The Board of County Commissioners of Brevard County, Florida, met in special session in a workshop format on February 16, 1996, at 11:05 a.m. in the Government Center Multipurpose Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Mark Cook, Commissioners Truman Scarborough, Randy O?Brien, Nancy Higgs, and Scott Ellis, County Manager Tom Jenkins and County Attorney Scott Knox.

DISCUSSION, RE: PLAN AMENDMENT LANGUAGE RELATING TO WETLANDS

Chairman Mark Cook acknowledged the presence of former Commissioners Joe Wickham and Carol Senne.

Commissioner Higgs recommended the Board have its discussion and set aside time at the end for public comment, because the public needs to hear the issues. Chairman Cook stated that would be the best way to proceed with this meeting; and recommended the public have three minutes each to speak on the wetlands topic.

Assistant Growth Management Director Peggy Busacca advised Department of Community Affairs representative John Healy is present to answer any questions or advise of Department of Community Affairs? concerns; and Carol Senne and Mike Miller from St. Johns River Water Management District are also available to answer any questions. She stated the wetland policy dated February 8, 1996 includes proposed amendments to the Future Land Use and the Conservation Elements; there are planning issues and permitting issues; and they are trying to separate those issues. She stated the intent of the language is to have the permitting issues considered within the Conservation Element and the planning issues within the Future Land Use Element; Policy 1.6, Criterion A discusses the environmental constraints of wetlands on residential development; and it has some of the issues the Board discussed previously, that a legally established parcel made unbuildable by strict application of the policy, will be given a building permit if it meets all other requirements. Ms. Busacca advised there is new language about transfer of development rights; that is an incentive for people not to be in the wetlands; and those same incentives are also for floodplains. She stated Policy 2.7 talks about locational criteria for commercial/industrial land use based on wetland policies; and Criterion C addresses the issue about administrative rezoning. She stated it says, ?Existing commercial and industrial land uses, and vacant commercial and industrial land uses, which are consistent with the Future Land Use Map, are deemed to be consistent with this Policy.?

Chairman Cook inquired what would Policy 2.7 do; with Ms. Busacca responding there was a concern from some of the Commissioners that staff would administratively rezone existing commercial or industrial land based upon the existence of wetlands or what had once been a wetland.

Commissioner Ellis inquired if residential wetlands could be done that way; with Ms. Busacca advising yes it could, but it is not included here. She stated there is some protection for residential because of the legally established lot language. Commissioner Ellis inquired if a person can get a building permit if his lot is platted; with Ms. Busacca advising it says legally established, so it includes metes and bounds as well. She stated the language under Criterion B is that administrative rezoning would not necessarily go forward based upon the wetlands policies. Commissioner Ellis inquired why the old language was not used; with Ms. Busacca responding she was trying to find a compromise since there were two different opinions, and tried to come up with language the Board would find acceptable. Commissioner Ellis stated the old language was very precise and was not up for interpretation; and he does not understand the new language. Ms. Busacca stated she was trying to be very specific and give the Board another option.

Chairman Cook recommended Ms. Busacca give an overview before they start the discussions. Commissioner O?Brien stated there are four major topics of the plan--residential uses, commercial uses, whether wetlands can be filled or not, and whether the administrative rezoning could take place; and if they take the items one at a time, at least they will focus on the major plights. He stated there is also other language to look at for other parts of the Plan; residential density may be addressed in four different locations within the Land Use Element; and the Board can adjust according to that one item first, then take commercial and go through the entire item second.

Ms. Busacca advised the last change is on page 3 and the strike throughs in Criterion F; the rationale is that the criteria were utilized more as planning tools than as site design tools; and the criteria have been simplified so that the only thing that is contained within Conservation Policy 5.2 is site design criteria, rather than planning criteria. She stated the Water Management District and the Department of Community Affairs are suggesting that the Board consider putting back some additional site design criteria in the Plan; but the intent was to remove the planning language out of there. Ms. Busacca stated Future Land Use Element Policies 1.6 and 2.7 were intended to be planning tools; and if someone came in for plan amendment or rezoning, they could use those criteria to decide whether or not the request is a good idea, and not necessarily to decide a design. She stated if small portions of the project were wetlands, and it was still designed to put a commercial or industrial site on there, then the person should have the opportunity, if it is consistent with all the requirements of the Comp Plan, to have that shown on the Future Land Use Map as commercial/industrial, and then go into the permitting process.

Commissioner Higgs inquired if Department of Community Affairs or St. Johns River Water Management District have comments about the current proposals based on their original objections to the changes. Commissioner Scarborough stated the Department of Community Affairs and St. Johns River Water Management District representatives should comment so the Board does not go in one direction and then they want to add something. Commissioner Higgs stated the reason the Board is discussing this is to see if there is language the majority of the Board can feel comfortable with, would accept, and keep out of administrative hearings. Chairman Cook stated it would be a good idea for the Department of Community Affairs and St. Johns River Water Management District to come forward and make any comments they feel would help.

John Healy with the Florida Department of Community Affairs (DCA) stated the County Plan provided adequate protection to wetlands which is one of the reasons the Plan was found to be in compliance; the changes that were proposed were of such a nature that protective actions would be seriously diminished; and encouraged the Board to retain protective action, while discussing certain specific circumstances where the Plan had not functioned as intended to allow certain activities to occur. Mr. Healy stated there should be strong protection given to wetlands, such as directing land uses away from wetlands that are compatible with the protection of that natural resource. He stated DCA was trying to retain protective measures that were established in the Plan; and once the Board gets to the specifics, he would be happy to comment on those.

Commissioner Scarborough stated when they talk about the specifics, he would like to find out if that would be acceptable to the Department of Community Affairs; and if there are things that concern Mr. Healy, he could share it with the Board. Chairman Cook inquired if Mr. Healy saw the proposed language; with Mr. Healy responding yes, and he made some comments. He noted the St. Johns River Water Management District was the Department of Community Affairs? partner. Chairman Cook suggested Carol Senne come to the table with Mr. Healy.

Mr. Healy stated he was initially concerned with some of the language in Policy 1.6, Criterion A, which spoke to two residential lots; it would be appropriate to recognize that lots of record established at the time of the Plan adoption had certain development rights associated with those lots; however, the language should not apply to newly created lots. He stated there should not be lots created that do not have adequate developable areas to meet the density guidelines which were established per the Future Land Use Map; and if the density on the map is two units per acre, creating a lot should at least have a minimum half acre of uplands to develop on.

Commissioner Ellis inquired what if it was five acres per unit; with Mr. Healy responding the wetlands would still remain one dwelling unit per five acres, but they have to have enough developable land to meet the Future Land Use density allowed under the category. Commissioner Ellis inquired if in that case the lot would be unbuildable; with Mr. Healy responding the hope is not to create the lot in the first place. Commissioner Ellis stated the County has some lots that are already created. Mr. Healy stated if those were lots of record, to be consistent with State law, they have development rights for family dwellings. Commissioner Ellis stated a circuit judge ruled the lot was unbuildable based on the County?s Comp Plan. He stated Department of Community Affairs approved the Future Land Use Element which is density based; and what the Board has here is a conflict between the wetland?s portion and Future Land Use Element, because if the lot meets the Future Land Use Element criterion of one unit per acre, but does not meet the wetland?s restrictions, then the two do not mesh. Mr. Healy stated he is not sure he would look at it in that manner; the Future Land Use Map provides general guidelines for developing those areas; and they do not look at the plans through individual components isolated from one another because they work together. He stated an area that is designated for a specific land use and density associated with that land use does not necessarily mean that the entire area is appropriate for that land use. He stated zoning categories are intended to further refine development that is allowed under future land use categories; and the Board would look at it as a whole condition to its local zoning regulations and local land development regulations. Commissioner Ellis inquired if that is the way the courts would view it; with Mr. Healy responding he would not pretend to speak for the courts. Commissioner Ellis stated the County is dealing with a lot more issues now; when it ends up in court over a zoning case, generally it is future land development; and inquired if Ms. Busacca agreed with him that what is brought before the court on a zoning case is future land development; with Ms. Busacca responding often that is the case.

Commissioner Higgs stated she does not understand the conflict, since the Board crafted the provisions; and it said the same thing under 1.C as it did under 2.7. Commissioner Ellis stated the conflict is if they have a one-acre lot and future land use is one unit per acre, zoned RR-1, the lot is declared unbuildable because it does not meet the five-acre requirement for wetlands. Commissioner Higgs stated if the Board takes Mr. Healy?s suggestion, that the time be the adoption of the Comp Plan in 1988, those lots would not be determined unbuildable based on the Plan. Commissioner Ellis stated he had two lots that were unbuildable. Commissioner Higgs inquired if the lots were unbuildable because of the Comp Plan; with Commissioner Ellis responding no, because the previous owner legally subdivided his property and a person bought the legal subdivision. He stated it was not a metes and bounds subdivision; it was a legal subdivision and all the zoning and future land use development requirements were met; it had frontage on a County road; and it had everything, except when a person wanted to build on the lot, it did not meet the Comp Plan requirement of one unit per five-acres. Commissioner Higgs inquired if the provision would take care of that; with Commissioner Ellis responding not if it goes back to 1988.

Carol Senne with St. Johns River Water Management District stated the District felt comfortable with the language because the Future Land Use Map had qualifications that said locations and densities were subject to specific policies delineated on the Map, and specifically communicated those policies may alter or take precedence over the density or whatever, that is on the Land Use Map. Commissioner Ellis stated the language would work for an isolated lot, but if it goes back to 1988, they will be right back where they started, and would not need any new language because it would be, if it was subdivided prior to 1988.

Commissioner Higgs inquired if there is a way to deal with this; with Mr. Knox responding the Comp Plan has a taking review provision, so if someone claims he had his property taken and cannot use his lot, he can come before the Board, and the Board can resolve that issue. Commissioner Ellis stated he would challenge that, because they have been to court and the judge declared the lot unbuildable. Mr. Knox stated the case that Commissioner Ellis is referring to did not involve the County. Commissioner Ellis inquired if they came to the County, would the Board then buy the lot; with Mr. Knox responding there is a choice of buying the lot or resolving the conflict by modifying regulations. Commissioner Ellis stated according to what the judge said, the Plan would have to be amended in order for Brevard County to consider a variance. He inquired if Mr. Knox thought the judge was incorrect; with Mr. Knox responding no, the judge probably was not aware of the taking provision in the Comp Plan; it probably was not the judge?s intention, but what he thought; so that was the reason the decision came down the way it did in that particular case. Commissioner Ellis stated the County has gone through this type of thing with the same judge on different issues, for example the Fountain case; and in that case the property they had came to the County first to try to resolve the taking issue before they went to court. Mr. Knox stated there is a mechanism in the Comp Plan to deal with the taking issue. Commissioner Ellis stated it should be coordinated with the Circuit Court Judges because what they are telling people coming to court now is that plaintiffs cannot get a variance from Brevard County. He stated that not everybody who has an acre of land has $20,000 or $30,000 for endless attorneys? fees; if he had land and went before a Circuit Judge and was told he was out of luck, he would hope that Circuit Judge would understand the issues and would be telling him the right thing. Mr. Knox stated the reason the County has the taking provision in the Comp Plan is so the property owner does not have to spend $20,000 for attorneys? fees to go into court and try to get the taking established, because it comes before the Board and the Board makes that decision. He stated in the case that is being discussed, it is very likely the attorneys did not know there was a taking clause. Commissioner Ellis inquired if the County employees know that; with Mr. Knox responding he was aware of it and so was Peggy Busacca. Commissioner Ellis inquired if the property owner is in the Zoning Department and is told the lot is unbuildable under the Comp Plan, would they notify the owner that he needs to appeal to the Board under a taking clause. He stated he did not think they did that; and it is a real problem if they are sending people to court when they do not need to go there. Ms. Busacca stated her staff frequently advises people of their vested rights and hands them the vested rights Ordinance, but she cannot speak for what other staff does. Commissioner Ellis stated it should be standard policy that if there is a clause in the Comp Plan, they appeal the process with the Board, and anytime property owners come in and are denied based on Comprehensive Plan issues, they should be told that their next step is to appeal to the Board, not to the Courts. Commissioner Higgs stated she felt like that problem was settled. Commissioner Ellis stated he was not convinced that the problem was solved; he has never seen an appeal to the Board under the taking clause in the Comprehensive Plan; and that seems unusual. He stated if it is there, everyone should know about it, but it has never been before the Board in three years. He inquired if Mr. Knox found that unusual; with Mr. Knox responding there was one case, the Sadie James case. Ms. Busacca stated the County had numerous vested rights requests; and a couple of people provided information about a taking, but have not moved forward.

Chairman Cook inquired if a better term would be ?environmentally significant? instead of ?functional wetlands.? He stated functionality can be very vague; almost any term that is used could be subject to interpretation; but environmentally significant would be a more appropriate term.

Commissioner O?Brien stated he spoke to Ms. Busacca about functionality and tying it to mitigation, since that is where it really belongs; and the St. Johns River Water Management District rates functionality. He inquired if there are only two kinds of wetlands or three; with Ms. Busacca responding she was not sure, but Ms. Senne may know. Carol Senne advised there are three types of wetlands, high, medium, and low. Commissioner Ellis inquired if mitigation ratios are based on that. Commissioner O?Brien stated it says ?within functional wetlands as defined in Conservation Policy 5.2; and inquired if that is the County?s policy or St. Johns District?s policy; with Ms. Busacca responding it is the County?s policy. Commissioner O?Brien inquired if the Policy follows the definition of functional wetlands; with Ms. Busacca stating Policy 5.2, Criterion B talks about functionality; it says the wetlands will be considered functional unless the applicant demonstrates that the water regime has been permanently altered, but there may be other mechanisms, besides water regime, that the Water Management District may look at for functionality. Commissioner O?Brien stated he has seen functional wetlands that he would call functional, and he has seen dysfunctional wetlands behind Merritt Square Mall that had been declared a wetland by the District; the District allowed the applicants to mitigate on site to the rear of the property; but the County said they could not use it at all. He stated the functionality of that wetland was declared low by the District; he walked through it and found the ground to be dry and grassy; there was a small area that was wet and not draining where the drainage ditch was 50 feet away; and if the property owner had gotten a shovel and literally dug a ditch it would probably be dry. He stated it was isolated on all three sides plus a street; so functionality is an important part of this issue. Commissioner O?Brien stated Policy 5.2, Criterion B should dictate superior quality, medium quality, low quality wetlands and define them somehow so there is a regiment that the County can follow with the St. Johns District; and he has no problem keeping functional.

Commissioner Higgs inquired if the term functional wetlands is consistent with what the Water Management District would use, or is there another term; with Ms. Senne responding to define functional wetland would be a difficult exercise; the approach they took was to consider the functionality of a wetland; it is definitely a permitting issue, not a planning issue; and issues that are considered under permitting can and often are different from issues considered in a planning discussion. She stated the Environmental Resources Department has weighed different criteria that are considered in determining the functionality of a wetland; it is not only used in determining mitigation, but there are times when they require avoidance of impacts on the wetlands; so they not only look at mitigation, but also avoidance. Ms. Senne stated mitigation is only considered when they cannot avoid or minimize; and how stringent they are in those areas depends upon the classification of a wetland.

Commissioner O?Brien stated mitigation has been allowed to take place on high land, rather than lowlands where wetlands would be functional, so over the years a lot of the mitigation has been unsuccessful; and the County has allowed mitigation to take place in areas where functioning wetlands could not continue to exist. Commissioner Ellis stated in most cases the mitigation itself is handled by the Water Management District.

Ms. Senne stated mitigation policies in the District have changed over the years; sometimes they favor acquisition and restoration of altered wetlands; and they are now looking at an eco-system approach. She stated several years ago they looked at a very strong policy on artificially-created wetlands; that was micro-management planning; and they do not want to get into site specific analysis. She stated once the decision is made that this is appropriate for the area, then they consider minimization of the impact. Commissioner Ellis inquired if the District does site specific analysis, why is it also included in the Comprehensive Plan; with Ms. Senne responding planning is the County?s primary screening tool, and if planning is done correctly, then very little that is difficult to permit should come to the environmental agency. She stated planning should direct inappropriate activities away from different resources; and the way to approach it is to look at certain activities that are more appropriate in certain areas than in others so that certain things may never have to come to the permitting stage. She stated that is a very broad analysis; they understand they are constrained by existing zoning; there are old platted subdivisions that have been grandfathered in; and if the Board had to make those decisions now, it probably would make different decisions. She stated they do not make site specific evaluations in the planning process.

Commissioner Ellis inquired if it makes sense to insert residential areas within existing commercial/ industrial areas. He stated the way the Comp Plan reads, he can have an existing commercially- developed area with pockets in it that must be zoned residential, one unit to five acres; and that makes no sense.

Carol Senne stated she would like to talk about land use instead of zoning; staff sent her a copy of the Comp Plan which states, under Industrial Land Use, zonings that are compatible with the land uses; and in industrial, every zoning category is industrial except for EA. She stated she does not think the County has the ability to zone a parcel residential that is within an industrial land use. Commissioner Ellis stated the County has no choice under the Comp Plan but to do so. Ms. Senne stated the County Attorney needs to answer that. She inquired if the County can rezone property residential in an industrial land use; with Commissioner Higgs responding no, and Commissioner Ellis stating that is not correct because they can change the Land Use Element to residential and follow that with residential zoning. Ms. Senne stated she would prefer the discussion be about land use and not zoning. Commissioner Ellis stated in court the two are virtually the same because one of the factors in front of the judge is going to be what is the future land use and what is the zoning supposed to be to comply with the future land use.

Ms. Busacca stated there is an agreement among the three agencies that the existing land use, and perhaps maybe even existing zoning can be protected best by permitting; and the problem is trying to figure out where to put the new commercial/industrial areas.

Commissioner Ellis stated the way the new language says new industrial land use concerns him; it does not say areas, it says uses; therefore, vacant pieces of property will be new industrial land uses. Ms. Busacca stated that was not the intent; that is why it says existing commercial and industrial land uses; and vacant commercial/industrial lands which are consistent with the Future Land Use Map are deemed to be consistent with the Policy. She stated they were trying to come up with a mechanism to look at the existing differently than a future land use. Commissioner Ellis stated if someone came in looking for commercial land use in the middle of residential property, he would have problems getting that through, wetlands or not. Ms. Busacca stated that is correct. Commissioner Ellis stated there are a number of factors that are being ignored; and there are a number of other reasons why the County would probably not grant commercial land use off of a major highway corridor in a residential area. Ms. Busacca stated the language may be better in the policies that talk about locational criteria for commercial or industrial; and they can put language about the impacts of the uses and other compatibility issues including the wetland resources in those policies. She stated that may make it clear that the Board looks at the natural resources, compatibility, consistency, infrastructure, and all the other things that the County reviews. Commissioner Ellis stated the language they had at the last meeting was very clear; a number of things have changed between what they had in the last meeting and in this draft; and it has gone from being very specific to being very vague. He inquired if it means changing the Future Land Use Element for commercial or the use of vacant commercially-zoned property that has been interpreted that they cannot fill, put a road in, or use a footprint. He stated when he reads that in there, it is different language; but the end result seems to be about the same as what the Board already has right now.

Ms. Busacca stated the Land Development Regulations are more site specific; that is what someone looks at when reviewing a site plan; and those need to be different because they may be able to put an industrial land use in the area and never impact the wetland on the site. Commissioner Higgs stated the Future Land Use Element and Conservation Element talk about ordinances that are to be developed; they are not talking about locational criteria; and this language sets forth the planning criteria.

Commissioner O?Brien stated a corridor or future land use could be commercial or industrial; and inquired how would a commercial parcel with a wetland on 25% of it be addressed; with Commissioner Higgs responding that is one of four issues Mr. Healy planned to respond to regarding residential density. Chairman Cook stated that is one of the major issues the Board needs to address. Commissioner Ellis stated the Water Management District would handle the issues at the permitting stage and will define what kind of wetland it is; it will then define what the mitigation will be; and the County defines what the land use should be.

Ms. Busacca stated the intent is that an existing commercial or industrial land use or zoning can go to permitting; and if it is consistent and not currently zoned, the zoning can be put on there, and it may go to permitting. She stated the wetland protection will be at the permitting stage through St. Johns District. She stated permitting should protect the existing future land use areas that are designated as commercial or industrial and the existing zoning; but they need direction on how to direct new commercial and industrial land uses away from the wetlands and new wetlands not currently shown on the Future Land Use Map. Commissioner Ellis repeated previous statements about the original language the Board had two weeks ago. Ms. Busacca stated the language changed to separate land development regulations and future land use designations; and staff tried to be positive rather than prohibitive. Commissioner Ellis stated the new language can be interpreted in many different ways, whereas the language he had two weeks ago was very clear; the way that has been interpreted by Brevard County for the last seven years is purely commercial use; however, commercial land use has nothing to do with the Future Land Use Element, but the actual use of the site. Ms. Busacca stated one way to do that is to say future land use designations. Chairman Cook inquired if that would accomplish the same thing; with Ms. Busacca responding yes. Commissioner Higgs recommended Mr. Healy and Ms. Senne share the perspectives of the objecting agency and the commenting agency; then the Board can go on with its discussion.

Mr. Healy advised one issue is the location of new industrial land uses on the Future Land Use Map; and the Department of Community Affairs would like the suitability of the site, which includes characteristics such as the presence of floodplains, the soils, and the existence of wetlands considered when contemplating a Future Land Use Map. He stated the Board should also consider the character of the surrounding areas that are predominantly commercial and whether it has a major transportation corridor and inevitable impacts to wetlands when it contemplates doing a future land use map. He stated the Board should also consider the character of the surrounding areas where there is already predominantly commercial, and whether it has a major transportation corridor and inevitable impacts to wetlands.

Commissioner O?Brien stated the present land uses are totally restricted because if there are three commercial lots already developed, and one has a functional wetland on it, the present policies of the Comp Plan would convert it to residential.

Chairman Cook advised Commissioner O?Brien?s statement is at the heart of the issue that brought the Board to where it is today; and inquired if Mr. Healy is saying the Board can address that; with Mr. Healy responding yes. Commissioner Scarborough inquired if the Board could take Commissioner O?Brien?s scenario, say it is coming in for a new industrial land use designation, and say it is predominantly non-functional wetlands; otherwise it will leave a hole in the Land Use Map and show as residential. He inquired if the Land Use Map essentially becomes a zoning map; with Commissioner Ellis responding it does. Commissioner O?Brien stated the County needs to research to find out where the wetlands are; and he has seen a map previously that showed where all wetlands were in the entire County. Commissioner Ellis stated that 600 acres out of 180,000 acres may be affected by this. Discussion ensued on the Comprehensive Plan, Future Land Use Policy, transportation corridors, and areas of potential commercial/industrial uses.

Commissioner Ellis stated the conflict is Policy 5.2.F.2, which says commercial and industrial land uses will be prohibited, and it was not interpreted as future land use by the County for the last seven years. Chairman Cook stated Department of Community Affairs said it could be addressed; and requested Mr. Healy proceed with any further comments he may have regarding separating future land uses. Mr. Healy stated he would be happy to work with Ms. Busacca to develop language to address the issues. He stated the second issue is new land uses which involve determining what a land is suitable for; to establish strict criteria to pre-judge future land use amendments may cause more work than is useful; and the County needs to address those things by individual amendments assessing resources on site, surrounding land use characteristics, and availability of facilities and services to decide whether or not what the Land Use Map imposes is suitable for the area. He stated there is appropriate direction in Policy 2.7.B of the Future Land Use Element giving an intent that there are certain circumstances where commercial and industrial land uses should not be established; and it will make it easier for the applicant if the Board makes the initial determination where areas are appropriate or not appropriate for commercial or industrial uses so they do not have to go through an arduous permitting process. Chairman Cook inquired if Mr. Healy has a problem with the criterion; with Mr. Healy responding no.

Discussion ensued about the language in Criterion A which discusses industrial land uses and Criterion B which discusses commercial land uses, specific corridors, overwhelming public interest, and omitting Criterion B.

Ms. Busacca stated Criterion B discusses commercial land uses, but there are probably other issues because those tend to be more ubiquitous. Commissioner Higgs inquired if Criterion A could say new commercial/industrial land uses will be directed to areas which are not predominantly wetlands except if the activity has an overriding public interest and no feasible alternative; and other than the issue of a major transportation corridor, it will cover both at once. Commissioner Ellis stated nothing fits the criterion of overriding public interest and any feasible alternative location. Commissioner Higgs stated except a road or landfill.

Chairman Cook stated the language is good overall. Commissioner Ellis stated Criterion C needs to have residential; it has commercial and industrial land uses; and if the intent is not to come back for administrative rezoning, it should apply to residential as well. Commissioner Higgs stated Policy 1.6 talks about residential, so it should go in the residential section.

Carol Senne stated on that issue the County has probably taken a more conservative stand than the Department of Community Affairs; they recently went through an exercise where they overlaid the County?s Future Land Use Map, specifically those areas that are industrial or commercial in nature, with their land cover information that?s in their GIS system; and they used satellite photography and photo interpretation and digitized the land cover to show general patterns and natural resources areas. She stated they have a fairly tight degree of reliability in terms of positioning wetlands; but the Board cannot take a 100-acre site and use that method to plan, or design, or anything. She stated they did an overlay of anything industrial or commercial in nature with wetlands to see what the issue really was, because if there were not any wetlands, then a lot of their concern would go away. She stated if there were a lot of wetlands that were potentially to be impacted, then they would have a greater concern with the existing future land use designations; and it would help to shape their opinion of the Policy.

Ms. Senne stated the worse case scenario is a mixed use category that contains commercial uses and there is no way of breaking out a certain percentage. She noted there are somewhat more than 4,000 acres of potentially affected wetlands. Chairman Cook stated the information from staff stated there were 185,000 acres of wetlands; with Ms. Senne responding the map they were looking at was the best available wetlands data they had; they are in the process of digitizing the wetlands and putting them into the system; and all the quads for Brevard County have not been completed; therefore, it has an incomplete data set for its wetlands base. She stated even though the map states the land uses, it is present zoning, not land use. Ms. Senne stated there are approximately 200,000 acres of wetlands in Brevard County; and a lot of them are not under development pressure because they are in the St. Johns River floodplain. Chairman Cook inquired if that includes federal lands; with Ms. Senne responding they include all government-owned lands. Chairman Cook stated the information is significantly different from the information the Board received from staff. Commissioner Ellis inquired if it is 4,000 acres of wetlands; with Ms. Senne responding it is 4,000 acres of wetlands currently in commercial and industrial land use designations as adopted and found in compliance by the Department of Community Affairs in 1988. Commissioner Ellis stated a vast majority of the wetlands is at SR 520 and SR 524, and south of Titusville. Ms. Senne advised the future land use information hides the finish on the disclaimers of the map; it does not include the land use changes the Board made from 1989 until now; and the District is in the process of putting that data in now. She stated the County Plan does not have to be site specific; and it is a tool to give the Board information. Ms. Senne stated the map, while it says commercial land uses, has zoning categories. Chairman Cook stated there has been a lot of distortion, and maybe the County could have done a better job of delineating exactly what it wanted to accomplish.

Carol Senne stated she was going to address two issues for the Commissioners; one is existing land uses as adopted and found in compliance by the Department of Community Affairs, and two is future land use changes. She stated the District has a lot of concern that at one time 4,000 acres were classified wetlands that could be potentially impacted by industrial uses; but the District understands it is not in the position to mandate that local governments change adopted and found in compliance land uses. She noted the District has a tremendous amount of concern for the 4,000 acres of wetlands; it is a large number in any county or community; and Brevard County has a lot of wetlands.

Chairman Cook stated the future land uses which Mr. Healy brought up should be addressed. Ms. Senne stated they are not in a position to go back and mandate that a local government change its existing land use designation. She stated 4,000 acres of wetlands that can potentially be impacted by industrial and commercial land uses concerns the District because of the possible proliferation of new industrial and commercial impacts to wetlands. She stated the County has a significant amount of wetlands that are adopted and found in compliance; and the District is going to be very careful about the language. She recommended the criteria developed be very strong and fairly exclusionary or inclusionary of wetlands. Ms. Senne suggested not using the term ?predominantly functional? because it is not a commonly used term, and they will have a hard time defining it.

Commissioner Ellis advised the District and the Department of Community Affairs turned down the County?s Plan Amendment and did not propose alternative language; and the Board needs to know the parameters of what the District wants.

Ms. Senne stated the District spent a lot of hours reviewing language and giving specific comments to staff; it is the Board?s prerogative to draft language, adopt it, and transmit it; and she is not here to give the Board specific language to be adopted. She stated there are three issues--residential, existing, and future land use changes; she was very specific at the public hearing about the District?s position on all three issues; and those positions have not changed. She stated she told the Board the District was concerned about any changes allowing industrial and commercial into wetland areas; and it is still very concerned about that. Commissioner Ellis stated Ms. Busacca has been working very closely with the District, and he thought today?s language was the result of that. Commissioner Higgs stated Ms. Busacca works for the Board and is trying to give it something to work with.

Chairman Cook stated it is a cheap shot to say this is a discussion about protecting the wetlands and not protecting them; that is not the issue; the Board is trying to have common sense regulatory reform; and judging from what he heard today, Ms. Busacca can work with Mr. Healy to come up with language that will address those issues. He stated the County has to draft language that is reasonable, will protect the wetlands, and will be acceptable to Department of Community Affairs.

Discussion ensued on draft language, the Local Planning Agency?s recommendation, established commercial and industrial areas, and the County?s interpretation.

The meeting recessed at 12:35 p.m. and reconvened at 1:00 p.m.

Chairman Cook advised the maps are based on the best available information; and of the 4,000 acres Ms. Senne mentioned, about 3,000 of that is The Great Outdoors Resort. Ms. Busacca advised The Great Outdoors mixed use district is 3,000 acres, and a large percentage of that is wetlands. Chairman Cook expressed appreciation to Ms. Senne, Mr. Healy, Ms. Busacca and staff for their efforts to work toward a resolution in everyone?s best interest.

Commissioner Ellis inquired how the District treated the Government Managed Land problem, and was it covered as commercial; with Ms. Senne responding government-owned lands are classified as such; there are two data sets; the District took industrial and classified it as industrial, mixed use as commercial, a PIP as industrial, heavy or light industrial as industrial, conservation as conservation, recreation as open land, and agriculture as agriculture. Commissioner Ellis stated the two biggest areas are the County landfill site and The Great Outdoors. Ms. Senne stated the County will be going through its evaluation and appraisal process; it is mandated to utilize the best available information; and the blue map will be completed soon and will be the best available information on wetlands. She stated the District has a plain map it recently digitized; and any agency that has technical information will be given it to help it analyze wetlands. She stated if there are deficiencies, the County is required to identify how it is going to correct them; everything in the Comprehensive Plan is open during that process; and suggested the County take the new wetlands maps when they are completed and overlay them. Commissioner Ellis stated it is difficult to try and be site specific in the Comprehensive Plan.

Tuck Ferrell, 1 Stockton Drive, Merritt Island, stated Brevard County is a model county in the State of Florida for protection; there needs to be balance; the County needs jobs and industries; and the environment needs to be protected. He stated he does not know how he feels about wetlands and land ownership; the County could take the position that there will not be more industrial development, but the economy is not the greatest right now; the County needs to have industry; and another industry is tourism. He stated the Board needs to take an overall approach to determine what is good for Brevard County; he represents landowners and ranchers who are concerned about the criteria on wetlands and how wetlands are delineated; and inquired what is considered a wetland.

Norma Adams, 801 S. Brevard Ave., Cocoa Beach, stated this is her second reminder to have the Board review its verbs; there are too many ?shoulds, mays, and coulds? and not enough ?shalls.? She requested the overlays be made available to the citizens.

Mary Todd, 135 S. Bel Aire Dr., Merritt Island, stated the County has to deal fairly with owners of wetlands surrounded by commercial/industrial properties, but it should also place foremost in its mind the responsibility to future generations. She stated the Sierra Club has been represented at every meeting on the Conservation Element being deleted; they studied every draft, but are frustrated that they came out at such a rapid pace; and the information in the draft and on the overlays is too difficult to simulate in such a short time period. She requested the Board take its time on this issue so it will not make an unwise decision. Ms. Todd advised the Sierra Club is concerned about Policy 2.7.B, the last sentence, ?Limited commercial uses may be considered where the construction of major transportation corridors has altered the functionality and continued viability of the wetlands.? She stated it will open the door for future land use designations of commercial and industrial along highways which are not constructed; and the Sierra Club supports the language which will be presented by Kim Zarillo.

William Kerr, 325 Fifth Ave., Suite 208, Indialantic, stated it does not make sense to put industrial complexes and highrises in the middle of the St. Johns River muck; on the other hand, a small pocket pond within existing commercial development should not prevent an individual from using his land. He stated there are two basic situations--(1) planning and zoning, and (2) permitting. He stated Brevard County should not get into the process of finding wetlands; the ERP Rule which the District and DER work under is a State rule; and while it may not please everyone, it is effective and in place. He stated it is not right not to allow commercial development on a six, seven or eight-acre parcel with a half-acre pond on it; and suggested the County allow the District to do its permitting and mitigation as it exists under the current ERP Rules. Mr. Kerr stated the County can do its planning and zoning and future land use maps to protect the environmentally-sensitive areas that need to be protected; it needs to balance that because if it makes property not usable it is going to have to face legal challenges; the County should protect the good of the public; and the good of the public should be keeping people where they should be developing and out of the areas where they should not be.

Dick Thompson, 630 Heron Drive, Merritt Island, stated the County is trying to solve problems of who can live and work within the area of wetlands; the County established a policy of no net loss of wetlands; right or wrong, that policy exists and that is what the County is striving for; and the District has moved effectively in the County and bought up tremendous amounts of land. He stated they bought a lot of land south of here and converted it by putting up dikes and so forth; big wetlands of 30 square miles are nothing like 4,000 acres; and the District has taken control of the entire St. Johns River basin and portions of the Indian River basin. He stated a lot of land is currently protected permanently; it was bought by the taxpayers; and inquired where are people going to live and work in the remaining property of Brevard County if it keeps taking every little pothole, identifying it as a wetland, and preventing the landowner from using it. Mr. Thompson stated 50% of the people are living on property that would not be allowed to be developed by today?s criteria; the criterion needs to be looked at carefully; the County is not trying to change the definitions of wetlands; but it has been taken advantage of by many people making claims that it is good for the water supply; however, it is not nearly effective as other means.

Charles Moehle, 65 Country Club, Cocoa Beach, encouraged the Board to resolve the problem in a manner that is fair to the property owners and protects unplatted lands for the areas of the County that have been desperately needed for some time. He stated the reason the County is addressing this issue is to clarify and revamp the present Ordinance to correct inequities and misrepresentations of what people thought they were going to be able to plan for; and the other things that need to be corrected are the multiple interpretations that can be made of the different portions of the Element and regulations. He stated people do not want to abuse the environment and develop industrial or commercial in wetlands if they know it should be protected and is a place they should stay out of before they get involved in the ownership and investment; and one of the bigger abusers of that situation is the County. He stated people want to know what direction they should go in before they get involved; they should be able to count on that direction; there should be more detail to let them know exactly what they are getting into; and this correction needs to be made so the County avoids costly legal battles for inequities.

Jody Rosier, 460 Highway 436, Suite 200, Casselberry, representing Florida Audubon Society, stated she attended the transmittal hearing and has been following this issue closely; and read from an outline of the Florida Growth Management Act written by Richard Russo, Legal Director of Thousand Friends of Florida, as follows: ?Plans are required to include goals, objectives, and policies, which among other requirements protect, conserve, and appropriately use natural resources and other areas with development constraints.? She stated Florida Statutes, Chapter 163, says, it needs to be coordinated with land uses, topography, soils, and availability of infrastructure, and provide for the compatibility of adjacent land uses. Ms. Rosier advised those requirements reveal a determination that not all land is equally suitable for all uses, and that undeveloped lands cannot be assumed to be available for specific land uses, simply because it is vacant and previously zoned for it. She stated all Elements of the Comprehensive Plan, Goals, Objectives, and Standards must be based on relevant and appropriate data; the support data will be used in determining compliance and consistency; and this compliance review requires an evaluation of whether the data was collected in a professionally accepted manner. She stated a lot of the industrial uses were in place before permitting was allowed; some of them may be in bad places and need serious looking at; and someone needs to show what the existing land use is going to do to the water quality. Ms. Rosier stated there are several examples of wetlands being totally destroyed across the United States and ruining the water quality; the Indian River Lagoon is prime for commercial and tourist industry; if the County impacts it with existing uses and new uses, it may ruin the water quality; so there needs to be more analysis before the County jumps into this. She stated Florida Audubon Society is following this very closely; she hopes the County has some analysis to work with; she would hate to see what is going to happen in the future if all this goes through without being carefully studied; so the County needs to slow down and do it right.

Roy Pence, 4533 Caravel, Melbourne, advised this is a step in the right direction; and he appreciates the Board?s efforts in this regard. He stated he agrees with the approach in Policy 2.7.C, but would like the Board to consider existing property before the Comprehensive Plan was formulated in 1988. He stated there are a lot of property owners who have zoned commercial and industrial property which may not show that designation on the Future Land Use Map; and they could very well meet all the other locational criteria and be compatible with the neighborhood, but this Policy does not allow the flexibility to address those people. He stated those people need to be addressed as they have paid taxes based on commercial and industrial zoning ever since they have had the property; their taxes are high; the Board needs to consider their rights; and other than that, he and the Home Builders and Contractors Association of Brevard support what the Board is trying to do here. He stated it is a good middle approach of trying to protect the environment and significant wetlands, while trying to protect property rights.

Rob Lee, 1275 S. Patrick Dr., Suite H, Satellite Beach, stated the Board removed the impact fees on commercial/industrial uses to stimulate the economy; and the original intent to cut back on some of the conservation provisions of the Comprehensive Plan was because people were beginning to realize what kind of strangling effect they have on the economy and jobs. He stated the Board is trying to establish a good common sense approach; and the wetland functions can be preserved as desired, but it should be done in a fair manner and not just stop growth beyond what is established in the existing Future Land Use Plan. He stated another problem has been interpretation of what has existed in the Plan; there is a big distinction between uses within wetlands and impacts to wetlands; and he agrees commercial uses in the middle of wetlands is not the best place.

Kim Zarillo, 760 Cajeput Circle, Melbourne Village, representing the Florida Native Plant Society, stated the Society has also had representatives at other meetings on these changes; the Society feels there is not due process; the changes are happening very quickly; and at the last regular Board meeting, a proposed amendment change was passed out after public comment. She stated this does not allow enough time for people to talk and gather information in order to make pertinent comments; there has been little if none scientific advice on the impacts of changing the Comprehensive Plan, biologically or physically, with relation to stormwater and other things that affect the people; and there needs to be more data analysis and impact of policy changes. She stated policy changes for the purpose of serving single-family residential areas or somebody?s commercial property is not good government; policy is a broader vision; and that is the purpose of the Comprehensive Plan. She stated she has some specific language changes she would like to submit to the Board; they are chief concerns; whenever she hears balance she thinks that is a problem; the Comprehensive Plan and Future Land Use Maps are in place; and they are worried about the future changes to the policy and what that would mean for the County. She inquired if the Cities were notified of what the County is doing and how it will affect them, if it affects them at all; stated at the last meeting she asked what Ordinances would need to be changed if the Comprehensive Plan changed because the attorney stated the Comprehensive Plan and Ordinances may be in conflict; and she has not heard yet what those are or what the changes will be. She requested a full public accounting of the cost of going through this; stated she would like to ask for a moratorium on Comprehensive Plan changes until the community visioning process is completed; the community is now revisiting what they would like to see Brevard County look like; and this is very valuable information and a community based effort. She stated it is very important to have that as part of the Comprehensive Plan amendment; and what the Comprehensive Plan is all about.

Martin Lamb, 2034 Adams Ave., Melbourne, stated he appreciates the Board?s efforts; whoever had the biggest club would own all the land; and Department of Community Affairs and the St. Johns River Water Management District have the bigger clubs. He stated he does not think anyone in their right mind wants to intentionally injure the environment; somewhere along the way there has to be a balancing act; and there are two extremes to this issue. He stated he is hoping his children and grandchildren will have a place to live; they will need a place to work; this is a very difficult issue; and there has been a mis-communication with the public of what the Board is doing.

Discussion ensued on misconceptions, differences of opinions, how the amendment got started, and distortions of the original issues.

Chairman Cook stated it was sent to all the Citizens Groups; and the Board accepted the Local Planning Agency?s recommendations which passed 8 to 1. He stated it retained no net loss; and Commissioner Ellis stated it retained a whole list of items.

Commissioner Ellis stated every time the Board tries to make changes to the Comprehensive Plan, the sky is falling. Chairman Cook stated he read inaccurate statements in the newspaper that people think is true. Commissioner Higgs stated there may have been distortions, but the motion was: ?Motion by Commissioner Cook, seconded by Commissioner O?Brien, to defer all wetlands policies and issues to the Federal, State and Regional Regulatory Agencies.? Commissioner Ellis stated it needs to be put to language as a Comp Plan amendment. Chairman Cook responded it is to repeal this and defer everything. Commissioner Ellis inquired if the motion is to repeal objective findings, with Chairman Cook responding yes. Discussion ensued on the newspaper article distortions.

Mr. Lamb stated he would like to see one agency, whether state, county or municipal, regulate this issue; there would not be passing back and forth from one agency to the other; and there would be someone who would be held accountable. Priscilla Griffith, 6414 South Dr., Melbourne, representing the League of Women Voters of the Space Coast, stated the League was involved with the revised wording that has been submitted to the Board by Kim Zarillo, and supports it.

Commissioner Scarborough stated Carol Senne is not happy with predominantly functional; there are some words that he has uneasy feelings about; and suggested a meeting Tuesday, and Ms. Busacca get some stuff together before Tuesday. He stated he is having difficulty being prepared with words and terminology. Commissioner O?Brien stated the Board is here today, and he will stay until midnight to solve the whole problem today so when they come back Friday, there will be little else to do but fine tune. He stated they have already spent three hours getting to this one point; and inquired if they could take a break and let Ms. Busacca and her staff go back and redo something and bring it back to the Board.

Commissioner Higgs suggested the following language for Policy 2.7, Criterion A, ?New commercial and industrial land uses will be directed to areas that are not functional wetlands as defined in Conservation Policy 5.2, except if the activity has an overriding public interest and no feasible alternative, or is surrounded by existing commercial and industrial such that a less intensive use would be incompatible with the character of the area and the surrounding land uses.? She stated that might get to one problem.

Commissioner O?Brien stated what bothers him is the wording of predominantly functional wetlands. He stated Conservation Policy 5.2, states, ?mitigation can include, but not be limited to, wetland restoration, wetland replacement, wetland enhancement, monetary compensation or wetland preservation. Mitigation ratios should be tied to the functionality of the impacted wetlands.? He inquired who determines functionality, at what level, and what is the ratio. Commissioner O?Brien stated two problems with mitigation are swapping fresh water wetlands for salt water wetlands, and location of the mitigated site which should be within ten miles; and the Board should address that problem in writing to St. Johns District and say that the mitigation for this County has been a dismal failure. Commissioner Ellis stated it is not in the Comp Plan; Commissioner Higgs stated that is not a Comp Plan issue; and Commissioner O?Brien stated it was in there under 5.2.C.

Carol Senne stated if the Board is comfortable with the District?s determination of wetlands and mitigation, then it does not need to discuss it; if it is not comfortable with what is accomplished, then maybe after lunch she could share their methodology and what is accomplished, because what went before is not what is now. She stated the ERP was adopted and went into effect; there is a new criterion and new approaches with wetlands permitting; and if the Board wants to know about it, she will share it with the Board. Commissioner Scarborough inquired what should be put in place of predominantly functional; with Ms. Senne responding nothing, because wetlands are wetlands.

Commissioner Higgs stated page 3, item F, which defines on site disposal system, primary structure, 100 year flood elevation, and primary access is a definition that the Board needs to reconsider. Ms. Busacca stated the District wants the County to include the language ?the St. Johns River Water Management District and Florida Department of Environmental Protection requirements.? Ms. Senne stated very specific criteria are set forth that allow for a lot in a wetland if somebody owns it; up to 6,000 square feet can be cleared, and up to 4,000 square feet can be filled; and they can accommodate a house pad and septic tank. She stated all sites under five acres are permitted through the Department of Environmental Protection; they are general permits, which means they are issued from the office; the Board cannot have lesser restrictions, but it can have greater restrictions; and suggested the Board look at its criteria to make sure it is comfortable.

Commissioner Higgs suggested adding ?current flood zone maps of St. Johns River Water Management District and FEMA? under Policy 1.6, Criterion H; with Commissioner Ellis responding it is already in the floodplain section. Ms. Busacca stated the floodplain section says most current data available. Commissioner Higgs inquired if it would be considered in the residential density guidelines; with Ms. Busacca responding yes, that is how it is done.

Ms. Busacca stated a site specific delineation is actually a site plan review of commercial or industrial areas; they do not have any specific requirements, because those have been deleted on page 3 under F. 1, 2 and 3; but the Department of Community Affairs would be comfortable with language that states all permits must be in place before a building permit is given, and with buffer requirements between the commercial or industrial development and the wetland. She inquired if the Board wanted them to go forward with that or just leave it the way it is. Commissioner Ellis stated there is no size threshold for that; the wetland could be 1/10 of 1 acre. Ms. Busacca inquired about the language ?all permits should be in place before the building permit is given.? Chairman Cook stated he has no problem with requiring permits prior to building. Ms. Busacca inquired if the Board would be comfortable with the Water Management District or Department of Environmental Protection?s permit; with Chairman Cook responding it should be specific. Ms. Busacca stated that would give the Department of Community Affairs a greater level of comfort. Commissioner Higgs stated they have not come up with language that addresses that. Commissioner Ellis inquired addresses what. Ms. Busacca inquired if they could describe what they think that is; with Commissioner Higgs responding the problem is with commercial/industrial sites; and unless the Board is willing to leave it to permitting with a percentage of wetlands, it has not addressed that. Commissioner Ellis inquired if it is existing or future; with Commissioner Higgs responding existing. Commissioner Ellis stated the point on existing was to leave it to permitting.

Ms. Busacca stated she has language about directing new industrial and commercial land use designations to areas which are determined to be appropriate based upon suitability analysis, character of the area, compatibility of the surrounding land uses, and public services and facilities. She stated those uses should be directed to sites where there are sufficient uplands for the use; and that may be where the Board does not have to consider thresholds, and simply talk about the fact that there is some upland on that site. Commissioner Ellis inquired what if they have a small isolated wetland; with Ms. Busacca responding it does not have to be on the uplands, but if it says there are sufficient uplands, the Board would know it is not looking at a large wetland area and very small upland area. Chairman Cook recommended a recess to allow Ms. Busacca to return with additional language.

The meeting recessed at 2:05 p.m. and reconvened at 2:45 p.m.

Ms. Busacca stated the new language has not been reviewed by the County Attorney for impacts to the property rights legislation; the changes are in bold; and Policy 2.7 has the language that was read to the Board just before the break to try and give a legislative intent. She stated it says, ?It is the intent of Brevard County in locating new industrial and commercial land use designations, that these uses will be directed to areas which are deemed to be appropriate based upon a compatibility analysis that includes environmental character of the area, compatibility of surrounding land uses, and public facilities and services. These uses shall be directed to sites where there are sufficient uplands for the intended use. The location of new commercial and industrial land uses should be based upon the criteria described below.? She stated under Criterion A, she added language that says, ?New industrial land use designations should be directed to areas which are not wetlands as defined in Conservation Policy 5.1.? She stated the final phrase is, ?or is located in an area such that a less intensive use would be incompatible with the character of the area and the surrounding land uses.? She indicated the Board may want that language in Criterion B as well. She stated in Policy 5.2 she recommended deleting the current criterion and replacing it with ?Wetland functionality and mitigation will be determined by either the St. Johns River Water Management District or Department of Environmental Protection.? She recommended deleting the existing Criterion C and adding, ?Prior to issuance of a building permit, appropriate permits from the St. Johns River Water Management District or Florida Department of Environmental Protection will be obtained for the proposed project.? Ms. Busacca stated the Board may like the other language better about administrative rezoning, but this language clarifies its intent about what is happening on existing and future land uses.

Commissioner Scarborough stated Criterion A still refers to 5.2, and it should be 5.1. Ms. Busacca stated that is correct. Commissioner Scarborough stated the last sentence in Policy 2.7 should be kept; with Ms. Busacca responding that is fine.

Commissioner Higgs inquired if this is just the change and adding to the existing language; with Ms. Busacca responding Policy 5.2, would be deleted and Criterion C would be deleted and replaced with the new language. Chairman Cook stated he had no problem with the yellow sheets as amended because they reflect what the Board had discussed. Ms. Busacca stated it did not address the DCA?s concern about putting a date of the legally established lots. She stated she just wanted the Commissioners to be aware of it, she was not saying to do it, but just wanted them to be aware of it. Commissioner Higgs inquired what problem is having it in there; with Commissioner Ellis responding he did not want it in there. Commissioner Higgs inquired what it did; with Commissioner Ellis responding it creates unbuildable lots. Commissioner Higgs stated unbuildable lots are not created by the Comp Plan because there is a process by which the Board can deal with it. Commissioner Ellis stated he has never seen that; the people he talked to have never seen that; and Mr. Knox told the Board that today, but he has never seen it and is not confident that it exists. Chairman Cook stated in the future the County needs a mechanism to notify people that they have that option. Discussion ensued on unbuildable lots.

Ms. Busacca stated Section 62-507, is the Appeal Procedure Presentation of Plans of Regulatory Takings or Abrogation of Vested Rights; and it says the County Local Planning Agency and the Board of County Commissioners will hear appeals relating to any administrative decision or interpretation concerning the implementation of the 1998 County Comprehensive Plan as amended. She stated the Local Planning Agency will hear the appeal, take public comment and make a recommendation to the Board of County Commissioners as to the appropriateness of the interpretation of the Plan or decision implementing the Plan; and the Board of County Commissioners will hold a public hearing to make the final decision of approving or disapproving the administrative decision or interpretation. She stated the same procedure will be followed whether an individual or affected party believes vested rights have been abrogated or that a temporary or permanent taking of property has occurred.

Commissioner Scarborough inquired if that was what the Board did for Sadie James; with Ms. Busacca responding yes. Commissioner Scarborough stated that is an extremely important element. Discussion continued on the process for unbuildable lots.

Assistant County Attorney Katherine Harasz stated Chapter 163, Florida Statutes, requires all land development regulations and development orders be consistent with the Comprehensive Plan; and the Plan would have to be amended to allow some kind of building to take place and still have the Plan internally consistent.

Commissioner Higgs stated Mr. Knox told the Board that provisions in the Comprehensive Plan and in the Ordinance allow the Board, in a case where a parcel has been rendered unbuildable, to go through administrative procedure to determine what is going to happen with the lot. Ms. Harasz stated that is an exhaustion requirement to establish regulatory taking claim; they have to find out everything they can do with the land before it goes to court and tell the court how they have been damaged; and that is also an important step in exhausting local remedies.

Commissioner Ellis stated what the Board is talking about in the Comp Plan is not having to go to court. Ms. Busacca stated property owners alleging a taking of property, abrogation of vested rights, or appealing an administrative decision or interpretation, must affirmatively demonstrate the merits of their claims by exhausting the administrative action provided in this Section; and the Ordinance reiterates the language or intent of a Comprehensive Plan provision addressed by an appeal under this Section. She noted the decision of the Board relating to the Comprehensive Plan provision will also apply to the ordinance; however, in no event will this Section be substituted or used to bypass the variance and appeals procedures. Ms. Harasz stated it sounds like if the Board can interpret its ordinance in a different way but still be consistent with the Comprehensive Plan, it can override the ordinance through this appeal procedure and allow development. Commissioner Ellis stated that is not site specific and not really what the Comp Plan means. Ms. Busacca stated it is either an interpretation or a decision implementing the Plan.

Commissioner O?Brien stated if the Board decided one parcel was not in compliance with the Comprehensive Plan, it could make that ruling; if Department of Community Affairs or the Water Management District wants to fight the County on that, they possibly could; but the overall meaning is that the County can say its Comprehensive Plan has been interpreted incorrectly for someone?s property and override the administrative decision. He stated the County should preclude the Future Land Use Element with the statement that it is creating this document and putting it back in the Comprehensive Plan under duress; and if it does not do that, the private property owners can sue the County. Commissioner Ellis stated the way the Comprehensive Plan is being interpreted, they can do that anyway. Commissioner O?Brien stated it is important if the County is to put the Future Land Use Element back into its Comprehensive Plan that it does it right now because the Department of Community Affairs and District said it better do it or they are going to tie it up in court; and it is going to be very costly litigation which the County is trying to avoid. Commissioner Higgs stated it was actually never taken out until it was approved and then adopted by the Board. Commissioner O?Brien noted it is a legal avenue the County can take to protect the citizens against those types of lawsuits. Ms. Senne stated the County would have to allow the people who own a lot smaller than five acres to develop or buy the property, unless there is something else that will work legally. She stated the reason it is a policy is so people do not start carving out little lots and compound the problem; and a five-acre parcel that impacts wetlands is less intense than several little lots. Discussion ensued on legally established parcels under five acres, residential density, strict application of the policy, and intent of the Board.

Commissioner Higgs inquired if the Board wants to insert a date. Commissioner Ellis stated his District has had legally established lots after 1988 that are now unbuildable.

Ms. Busacca inquired, when it says legally established, if someone comes in after the amendment becomes effective and subdivides a large parcel into lots which are smaller than five acres which have wetlands and no uplands, does that mean there have been illegally established lots because it is contrary to the Comprehensive Plan. She stated the property is consistent with the zoning; the only thing keeping it from getting a permit is this policy; and inquired what is the intent of the Board and how should staff handle that; with Commissioner Higgs responding one unit per five acres.

Discussion continued on legally established parcels, permitting, title problems, estates, and notifying people it is part of the rules.

Commissioner Higgs suggested leaving it like it is right now and doing more research on it. Chairman Cook stated the other question is do we add the date or not. Commissioner Ellis stated he does not want to add the date. Commissioner Higgs stated it needs a date.

Chairman Cook stated he does not have a problem with language as it is, with the changes that were made, leaving in the bottom of 2.7 that had been crossed out, and adding criteria if it is located in an area of less intensive use. He stated he could accept the language if those two things were changed. Commissioner O?Brien stated Policy 5.2, says in 1991 Brevard County will adopt regulations; and inquired if it should say in 1991 Brevard County adopted regulations; with Peggy Busacca responding they could change that or take the date out, as the Board has adopted Land Development Regulations. Commissioner Scarborough stated the Board should say in 1996 Brevard County will amend the existing regulations, as that would be a correct statement. Ms. Busacca stated she will work on the date, to try to be consistent with what is said.

Commissioner O?Brien inquired if there is any further conversation about having the Land Use Element being executed under duress. Commissioner Higgs stated it is unnecessary. Commissioner Scarborough stated the whole Comprehensive Plan is executed under duress. Commissioner O?Brien stated the Element is being created under duress; and the County should point to the Department of Community Affairs and District because they are forcing it to have those conversations. Chairman Cook stated mandates are put on local governments and they have to deal with it. Commissioner O?Brien stated the County is doing this because it was told it must do it.

Ms. Busacca inquired what would the Board like her to put on Tuesday?s agenda. Commissioner Scarborough responded to schedule it so the Board can discuss it if it needs to.

Chairman Cook stated it was brought to his attention that 75% of all wetlands are in private ownership in the United States. Commissioner Ellis stated 55% of Brevard County is owned by public entities.

Chairman Cook inquired if there was anything else; with Commissioner O?Brien responding the Board has a responsibility to protect its citizens from future lawsuits; if there is any route to do that, it should do so because in the future, it is going to cost the County millions of dollars. Commissioner Ellis stated his preference would be to get something passed and not upset DCA further. Chairman Cook stated it is just common sense regulatory reform which the Board owes the citizens of Brevard County. Commissioner Scarborough advised of his experience with wetlands while on the Titusville City Council.

Commissioner O?Brien inquired what will the Board do about a parcel on Merritt Island that is surrounded by commercial on three sides and one side by a road. He stated the St. Johns District said the individual can mitigate that parcel on site; it was about 20% wetlands; Brevard County said they could not build anything there because they have a wetland, not to even apply for a permit; and that is a total loss of any common sense whatsoever. He stated it is in a commercial area; Merritt Square Mall and the Chamber of Commerce are directly across the street; commercial building is going on down the street; and one parcel is sitting there. He inquired what can the Board do in the policy to correct that problem. He stated the St. Johns District, in this case, is very reasonable, but the County is totally unreasonable; the County Policy makes them totally unreasonable; and inquired how can they correct that problem. He stated it is very low grade and not a viable wetland, but the County says no, do not break ground, and do not even think about it, because that property is totally unbuildable. Commissioner O?Brien stated the Board talked about functionality and mitigation in particular; St. Johns District has its own rules and regulations, but the County does not want to address that in its Plan; and inquired if mitigation should be one and one or half of one, and the half acre that they buy some place else be within a given geographical area of the County because the wetlands being mitigated also serve a purpose. Commissioner Ellis stated the Board has to treat the St. Johns River basin as a whole.

Ms. Senne stated they are dealing with two concepts; if it is a site specific mitigation, they sit down in negotiation with the landowner; the District prefers the mitigation occur within the sub-basin; sometimes there are not mitigation opportunities in the sub-basin; and then it looks at the basin. She stated mitigation banking opportunities are starting to develop; the mitigation banking concept includes taking a large eco-system that is very diverse and has uplands, wetlands, and restoration potential; they come to get a permit, establish it as a bank, and determine how many credits the bank has; and what that allows for is two opportunities. She stated an individual can go through the sub-basin approach negotiation with the District or a service center established when the bank is established, which is much bigger than a basin or a sub-basin; and the person also has the option of buying into the bank. She stated the District is considering a policy that some mitigation should be in a banking situation as they are preserving large eco-systems and trying to come up with a natural area corridor; the County may be in conflict with the mitigation banking opportunities that some people in Brevard County may wish to exercise if it limits mitigation to a tightly defined geographic area; and it is something for the Board to consider. Commissioner Higgs stated she would like to take any mitigation issue to Ms. Senne after the meeting; and Commissioner Scarborough agreed.

Upon motion and vote, the meeting adjourned at 3:30 p.m.

ATTEST:

SANDY CRAWFORD, CLERK

(S E A L)

MARK COOK, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

COUNTY, FLORIDA