying to point out that the Board needs to somehow address that.

Commissioner Scarborough stated the ordinance must be completely consistent with the Comprehensive Plan; going to the Comprehensive Plan concept, what he envisioned was not crossing the road; and he is having problems expanding it across the street because it could get into a scenario where there could be riverfront property on U.S. 1 with commercial or industrial across the street, and he does not think that was the intent, so he cannot support looking across the street.

Chairman Higgs stated there seems to be consensus not to do what Commissioner Scarborough was talking about; and inquired if additional language is needed to clarify. Mr. Peffer stated it would be helpful for staff to understand clearly what the Board wishes a roadway to be regarded as and whether to look at two sides or three. He stated he is not sure the Board needs to add a change to the definition; staff can regard the Board's desire as a Board policy; but it would be helpful to have that clarified. Commissioner Carlson stated now it says two sides; and inquired if the Board wants to make it three sides including a roadway.

Natural Resources Section Supervisor Debbie Coles provided a specific example on Merritt Island behind the mall, where a commercial parcel is abutted by the Veterans Park on one side and commercial on the other, and a small canal separates it from a PUD and multi-family situation. She stated the character of the roadway is commercial for the most part; it is a situation where both sides are not abutted by commercial or industrial; but staff feels it would probably be appropriate to allow for a commercial or industrial use to go there. Commissioner O'Brien stated staff may be able to help the Board with some language that would avoid a wrestling match on this; there are other areas of the County that have the same kind of problem; and if the Board is overly restrictive at this point with the ordinance, it will find itself in a difficult situation later.

Chairman Higgs inquired if the Board is trying to say that highways do not expand the commercial character. Commissioner Scarborough stated a lot of places can have a tremendous jump from one side of the highway to another; the character is able to be that because of the depth of a residential lot; and commercialization could be allowed on the other side because there is a quirk in the ordinance. He stated he is not ready to analyze every location; he agrees with Ms. Coles concerning the location she mentioned; it sounds like it is substantially surrounded; but he does not want the property across the street driving something on the other side of the street that will change the dimension of development. Chairman Higgs inquired if the statement, "highways are not intended to expand the commercial or industrial character" is what the Board wants to say. Commissioner O'Brien stated that is not where substantially surrounded is utilized; page 6, Part 3 says, "commercial/industrial land development activities may be permitted in wetlands contained in properties designated on the Future Land Use Map as commercial or industrial prior to February 23, 1996 only if all the criteria are met." He stated the criteria are that the property is already designated or zoned industrial/commercial; the property is substantially surrounded, which can also mean across the street, by lands developed as commercial or industrial as of February 23, 1996; and the property has sufficient infrastructure in place to serve the commercial or industrial use. Commissioner Carlson stated the definition of substantially surrounded is a problem; and staff needs to give the Board something so it can deal with it. Commissioner O'Brien stated the Board is looking at properties that are designated as commercial or industrial on the Future Land Use Map; and substantially surrounded has to be on three sides; with Commissioner Carlson agreeing it should be on three sides. Commissioner O'Brien stated it could abut a highway or street that separates an industrial or commercially-zoned parcel. Commissioner Scarborough stated that moves it further; Mr. Moehle mentioned zoned property; the Board has not mentioned the difference between zoned and developed property; and wetland policies should not drive zoning decisions where residential properties are adversely affected. He stated this could become a tool for people to make the argument that once there is any commercial or industrial, it can be moved. Commissioner O'Brien stated the Future Land Use Map already defines it as being commercial or industrial, so nothing is being moved that is not already planned. Commissioner Scarborough inquired if the definition is going to be expanded from "developed" to "zoned"; with Commissioner O'Brien responding not in 3(a), but in the definition of "substantially surrounded." Commissioner Scarborough stated he does not support that.

Commissioner Carlson stated she has a problem with Section 4(a)(5) because mitigation could be a mitigation bank somewhere else, and mitigation may not occur in our area; and requested "appropriate mitigation" be deleted. She stated the Board discussed making sure mitigation occurs in the County; with Mr. Peffer responding that is a Board policy and can be included in the ordinance. Mr. Peffer noted staff is recommending deletion of Part 5 and it becomes language in Part (f). Commissioner Carlson stated Section 4(c)(2)(c) says, "wetland mitigation shall equal or exceed 125% of the mitigation that is otherwise required"; and inquired if the Board needs to put "required by State agency." Chairman Higgs stated it may be the Army Corps of Engineers. Commissioner Carlson inquired if the language is clear enough; with Chairman Higgs responding it is fine.

Commissioner O'Brien stated four years ago there was a comment from the St. Johns River Water Management District that there has been a gain of approximately 12,000 acres of wetlands in the County; and requested staff provide an update on how many acres of wetlands have been gained in the County since 1990. Chairman Higgs inquired if it is a gain in public ownership of wetlands. Mr. Peffer stated that comment referred to the Upper St. Johns basin where areas that previously had been wetland and floodplain were being restored, so it was not a net gain, but a gain over the recent alterations which had occurred. Commissioner O'Brien stated the ordinance does not discuss functionality where the Comprehensive Plan does; and commented on net loss of a wetland with a functionality of close to zero, requirements being punitive, and certain wetlands behind Merritt Square Mall. He suggested looking at functionality on a scale of one to ten; with Chairman Higgs advising there is a definition of wetland functionality. Commissioner O'Brien stated he would prefer a scale to have a measurement of the functionality; and provided examples where it could be applied. Ms. Coles stated there may be a situation where the actual forested part of the wetlands onsite are less desirable to save than a freshwater marsh that is in pristine condition; and from an interpretive standpoint, she does not know if she would call it a forested wetland if there were just a few maple trees on the edges due to the fluctuation in the water table. Commissioner O'Brien stated that is subjective, and if there was an objective formula, everyone would get fair and equal treatment. Ms. Coles stated the St. Johns River Water Management District has a matrix that it applies to different wetlands to evaluate the components within the definition; and the Board may be able to approve or enact such a thing by policy or include it in the evaluation criteria. Mr. Peffer stated to a certain extent the ordinance encompasses a functionality component in the deferment with regard to mitigation; mitigation ratios are established based on the value of a wetland; so when regulatory agencies come forward with mitigation ratios, they have included that type of thing in making the recommendation. He stated although it makes sense, implementation of a rating system is difficult and becomes controversial; and the County may come up with a different type of functionality than the regulatory agencies when the intent was to avoid confusion and be as consistent as possible. He stated one option is to acknowledge that functionality is incorporated in the existing mechanisms through the mitigation policy, and another is to come back with a report rather than try to resolve it now. Chairman Higgs noted the Board can come back and refine it; with Commissioner O'Brien advising it could hold off on putting it in the ordinance until it has things straightened out. Commissioner O'Brien stated if the Board adopted the matrix from St. Johns River Water Management District, it would solve the problem of diverging away from the other agencies. Mr. Peffer noted it is possible to use the matrix and come up with a different answer; and that is why he would like to defer to the St. Johns River Water Management District's use of the matrix. Ms. Coles noted that is normally what the County does. Commissioner Carlson stated if the Board includes the matrix in the ordinance, then the ordinance will have to be changed if St. Johns River Water Management District changes the matrix; and referring to it should be sufficient. Commissioner O'Brien stated he would prefer to have it as part of the ordinance.

Commissioner O'Brien inquired about inserting (f) on page 7; with Ms. Coles responding that would be the pipeline language. He stated some verbiage will be needed within the ordinance to solve the substantially surrounded problem; and he would like to see that language. He stated page 7, Section 5, says, "All other development, except as provided in Section 62-3694, should be prohibited in functional wetlands unless"; and he does not understand why "The activity does not impair the function of the wetland; or the activity enhances the function of the wetland" were removed. He recommended including the deleted language.

Commissioner O'Brien stated it is apparent there is duplication of DEP and St. Johns River Water Management District functions; Section 3 says, "staff comments clearly indicate that the development will result in no net loss of functional wetlands"; and if that is the case, and staff has to go out to the property, then the County should be issuing and charging for permits. Ms. Coles stated the mitigation threshold is half-acre at the State level, so staff would only be looking at instances in subdivisions where there are wetlands that may be at or under a half-acre in size, making sure that at a minimum those are incorporated into the total calculation for mitigation and there is a minimum of a two-to-one mitigation ratio; and that is the kind of review that is done at the County level to insure no net loss. Commissioner O'Brien stated Ms. Coles says the minimum is two-to-one but the ordinance refers to 125%. Ms. Coles noted that is where she tried to clarify that the County's mitigation standard is two-to-one although the State may require another number.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to direct staff find the proper place to establish that Brevard County has a two-to-one ratio.

Ms. Coles stated it is already referenced at the bottom of page 8.

Commissioner Scarborough stated last week there was confusion because there is the 125% with the two-to-one, and no one knew how it worked; and the idea is to find out what mitigation is otherwise required and bounce it up 25%. He stated he cannot support the motion.

Commissioner Voltz withdrew the second to the motion.

Commissioner O'Brien stated the verbiage says two-to-one for each acre of wetlands, but on page 6, it says, "wetland mitigation shall equal or exceed 125% of the mitigation that is otherwise required."

Discussion ensued on mitigation ratios, and 125% only applying to highway interchanges.

Motion by Commissioner O'Brien, to direct staff to find appropriate language to add to "substantially surrounded" to solve the problem.

Chairman Higgs inquired if Commissioner O'Brien has a specific suggestion so the ordinance can be moved along; with Commissioner O'Brien responding he does not have any today, but hopes staff can help. Chairman Higgs inquired if staff has language; with Mr. Peffer responding no, because staff does not know what the Board wants to do.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct that in considering property as being substantially surrounded, only that property on the same side of the road shall be considered.

Commissioner O'Brien explained why he cannot support the motion.

Commissioner Voltz inquired how will the County deal with the specific problem areas; with Ms. Coles responding she would defer those types of decisions to the Planning and Zoning Official. Commissioner Voltz inquired if it will be in one person's hands rather than coming back to the Board; with Ms. Coles responding if the Board is comfortable doing that. Commissioner O'Brien advised of the need for clear verbiage that solves the problem. Chairman Higgs stated there is a motion on the floor that defines how highways are concerned, and there is a method to resolve the particular properties. Commissioner Scarborough stated it is not punitive to take away a loophole in the rules; and allowing leapfrogging across roads because of a loophole is a real problem. Commissioner O'Brien stated he has no problem tabling the item until staff can come back with appropriate language everyone is comfortable with. Chairman Higgs inquired if an individual property is impacted and does not like the decision in regard to "substantially surrounded", what is the appeal process. Ms. Coles stated the appeal process is defined in the ordinance; and if the Planning and Zoning Director's decision is to deny, it would go to the LPA and then to the Board. Commissioner Scarborough suggested saying discretion remains with the Board to expand the definition, if hardship is demonstrated. Chairman Higgs stated the process is in the ordinance. Commissioner O'Brien stated the problem with government is there are processes for everything, and they last forever; and the problem could be solved by waiting one more week, and asking staff to come back with appropriate language that the Board could agree upon.

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

Commissioner Voltz stated there are a number of issues that have been ignored that were brought up by Ms. Todd and Mr. Moehle, such as thresholds, the mosquito issue and Dr. Heshmati, and suggested changes; and there has been no time to analyze them. She stated Section 4(a) says, "The following uses shall be permitted provided they do not adversely affect the function of the wetland within the County or result in the permanent degradation or destruction of the wetlands"; and that is redundant language. Ms. Coles stated staff concurs.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to delete under Section 4(1), "or result in the permanent degradation or destruction of the wetlands." Motion carried and ordered unanimously.

Commissioner Voltz commented on changes to lettering on page 7. Ms. Coles advised on page 7, it is supposed to be 62-3694(c)(3)(c). Commissioner Voltz inquired about "classified" instead of "specified." Ms. Coles stated it does not matter to staff.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to change "specified" to "classified." Motion carried and ordered unanimously.

Commissioner Voltz inquired if the Board wants to take out all the issues at the bottom of page 7, Section 5(a), or if there is any problem with leaving them in. Mr. Peffer responded there is a problem; the language was the way the County was operating prior to the amendments; and now the amendments specify the conditions under which a wetland could be impacted by commercial or industrial. He stated it is much more specific; and keeping the old language would defeat the purpose of the new language.

Commissioner Voltz inquired about addition of, "in new recorded subdivision plats" in Section 4(c)(1). Ms. Coles stated that would be a problem; it would eliminate properties such as those in Canaveral Groves or Grant where someone may have a bigger parcel and start to chop it up into smaller sections to sell; it refers to single-family homes; and the language would change the meaning.

Discussion ensued on changing the language, density restrictions in wetlands, and intent to provide for subdividing with sufficient building area that is not in wetlands.

Commissioner Voltz stated there was a request to insert "in wetlands" in Section 4(c) and 4(c)(1); and inquired what would that do. Ms. Coles stated she does not think it changes the intent. Commissioner Voltz inquired if it clarifies; with Ms. Coles responding it is clear now.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to insert "in wetlands" in Section 4(c) and Section 4(c)(1). Motion carried and ordered unanimously.

Commissioner Voltz inquired why "in an existing" has been added to Section 3; and what would happen if it was taken out. Ms. Coles stated the intent was to bring in those areas that are in older plats for the purposes of subdividing and requiring mitigation for wetlands under a half-acre. Commissioner Voltz inquired if that was already addressed on page 6; with Chairman Higgs responding no, that was the actual process of subdividing. Mr. Peffer stated it is intended to say, "The following regulations shall apply to development requiring a site plan or subdivision plat or in an existing site plan or subdivision plat that is in or adjacent to wetlands." Chairman Higgs inquired if it is saying the wetlands are in the existing plat; with Mr. Peffer responding yes.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to insert the language, "The following regulations shall apply to development requiring a site plan or subdivision plat or in an existing site plan or subdivision plat that is in or adjacent to wetlands" in Section 3. Motion carried and ordered unanimously.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to correct the typographical error in Section 3(1), changing the "of" to "or." Motion carried and ordered unanimously.

Commissioner Voltz stated Section 3(3) calls for a site inspection if the materials indicate that wetlands may exist on the property; that is done now; and she does not know what the issue is. Mr. Peffer advised the issue was a fee. Commissioner Voltz inquired if Commissioner O'Brien wants to do something with that; with Commissioner O'Brien responding no. Commissioner Voltz stated the substantially surrounded issue has not been solved; and inquired if under the definition of forested wetland map, the words "generated by Brevard County" could be added after land use map; with Ms. Coles responding that is not a problem.

Motion by Commissioner Voltz, to insert "generated by Brevard County" under definition of forested wetland map after the words "land use map."

Commissioner Scarborough stated that means if a good map has been generated somewhere else, this would mean the County could not use it. Chairman Higgs suggested the wording "generated or adopted by Brevard County."

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to insert "generated or adopted by Brevard County" after the words "land use map" under the definition of forested wetland map. Motion carried and ordered unanimously.

Commissioner Voltz stated the other issue concerns mosquitoes, Dr. Heshmati, and increased Mosquito Control funding. Mr. Peffer stated there is an increase in Mosquito Control funding this year compared to last year; Dr. Heshmati has not spoken to the Office of Natural Resources about the ordinance; and the concerns that were raised are not realistic. He stated the County is not trying to regulate mud puddles; wetlands are carefully defined; and if they exist as a wetland in the ordinance, they are already existing as wetlands, so no new hazardous situation is being raised. He noted he would welcome discussion with Dr. Heshmati. Commissioner Voltz requested staff confer with Dr. Heshmati to see if there is an issue. Commissioner Voltz stated the only other issue is whether the adoption of the ordinance is premature because of the objections filed; and she will have to rely on the opinion of the County Attorney.

Commissioner O'Brien stated having the St. Johns matrix within the ordinance is important.

Motion by Commissioner O'Brien, to include the St. Johns River Water Management District matrix in the ordinance.

Commissioner Carlson inquired if it would be for purposes of referral. Commissioner O'Brien stated there is nothing wrong with having it in the ordinance, and if it is changed, the ordinance can be corrected. Chairman Higgs inquired how big is the matrix; with Ms. Coles responding she will have to research that along with the "substantially surrounded" language. Chairman Higgs suggested agreeing to bring back the St. Johns River Water Management District matrix; with the Board reaching consensus to bring back the matrix.

Commissioner O'Brien inquired if the Office of Natural Resources will be hiring a soil scientist; with Ms. Coles responding no one on staff is a soil scientist, but they typically use the State's soil scientist. Commissioner O'Brien inquired if implementing the ordinance there will be any additional costs incurred by the County; with Ms. Coles responding she does not believe there will be an increase in staff or costs associated with administering the ordinance. Commissioner Voltz advised there may be an increased cost to the general public. Commissioner Scarborough stated the Board takes Comprehensive Plan amendments and incorporates them into ordinances; this is not where it started; it has been part of the Board discussion for a long time; and the Board has made enough progress to approve the ordinance with the changes, with the understanding that things can come back.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 62, Article X, Brevard County Code; Division 4, Wetland Protection; specifically amending Section 62-3691 Definitions, adding definitions for substantially surrounded, suitability, wetlands, and forested wetlands map; amending Section 62-3692 Purpose and Intent; amending Section 62-3693 General Provisions, providing for a no net loss of wetlands; amending Section 62-3694 Permitted Uses, providing development limitations for wetlands; amending Section 62-3695 Prohibitions, providing for mitigation; amending Section 62-3696 Mitigation, establishing mitigation options; creating Section 62-3697 Penalties; additional remedies; creating Section 62-3698 Appeals; creating Section 62-3699 Administration; providing resolution of conflicting provisions, providing for severability; designating area encompassed; and providing for an effective date.

Commissioner Voltz stated she was glad the Board made some of the changes it made today; originally she supported going forward with this; however, she has seen things which indicated it is more extensive than she anticipated it to be. She stated while she supports the changes that were made, she cannot support the ordinance today.

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

The meeting recessed for lunch at 1:07 p.m. and reconvened at 2:06 p.m.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENTS IN BAREFOOT BAY, UNIT TWO, PART TEN - RICHARD F. AND KATHERINE S. HAAS

Chairman Higgs called for the public hearing to consider a resolution vacating public utility easements in Barefoot Bay, Unit Two, Part Ten, as petitioned by Richard F. and Katherine S. Haas.

Assistant Public Works Director Ed Washburn stated the resolution was amended to allow the applicants to vacate only the portions of the easements where they encroached.

Chairman Higgs inquired if Mr. Dill understands that; with Warren Dill, representing the applicants, responding affirmatively.

There being no further comments, motion was made by Commissioner Voltz, seconded by Commissioner Carlson, to adopt a Resolution vacating public utility easements in Barefoot Bay, Unit Two, Part Ten, as petitioned by Richard F. and Katherine S. Haas as amended. Motion carried and ordered unanimously.

CONSIDERATION OF REQUEST FOR COMPREHENSIVE PLAN CONSISTENCY REVIEW, RE: BUCCANEER GAS PIPELINE PROJECT

Attorney Jack Kirschenbaum, representing Buccaneer Pipeline, introduced Bill Ockunzzi and Brian O'Higgins from Buccaneer Pipeline Company, and his partner Paul Chipok. He stated they appear today with the unanimous recommendation of the LPA to determine that the Buccaneer Pipeline project is consistent with the County's Comprehensive Land Use Plan generally, and specifically with Policy 2.4. He stated this is a continuation of the hearing that began two weeks ago, at which time the Board sought additional information and a staff report; and it is his understanding that the Board has received the staff report. He stated he is present primarily to answer questions, and hopes the Board has all the information it needs to determine that the project is consistent with the Comprehensive Plan. He stated Policy 2.4 says, "Major transportation system improvement proposal and associated ancillary facility shall be thoroughly evaluated for consistency with the Comprehensive Plan, applicable Florida Statutes, and federal regulations to minimize adverse environmental impacts and maximize economic and social benefit. A major improvement could involve roadway, rail, airport, port, and/or other modes." He stated it was determined early on that this is the primary policy of the Comprehensive Plan that a natural gas pipeline is subject to; and the policy also states that sufficient data must be supplied to the Board, which they have done, to allow it to evaluate the plan under twelve items that are subsections to Policy 2. He stated most are transportation policies that apply almost exclusively to roadways or railways or traditional transportation, but some apply to pipelines and other facilities; and those are the ones staff has done an excellent job of evaluating. He stated the first is Policy 2.4(a)(1) which is current and future public need; the Federal Energy Regulatory Commission has made a preliminary determination that there is a need for the pipeline from the beginning to its proposed termination point; and there are power plants in the County which claim to need more natural gas. He stated at the last meeting a representative of the local gas supplier to residences indicated that competition would be a good thing, and there is no indication that there is not a need for additional natural gas capacity. He stated Policy 2.4.a.2 concerns project impacts to natural resources; the EPA has issued a draft environmental impact statement which finds that there would be only limited adverse environmental impacts and concludes if the project is constructed and operated in accordance with the mitigation measures, it would be environmentally acceptable; and the primary reason for this is that the pipeline is 100% co-located with existing utility and road easements in Brevard County. He stated there is no impact on other policies concerning historical resources, noise, visual implications, and others; and they have adequately addressed management of hazardous materials, agreeing to meet or exceed all State and federal requirements. He stated the only other significant element of the policy concerns the project impacts to the local economy including wages and job generation; and the proposal indicates the significant favorable impact to the economy should the pipeline be permitted and constructed in the County. He stated it appears the pipeline project is consistent with the Comprehensive Plan including wetland reviews, and specifically with Policy 2.4. He stated this is very preliminary today to determine consistency; the requirements of site planning, building permitting, etc. will come down the road after plans are drawn and easements obtained; and before the ground is turned and the pipeline laid, they will be back before various entities of the County to achieve the permits, licenses, etc. He stated there is nothing that indicates as of today that they are inconsistent with any provision of the Comprehensive Plan.

Bill Ockunzzi, representing Buccaneer Pipeline, stated when they began the evaluation of pipeline routes and permitting processes in Brevard County, they determined that in order to do anything they had to get a consistency determination upfront; and they will not go anywhere if they do not get beyond this point. He stated other counties treat pipelines a little differently; and explained how they are handled in Orange, Osceola, and Polk Counties. He submitted a letter advising Polk County issued a conditional use permit yesterday to Buccaneer; stated Polk County's CUP process is more analogous to Brevard County's; and described the Polk County process. He stated condition number 4 was added to the CUP deleting a portion of the route that crossed property that was annexed by the City of Bartow; and the other three conditions attached to the approval were to file for right-of-way use permits, a condition setting the timing for starting the clock as the date the last permit is issued for the pipeline, and the pipeline approval not including approval for temporary storage yards. He stated they need to acquire easements from Polk County and have a host of permits to achieve. He stated the Board may have gotten a copy of the agreement with Pasco County, but that is only a proposed agreement, and has not been adopted or made final; they worked with the Pasco County Attorney and Administrator, but what is included in the proposed agreement is not what they think is going to ultimately be in the agreement; and essentially Pasco County is getting some assurances that certain things will be done. He stated Mr. O'Higgins will talk about related assurances that are going on in Brevard County such as the location of various classes of pipe and other technical issues. He stated the proposed Pasco County agreement grants to Buccaneer 15 acres of permanent pipeline right-of-way plus the associated temporary construction right-of-way that will be needed for the six-month timeframe that the pipeline will be under construction, so they are receiving some accommodation from Pasco County; and another item being granted are some variances to certain Ordinance requirements. He stated one of the big items is Pasco County has a requirement for a tree survey; the survey would cost Buccaneer upwards of $150,000; and it does not make sense because a good number of trees will be knocked down in the construction process and then have to be replaced.

Chairman Higgs advised the speaker's time has expired; and the Board reached consensus to allow the speaker more time.

Mr. Ockunzzi advised of other Pasco County requirements; and stated the presumption of approval automatically accrues to those permits, so they will basically be talking to Pasco County staff about technical issues. He stated as a result of the proposed agreement, Pasco County will become a proactive supporter of the pipeline as they move through the remainder of the permitting process, including activities in Washington, D.C. and Tallahassee. He stated there is also consideration for the reduction and/or consolidation of certain development review fees; and it is a negotiated settlement with compensation on both sides, but the agreement is still tentative, and will be going to the Pasco County Commission. He stated there is some cash involved that is basically compensation for the things Buccaneer is getting in return; and outlined the financial terms including money for a FERC counsel and funding for an inspector. He noted in Pasco County a significant portion of the pipeline is offshore, so a lot of money is devoted to offshore inspections, which are not analogous mile for mile to Brevard County; and the net benefit to Pasco County is approximately $250,000 in cash, for which Buccaneer is receiving 16 acres of permanent easements, 10 acres of temporary easements, reduced and consolidated fees, presumption of approval, and offshore considerations. He stated it remains to be seen what will be finally negotiated; only 79% of the Pasco County pipeline will be co-located, while 100% of the pipeline in Brevard County will be co-located with existing rights-of-way; and advised of a mileage comparison between the Counties in terms of easements needed for crossing County-owned lands. He stated 16 acres of permanent easements are needed from Pasco County while only five acres are needed from Brevard County; advised of the Brevard County tracts which will be crossed; and stated the 16 acres in Pasco County are high value real estate located adjacent to the interstate or close to the Gulf of Mexico.

Commissioner Scarborough stated there are some safety parameters included in the Pasco County agreement that were not going to be covered under some regulation or permit; and the main thrust of the agreement is safety including Class 3 pipe being buried at four feet, multiple discipline training for emergency management personnel, and the hiring of an inspector. He stated he is not comfortable with Pasco County finding these things significant enough to include in an agreement, and Brevard County saying they are not needed, when he does not know if they are needed. Mr. Ockunzzi stated Mr. O'Higgins will address those question; and Commissioner Scarborough misspoke about the once a year inspector, as Pasco County may get an inspector if it wants, up to $125,000. Commissioner Scarborough stated that is in addition to Buccaneer's agreement to inspect the pipeline for corrosion at a minimum once a year; and the $125,000 is for an initial inspection to make sure the pipeline is installed correctly. Mr. Ockunzzi stated all of those assurances are there for the County also. Commissioner Scarborough inquired if those assurances can be made in a written agreement; with Mr. Ockunzzi responding absolutely.

Brian O'Higgins stated he is the Project Manager for Buccaneer Pipeline; he agrees with the LPA recommendation that the pipeline is consistent with the Comprehensive Plan and with staff's recommendation; and in the application, 12 items are discussed. He stated the operation and maintenance of the pipeline is regulated by the U.S. Department of Transportation, Office of Pipeline Safety; in the application 49CFR, Parts 191 and 192 are referenced quite a bit; and he would like to quantify what the County is getting in terms of pipeline safety features. He stated they will install Class 3 pipe in areas that are developed or are planned for future development based on U.S. Department of Transportation Class 3 criteria; and explained the criteria and classifications of pipe. Commissioner Scarborough inquired if Pasco County has any Class 1 or 2 pipe; with Mr. O'Higgins responding affirmatively. Mr. O'Higgins stated Pasco County is developing a longer pipeline alignment; there are 13 proposed developments along there; and they have upgraded pipe in those areas to anticipate those developments. He stated that is in Buccaneer's best interest as well because Pasco County is the landfall county; after the pipeline is installed, Buccaneer has an obligation to serve the rest of the State with reliable service of natural gas; and if the density increases, which would require replacement of the pipe within 18 months, they would have to shut off supply to the rest of the State. He stated item 1 describes that if the pipeline is installed, development comes, and it increases the class, they are required to upgrade within 18 months to insure there is compliance with DOT. Commissioner Voltz inquired if Buccaneer will look at the Future Land Use Map to see what is proposed; with Mr. O'Higgins responding affirmatively. Commissioner Voltz stated if it is planned ahead of time, the 18-month requirement should not come into play. Mr. O'Higgins advised they plan approximately five years ahead; and advised of the areas for Class 3 pipe. He stated Brevard Crossings would be toward the south; the density is not there now; but they know it may be there, so it is proposed for Class 3. He stated for item 2, the block valves the County will receive are identified on the map; there will be four shut-off valves for the main line; and advised of the locations. He stated there will be two additional shut-off valves where they enter the plants; and the average for valve spacing is approximately 4.2 miles per valve. He stated Pasco County requested additional valves, averaging 7 miles per valve; and Brevard County is getting more shut-off valves than any other county across the State. He stated there is a section in the Pasco County agreement that identifies specialized construction plans; and advised how they are being applied in certain areas.

The Board reached consensus to allow the speaker additional time.

Mr. O'Higgins stated their safety record speaks for itself; they are one of the leaders in the pipeline industry; and they like to involve the local community. He stated they are committed to providing the County with training twice a year.

Commissioner Voltz inquired about Buccaneer being part of Duke Energy; with Mr. O'Higgins responding the Buccaneer Gas Pipeline is a subsidiary of the Williams Company and Duke Energy. Commissioner Voltz inquired if that means Duke Energy is going to put in another power plant; with Mr. O'Higgins responding no. Mr. O'Higgins stated they will have to purchase an easement for any County property they cross; members of Buccaneer staff are in the County this week looking at potential mitigation sites; and for the wetlands they permanently impact, they will mitigate.

Commissioner Scarborough stated there are some things that are included in the Pasco County agreement that are not included in the package the Board has been given; and inquired why Buccaneer opted not to give the County those elements. Mr. O'Higgins advised there is no final agreement. Mr. Ockunzzi advised the agreement is in the negotiation process.

Maureen Rupe, Natural Resource Chair of the Space Coast League of Women Voters, read a statement from the League requesting additional safety measures above the minimum federal standards. She stated she is also representing the Partnership for a Sustainable Future, which concurs with the additional safety measures. She commented, speaking for herself, on the need for more stringent safety measures, concern about maintenance responsibilities and off-road vehicles on pipeline rights-of-way, use of FPL right-of-way for pedway/greenway, and need for cleaner fuel.

Doug Sphar stated he lives within two miles of the southern terminus of Buccaneer's Oleander lateral; Buccaneer claims to be meeting the minimum safety pipeline standards, but there is always an opportunity to do better; and that is apparently what the Pasco County people are trying to negotiate. He stated he would be more comfortable if the County brought in experts to make an independent assessment of the matter; and commented on government mandate for the pipeline, County concurrency with the pipeline plans, missing the opportunity to be an intervenor, and safety implications. He advised of a letter to Public Safety Director Jack Parker and Fire Chief Bill Farmer dated April 20, 1999 which points out that on the Oleander site there will be almost six million gallons of number 2 fuel oil in above-ground storage tanks not far from a high capacity natural gas terminal, and inquires whether there is a plan in place to manage a fuel oil or natural gas fire. He stated he got a call from Chief Farmer assuring him that Oleander advised everything is okay; but noted he would feel better if the County did an independent assessment of the issue. He stated Chief Farmer advised the Reliant and FP&L plants incorporate features to assist in the fighting of fuel fires; he requested Chief Farmer verify that Oleander has those features, but has heard nothing from him; and expressed concern about the County's process for identifying and assessing serious safety impacts of industrial and other developments.

Neil Donovan stated his back yard, where high tension wires are located, is where the pipeline will be located; and advised of his background in the petroleum business, experience with pipeline fires, recent propane tank fire which could not be put out, importance of the pipeline, dangers of atomic energy, and dangers of lightning around high tension wires. He stated he moved from other refinery areas because they were dangerous; and if the pipeline is put in, he will have to move. He stated three feet is not deep enough to stop a lightning bolt from hitting the pipeline or stop static electricity from the high tension wires. He commented on the difficulty of extinguishing certain fires; and recommended the Board not make a hasty decision.

Nicki Kisner, representing the Canaveral Groves Homeowners Association, stated they are not opposed to the gas line; she wishes she had access to natural gas; but in light of all the disasters associated with natural gas explosions, the first concern should be safety. She recommended the Board insure as many safety factors as possible be put in place; and expressed concern about ATV activity along the lines.

Clarence Rowe stated advised of hazards of Sea Ray Boats and Oleander Power Plant; stated he supports the gas line coming into the community; he reviewed the information from Pasco County; and recommended the Board hire a law firm with the necessary expertise to deal with the subject. He advised he attended the meeting called by Commissioner Carlson; he questioned the expertise of staff; and the only response was from County Attorney Scott Knox who had 25 years of experience in planning and zoning. He commented on fires, types of pipe, amount of growth, expertise of Buccaneer Pipeline, and hiring experts on the same level to negotiate with Buccaneer.

Commissioner Scarborough stated Mr. Knox suggests hiring outside counsel. County Attorney Scott Knox suggested if the Board does that, it should get an outside counsel with whatever expertise it needs to negotiate.

Mr. Rowe stated he would like to be kept up to date on when the proposal is implemented.

Mr. Kirschenbaum stated life is not without hazards; but all of the safety features that are planned will supply all the safety for the public that is reasonable and necessary. He stated Mr. O'Higgins is a licensed engineer and is able to comment on all the technical issues; their appearance is very preliminary in nature; and nothing they have heard or seen indicates the project is not consistent with the Comprehensive Plan. He stated the agreement in Pasco County telescopes a lot of permitting, developing, and construction issues into an upfront agreement; and Buccaneer is still working on that. He stated when they came before staff over a year ago, they were advised by staff that the first step toward approval was to go before the Board to be found consistent with the Comprehensive Plan; nothing they have heard indicates they are not; and requested, if any Commissioner believes they are inconsistent with any particular element of the Plan, to let Buccaneer know so they can respond. He stated the federal government has preempted most regulations in this area; Buccaneer meets or exceeds all regulations; and the representations that Mr. O'Higgins made about what the County is getting are in the original plan and application. He stated they believe they are entitled to a finding of consistency; no one is disputing that the County needs the pipeline; and they are willing to work with the County in any reasonable way to insure that happens. He stated they are as concerned with safety issues as anyone because they would suffer the liability.

Commissioner Scarborough inquired if Mr. Knox has talked to a law firm, and is this something it could undertake for the County; with Mr. Knox responding only to verify they have the expertise to do the job, but the indication is they could do it for the County. Chairman Higgs inquired what would they undertake; with Mr. Knox responding getting answers to some of the questions that were heard today about whether what the Board is seeing is adequate and if there are any problems or foreseeable problems. Commissioner Scarborough stated the County Attorney of Pasco County came under some criticism because he got out ahead of this without bringing in experts at the front it, and now there is some concern that he did not act prudently. Mr. Knox stated he does not know what questions to ask, but maybe the Pasco County Attorney does.

Commissioner Voltz inquired if the other things the Board wants to address has anything to do with the findings of consistency, and can the Board issue a finding of consistency and then do the other things. Planning and Zoning Director Mel Scott advised in the Board's endeavor to determine whether or not this is minimizing adverse environmental impacts and maximizing economic and social benefits, as stated in Policy 2.4, and if it believes that certain items of importance would insure that the product is being delivered, then the Board may want to do things to further insure that Buccaneer is being consistent with Policy 2.4. Commissioner Voltz inquired about the order of events; with Mr. Scott responding it is up to the Board to decide. Commissioner Carlson stated this is the opportunity the Board has to do what it can to maximize economic and social benefits and minimize adverse environmental impacts. Commissioner Voltz stated the perception is that meeting minimum standards means Buccaneer is not doing all that it could do.

Commissioner O'Brien stated he does not want the audience to think there is a real potential for disaster; and commented on natural gas fires and containment of fumes. He stated a suggestion was made that wherever the pipeline is located, a greenway/pedway could be constructed on the top of it; and he hopes Buccaneer can work with the County in achieving that. He stated going to four feet in depth in certain areas would be important; it is a safety issue; in many areas there is very sandy soil; and he is afraid the coquina underneath could start to cause problems. He stated he would like to know if Buccaneer will be using galvanic action, low voltage systems to prevent rust and corrosion, and if the company is willing to give emergency response training to the County's hazardous materials response team and insure the necessary personnel to repair the gas line are no further than a maximum two-hour response time. He stated the Comprehensive Plan question is still up in the air; and Buccaneer will have to deal with the County's law firm to see what it will be required to do for the County.

Commissioner Voltz inquired if there is a question of fire, why would vegetation be put on top of the pipeline; and stated she disagrees with putting pedways on top of the pipeline because that is potentially a dangerous situation. She advised of an attempt to put a soccer field on top of an old garbage dump; and stated she is not sure having a pedway is a good idea.

Chairman Higgs stated Mr. Knox's memo says, "any room left over by the federal government for local regulations has been fully occupied by the State"; and inquired if the Board has any regulatory authority regarding construction of the pipeline, or is this the one point where the Board can interface with this. Mr. Knox advised this is the Board's one shot at interfacing with the permitting process, although it could possibly intervene in the pending permit application under certain circumstances. He stated the federal government has preempted regulation in this area, but opened the door by saying the company has to get a determination of consistency with the Comprehensive Plan, so this is the Board's chance.

Commissioner Carlson inquired if it is prudent for the Board to get an outside advisor and begin creating the agreement with Buccaneer; with Mr. Knox responding that is his recommendation. Mr. Knox noted he has no idea what questions to ask to determine whether there will be adverse impact from the construction of this pipeline; it is not something he has done before; and the Board needs someone to look at that issue to help it decide whether there will be any adverse impacts.

Commissioner O'Brien inquired if it would be prudent today to continue this item so the Board can hire a law firm, and then enter into negotiations; and stated if the Board agrees today they are in compliance with the Comprehensive Plan, Buccaneer can come in the morning with the site plan and pull permits, and the Board's ability to negotiate would be gone. Mr. Knox advised this is the Board's only chance.

Commissioner Voltz inquired about an incomplete statement on page 7 of the staff report; with Mr. Scott advising of the complete statement. Mr. Scott stated when the pipeline goes into some of the existing power plant facilities that are classified as a land use, it would be subject to County permitting and site plan review requirements.

Commissioner Scarborough stated he has met with representatives of Buccaneer, and they have met with the community; when he saw a copy of the Pasco County agreement, he realized there were safety concerns the Board had not discussed; he brought it up at the next meeting, and everyone agreed to the need to look at the Pasco County agreement; and that is how it evolved. He stated the Board needs to defer action because there are safety concerns.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to continue the consideration of the request of Buccaneer Pipeline for Comprehensive Plan consistency review to October 17, 2000; and authorize the hiring of outside counsel and any other necessary experts to expedite the process of developing an agreement with Buccaneer Pipeline Company. Motion carried and ordered unanimously.

Commissioner Scarborough requested Mr. Knox report back at the next meeting on the hiring of the experts.

CONSIDERATION, RE: ADOPTION OF PROPOSED CHARTER AMENDMENTS

Maureen Rupe stated Section 7.3.2 states, "amendment to the Charter not inconsistent with the State Constitution or General Law may be proposed by a petition"; Section 7.3.3 requires the Board to cause any Charter amendment proposed under Section 7.3.1 or 7.3.2 to be submitted to the electors for their approval; if the Board looks at the petition of the Home Rule Charter Committee concerning changes to Sections 7.3.2 and 7.3.3, the lines "not inconsistent with the State Constitution or with General Law" is to be removed; the deletion removes the only section that gives the Board the authority to review Charter amendments against inconsistencies with the State Constitution or General Law; and the added sentence does not give the Board back the authority to review the inconsistency. She stated it is not illegal to make this proposal; but recommended adding, "removed Board Charter amendment review for consistency with State and General Law" to the ballot summary. She stated if the review process amendment the Board is putting on the ballot fails, and this one passes, then all the amendments after this by petition will automatically go to ballot with no review; and if they pass, it will probably be up to a member of the public to bring up a court case. She stated it appears they are taking away the Board's review.

County Attorney Scott Knox stated he does not agree with what Ms. Rupe is saying; and it says, "Since the Charter does not provide the Board or the petitioner with an avenue to determine whether proposed amendments are consistent with the State Constitution or General Law, the proposed amendment will be governed by Sections 1.3 and 1.6 of this Charter . . . ." Ms. Rupe stated Sections 1.3 and 1.6 do not give authority to review; with Mr. Knox responding the amendment does not take it away because the Charter does not provide a mechanism now. Mr. Knox read aloud Section 1.6; stated what they have done is take it out of one sentence and put it in another; and if it takes effect, it will become part of the Charter, which cannot be construed in a manner that is inconsistent with General Law. Ms. Rupe inquired if the review process fails the ballot, will the Board still be able to review; with Mr. Knox responding yes, because it would be a requirement even if it was removed entirely. Ms. Rupe stated the petitioners think that by taking that out and inserting the other language, they have taken away from the Board the right to review any amendments by petition; with Mr. Knox responding if that was the intent, they should have said the Board shall have no authority to review proposed Charter amendments, but they did not say that.

Discussion ensued on the proposed amendment.

Barbara Jagrowski stated she is going to address the proposed amendment concerning the Commissioners' salaries. She stated the ballot summary says, "effective December 31, 1999, and to allow yearly, by ordinance, increases not to exceed the average percentage . . . ." She stated the full text says, "on or before October 1 of 2001, and on or before October 1 of every even numbered year thereafter, the Board of County Commissioners may adopt an ordinance affixing the salary of Commissioners for the next two years"; and that is not consistent with what the ballot says. Chairman Higgs stated it is not consistent; with Mr. Knox advising the question is whether it is misleading. Ms. Jagrowski stated it is misleading; but she agrees with putting it on the ballot.

Discussion ensued on rejecting the amendment, putting it in with a change, ambiguous ballot summary, and changing the word "yearly" to "biannually."

Commissioner Carlson inquired if there is another interpretation that could be made for "yearly," in that the Board is just looking at the potential yearly increases, and then every two years the individual yearly increases are considered. Commissioner Voltz stated the Board does not know what the CPI is going to be every two years, so how could it be set ahead of time.

Commissioner Carlson stated she is not talking about setting it ahead of time. Mr. Knox stated it could be read to say, "to allow yearly, by ordinance, increases not to exceed . . ."; and instead of actually adopting an ordinance every year, the Board can provide in the ordinance that there are yearly increases not to exceed a certain level. Mr. Knox stated the ordinance could provide for yearly increases; with Commissioner Carlson advising the Board would only set it every two years. Mr. Knox stated to make it clear it should be, "to allow yearly, by ordinance, . . ."; and that may be what was intended. Commissioner Scarborough stated to do that the Board has to reject the whole thing and then adopt its own amendment. Mr. Knox stated the Board can reject it, but it could probably be put under the heading of scrivener's error.

Discussion ensued on whether to reject the amendment and offer a substitute.

Mr. Knox stated it may be safer to reject and offer a substitute, because if it is read without the commas, it could be misleading, but with the commas, it is pretty clear.

Commissioner Carlson inquired if anyone has checked the original petition to make sure the commas are not there before the Board takes action; with Mr. Knox responding he will check during the next recess.

Commissioner Scarborough inquired if the Board rejects it, will it have to come back in the form of a resolution at the next meeting; with Mr. Knox responding no, the Board would just be changing the resolution to include the two commas because it is the same otherwise. Commissioner O'Brien stated he is surprised that 15,000 people signed it, but did not catch that. Ms. Jagrowski stated they only saw the summary, and did not see the second part.

Ms. Jagrowski inquired if there is a ballot number three concerning the panel to review to reduce the total number of signatures required on a petition from 5% to 4%. She stated that is also in the other ballot proposal, and there cannot be more than one item unless they are compatible. Mr. Knox stated it is the Commission-sponsored version of 7.3.2; and the intent was to make the amendment consistent with the other amendment, if they pass. Commissioner Carlson stated if the Commission version passes, there will be a panel to review petitions for consistency; but with the other one there is no review. Mr. Knox stated if they both passed with one version at 4% and the other at 5%, they would both be ineffective. Ms. Jagrowski suggested dropping the 5% since it is already being voted upon in the second amendment; with Mr. Knox responding the Board has to put the Committee version on.

The meeting recessed at 3:38 p.m. and reconvened at 3:57 p.m.

Mr. Knox stated he checked the ballot language on the petition, and it is exactly what the Board has before it; and after having read it again, the word "yearly" has to come out of it altogether. He stated if the Board talks about yearly increases, it conflicts with the provision that says there cannot be automatic increases because they are only set every two years; and the way to make the ballot summary read consistent with the amendment is to remove the word "yearly." Commissioner Voltz inquired if the Board has to reject it and do its own, or can it just remove the one word. Mr. Knox stated the Board has to reject their version of it, and remove the word in the Board's version. Chairman Higgs stated the text of the amendment talks about every two years; and inquired if the average percentage of employee increases and the Consumer Price Index are being calculated every two years. Mr. Knox stated that would be left to the Board when it adopts the ordinance. Commissioner Voltz stated the Board does not know what it is going to be; and inquired how the Board can set it two years in advance. Chairman Higgs inquired how would the Board allow for the average percentage increase as well as the CPI when it is being done in advance. Commissioner Voltz stated the Board could always come down when it actually sets the salary. Commissioner Carlson stated the Board already has its version of a salary amendment. Chairman Higgs stated the Board pulled it off because it thought it would have the other amendment. Commissioner Carlson stated the Supervisor of Elections may not know that because it is included in the expected amendments.

Motion by Commissioner Scarborough, to reject the Home Rule Charter Committee's proposed amendment relating to Commission salaries, and adopt Resolution for a referendum on Commission salaries, with the ballot summary language, "allow on even numbered years by ordinance."

Commissioner Voltz inquired if that substantially changes the intent; with Chairman Higgs responding it does not change the text at all. Mr. Knox inquired about the specific change; with Commissioner Scarborough responding he wants to strike "yearly" in the ballot language, and insert, "therefore on even numbered years." Commissioner Scarborough stated those are the words that were used, and to the greatest extent possible the electorate should be informed what could happen; and the intent is to move forward with what the Home Rule Charter Committee tried to bring forward in a legal fashion.

Commissioner Carlson inquired what is the legal basis to reject it; with Mr. Knox responding it is inconsistent with General Law because the ballot language does not apprise the voter of what the amendment does. Commissioner Carlson stated with the language change, the Board can consider an increase ever two years. Commissioner Scarborough stated he does not want to tamper with the Home Rule Charter Committee's thought, but the ballot language has to be consistent with what is being enacted. Commissioner Carlson inquired if the increase is reflective of the two years, or just the year it is made. Commissioner Scarborough stated the Committee did not address that. Chairman Higgs read, "shall not exceed the average increase in the salaries of County employees for the fiscal year just concluded or the percentage change of the CPI from the previous year, whichever is less." She noted there is some difficulty in that it talks about fiscal year and year. Commissioner Scarborough stated the Committee got the signatures, and the Board should bring this to a conclusion.

Chairman Higgs seconded the motion. Motion carried and ordered. Commissioners Scarborough, Higgs, Carlson and Voltz voted aye; Commissioner O'Brien voted nay.

Chairman Higgs stated the other proposed amendments are on the petitions and on the 4% to 5%.

Commissioner Scarborough stated fundamental to government is deferring to the higher law; any time he is given a decision and there is an inconsistency, he has to go to the higher law, so regardless of what the Charter says, if it is inconsistent with the higher law, he has to make his decision based on the higher law; and therefore nothing has to be written. He stated he has no problem with what is presented.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to adopt Resolution calling for referendum to change the required number of petitions to be signed from 5% to 4% and require proposed amendments to be placed on the next Countywide election.

Commissioner Scarborough stated they have struck the words "not inconsistent with State Constitution or General Law"; but it does not need to be there because it is already part of the general legal concept. Commissioner Voltz stated it does not say on the ballot summary that is being removed, so somebody voting will not know what he or she is doing. Commissioner Scarborough stated it is irrelevant because the concept is still there. Commissioner Carlson stated Section 1.6 is included; with Commissioner Voltz advising the voters will not see it.

Commissioner O'Brien stated he hopes the public realizes if they vote in favor of this amendment, amendments can be put on any kind of election that is nearest to when the question is put out; originally it was in the General Election; he wants the most voices to be heard when there is a Charter amendment; and this allows a very small group of people who go to vote to start controlling the Charter.

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

Chairman Higgs inquired if action is needed on the final amendment to establish the review panel.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt a Resolution calling for referendum to provide for review of petition-initiated Charter amendments and reduce the number of signatures required to place a petition on the ballot from 5% to 4%. Motion carried and ordered unanimously.

RESOLUTION, RE: TAX ABATEMENT APPLICATION FOR MSI OF CENTRAL FLORIDA, INC.

Ann Coburn expressed concern about the number abatements the Board has granted; advised that Florida TODAY newspaper had a chart showing how few of the companies that had received abatements had lived up to their promises; and requested the Board tighten up the formula and obtain compensation for the abatement from any companies that do not live up to their agreement. She requested at each of the hearings the public be given a total number and figure of abatements granted by the County in the previous 12 months.

Commissioner O'Brien inquired if Ms. Coburn voted for the abatement referendum in 1994; with Ms. Coburn responding she was not here at that time. Commissioner O'Brien stated the people of the County have said through the referendum that they favor tax abatements for corporations. Ms. Coburn stated the people are fed up with hearing abatement after abatement; and it may be time for another referendum. Commissioner Scarborough stated wages for County employees are being increased by 10% this year, but there is the highest level of attrition because there are a lot of jobs out there; the question is not just numbers but quality of jobs; and it may be good to look at the whole formula. Commissioner O'Brien inquired what is done about firms that do not live up to their expectations. Economic Development Director Greg Lugar advised they monitor the companies that have received tax abatements on an annual basis, and ask for the substantiating information on number of jobs and wages. He advised approximately one month ago the Board rescinded abatements for 11 companies as those companies did not move to Brevard County, expanded, or maintained their job levels. Commissioner Voltz stated that means they paid the taxes they normally would have paid. Mr. Lugar advised they were placed back on the tax roll. Commissioner O'Brien inquired if they are back-charged for any taxes they were abated; with Mr. Lugar responding in two cases that was done last year, but none this year because when they received their abatements, they were meeting their requirements.

Clarence Rowe requested the Board put a moratorium on tax abatements, and instruct staff to find out the figures and the levels of pay that are being gained for the tax incentives. He commented on tax abatements for companies paying minimum wage, need for training, and formula for average salary. He stated a tighter, better program is needed that will bring in quality jobs.

Commissioner O'Brien inquired if Mr. Rowe voted for or against the tax abatement referendum in 1994; with Mr. Rowe responding he is against it the way it is being handled now. Commissioner O'Brien reiterated his question; with Mr. Rowe responding he voted against it. Commissioner O'Brien inquired if Mr. Lugar has any answers for Mr. Rowe's questions; with County Manager Tom Jenkins advising the issue will be put on the Agenda for September 26, 2000.

Chairman Higgs stated although she has not voted for the abatements in recent months, the Board has discussed the issue and tried to come up with different formulas a number of times; and it was approved in a public referendum.

Commissioner Voltz stated MSI of Central Florida, Inc. is going to hire 34 new employees with salaries averaging $30,471 annually.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to adopt a Resolution qualifying MSI of Central Florida, Inc. as an eligible business under the County's Tax Abatement Program, and authorizing a public hearing to consider adoption of an exemption ordinance. Motion carried and ordered. Commissioners Scarborough, O'Brien, Carlson, and Voltz voted aye; Commissioner Higgs voted nay.

CONSIDERATION OF ABATEMENT OF ENFORCEMENT, AMENDMENT, OR REPEAL OF ORDINANCE NO 83-28, RE: LAKE WASHINGTON COMPREHENSIVE REGULATIONS Phillip Jarvis, representing Burgoon Berger Construction Company, requested his statement be deferred until after Board discussion. Chairman Higgs requested Mr. Jarvis advise the Board what has transpired and what is desired. Mr. Jarvis stated they are asking for a waiver of the Lake Washington Ordinance 83-28, Section 1(b)(2), (c), and (d). He stated the Ordinance calls for a finished floor elevation on a single-family residence of 22.5 feet above mean sea level; and they are looking for a waiver to allow 21 feet, as well as a waiver of 2 feet, 2 inches on the bottom of the drain field height for the septic system, which would then be located at 18 feet, 4 inches instead of 20 feet, 6 inches. He stated there is also a portion that calls for a 50-foot rear setback from a water access; and they are looking for a revision to 30 feet. He stated what comes before the Board is the Ordinance; they have researched and looked at properties east and west of the subject property, and found that the existing homes, even those built since 1983, do not meet the Ordinance criteria; and they are not sure why those were allowed waivers and they were not. He stated the request is to abate enforcement of the Lake Washington Ordinance, consider amendment or modification of that Ordinance, or provide an alternative direction.

Cheryl Dunn, Environmental Health Services, stated she has a diagram to help the Commissioners; they did more research after meeting with Commissioner Carlson including contacting St. Johns River Water Management District; and they discovered that the ten-year flood elevation is basically the road elevation in that area, at approximately 18.4 feet mean sea level. She noted the center point of the road is at 18.5 inches; they were unable to get the true history on the Ordinance because those persons who wrote it are no longer with the County; but she believes the intent was to keep the bottom of the drain field two feet above the ten-year flood level. She stated the information that was presented by Mr. Jarvis claims he will put a drain field header at 18.4 or 18.5 which is the road elevation and the ten-year flood elevation in that area. She stated the picture she submitted based on the engineer's submittal to her office shows where they want to place the drain field in relationship to the road; and that is actually 18 inches below the road for the top of the header, which places it in the area of the ten-year flood elevation. She stated the Lake Washington Ordinance calls for the bottom of the drain field to be placed 24 inches above the road.

Chairman Higgs inquired if the issue staff is dealing with is in regard to the septic system; with Ms. Dunn responding that is correct. Ms. Dunn stated her office has adhered to the required elevation throughout the Lake Washington area. Chairman Higgs stated the other issues will be addressed with other staff members. Ms. Dunn stated the Ordinance is not codified, but is still enforceable; and other portions of the Ordinance, such as the finished floor elevation and the setback requirements are the responsibility of other Departments. Chairman Higgs stated the ten-year floodplain is under a separate Ordinance. Ms. Dunn stated the distance of the canal to the Melbourne Water Treatment Plant is approximately one mile; and there are 32 homes built at this time on approximately 108 lots. Chairman Higgs requested Mr. Jarvis clarify his request.

Mr. Jarvis stated there is some clarification in terminology; Ms. Dunn is stating top of the header and bottom of the drain field; but the Ordinance states, "the bottom of the required drain field gravel for either the trench or absorption bed shall be placed at least twenty and one-half feet above mean sea level, which has been established as the ten-year flood elevation for the subject area." He stated they are asking for a waiver of 2 feet, 2 inches on the drain field height, which is the bottom of the drain field; instead of being 20 feet, 6 inches, they are looking for the bottom of that to be 18 feet, 4 inches. He stated the top of the header is approximately 14 inches higher than that, and would be located at approximately 19 feet, 6 inches, so there are some differences. He stated the terminology is there and is clear if you have an idea of what you are looking at, because the bottom of the drain field is set at one level and the top of the header is set at another level, and that is the pipe that comes into the septic system. Ms. Dunn stated where Mr. Jarvis is placing the drain field has been revised since the data was submitted to her office, and that was not provided to her. Mr. Jarvis stated they submitted a letter on August 8, 2000 with a revised survey of July 31, 2000. Ms. Dunn stated they did not submit the septic tank data to reestablish the elevations by the engineer; with Mr. Jarvis admitting he did not. Mr. Jarvis stated that was submitted by the engineer due to a typographical error on the original survey; and the information Ms. Dunn got was invalid because it was taken from an incorrect survey. Chairman Higgs inquired if the information the Board has is incorrect; with Mr. Jarvis responding the information according to the Agenda Report is correct, accurate, and up to date, but the information that Ms. Dunn has is old and invalid. Chairman Higgs advised Ms. Dunn provided the information to the Board. Ms. Dunn stated Mr. Jarvis wants to put the top of the header of the drain field even with the road which is at the ten-year flood elevation; with Mr. Jarvis disagreeing. Ms. Dunn stated Mr. Jarvis wants to put the bottom of the drain field even with the ten-year flood elevation. Chairman Higgs inquired why would the Board want them to do that. Commissioner Carlson stated her concern is environmental impacts and misinformation; and recommended reassessing the whole Ordinance. Ms. Dunn stated the Ordinance does not allow for a waiver from this provision; that is part of the problem the Board may wish to readdress; and that is why they went for abatement, not a waiver. Chairman Higgs inquired when septic systems are sited any place else, what is the elevation; with Ms. Dunn responding there is not a set elevation, but a 24-inch separation from the seasonal high water table is required. Chairman Higgs inquired where is the seasonal high water table in relationship to the 18.5 msl. Ms. Dunn responded it is 30 inches below the lot; and it was not set by the Department of Environmental Health, but was established by the engineer for the construction company. Chairman Higgs inquired if it would be necessary to know where it would be set before the County could look at this. Commissioner Carlson inquired what would Ms. Dunn recommend; with Ms. Dunn responding after finding out where the flood elevation was in the area and how other homes were set, she is comfortable with the requirement of the elevation above the seasonal high water table. Chairman Higgs stated there is not that provision in the Code; with Ms. Dunn responding there is no provision for waiver as the Code is, but the Board may want to look at allowing conditions for waiver. Commissioner Carlson inquired if Ms. Dunn has a problem with the two feet the applicant is talking about, or does the Board need to reassess the Ordinance and the area. Ms. Dunn stated with the ten-year floodplain at the same level as the road, she is comfortable with the two-foot separation that the Code requires for that area. Assistant County Manager Peggy Busacca inquired if there were waiver provisions in the Ordinance, would Ms. Dunn be comfortable recommending that; with Ms. Dunn responding not in this case because of the ten-year flood elevation. Chairman Higgs inquired if there is a provision in the Ordinance on the ten-year floodplain that requires certain things, and would that supercede the Lake Washington Ordinance. Assistant County Manager Steve Peffer responded there is a Floodplain Protection Ordinance, but he cannot advise if there are conflicting provisions.

Motion by Commissioner Carlson, seconded Commissioner Voltz, to table consideration of abatement of enforcement, amendment, or repeal of Ordinance No 83-28, Lake Washington Comprehensive Regulations, to September 26, 2000. Motion carried and ordered unanimously.

PERMISSION TO SUBMIT, RE: 2001 LEGISLATIVE REQUESTS TO LOCAL DELEGATION

Commissioner Scarborough stated the Florida Association of Counties brought up the solid waste issue, and Representative Randy Ball has been working on it in Tallahassee; Mr. Lugar got some language that he thinks can work in Tallahassee; and inquired if the Commissioners received a copy of that; with Legislative Affairs Director Greg Lugar responding it was distributed. Commissioner Scarborough stated he would like that included in the 2001 Legislative Requests; and Mr. Jenkins has suggested including request for funding for SERPL. County Manager Tom Jenkins advised NASA would be asking for $16 million. Commissioner Scarborough stated he would like those two items included.

Commissioner O'Brien stated there is an item about keeping what few rights the County has for billboards; but the real problem is there are billboards inside urban areas because they are along State highways. He commented on billboards on SR 520, SR 3, and SR 528; and stated legislation is needed to give local governments some relief and to allow them to remove billboards in urban areas. He commented on a billboard constructed in an alley. He request an item be included in the Legislative Requests to provide relief from billboards placed along State roads. Commissioner Voltz stated the legislation will do that. Commissioner O'Brien stated the legislation only says oppose legislation that impairs or reduces our authority; and on this issue the local government has no authority at all. He stated he wants legislation to give authority to local government to regulate billboards within the geographic boundaries when they are along State highways, and in urban areas.

Commissioner Scarborough stated he agrees; and recommended moving forward with it. He stated he got something from Barbara Jagrowski concerning Scenic American Highways; there are groups that are interested in these things; and the Board needs to touch base with them.

Commissioner O'Brien commented on Jacksonville and Orlando winning the battle to rid themselves of visual blight; and he hopes the Board will find a way to substantially reduce the visual blight.

Commissioner O'Brien stated the Board is requesting funding for a new health department facility, drug court services, juvenile assessment center, and veterans transitional facility; but there are insufficient women's shelters. He stated the Sheriff has said one of the largest problems in the County is not juveniles, but domestic violence; and with that there are women who have no place to go because the shelters are full or incapable of hiding a wife and children from a batterer. He recommended requesting funding this year and every year until there are sufficient women's shelters. He suggested building a place to hold six to eight families and leasing it to Salvation Army for $1 a year and letting the group operate the shelter.

Commissioner Voltz stated she has a meeting next week with representatives of the Department of Children and Families regarding an addiction receiving facility, which the County does not have; she will be working to get some sort of facility in the County; and recommended the request be included in the Legislative package.

Chairman Higgs stated if the Board adds the issues that have been brought up, it will need further description and estimates of cost.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve the Legislative Package; approve including the solid waste issue, urban relief on billboards, funding for SERPL, domestic violence shelters, and receiving facilities for juveniles in the Package; and direct staff to research further descriptions and estimates of cost. Motion carried and ordered unanimously.

Commissioner Scarborough stated last year the County was very successful with SERPL because there was support from other counties; Mr. Jenkins has information on the issue; and requested Mr. Jenkins put that information together and prepare a letter from the Chairman to all adjoining counties to request support for SERPL.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to direct the County Manager to put together information and prepare a letter for the Chairman's signature to all adjoining counties requesting their support for SERPL. Motion carried and ordered unanimously.

Commissioner Scarborough commented on the Space Center, Space Station, and research facility; and stated it is a tremendous opportunity.

APPOINTMENTS, RE: LOCAL HEALTH COUNCIL OF EAST CENTRAL FLORIDA

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to appoint Robert A. Klaus as non-governmental elderly consumer, and Brian Lynch as health care provider, to the Local Health Council of East Central Florida, with terms expiring October 1, 2002. Motion carried and ordered unanimously.

Chairman Higgs stated for the health care consumer representative, there are several nominations; and inquired how the Board would like to deal with it. Commissioner Voltz recommended Dianne Marcum be appointed.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to appoint Dianne Marcum as health care consumer, to the Local Health Council of East Central Florida, with term expiring October 1, 2002. Motion carried and ordered unanimously.

County Manager Tom Jenkins stated it would be appropriate to send letters to the other applicants thanking them for their interest.

PERSONAL APPEARANCE - MARLENE WATERS, RE: ADHERENCE TO TERMS OF COUNTY'S CONTRACT WITH OLEANDER AND REQUEST FOR OUTSIDE COUNSEL

Marlene Waters submitted paperwork; and stated at the August 29, 2000 meeting, there was discussion about an appeal to the site plan approval; and the County Attorney stated that was the best way to deal with this and get rid of the problem once and for all. She stated she is not sure what he meant by the problem, but she thinks the contract is the problem. She stated she is not a lawyer, and everything she will say comes from a book and she has the pages to show the Board. She stated the problem is the contract; a lot of the issues are separate from the site plan approval; the contract is being treated as a development agreement; but she recently found out it is a contract. She stated the Settlement Agreement says, "the owner is authorized to build the facility pursuant to the site plan as amended by this agreement without the need to obtain any rezoning or conditional use permits from the County"; and the core of the contract is to allow Oleander to go under the rules of December 14, 1998 without a rezoning or CUP, and Oleander will drop two lawsuits in return. She stated page 2 discusses development agreements and the Florida Statutes; the first paragraph says, "local governments' laws and policies governing the development of the land at the time of the execution of the development agreement shall govern the development of the land for the duration of the development agreement"; and that means whatever laws are on the books at the time the agreement is entered into, stay with the agreement for the duration. She stated page 3 shows it is not a development agreement because there were no proper hearings or notices, and there was a moratorium on the development of power plants. She stated it could not have been a development agreement; and it was an agreement to settle a lawsuit. She stated page 4 is a letter from one of Oleander's lawyers which says it is a binding contract; and page 6 is a letter from County Attorney Scott Knox that says the agreement is nothing more than a contract. She stated she started looking in various business law books and on the Internet under contract law; and she found several things that were disturbing. Ms. Waters stated page 7 says, "All promises are not legally enforceable. Some types of agreements do not qualify as contracts while others legally fail because the parties did not observe some rule of contract law"; and it provides the elements of a contract. She stated page 8 also gives the elements of a contract; and pointed out they include lawful subject matter and mutuality of agreement. She stated the second page of the letter from Attorney Gregory Marks says the Agreement gives Oleander the right to construct; the County entered into the contract and has to interpret what it means; but Oleander thinks it gives them total right to construct. She stated she thinks it gives them the right to construct under the old rules with various provisions. She stated page 9 says, "the parties to an agreement may have met every other requirement for a valid contract, but their agreement is unenforceable if either its formation or its performance is illegal or contrary to the public interest"; and the moratorium and the laws that were enacted on the same day that the contract was entered into were for the public interest. She stated the moratorium said it was not in the public interest or for the welfare of the people to build a power plant without making new laws; the site plan was held up; and the Board made laws that made power plants a heavy industry that would not be allowed in light industrial any more and would require a CUP if they were a Title 5 source of pollution. She stated the new laws have made the contract no longer legal and valid; it is not a development agreement, but a contract; and whatever is being agreed to has to be legal. She stated page 10 says, "the public interest is best served when public officials fully and faithfully perform their duties"; and it should come as no surprise then that agreements that induce public servants to deviate from their duty are illegal. She advised of discussion with Planning and Zoning Director Mel Scott concerning structures in the buffers; and stated having structures in the buffers does not seem like the legal thing to do. She stated Mr. Knox said six months ago that they would have to have a public interest review; but when they discussed it, he reversed his position because the change involves wetlands, and the new rules would kick in for the wetlands. She stated she inquired why new rules would not apply for the other thing, and advised of comments made concerning the new rules. She stated until now, all the decisions and interpretations have been made by staff or the County Attorney; but the Board is the party to the contract, and has to know the intent, the interpretation, and how to answer the appeals. Ms. Waters stated page 11 says, "an agreement whose object is contrary to common law, constitutional law, statute, or public policy is illegal and unenforceable." She stated the reason she is repeating this so much is because she wants the Board to know she did not get this from just one source. She stated page 12 says, "if either the subject matter or consideration of a contract is illegal, the contract is void as a matter of public policy"; and page 13, which deals with intervening illegality, says, "if a statute or government regulation enacted after a contract's creation makes performance of a party's contractual duties illegal, the promisor is excused from performing." She stated allowing Oleander to build without a CUP or allowing them to build in light industrial classification is no longer legal in the County Codes. She stated page 14 says, "Contracts must have and must continue to have a legal purpose or they are void. Some contracts were originally valid but became invalid by reason of a change in the law or the effects the law places on some future event"; it also says, "Public policy changes, and what was once lawful may now be unlawful"; and advised of an example. She stated legal consideration has to be something more than what they are required to do; one paragraph in the Stipulated Settlement Agreement agrees to limit height structure to sixty feet, but that is what is required in Code, so it cannot be a legal consideration. Ms. Waters read aloud from page 15, "consideration can have legal value in one of two ways; if the promisee agrees to do something he or she had no prior legal duty to do in exchange for the promisor's promise, that provides legal value." She stated page 16 deals with misrepresentation; and read aloud, "The basic idea of misrepresentation is that one of the parties to a contract created in the mind of the other party a mistaken impression about an important fact or facts about the subject of the contract." She stated page 17 is a copy of an option to one of the main pieces of property entered into in December, 1997; Land Development Director Bruce Moia admitted that there was a lapse in the option; and the document shows an effective date of April 28, 1999. She stated the seller signed the document on April 28, 1999, but the buyer, which is Constellation Power Development, Inc., did not sign the document until May 10, 1999; and common sense tells her the contract cannot be effective until both parties have signed. She stated they did not sign until May 10, but they are saying it was effective April 28, and that is the problem; and it also says the option has an initial term that terminates on December 11, 1998, five months prior to the supposed effective date. She stated they are trying to make the County believe they had a valid option in the time frame from the time they submitted the site plan through May; and advised of a vested rights hearing.

Chairman Higgs stated there is a formal petition to bring the item to the Board; with Commissioner Carlson responding that is right. Commissioner Carlson stated it was submitted by the Port St. John Homeowners Association, and is dated September 5, 2000. Commissioner Scarborough inquired if there are any other parties; with Commissioner Carlson reading aloud the petition. Commissioner Scarborough inquired if there have been other petitions; with County Attorney Scott Knox responding he has not seen any. Commissioner Scarborough stated there were a number of people with a number of different issues; and he is surprised this is the only petition the Board received.

Bob Waters requested the Board look for outside counsel on the Oleander contract; stated Oleander Power Project and Constellation represent themselves as two separate entities; and all other documents submitted claim that Oleander is a wholly owned subsidiary of Constellation. He stated State corporate records tell a different story; and Oleander has a sole partner, CP Oleander I, not Constellation. He stated CP Poinsett I changed its name to CP Oleander I; and an affidavit shows the undersigned being the sole general partner of Poinsett Power Limited Partnership. He stated Exhibit B is the signature page of the Stipulated Settlement Agreement with Mr. Wolfinger signing it as Vice President of CP Oleander I; and Exhibit C says Oleander Power Project is a wholly owned subsidiary of Constellation Power Development, Inc. He stated all applications were made by Oleander Power Project, and some indicated it was the contract owner but it appears it was not. He stated Exhibit D is the Moratorium Ordinance which provides, "development permits for power plants for properties within the unincorporated area of Brevard County is not in the best interest of the public's health, safety, and welfare"; and the next page provides that the moratorium can only be terminated by adopting an ordinance. He advised of a lapse in the option from December 11, 1998 to April 11, 1999, which was well into the moratorium; and stated Mr. Moia admitted there was a lapse in one of the options. He read aloud from the agreement to terminate the moratorium; and stated the statements are misleading and the last paragraph concerning ownership of the properties, permitting the owners to construct the facility, and termination of the moratorium is not exactly true. He advised of limitations on Oleander which are included in the Stipulated Settlement Agreement; and advised DEP provides for some of the limitations.

Craig Bock stated he lives within the two-mile fallout of the proposed Oleander Power Plant. He stated the people know they have a problem in the County; there have been over 200 people in the Commission Chambers many times; but now there are only four or five because the others have to work for a living or are senior citizens who cannot wait all day. He stated there are over 1,700 signatures on their petition; and that should have the Board's attention. He stated people are supportive of having a hearing on this issue; but the people go to various officials and are told the Board said this has to be passed. He stated they asked the Board if they had seen a site plan when it made the Stipulated Settlement Agreement; such settlement was made even though Attorney John Harris, representing the people, advised the settlement was illegal because of the moratorium and lack of proper hearing; and staff advised they have to go by these rules because of the Board. He stated the Board says it has not seen the site plan; and inquired if the Board wants to break the Code. He stated when Oleander offered generous buffers, it seemed it was being friendly to the County, but now they can put tanks and other things in the buffers; and Brevard County Code says nothing can go in the buffer. He inquired if the Board would have approved this if it knew things were in the buffer; and is staff present to advise the Board to make a wise decision. He stated the people are advising the Board because the Board has not been able to trust staff to come forward with these things. He stated the statement about "getting rid of the problem once and for all" may refer to him; he was told how he missed a meeting; but he asked for an individual to be at the meeting only because they accepted the site plan. He stated Commissioner Carlson was called by Bob Waters to have a meeting; Commissioner Carlson immediately called staff; staff is in on everything, but no decision is ever made by staff without saying it was someone else's decision; so this is coming back to the Board today, and the Board can ignore it or do the right thing and have outside legal counsel look at it. He stated the Board heard another attorney representing Brevard Citizens Against Pollution say the Agreement is illegal; but the Board still did it. He stated now the Board is looking at a lot of different things, and a lot of different scenarios; and the County Attorney says the final decision rests on the Board. He stated he would not have signed an agreement or site plan he had never seen; but the Board did. He stated he is sure the Board has seen the site plan as it was in the newspaper today showing the movement of the tanks and different things; and it is time for the Board to get outside counsel and represent the people. He stated when all the truth is on the table, and everything is known, then a person can make a good honest decision; and the Bible says the wise man seeks counsel. He stated he does not expect Mr. Knox to be an expert in everything that comes before the Board; he appreciates Mr. Knox saying he knows nothing about gas lines; but he probably does not know anything about power plants either. He stated he is not belittling Mr. Knox; but he cannot be an expert in every area; and requested the Board do the right thing, which is to get outside legal counsel. He stated while Commissioner Scarborough is fighting for gas for his power plant, the Board is permitting an oil burner which probably will not have a gas line in its first year of operation.

Maureen Rupe stated there has been so much controversy surrounding this project, it would be prudent at this time to hire an attorney with expertise in contracts to find out the truth and put this matter to rest.

Mike Stallings, representing Forest Lakes residents, stated Forest Lakes, which is a 246-unit condominium, is still opposed to the power plant. He stated light industrial zoning under the old rules was an additional use for temporary power plants; the County's other power plants were built under this; and he does not understand how a $250 million structure that will be here for 30 years is temporary. He stated there is no other definition in the County that allows temporary to be 25 years; a temporary structure is three years; a temporary power pole is 90 days; and there is nothing that allows a monstrous structure that can be kept forever as a temporary structure. He stated the group has been waiting for the public hearing; the Florida Power Plant Siting Act requires a public hearing, but not for single-cycle turbine; so a public hearing was avoided at the State level. He stated the St. Johns River Water Management District requires a public hearing for someone who wants to drill a well; but a decision was made for the plant to get water from the City of Cocoa, so no public hearing was required. He stated the wetlands requirements call for a public hearing to determine this is in the best interest; but all of a sudden structures were moved without a request from the County; wetlands are not going to be impacted; and so, a public hearing is avoided. He stated it sounds like someone does not want a public hearing.

Ann Coburn advised of the public's distrust of the Board and the County Manager; stated it stems from events detailed in the book, Brevard Good Old Boys; and the incidents that are happening with the Oleander Project are leading to the same distrust. She stated the cause of current distrust does not lie with the Board, but it makes the final decision, and needs to know that the data it is given is true and valid. She stated the Board needs to get consistent opinions from the County Attorney; and only if the Board has these things can it make an informed decision. She stated if the public distrusts the data and legal opinions, it will taint the Board; and the only way to get the facts is to have an independent consultant review everything.

Ed Coburn stated it is clear that the citizens do not see any benefit to having the Oleander Power Plant in the County, and there are a lot of negatives. He stated the public does not want the water polluting and guzzling plant in the County; they have a right to prevent the plant from being built; and if it means going to court, they can get an outside attorney or get the ACLU involved. He stated the County Attorney should be defending the rights of the people, not Oleander's rights.

Leonard Spielvogel, Attorney representing Oleander Power Plant, stated the speakers are the same people with whom he has lived for the last couple of years; there have been numerous public hearings; and he has been before the Board so many times, he does not have anything to tell it. He stated he does agree with Mr. Bock that it has been a long day, and he agrees with Ms. Waters that she is not a lawyer; he does not think there is any intentional misstatement; but there is confusion and lack of understanding. He stated their options did not lapse; they were not recorded contracts, but memoranda of election of options; and there were three options extending over a three-year period, but that is not relevant to the issue today. He stated his client owns the property; and there is no problem with that. He stated the issue is what kind of operation is Oleander going to conduct in the community; and he is surprised that there were only 75 signatures because those seeking to get the signatures scare people. He stated people are frightened and misinformed; people have expressed concerns about emphysema, cancer, and poisoning of children, and those are all buzz words that frighten people; and a disservice has been done to the community by those who have spread that misinformation. He stated before they can generate electricity at Oleander, they will have complied with and obtained permits, approvals, and consents on a federal level from the U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, Federal Aviation Administration and the Federal Energy Regulatory Commission; in Florida they will require six different permits and approvals from the Department of Environmental Protection, three from the Department of Transportation, and permits from the St. Johns River Water Management District. He stated they have dealt with the County, and gotten site plan approval; there have been four different requirements from Land Development; and they had to satisfy 14 different agencies in the County. He stated they also had to deal with Brevard County Environmental Health Services, and the City of Cocoa. He stated no one is corrupt; no one was taken care of; and no one failed to do their job. He stated there is a lot of distrust because the people appearing before the Board did not want to hear the truth; and will never be satisfied unless they hear what they want to hear; short of that there will be discontent with this group; and they will do their best to spread that word. He stated he knows what a conscientious job the staff has done in dealing with this project; and the Board should be proud of it.

Chairman Higgs stated a public hearing is scheduled in response to the petition.

Commissioner Scarborough stated the question was raised about outside counsel; and requested Mr. Knox comment.

County Attorney Scott Knox stated he has been practicing zoning and planning and contract law for 25 years; and he has represented county commissions, city commissions, and various other public bodies for 25 years in that capacity. He stated he knows a good lawsuit when he sees one, and Oleander had a great lawsuit; he recommended a settlement because the County was going to get socked for multi-million dollars that every citizen would have paid a tax bill on; and they settled on terms favorable to the County. He stated there was no ordinance to stop Oleander from coming in; he was hired by the County to shepherd it through legal problems and lawsuits; his office has successfully defended 30 lawsuits; and the County in his seven years has paid $6,500 in judgments, and that was on a $300,000 lawsuit. He stated the County has not paid judgments on a couple of cases that were adverse jury verdicts because they were appealed and beaten on appeal; and he suspects the same thing will happen on the Maxwell case, which is what seems to be precipitating a lot of dissatisfaction. He stated if the Board wants to listen to people who admit they are not lawyers and come up with rules of law that have no application to the current situation, it should go to outside counsel. He stated the Board pays him; he has given his advice; and if the Board goes to outside counsel at this point, the only thing it will get back is that he is correct, or he will find some disagreement about something that will trigger some reaction by people who don't like what has happened. He stated that is going to leave the Board in the position of either going forward with his advice or overruling his advice and trying to undo everything that has been done this far, and that will cost a lot of money.

Commissioner Scarborough inquired when is the hearing; with Mr. Jenkins responding it will have to be advertised, so it will take several weeks. Assistant County Manager Peggy Busacca stated there is a requirement within 30 days, but the Sierra Club is planning to appeal the wetlands issue related to this; she hoped to have one meeting to talk about everything related to Oleander, but staff has not yet received that appeal; and recommended having one meeting to address both issues.

Chairman Higgs stated there have been four or five meetings where this item was on the Agenda. Ms. Busacca advised it was many more than that; and provided a timeline. Chairman Higgs stated the hearing will be a public hearing that may be distinguished from items dealt with today by the type of notice. Mr. Knox stated the Board will be talking about the site plan approval and what is incorporated in the Agreement as it relates to site plan approval; and the site plan itself has the Stipulated Settlement Agreement embodied in it; so whatever is in the Agreement is fair game for discussion at the site plan appeal. Chairman Higgs stated when some people claimed the Board has not had a public hearing, that would be a reference to a legal notice that may have been required. Ms. Busacca stated she counts twelve meetings, thirteen including the tax abatement. Chairman Higgs stated those meetings have been part of a public agenda that is published in advance of the meeting, but does not have to be advertised; and inquired if that is the difference. Mr. Knox stated some of the hearings were in the context of moratorium ordinances which were advertised.

Commissioner Scarborough inquired if a person has an interest in this item, and does not make the request for the hearing, will they have a different standing at the hearing, or does anyone who has a particular point need to file. Mr. Knox stated it would be handled as any appeal; the persons or organizations that are appealing will come forward to make their case as to why the decision was wrong; and then the Board can take other testimony. Commissioner Scarborough inquired if individuals are prejudiced or limited by not filing; with Mr. Knox responding no. Mr. Knox cautioned the appeal he just saw relates to the site plan, but not the wetlands issue. Commissioner Scarborough stated that may be where the Sierra Club is coming from; and the Board has not heard appeals from interested parties that frequently. Mr. Knox stated this is the first site plan approval he has seen go to the Board. Commissioner Scarborough requested Mr. Knox provide a memorandum of how it should proceed.

Mr. Jenkins stated several comments by several speakers have been made about the efforts of the County staff under the County Manager regarding this project; and he takes exception to those comments. He commented on the efforts of staff to answer questions and research and provide information to the public. He stated a wide range of County staff have scrutinized the documents; an Assistant County Manager has personally been involved in assisting and managing the process and discussion; so there has been a high level of County staff involvement and participation. He stated a number of comments have been made about what staff has said previously; staff believes their comments have been misrepresented or misinterpreted by individuals; and some unfair representations have been made about what staff has said or written in the past. Chairman Higgs stated the Board approved the Stipulated Settlement Agreement; it is the Board's responsibility; and staff has tried to implement the law and the Stipulated Settlement Agreement that the Board executed. Chairman Higgs stated the hearing will be held, and the notice will be done as soon as possible. Commissioner Voltz inquired if it will be at an evening meeting; with Chairman Higgs responding she does not know. Mr. Jenkins stated an earlier item was scheduled for the evening meeting, and he would be cautious about putting too many items on one meeting.

PERSONAL APPEARANCE - SARAH AYRES, RE: LAND DEFAMATION

County Manager Tom Jenkins stated Ms. Ayres had to leave, but submitted something in writing, which he will send to the Commissioners. Chairman Higgs stated there are others here to speak on the issue.

Griffin Hill stated he lives diagonally across the street from Sarah Ayres; and advised of the problem of Sarah Ayres and her sister living in an old RV which they pushed into the woods, and which has no utilities, no running water, and no telephone, and smells. He commented on the inability of the County staff to remove the vehicle, ability to assess a fine against the property, compassion at the expense of others, and benefits of residential zoning. He stated it is time for something to be done.

Isabel Grigsby stated she lives next door to Ms. Ayres; and advised of the condition of the Ayres property including garbage on the property and lack of sewer facilities. She stated Ms. Ayres walks on the properties of others flashing a flashlight at their windows; the Zoning Board has been unable to do anything; and requested the Board's help.

Maudie Jane Schecka stated she lives directly across the street from the Ayres; there is an RV on the Ayres property; and advised of the condition of the RV. She stated they do not have sewer, water, or electricity; and advised of incidents with flashlights being shone into car windows. She commented on lack of money, ownership of the property, assessment of fine, and trash on the property; and requested the Board uphold the recommendation of a $25 per day fine so the property will be resold.

Assistant County Manager Peggy Busacca stated the speakers spoke about going to the Code Board; the Special Master had a meeting on September 7, 2000, at which time Ms. Ayres asked for an additional extension to come into compliance; that was denied; and the $25 per day fine has been accruing. She stated there have been two complaints about odors; staff has visited the property, but noted no odor; and when they visited on Monday, they noted there was odor, but the trash had been picked up that afternoon and the odor was from the trash cans. She stated Environmental Health has been on the property to determine what is happening with onsite sewage disposal; the individual could find no evidence of disposal on the property or available facilities; and the mobile home is not connected to anything. She stated Environmental Health can pursue this in more detail, but they have been waiting for the Special Master. County Manager Tom Jenkins stated that should be pursued; and inquired if they do not own the property, who is the fine being assessed against. Ms. Busacca stated the property ownership is in the Sarah Wilgis Trust Estate, so it is accruing against the estate.

Commissioner Voltz inquired if legal help is needed to get the property into their names. Mr. Jenkins noted it is a private legal matter. Commissioner Voltz inquired if they could get help through Legal Aid. County Attorney Scott Knox stated they spoke with the head of Legal Aid, who was willing to help, but the Ayres have not gone down there yet.

Chairman Higgs inquired what happens when someone repeatedly violates the Code. Ms. Busacca stated aside from a fine, an injunction can be pursued in certain circumstances; but she does not know enough about the situation to know how it would work. Mr. Knox stated if it is bad enough, the way to handle it is to try to get them to clean up, and if they do not do it, ask the court to tell them to clean up, which requires an injunction. He noted homestead does not make any difference in terms of keeping property in a sanitary condition or using it in a way that is prohibited by law. Chairman Higgs stated the property appears to not be in compliance with Health Codes; and inquired who enforces that; with Mr. Knox responding the Health Department. Mr. Jenkins reiterated Environmental Health Services needs to follow up on it; and it will soon be the State Health Department as opposed to the County. Chairman Higgs directed Mr. Jenkins to instruct Environmental Health to pursue action. Mr. Jenkins stated the Trustee should also be notified because they will have to pay the fine. Commissioner Carlson inquired how long can the fine be collected; with Ms. Busacca responding the Board has directed no more than 30% of the value of the property, and it maxes out at that.

Discussion ensued on repeat violators, compliance date, and the Ayres declining other housing.

Chairman Higgs requested a report on the environmental health issues.

Mr. Hill stated the RV being on the property is illegal. Chairman Higgs stated the Board will get answers to the questions.

Commissioner O'Brien commented on the fine, the property possibly not belonging to Sarah Ayres, and unfairness to neighbors; and recommended going forward with an injunction now.

Chairman Higgs requested the County Attorney come back with a report at the next meeting on how to proceed with that. Mr. Knox stated if nothing is happening administratively, a suit can be filed to get the judge to enter an order to have them either clean up or vacate. Commissioner O'Brien stated the Board is spinning its wheels. Mr. Jenkins noted there is a legal process the Board has to go through; and it appears there is a tenant and another occupant. Commissioner Scarborough stated the Board also needs to consider the health and safety of the Ayres; and he prefers to proceed with that issue in an injunction.

Commissioner O'Brien advised of a situation on Angel Avenue which took seven years to resolve.

Chairman Higgs requested staff notify the speakers when the issue will be heard again. She stated Commissioner Carlson has a 6:00 p.m. town meeting, and will have to leave.

The meeting recessed at 5:42 p.m. and reconvened at 5:54 p.m.

DISCUSSION, RE: MANATEE PROTECTION PLAN

Gary Haugh, member of Citizens for Florida Waterways(CFW), stated a year ago the Board asked for recommendations for changes to the 1997 Manatee Protection Plan; CFW submitted changes to the plan; and they would like the changes implemented. He commented on the upcoming summit; and stated a plan is not required for that summit. He stated State data shows that the manatee population is increasing; if there is a manatee protection plan, it should not restrict boaters' rights on the waters as well as access to the waters; and commented on crowded conditions at boat ramps.

Sandra Clinger, representing Save the Manatee Club, stated the Board is in an unusual position; it received a letter from the Bureau of Protected Species Management advising it would be moving forward with two sections of the plan, boat speed zones and boat facility siting; but since that time, the Governor has issued statements of concern for manatees and interest in getting plans from key counties. She stated Save the Manatee Club attended a Fish and Wildlife Conservation Commission meeting last week; Fish and Wildlife Conservation Commission staff has gotten approval to come to Brevard County to do boat speed zones; and the Board and citizens could have input at that time. She stated the big decision for the Board is what plan, if any, it will send to the summit. She advised of letters indicating how manatee protection is being handled at the State level without a plan; stated the Governor has said he will not issue additional sovereign leases in counties where manatee plans are not in place; and the memorandum explains how the State is moving forward. She stated if the Board chooses to move forward with boat facility siting in the plan, it should do so in a comprehensive manner including marinas and boat ramps; and if it is not willing to move forward with substantial protection measures for manatees through boat facility criteria, it would be a wasted effort.

Dan Dvorak, board member of Citizens for Florida Waterways, stated there is a feeling the Board will concentrate on education initiatives that are left in the 1997 Manatee Protection Plan; and inquired about the extended schedule. He stated CFW has specific recommendations to make the draft 1997 Plan better; and recommended working together. He stated they heard about a workshop, but it was cancelled; there was supposed to be a meeting, but it was cancelled; and inquired about the format of the meeting.

Gary Rogers, Development Manager for the City of Cocoa, stated approximately one year ago, they were requested to submit comments regarding the manatee plan; and Cocoa and Titusville submitted language regarding Zone B boat siting facility criteria. He stated there were amendments to that criteria and discussion with the Board; they appreciate the support and cooperation they have received so far; and urged the Board to keep the zone language in the interest of economic vitality.

Walter Pine expressed appreciation for the County's response to ADA requirements; stated there are civil rights issues associated with the manatee protection plan; and in terms of "no motor" zones, persons with no arms would have no access to such an area. He commented on the Fish and Wildlife Conservation Commission taking over the manatee protection, request for staff to be given the authority to make decisions on the plan and speed zones without action of the Fish and Wildlife Conservation Commission, and conflict in authority. He stated the Fish and Wildlife Conservation Commission cannot make rules, special acts, or rules of local application; and if it wishes to take authority over the manatee, it must be Statewide. He stated 18 counties are presently working on manatee protection plans, and only Brevard County received the letter. He stated the Fish and Wildlife Conservation Commissioners did not know about the letter until after the fact, but did support it; and advised of things that will be involved that the citizens have a right to comment on. He recommended the County ask for a declaratory statement as to who has authority over this.

Thelma Roper stated she was at the meeting of the Fish and Wildlife Conservation Commission, and heard a lot of things that concerned her including the delegation of authority for approval of the manatee protection zones, which is advising someone to violate the Sunshine Law. She stated in many areas there are technical advances for the manatees, such as tagging them; but now she is being told that it is harassment to catch and tag the manatees. She recommended everyone get the current information on technological advances.

Ron Pritchard, President of Citizens for Florida Waterways, submitted a list of recommendations; stated he was also at the meeting with the Florida Fish and Wildlife Conservation Commission; and he made a presentation at that meeting on the recommendations. He stated they questioned some of the requests; he responded appropriately, and the Commission appeared to be somewhat satisfied; and having them come to the County to work on the plan is a necessity. He stated one recommendation is to evaluate the effectiveness of existing rules and restrictions by a balanced committee; and another is to limit manatee zones where high manatee usage is indicated by aerial surveys, and zones should be defined as up to 500 feet from the shoreline. He stated a 25-mile per hour corridor should be included in waters that have a navigable channel with an average depth of five feet or more; and advised of need to have channels marked. He stated an audit should be conducted using outside Board certified veterinary pathologists to evaluate the conduct of necropsies at the Marine Mammal Patho-biology Laboratory; and explained how they are finding fault with some of the results. He stated the "slow speed minimum wake" signage needs to be replaced with "slow speed no excessive wake," in accordance with the law; and noted the difference in the terms. He stated specific waterway areas need to be designated for water sports, marinas, and boat ramps; and recommended pursuing new technology. He stated tests need to be conducted to determine cause/effect relationships to aid in watercraft-related manatee mortality classifications and establish subcategories. He stated he does not understand why the Board has not supported Whitley Marine; and the Board should be encouraging DEP and discouraging Save the Manatees from filing a frivolous lawsuit to prevent the rebuilding of a marina.

REAL ESTATE OPTION AGREEMENT WITH B. S. HOLLOWAY, RE: ACQUISITION OF PARCEL FOR REGIONAL SPORTS COMPLEX

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to execute Real Estate Option Agreement with B. S. Holloway for a 90-acre parcel adjacent to the North Campus of Brevard Community College, identified as suitable for use as a regional sports complex, at option fee of $8,000. Motion carried and ordered unanimously.

Jerry Sansom, representing the City of Cocoa and Indian Cove Marina, stated the Fish and Wildlife Conservation Commission staff chose to remove a couple of elements from the County's work product and were going to move forward on those items; and in discussion with Brad Hartman, it was made clear that they wanted to separate the issues of marina siting and speed zones because they appeared to be linked to keeping the plan from moving forward. He stated the Fish and Wildlife Conservation Commission wants to move forward with speed zones; and Ms. Clinger advised the Commission is scheduling public hearings on manatee speed zones in the County in the near future. He recommended the County move forward to respond to the request of the Governor to submit a manatee plan; and stated the absence of a manatee plan has shown adverse consequences, and there is the potential for adverse consequences in the foreseeable future if there is no plan. He recommended the Board take the last version of the plan that it approved with amendments, including the urban zone designation, and anything else the Board can come to grips with in a relatively short period of time and move that forward. He stated there does not appear to be much sense in the Board getting bogged down in the speed zone issue, given that the Fish and Wildlife Conservation Commission is going to bog itself down in that issue. He stated Mr. Hartman has indicated there is no problem with the County sending forth a manatee plan that includes the marina siting criteria, but the speed zones were locked up and keeping the plan from going forward. He encouraged the Board to move forward at the next scheduled workshop with those things on which it has already agreed, and send something to the Governor and to Fish and Wildlife Conservation Commission so it will not appear that the County does not care and is being irresponsible.

Chairman Higgs stated at the Cabinet meeting, she heard Mr. Hartman's report and the discussion; and the Governor is committed to getting the plans in place. She stated she had a brief conversation with Mr. Hartman and will be having another one; and the meeting will be on October 19, 2000. Commissioner Voltz inquired if someone is going to be there from the County; with Chairman Higgs advising she does not know who will be invited.

Commissioner Carlson noted she has to leave to get to her town meeting, and would like to state her position on what she would like included in the plan. She stated under habitat protection, she does not have any problem leaving it as is, using the CCMP as the basis; and she would prefer to deal with boat facility siting after the summit, but if not, then the Board should consider putting the siting criteria in the plan or in the CUP format to be evaluated as applied to land use. She stated she does not want to address speed zones; and under manatee education, she would like to ask the Governor to reconsider the dollars for an environmental educator, and if nothing happens there, consider an alternative to an environmental educator to be used in a more global fashion, not just for manatees. She stated she would prefer to deal with law enforcement after the summit because the Governor is committed to getting more law enforcement, and if he does not come through with that commitment, the Board could go back and consider the 1996 recommendations for fees or some other way to get dollars for enforcement on the water. She recommended including the amendments Jerry Sansom talked about and all the amendments the Board previously approved, and send them to the Governor with a cover letter indicating the Board is working on the boat facility siting and education issues, and looks forward to however the State wishes to deal with speed zones.

Commissioner Carlson's absence was noted at this time.

Commissioner Scarborough stated at the last meeting, after the Board found it did not have to deal with speed zones or marina siting, it made considerable progress in getting a consensus; and suggested going through and passing what the Board can. He commented on how little space remains for marinas; and stated he would like to pass some things, then go back to marina siting. He stated the main thing is to have consensus to start passing things; there is a tendency to discuss things upon which there is disagreement; but the Board has gone a long way over the last year, and he would like to see things move forward.

Chairman Higgs stated there have been a number of amendments to the 1997 Manatee Protection Plan that have already passed; and suggested accepting that as the product at this point. She stated there is no reason to revisit speed zones; with Commissioner Scarborough advising the Board cannot go back to speed zones because the Fish and Wildlife Conservation Commission will not let it. Chairman Higgs stated the County should ask the State for additional money for education; in regard to law enforcement the County is funding the Sheriff's Marine Unit, and that should be included in the plan; and the Board should ask for additional money for Marine Patrol. She stated that leaves the one issue of facility siting; and she is happy to put the rest of the plan in place, and then grapple with the siting issue and the CUP issue with some of the criteria that has been identified as being important to manatees. She stated there are marina conditional use permits; and if that is expanded to include criteria, then that issue can be taken care of, and the plan would be ready to go.

Commissioner O'Brien stated the Board should not approach marina siting; and commented on the problem with Whitley's Marina. He stated the letter from Bradley Hartman of April 3, 2000 indicates the development of a marina siting plan is a voluntary effort, and that no permit recommendations will depend on approval of a final manatee protection plan. He recommended leaving the marina siting portion out of the plan; and stated there are probably only four places in the County where a marina can go anyway.

Commissioner Scarborough stated he would like what the Board has agreed on to be done, and if things fall together with siting, that is fine, and if not, it is not mandated. He stated he would like to show how much work has occurred and how far the County has come in reaching agreements on the issues; and the general impression is the County is not making any progress, but it has made progress in reaching consensus on a lot of the issues.

Chairman Higgs suggested a motion be made to approve the items in the 1997 Plan that the Board has already revisited and voted on.

Discussion ensued on delineating the issues already voted on, when to put the issue on the Agenda, accepting the work product, putting the changes in a document for the Board's consideration, package including summary of previous Board actions, including Commissioner Carlson's request for money from the State for education and law enforcement, and marina siting.

Commissioner Scarborough stated the Board has compiled a tremendous amount of data and discussed it in detail; and it should walk away from an opportunity to come up with a better portion of the plan with marina siting, if both sides agree that it can be done.

Commissioner O'Brien stated even if someone wanted to build a marina, it would not happen; and explained the process with U.S. Fish and Wildlife, State agencies, and potential intervenors. He stated the Board does not need to spend more time on it because if anyone was able to get permitted, he or she would deserve it. He distributed an article concerning manatees losing the endangered label.

Chairman Higgs stated there was a thorough report on the issue at the Cabinet meeting, and it was made clear that removing the endangered label from manatees was not the position of the Fish and Wildlife Conservation Commission and there is no intent to make that change.

Commissioner O'Brien stated it was announced in April that they were trying to set a goal, and the number mentioned was 2,500 manatees; and the last count was approximately 2,880, so the increase in population has been dramatic. He stated he does not mind telling the Governor the County has a Sheriff's patrol on the waters; but as long as the County taxes its own citizens and pays for that service, there is less need for the State to fund Florida Marine Patrol for additional officers to do that service. He stated U.S. Fish and Wildlife has put people on the County's waters to support the effort, which is good because it is the County getting its State and federal tax dollars back. He stated various cities like Cocoa Beach and Melbourne also have officers patrolling the speed zones; but when a ticket is issued, the County or City does not benefit financially. He stated if the Florida Marine Patrol budget is increased by $2.2 million, then Brevard County should say it has the highest population of manatees, and the State should put its money where its mouth is.

Chairman Higgs stated the County has been saying that for years; and requested a motion on all the sections where there is consensus.

Mr. Peffer stated he hears the Board saying with regard to speed zones, it wishes to modify the plan to leave that up to the State; with regard to habitat protection, it wants no changes, but move forward with implementation of the CCMP; with regard to education, the Board wants to request additional funding from the State for a manatee educator; and there are no other changes other than those previously agreed upon.

Chairman Higgs inquired if the County is implementing the monofilament line program, and is it in the plan; with Mr. Peffer responding he will include it; and the kiosks are included. Chairman Higgs stated those things need to be updated to make them clear. Commissioner O'Brien inquired who is paying for the kiosks; with Mr. Peffer responding it is a grant.

Mr. Peffer stated the other item was law enforcement; the Board would like to reference the funding that it provides to the Sheriff and continue the request for additional State funding to support Marine Patrol officers in the County. He stated the next issue is facilities siting. Commissioner O'Brien stated he does not want to take that up at the front end; and the Board should pass everything and then see if the Board wants to go into marina siting, which should be a totally separate discussion.

Chairman Higgs stated a motion would be in order to direct staff to proceed with those things the Board has just talked about; and the workshop will be advertised as a regular meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to direct staff to proceed with those things the Board has adopted, the comments made today, and the comments of Commissioner Carlson, excluding siting and speed zones, and put them in a format which the Board could adopt. Motion carried and ordered unanimously.

Discussion ensued about the advertising and location of the workshop meeting.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to direct staff to provide an informational sheet on the Board's position on marina siting.

Commissioner O'Brien requested the motion be amended to encourage representatives of the municipalities, Sharon Tyson of the Army Corps of Engineers, and the Whitleys of Whitley's Marina to attend the workshop. Chairman Higgs stated there may be separate issues in terms of expansions of existing marinas and the urban zone issue versus siting of new marinas in the unincorporated area; and requested an outline by staff on how the CUP on marina siting would work. Mr. Peffer stated staff can bring that up as an option.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to put the issue of a CUP for marina siting on the table for discussion. Motion carried and ordered unanimously.

Chairman Higgs stated the governor is interested in the marina siting issue, and she will try to get some clarification.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to authorize the Chairman to write to the Governor to advise what the Board is planning to do on September 28, 2000. Motion carried and ordered. Commissioners Scarborough, Higgs, and Voltz voted aye; Commissioner O'Brien voted nay.

Commissioner O'Brien stated he made that motion last week; and the Governor is setting the summit, and either the plan will be there or not.

Chairman Higgs stated she would like to send a letter.

PUBLIC COMMENT, RE: OLEANDER POWER PLANT

Craig Bock submitted paperwork; stated Brevard County employees are hard-working and under-appreciated; but he has had some difficulty with the upper echelon. He stated when they requested Commissioner Carlson have a meeting, they requested two specific employees to be present, one from Code Enforcement, and another who initially took the site plan for Oleander; but they were told they could not attend, and that it was not their party, which he does not consider to be very professional. He stated the Directors have been very pro-power plant; and if they bring in any points, the power plant is defended by staff as if they were attorneys for the power plant. He stated he knows Mr. Jenkins' job is not easy, and respects and admires Mr. Jenkins; but he has felt favoritism towards the power plant rather than representation of the people. He stated he respects Mr. Knox; he saw Attorney Crooks criticize him for having the wrong size font and not advertising at the right time; he heard Mr. Knox say a wetlands hearing was needed and then that it was not; so he knows the County Attorney's job changes constantly. He stated depending on what action happens, Mr. Knox has to react; but to the average person, this appears to be a 180? turn; and that is not a comfortable feeling. He presented a letter from the Village of Island Lake, which had the courage to stand against a power plant; and stated they researched the best place to put power plant facilities, and determined the best place to be far from residential areas. He reminded the Board of representatives of Oleander holding up paper clips to indicate the amount of pollution; and stated he wanted to bring in 40.2 million pounds of paper clips, which is the amount of pollution the plant would put out in one year. He stated they compared Reedy Creek's 30-megawatt gas power plant to Oleander's 950-megawatt, 22-foot diameter, five turbine, 1,117 degree Fahrenheit, 76+ mile per hour release, oil burning plant. He stated the Stipulated Settlement Agreement says it will be mostly gas, but from his understanding of the site plan, it has been approved without the assurance of gas, and they may not have a gas line. He inquired about question number 2, which involved a typo done by a County employee; and stated Mr. Knox did not want to answer it unless it was under the direction of the Board. He stated Mr. Jenkins gave the question to Ms. Busacca, who said it was not answered; and that does not seem like good service.

County Manager Tom Jenkins advised Ms. Busacca sent Marlene Waters a response. Mr. Bock stated she sent a response advising Mr. Knox would not respond. Mr. Jenkins stated Ms. Busacca provided a non-legal response. Mr. Bock stated they requested Mr. Knox address the legal aspect; it was a question of "is" or "isn't"; and requested the Board direct Mr. Knox to answer the question. He stated they told the power plant people to come forward if they ever said anything that is not true, and they have not; and reiterated his request for the question to be answered. Mr. Jenkins stated Ms. Busacca did respond to the question within her realm of knowledge.

Commissioner Scarborough requested Mr. Knox answer the question. Mr. Knox stated the question has already been answered; the memo they sent out explained exactly why everything happened the way it did, and answered the question; and whether it is a typo or not, the answer is not going to change. He stated the reason Oleander got to follow the new wetlands rules is because the Stipulated Settlement Agreement allowed it; the Agreement said new rules could be applied if they did not impair their ability to develop the project under the site plan, which they did not; for the site plan and zoning rules, they were not changed; and the provision that said the rules that governed the site plan had to be followed stayed in effect. He stated the reason they are following two sets of rules is that two sets of rules are applicable; and that is allowed under the Stipulated Settlement Agreement.

PUBLIC COMMENT, RE: APPLICATION OF AMERICANS WITH DISABILITIES ACT

Walter Pine, representing the Center for Civil Rights Advocacy, expressed appreciation for the Board's efforts regarding the Americans with Disabilities Act; and stated the Board's proactive stance will set an example for other counties and municipalities. He stated there are a lot of laws that protect a person's civil rights such as the Americans with Disabilities Act, Small Business Protection Act, and things of that nature; but often they are overlooked when doing things such as the Manatee Protection Plan. He inquired in the siting plan, has anyone considered whether marinas should include statements about compliance with ADA as part of the requirement to submit plans; and recommended the Board keep these things in mind in looking at different plans and ideas. He stated if something said African-Americans cannot attend this movie theater, everyone would scream and holler; but when something says a door will be 30-inches wide or 24-inches wide, people do not notice it as much. He requested the Board make a special effort to reinforce these issues and keep them in the forefront until they become inherent in the review process.

ANNOUNCEMENT, RE: EXECUTIVE SESSION

Commissioner Voltz advised there is an executive session. Commissioner Scarborough inquired if it needs to be done today; with Mr. Knox responding it can be postponed, but it will only take a few minutes.

WARRANT LISTS

Upon motion and vote, the meeting was adjourned at 6:54 p.m.

ATTEST:

NANCY N. HIGGS, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
( S E A L )