MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

January 24, 1995

The Board of County Commissioners of Brevard County, Florida, met in regular session on January 24, 1995, at 9:00 a.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Charles Lanham, First United Methodist Church, Melbourne, Florida.

Commissioner Randy O'Brien led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to approve the Minutes of November 15, 1994 Regular Meeting, November 16, 1994 Emergency Meeting, November 22, 1994 Special Meeting, November 23, 1994 Workshop, and December 1, 1994 Special Meeting. Motion carried and ordered unanimously.

REPORT, RE: TERMINATION OF CONTRACT WITH MIORELLI ENGINEERING

County Attorney Scott Knox advised the Agenda did not include discussion of the termination of the Miorelli Contract; it was on the add on list; and it needs to be added to the Agenda.

Chairman Higgs inquired if it meets all notification requirements in adding it that way; with Mr. Knox responding it could probably be taken up under Miscellaneous, but suggested it be added. He stated it is referenced as part of the closed executive session. Chairman Higgs inquired if it would be added after the closed executive session; with Mr. Knox responding yes. Chairman Higgs advised it will be item VI.E.9; the Board will adjourn for the executive session in regard to the litigation with Miorelli, then it will come back into public session if there is any action for the Board to take in regards to that contract.

REPORT, RE: EXECUTIVE SESSION

County Attorney Scott Knox advised under Florida Law, if the County Attorney or any attorneys representing the County feel that the Board needs an executive session on a particular lawsuit, he is supposed to ask for it in a public meeting; the County had an offer of settlement from Barbara Bradley-Benn on a suit involving the County; and it requires an executive session to discuss the ramifications of the proposed settlement. He recommended doing that on February 1, 1995, after the workshop scheduled on that day.

REPORT, RE: EXECUTIVE SESSION

Chairman Higgs inquired if there were any objections to the executive session; and hearing none advised the County Attorney to proceed accordingly.

STATUS REPORT, RE: COMPLIANCE WITH SUBSTITUTE JOINT STIPULATION WITH BERNARD L. WARD

County Attorney Scott Knox advised compliance with the substitute joint stipulation with Bernard L. Ward is not necessary to discuss because staff has adequate authority to do what they need to do from a prior Board action; and recommended the item be removed from the Agenda.

Chairman Higgs advised Item V.B. is removed from the Agenda.

APPOINTMENTS/REAPPOINTMENTS, RE: DISTRICT 2 REPRESENTATIVES

Commissioner O'Brien recommended appointments and/or reappointments of the following persons to represent District 2:

Code Enforcement Board

John Bunkley, 3131 N. Tropical Trail, Merritt Island 32952, replacing Bonnie Carter, with term expiring December 31, 1997

Affordable Housing Council

Sandra Goforth, 1685 Shelter Trail, Merritt Island 32952, replacing John Vanewyk, with term expiring March 23, 1997.

Titusville-Cocoa Airport Authority

Brian Lally, 2205 Jason Street, Merritt Island 32952, replacing Albert O. Weinberg with term expiring July 18, 1997.

Gregg Popp, 101 George King Blvd., #4, Cape Canaveral 32920, replacing James Venable with term expiring July 18, 1997.

Sesquicentennial Coordinating Committee

Pam O'Kell, 2166 Canal Ridge Drive, Titusville 32780

Commissioner O'Brien advised the Mayor of Palm Shores will call him tomorrow on the other appointee to this Committee.

Veterans Advisory Board

Reappoint Adam Flores, 1725 S. Merrimac Drive, Merritt Island 32952

Zoning Board of Adjustment

Helen Filkins, 360 Harbor Drive, Cape Canaveral 32920, replacing Vincent Creo with term expiring December 31, 1995.

Personnel Council

W. N. "Bill" Burch, 2 West Point Drive, Cocoa Beach 32931, with term expiring December 31, 1995.

Beach Erosion Control Advisory Committee

Bea Fowler, 100 W. Bay Drive, Cocoa Beach 32931, replacing Janet Bonder with term expiring December 17, 1996.

Chairman Higgs inquired if the TiCo appointments need to be separated, or if the whole Board acts on those appointments; with County Attorney Scott Knox responding the TiCo appointments have to be made by the three Commissioners whose Districts are designated under the statute to appoint them. Chairman Higgs advised with the exception of the TiCo appointments, is there a motion to appoint those read by Commissioner O'Brien.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to appoint the foregoing members to various Boards and Committees as recommended by Commissioner O'Brien, with the exception of the TiCo Airport Authority appointments. Motion carried and ordered unanimously.

APPOINTMENTS, RE: TITUSVILLE-COCOA AIRPORT AUTHORITY

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to appoint Brian Lally, 2205 Jason Street, Merritt Island 32952, to replace Albert O. Weinberg with term expiring July 18, 1997, and Gregg Popp, 101 George King Blvd. #4, Cape Canaveral 32920, to replace James Venable on the Titusville-Cocoa Airport Authority, with term expiring July 18, 1997.

Commissioner Scarborough inquired if the two appointments are District 2 or the at-large member. He advised there is some question about the at-large member; and inquired if one of the appointments is for the at-large slot.

Chairman Higgs advised technically the Board filled the at-large seat with Jim Mizell; with Commissioner O'Brien responding right. Commissioner Scarborough stated that was his question because there has been some discussion whether or not he was appointed. He stated Districts 1, 2 and 4 have two appointments each, then there is an at-large seat; and Jim Mizell was serving in that slot. He stated the appointment came up and was voted on with a two-to-one vote; there was a legal question as to whether or not it required a unanimous vote; and they asked for an Attorney General's Opinion which came back saying the vote was okay; however, he wants clarification whether Mr. Mizell's appointment is okay.

County Attorney Scott Knox advised he reviewed the Board Minutes; there was a two-to-one vote to approve Mr. Mizell; the question whether it required unanimous approval or not came up later; an Attorney General's Opinion was requested after that vote was taken; and there was nothing done to undo that vote. He stated when the AGO came back saying the majority was all that was needed, Mr. Mizell's appointment was made as of the time the Board took its action.

Commissioner Scarborough advised there are two new Commissioners; and inquired if they were briefed on what has occurred and what is being discussed; with Mr. Knox responding he sent a memo out. Commissioner Scarborough advised apparently the position has not rotated a lot; there were other philosophical issues including whether they should rotate the at-large appointment periodically; and someone needs to brief Commissioners O'Brien and Cook on that.

Commissioner Cook advised he received the County Attorney's memo, but has not been briefed on it; however, he understands that it did rotate. Commissioner Scarborough advised there has not been an appointment from District 4 and there was a District 2 at-large member once; and in all fairness, the Commissioners who are voting should know about that.

Chairman Higgs advised Commissioner O'Brien had two appointments which he made; they are his regular appointments and has nothing to do with the at-large member; the Mizell appointment previously made will stand; and the at-large seat is filled at this point. She called for a vote on the motion. Motion carried and ordered unanimously.

DISCUSSION, RE: APPOINTMENT PROCESS

Commissioner Cook advised he would like to talk about the appointment process in general at some time. Commissioner O'Brien stated he would like to discuss appointments and how they are made as soon as possible. Chairman Higgs recommended the item be put on the Agenda.

APPOINTMENTS, RE: SESQUICENTENNIAL COORDINATING COMMITTEE

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to appoint Kim Zarillo, 760 Cajeput Circle, Melbourne Village, representing the Town of Melbourne Village, and Rachel Moehle, 115 Escambia Lane, Unit 405, Cocoa Beach 32931, cultural representative on the Sesquicentennial Coordinating Committee, as recommended by Commissioner Higgs. Motion carried and ordered unanimously.

REPORT, RE: LETTER FROM CITY OF MELBOURNE ON IMPACT FEES

Chairman Higgs advised she received a letter from the City of Melbourne regarding transportation impact fees; the Board is going to discuss impact fees on February 1, 1995; and recommended the County Attorney review the letter and be ready to discuss it on February 1, 1995.

CONSENT AGENDA

Commissioner Cook pulled Item III.E.5, Bills and Budget Transfers, from the Consent Agenda.

Chairman Higgs advised on the last page of the Agenda, items previously removed from the Consent Agenda are listed; there is a request to pull item III.B.16 which is appointments to the EMS Advisory Council; and the Board will deal with all those items at the end of the meeting.

Commissioner Ellis advised Item III.B.8 relates to the boat ramp, and suggested Parks and Recreation Director Chuck Nelson write that up and send a copy to Howard Futch, as it has to do with increased cost of the boat ramp due to permitting expenses. He stated since the issue was raised by the Delegation, staff should send them a copy of that.

PERMISSION TO BID AND AWARD BID, RE: GLOBAL POSITIONING SYSTEM

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to grant permission to bid and award to lowest responsible bidder, the purchase of a Trimble Global Positioning System at approximately $60,000. Motion carried and ordered unanimously.

WAIVER OF MAXIMUM BUILDING LENGTH, RE: AQUARINA II PUD

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to waive the 200-foot maximum building length requirement and allow 212-foot building length in Aquarina II PUD. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: FIRST SMALL SCALE PLAN AMENDMENT OF 1995 (95S.1)

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to grant permission to advertise public hearing on February 27, 1995, at 5:30 p.m. to consider the First Small Scale Plan Amendment of 1995 (95S.1). Motion carried and ordered unanimously.

ACKNOWLEDGE PROPOSED ANNEXATIONS AND CONTRACTION FROM CITY OF ROCKLEDGE, RE: LANDS IN VIERA DRI

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to acknowledge the proposed voluntary annexations and contraction from the City of Rockledge for lands within the Viera DRI. Motion carried and ordered unanimously.

RESOLUTION SETTING PUBLIC HEARING, RE: VACATING PUBLIC UTILITY EASEMENTS

IN BAREFOOT BAY, UNIT 1 - GEORGIA METCALF

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution setting public hearing fro February 21, 1995 to consider vacating public utility easements in Barefoot Bay, Unit 1, as petitioned by Georgia Metcalf. Motion carried and ordered unanimously.

RESOLUTION SETTING PUBLIC HEARING, RE: VACATING ROAD RIGHT-OF-WAY IN CITY ACRES, ADDITION NO. 1 - SCOTT AND VICKIE LUNDEN

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution setting public hearing for February 21, 1995, to consider vacating a road right-of-way in City Acres, Addition No. 1, as petitioned by Scott and Vickie Lunden. Motion carried and ordered unanimously.

OPTION AGREEMENT WITH HARBOR CITY VOLUNTEER AMBULANCE SQUAD FOUNDATION, INC., RE: LAND FOR APOLLO BOULEVARD EXTENSION

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Option Agreement with Harbor City Volunteer Ambulance Squad Foundation, Inc. for land needed for the proposed extension of Apollo Boulevard; and authorize staff to conduct a public meeting following determination of the concept alignment. Motion carried and ordered unanimously.

MOTION AND STIPULATED FINAL JUDGMENT, RE: BREVARD COUNTY v. WARDLOW/ N. COURTENAY PARKWAY CONDEMNATION/CORLEW PARCELS 159 AND 759

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Motion and Stipulated Final Judgment for Brevard County v. Wardlow/North Courtenay Parkway Condemnation/Corlew Parcels 159 and 759. Motion carried and ordered unanimously.

CONTRACT WITH SHARMICK, INC., RE: SIDEWALK IMPROVEMENTS IN NORTH GROVE ESTATES

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Contract with Sharmick, Inc. for construction of sidewalk improvements in North Grove Estates. Motion carried and ordered unanimously.

CONTRACT WITH LEONARD SPIELVOGEL, TRUSTEE, WICKHAM/I-95 1990 TRUST, RE: INFRASTRUCTURE IMPROVEMENTS IN WICKHAM PLAZA WEST

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Contract with Leonard Spielvogel, Trustee of the Wickham/I-95 1990 Trust, for infrastructure improvements in Wickham Plaza West. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE AMENDING SUBDIVISION AND SITE PLAN PROVISIONS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to grant permission to advertise a public hearing to consider an ordinance amending the subdivision and site plan provisions for March 2 and 14, 1995, at 5:01 p.m. Motion carried and ordered unanimously.

ADOPTION, RE: SCAT 1995 UPDATE TO ADA REQUIRED COMPLEMENTARY PARATRANSIT PLAN

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt the Space Coast Area Transit (SCAT) 1995 Update to the Americans with Disabilities Act (ADA) Paratransit Implementation Plan. Motion carried and ordered unanimously.

APPROVAL OF GRANT APPLICATION, EXHIBITS, ASSURANCES, CERTIFICATIONS, RESOLUTION, AND FOLLOW-UP JOINT PARTICIPATION AGREEMENTS, RE: FY 1995 SECTION 18 RURAL ASSISTANCE GRANT FOR SCAT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Grant Application, Exhibits, Assurances, and Certifications to Florida Department of Transportation for $127,000 in public transit funding; adopt Resolution No. 95-207; and authorize the Chairman to execute standard follow-up Joint Participation Agreement, contingent upon the approval of the County Attorney and Risk Management. Motion carried and ordered unanimously.

APPROVAL OF SPECIAL TRIP, RE: PHYSICAL HANDICAP SOCIAL CLUB OF BAREFOOT BAY

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve special trip for the Physical Handicap Social Club of Barefoot Bay at an estimated cost of $250 to attend a musical performance at Riverside Theater on February 26, 1995. Motion carried and ordered unanimously.

RESOLUTION, BUDGET CHANGE REQUESTS, AND GRANT APPLICATION, RE: 1995 GRANT FOR MEDICAL SERVICES FOR INDIGENT RESIDENTS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution, approve Budget Change Requests, and execute Grant Application for $5,081 from Department of Community Affairs, Community Services Section, to provide medical services to indigent residents; and authorize the Chairman to execute follow-up contract and any amendments to the contract and budget after approval by the County Attorney and Risk Management. Motion carried and ordered unanimously.

RESOLUTIONS, DEED AND EASEMENT, RE: TRANSFER OF LANDS IN STOSBERG AND BOURBEAU PARKS TO FLORIDA DEPARTMENT OF TRANSPORTATION

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolutions and execute Deed and Temporary Easement as requested by Florida Department of Transportation for lands located on the north and south sides of SR 520, being portions of Stosberg and Bourbeau Parks. Motion carried and ordered unanimously.

AGREEMENT WITH TOM L. MYERS, RE: CARETAKER AT CUYLER PARK

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with Tom L. Myers, to provide caretaker services at Cuyler Park. Motion carried and ordered unanimously.

AGREEMENT WITH SPACEPORT R/CERS, INC., RE: USE OF OFF-ROAD VEHICLE PARK

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with Spaceport R/Cers, Inc. for use of the Off-Road Vehicle Park to fly radio-controlled model airplanes from January 27, 1995 through January 31, 1996. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH FLORIDA BOATING IMPROVEMENT PROGRAM, BUDGET CHANGE REQUEST, AND TEMPORARY LOAN, RE: KELLY PARK BOAT RAMP REPAIR

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Amendment to Agreement with Florida Boating Improvement Program, approve Budget Change Request and temporary loan from General Fund for Kelly Park Boat Ramp, and direct staff to send a letter to Representative Howard Futch on costs due to permit requirements. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH GLATTING, JACKSON, KERCHER, ANGLIN, LOPEZ, RINEHART, INC., RE: PALM BAY REGIONAL PARK DEVELOPMENT, PHASE II

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Amendment to Agreement with Glatting, Jackson, Kercher, Anglin, Lopez, Rinehart, Inc., extending the time for architectural and engineering services for Phase II of Palm Bay Regional Park Project. Motion carried and ordered unanimously.

REQUEST FROM U.S. FISH & WILDLIFE SERVICE, RE: INSTALLATION OF ARCHIE CARR REFUGE SIGN ON RIGHT-OF-WAY AT COCONUT POINT PARK

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve request from U.S. Fish & Wildlife Service to install an Archie Carr Refuge sign at Coconut Point Park. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH DIAMOND ENGINEERED SPACE, INC./GE CAPITAL MODULAR SPACE, RE: CLUBHOUSE FACILITY AT HABITAT GOLF COURSE

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Amendment to Agreement with Diamond Engineered Space, Inc./GE Capital Modular Space, for lease of the modular clubhouse facility for Habitat at Valkaria Golf Course under the same terms and conditions as the original Agreement, through October 14, 1995. Motion carried and ordered unanimously.

AGREEMENT WITH DEPARTMENT OF STATE, DIVISION OF LIBRARY SERVICES, RE: FY 1995 STATE AID TO LIBRARIES GRANT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with Florida Department of State, Division of Library Services, for FY 1995 State Aid to Libraries grant of $895,005. Motion carried and ordered unanimously.

TRANSFER OF TITLE TO CITY OF COCOA, RE: 1973 MACK AERIALSCOPE AND EQUIPMENT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve transfer of title to the 1973 Mack Aerialscope Fire Apparatus and related equipment to the City of Cocoa. Motion carried and ordered unanimously.

APPROVAL OF BUDGET CHANGE REQUEST, RE: GANNETT COMMUNITIES GRANT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Budget Change Request amending the budget to include $2,500 received from the Gannett Communities Fund for Special Needs Shelters Enhancements. Motion carried and ordered unanimously.

AGREEMENT WITH SUNTREE PARTNERS, RE: OVERSIZING OF RECLAIMED WATER SYSTEM

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with Suntree Partners for reclaimed water line oversizing. Motion carried and ordered unanimously.

EXTENSION OF AGREEMENTS WITH COCOA AUTO SALVAGE AND CURTIS BROTHERS, RE: TOWING SERVICE

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to extend towing Contracts with Cocoa Auto Salvage and Curtis Brothers to provide towing service from November 19, 1994 through November 17, 1995. Motion carried and ordered unanimously.

AWARD OF BID #B-5-5-09 AND APPROVE OPEN PURCHASE ORDERS, RE: ELECTRICAL SERVICE

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to award Bid #B-5-5-09, Electrical Service, to vendors of electrical service as listed on Attachment I at various rates for various services listed on Attachment II; and authorize open purchase orders within budgeted funds for County users of the services. Motion carried and ordered unanimously.

AWARD OF BID #B-1-5-37, RE: TRACK-TYPE DOZERS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to reject the low alternate bid of Linder Machinery for Bid #B-1-5-37, two Track-type Dozers, and award the second low bid of Ringhaver Equipment at $658,484. Motion carried and ordered unanimously.

AWARD OF BID #B-1-5-41 AND AGREEMENT, RE: KELLY PARK BOAT RAMP

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to award the low bid of RKT Constructors at $63,000 for Bid #B-1-5-41, Kelly Park Boat Ramp Project, and authorize the AWARD OF BID #B-1-5-41 AND AGREEMENT, RE: KELLY PARK BOAT RAMP

Chairman to execute an Agreement with the contractor. Motion carried and ordered unanimously.

AWARD OF BID #B-1-5-46 AND AGREEMENT, RE: FAIRGLEN ELEMENTARY SCHOOL PEDESTRIAN BRIDGE REPAIR

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to award Bid #B-1-5-46, Fairglen Elementary School Pedestrian Bridge Repair, to low bidder Martin Paving at $33,648; authorize the Chairman to execute an Agreement with the contractor; and approve temporary closing of Melaleuca Drive. Motion carried and ordered unanimously.

AWARD OF BID #B-1-5-51 AND AGREEMENT, RE: TRAFFIC DATA COLLECTION SERVICES

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to award Bid #B-1-5-51, Traffic Data Collection Services, to low bidder Computerized Traffic Data, Inc. at estimated cost of $53,800; and authorize the Chairman to execute an Agreement with the vendor. Motion carried and ordered unanimously.

AGREEMENT WITH ASAP SOFTWARE EXPRESS, INC., RE: WORDPERFECT PRODUCTS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with WordPerfect Corporation, Florida Department of Management Services, Division of Purchasing, and ASAP Software Express, Inc. for purchase of WordPerfect products. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH ARCHITECTS IN ASSOCIATION ROOD & ZWICK, INC., RE: EAU GALLIE PUBLIC LIBRARY

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Amendment to Agreement with Architects in Association Rood & Zwick, Inc. for redefinition of the Scope of Services and adjustment of A/E fees for Eau Gallie Public Library based upon construction of a new facility in lieu of an addition and renovation of the existing facility. Motion carried and ordered unanimously.

SUPPLEMENTAL BUDGET REQUEST, RE: SHERIFF'S FY 1995 BUDGET

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Supplemental Budget of $22,037 in additional revenues received by the Sheriff's General Fund for various capital expenditures for year ending September 30, 1995. Motion carried and ordered unanimously.

APPROVAL, RE: SPECIAL LAW ENFORCEMENT TRUST FUND EXPENDITURES

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve expenditures of $7,835 from Special Law Enforcement Trust Fund for an Omniprint 1000 Forensic Light Source. Motion carried and ordered unanimously.

QUIT CLAIM DEED AND RELEASE OF SECURITY INTEREST, RE: NORSK HYDRO ALUMINUM, INC. INDUSTRIAL DEVELOPMENT REVENUE BOND, SERIES 1980

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Quit Claim Deed and Release of Security Interest in connection with redemption of Norsk Hydro Aluminum, Inc.'s Industrial Development Revenue Bond, Series 1980, as the bond was paid in full. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY COMMITTEES

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to appoint and/or reappoint the following:

Spessard Holland Golf Advisory Committee

Allen L. Workman, 448 Dolphin Street, Melbourne Beach 32951 to replace Joe Reid, with term expiring December 31, 1996.

Historical Commission

Ms. Angel Dick, 2202 S. Greenway Street, Melbourne 32901, replacing John J. Geil, Jr. with term expiring December 31, 1995.

Code Enforcement Board

Lawrence P. Maxwell, 423 9th Avenue, Indialantic 32903, replacing Craig Suman with term expiring December 2, 1997.

Personnel Council

John J. Malone, 598 Coconut Street, Satellite Beach 32937, replacing Joe Sekera, with term expiring December 31, 1995.

Surface Water Improvement Advisory Board

Mark Amos, 1307 Peppertree Place, Rockledge 32955, replacing Doug Robertson, with term expiring December 31, 1996.

Commission on the Status of Women

Jewel Collins, 711 S. Varr Avenue, Cocoa 332922, with term expiring June 30, 1995.

Recreation & Parks South Service Sector Area Advisory Board

Joanne Corby, 2462 Chapparal Drive, Melbourne 32934, replacing Sue Graff with term expiring December 31, 1996.

Zoning Board of Adjustment

Timothy C. Jelus, 4455 Country Road, Melbourne 32934, replacing Edward Sears with term expiring December 31, 1995.

Georgia Phillips, 856 Westport Drive, Rockledge 32955, replacing David Davis as Alternate with term expiring December 31, 1995.

Sesquicentennial Coordinating Committee

Martha Remark, 707 Atlantic Street, Melbourne Beach 32951

Carole Pope, 715 Rockledge Drive, Rockledge 32955, representing municipality

Gene McCarthy, 325 5th Avenue, Indialantic 32903, representing Business

Bill Hall, P. O. Box 500245, Malabar 32950-0245, representing municipality

Motion carried and ordered unanimously.

PERSONAL APPEARANCE - MARY ANNE WHITE, RE: COMMENDATION RESOLUTION

Commissioner Cook read aloud a Resolution commending Mary Anne White for 21 years of outstanding public service, and presented the Resolution to her.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to adopt Resolution commending Mary Anne White for 21 years of outstanding public service. Motion carried and ordered unanimously.

Mrs. White thanked the Board for the kind and complimentary words, and stated she has mixed emotions, is looking forward to retirement and some traveling and doing things at a leisurely pace, but she is also sad. She stated more than 21 years working for Utilities is a third of her whole life, and that is about to end; but what she has accomplished, she has not done it by herself. She stated she has been fortunate to work with five very fine professional directors and thanked them for their guidance and encouragement to learn and grow in her job, and she has to thank all the co-workers past and present in Utilities for their cooperation and team work and especially their friendship as they tackled so many assignments together. She thanked people in other departments and offices all over the County who were always courteous and helpful in assisting her when she called and asked for things. Ms. White thanked her husband Don and children who grew up during that time; and stated they were patient and supportive, especially when she had to be out of town, took work home or worked on weekends. She stated all those people really share in any success she may have had. She advised when reading about County employees, sometimes people are left with a negative impression; however, based on her more than 20 years of working with them all over the County in all kinds of positions, she can say there are a lot of talented and dedicated people who often put in extra work for which they do not expect or receive recognition, but they do it to serve the citizens. She stated those are people the Board never hears about; they are very quietly doing a great job; but the Board can be sure the tasks that need to be done are in good hands; and she is proud to have been a part of that.

Assistant County Manager for Environmental Services Stephen Peffer stated, on behalf of Dick Martens who is home sick and all the people in Utilities, he wants to say they will miss Mary Anne because she is one of those people who often behind the scenes keeps the rest of them from falling. He thanked Ms. White for many years of service.

Chairman Higgs expressed appreciation for the words, and noted sometimes they forget all the wonderful people who serve the County and citizens; thanked Ms. White for reminding the Board; and stated they appreciate the work the employees do and sometimes do not receive credit for.

PERSONAL APPEARANCES - PETER JURBEL AND MARGUERITA ENGLE, KEEP BREVARD BEAUTIFUL, RE: ANNUAL REPORT

Peter Jurbel, Chairman of Keep Brevard Beautiful, introduced Marguerita Engle, Executive Director of Keep Brevard Beautiful, and noted she will tell the Board about their accomplishments in 1994 before it votes on the renewal of Keep Brevard Beautiful's contract for 1995.

Marguerita Engle advised their theme for 1994 was "Environmentality is an Attitude"; and it was an attitude that was demonstrated by their volunteers and illustrated by the fact that for every dollar they received, they returned $6.48 to the community. She stated they had over 9,000 volunteer hours, won a Keep Florida Beautiful award for the top Keep America Beautiful System in Florida for a population of over 200,000 which meant they had to compete against Orlando, Jacksonville, and Tallahassee; and they administered 14 Countywide programs that dealt with litter, litter prevention, recycling, and beautification. She noted every year they have a trash bash; in 1994, they had 700 volunteers who picked up over 900 bags of trash; they also participated in cleanups with ten other groups; and they gave out 14,000 boater and angler pledges, distributed several hundred portable ashtrays, filmed a documentary with Channel 9 on illegal dumping, planted eight trees under Memorial Tree Program, gave out xeriscape beautification grants to 13 entities, and did the aluminum cans for burned children program that collected over 40,000 pounds of aluminum foil. Ms. Engle advised they had 215 adopt-a-shore cleanups and 25 adopt-a-road cleanups; they had 55,000 state offender hours; did 21 programs in the schools; gave out 48 school of the month environment awards; and held a "Building a More Beautiful Brevard" contest. She stated they participated in 24 other programs and events; and that is just a small part of what they did during the past year. Ms. Engle advised the state said the County will reduce its litter by 30% by 1997; and Brevard is well on its way to achieving that, particularly through the efforts of the Board and Keep Brevard Beautiful.

Chairman Higgs thanked Ms. Engle and the Keep Brevard Beautiful Board for the efforts they are bringing forward in the community.

Mr. Jurbel advised the 1995 Trash Bash will be held April 1, 1995, and they hope the Board can stir up people to come out and help because it helps to keep Brevard cleaner.

PERSONAL APPEARANCE - ROY JOHNSTON, TROPICAL BIRD FARMER, RE: NOISE ORDINANCE

Linda Johnston advised her husband was called out of town because his father is having emergency heart surgery, and if there are no objections, she would like to speak on his behalf. She stated they are owners of True Companion Aviary, an exotic bird breeding business that operates on AU zoned property in unincorporated Brevard County; and she is here in reference to Ordinance No. 94-01 which amended Ordinance No. 93-09, the noise ordinance. She stated the Ordinance repealed Section 14-20.42(d)(1) and created a new Subsection (1) which was entitled "Loud and Raucous Noise Prohibited Generally." She stated Section 14-20.41(d)(1)(e) is entitled "Exemptions," Item (10) currently reads, "Farm equipment, machinery, or noise from farm animals within an agriculture zoning classification would be exempt from the current noise ordinance;" and requested the Board consider changing it to read "Farm equipment, machinery, or noise from farm animals, including exotic birds within an agriculture zoning classification." Ms. Johnston stated she is one of many exotic bird breeders who operates a business in Brevard County; they are legitimate business owners who are registered with the Florida Freshwater Fish and Game Commission; and they collect sales taxes in Brevard County. She stated they ensured their businesses were located on agriculture property and tried to comply with all local, state and federal laws prior to starting their business; breeding of exotic birds have become a big business, especially in Florida; and if there are any doubts, people could check the pet stores or their veterinarian offices. She stated they have invested over $100,000 in their breeding stock alone; they have supplied baby birds to almost all of the local pet shops in Brevard County; they in turn make a profit through the re-sale of pet birds and the sale of seed, cages, toys, etc. necessary for properly caring for the birds. She noted her seed and vegetable bill alone was over $6,700 last year; the exotic birds are very complicated creatures and require special care from doctors who specialize in avian medicine; and her $2,000 vet bill is not uncommon for any breeder who tries to keep the breeding stock in good health and assure that their pet stores are being supplied with quality healthy chicks. Ms. Johnston advised the current ordinance is placing all bird breeding businesses in jeopardy; they are operating under the constant threat that someone could purchase adjoining property and later complain because they do not like living next to an exotic bird farm; they breed macaws, cockatoos, African grays and Conyers; at certain times of the day, usually at sun up and sun down, the birds do get chatty; and they may also become noisy when a flock of wild birds fly over or during a thunderstorm or when they are being fed. She stated other than that, they do not usually become what most people would consider as loud or raucous. She stated they are completely quiet at night unless they are threatened by a wild animal. Ms. Johnston advised they live with their birds and recognize that the noise associated with their business would not make them desirable neighbors in a residential community; that is why they intentionally moved out to agriculture zoned property; they understand the Zoning Codes are necessary for any community to restrict certain activities to certain areas; and in Brevard County much of the agriculture zoned property is currently being developed for single-family residential homes and many exotic bird breeders who started their businesses many years ago in the sticks are now finding themselves with new neighbors. She stated while they are trying to become good neighbors, at any point the new neighbors could file a noise complaint and force them to move their businesses out of Brevard County; unfortunately, that is exactly what is happening; and while the noise Ordinance is not saying they must close their businesses, it places unrealistic alternatives on them such as building walls, berms, or structures around their birds; and it was easier and cheaper for several breeders to move to Osceola or Volusia County and take their money with them. Ms. Johnson stated she does not understand why someone can move in next to a bird breeding farm and later complain about the noise, but it does happen; and it would be like moving next to an airport then complaining that airplanes make noise. She stated according to the local Ordinances and Zoning Code, she can raise chickens, roosters, or geese on her agriculture property and her business would be exempt from the noise Ordinance; however, because her exotic birds are not considered traditional farm animals, her business is not afforded the same courtesy. She stated her exotic birds do not make any more noise than chickens, roosters, or geese; exotic birds are like any other poultry or fowl; and they are modern day farmers who are asking for the same consideration and relief that have been granted to those traditional farmers in Brevard County. Ms. Johnston requested an exemption to the noise ordinance for breeding of exotic birds on agriculture zoned property. She stated Brevard County has been her home since 1969; her husband and she always planned to retire here; they want to keep their business here; and they want to continue supplying local pet stores with affordable quality products so they are not having to go out of the County. She stated she wants to keep her money invested in Brevard County and needs the Board's help to do so. She thanked the Board for the opportunity to speak and for its consideration of this matter.

Dwight Greenberg, Chairman for the Legislative Activities for The American Federation of Avian Culture, advised they run into similar problems throughout the country and have several good laws that have been enacted to address this problem if the Board wishes to see them. He stated exotic bird breeding is a very long-term effort; it is not like dogs or cats; some birds he has had for over seven years trying to produce; and to pick up his collection which is in Brevard County and move to another county could set him back seven or eight years in his breeding program.

Commissioner Ellis stated the problem is not that they need another law; there are a few laws too many now; and if people buy agriculture property they should not complain about animals. He stated geese are far more noisy than tropical birds; they should be exempt like all other animals in agriculture zoned property; and he would like to put the item on the Agenda for discussion on the first or second meeting in February or the night meeting in March.

Commissioner Scarborough advised the first issue is whether to advertise the ordinance, what language will be advertised, etc.; the Board spent a number of hours hearing testimony on both sides of this issue and whether or not it is a good idea; and it is not an easy issue because there are rights on both sides. He stated the discussion with the Board should be options on how to proceed if it wishes to proceed, then decide on the language which should not be at the evening meeting; however, when the actual ordinance is done, it could be at the evening meeting.

Chairman Higgs recommended the item be scheduled for the second meeting in February for the Board to decide whether it wants an ordinance change or how to proceed.

Commissioner Ellis advised Mrs. Johnston and Mr. Greenberg, if there is any information they would like to attach to the Agenda item, they could send it to his office or the County Manager's Office to be distributed to other Commissioners.

PERSONAL APPEARANCES - RICH ANDERSON, MERRITT SQUARE MALL, AND BONIFACE-HIERS AUTO, RE: VARIANCES FOR PROMOTIONAL ACTIVITIES

Rich Anderson and Tim Gillam with Boniface-Hiers Auto Group, 1775 E. Merritt Island Causeway, Merritt Island, advised they are requesting three off-site sales at Merritt Square Mall instead of two; the Code right now is set up to allow only two a year; they made a deal with Merritt Square Mall to hold three; and they need the Board's approval for one more sale over the course of a year on the same parcel.

Chairman Higgs inquired how would the Board do it if that is its desire?

Zoning Official Rick Enos advised there is a provision in the Zoning Code that permits no more than two tent sales on a developed commercial parcel; this is a request to change the Code to permit more than two; so it would require advertising and hearings before the Local Planning Agency and this Board. He stated there is a special events ordinance being considered at this time; there is a possibility they will move the section into that ordinance because it probably does not belong in the Zoning Code; and they are working on that now, and will be happy to take that into consideration.

Commissioner Cook inquired if this is a request to change the Code or just a waiver; with Mr. Enos responding the Board cannot grant variances; that is the Board of Adjustment's responsibility; and his discussions with Mr. Anderson was to amend the Code. Commissioner Cook inquired if they should go to the Board of Adjustment; with Mr. Enos responding yes for a variance, but to change the Code they need to request this Board to do it. Commissioner Cook advised he dislikes changing the Codes every time there is a unique situation that could be handled by the Board of Adjustment.

Commissioner Ellis advised under the current rules for the Board of Adjustment they would not have a prayer because it would have to be an economic hardship; with Mr. Enos responding they would have to prove a hardship before the Board of Adjustment in order to get relief and it cannot be based on any economic issues. Commissioner Ellis advised he would not want to send anyone down that route because it would be a dead end.

Chairman Higgs advised the Board of County Commissioners does not have the authority to grant waivers or variances from that Ordinance.

County Manager Tom Jenkins advised if they are seeking a long-term solution, amending the Code would be the answer.

Commissioner Ellis recommended the item be put on the agenda. Commissioner Cook stated he would be happy to discuss it but does not know if he will be in favor of it.

Chairman Higgs recommended the item be placed on the Agenda for the second meeting in February to discuss the options. Assistant County Manager for Community Development Dean Sprague advised staff feels this regulation does not belong in the Zoning Code and should be in a special events ordinance where the Board would have more flexibility to consider local issues. Chairman Higgs advised staff to include that in the Agenda item; and inquired if it would be a land development regulation; with Mr. Sprague responding yes. Chairman Higgs advised at the second meeting in February, the Board will discuss it, but because of the nature of the issue, it has to have two public hearings after 5:00 p.m. two weeks apart. She informed the representatives if they have additional information of why the Board should change the Code, to get it to Mr. Enos.

PERSONAL APPEARANCES - MARY LOU OR RON BREININGER, RE: ZONING VARIANCE FOR A RESIDENCE

Mary Lou Breininger, 3447 N. Indian River Drive, Cocoa, advised in July they bought a home and thought it was a duplex; they were surprised that it was not a duplex; even the real estate agent thought it was a duplex; however it only had one electric meter. She stated her son pleaded their case in October for rezoning and the neighbors objected to multifamily, so they did not do very well. She stated the home is ten years old; there are two kitchens; and they want to keep the house as it is and has been for ten years, a single-family residential second kitchen facility. Ms. Breininger advised they were heard in October and are requesting to be heard again within the six-month period; they are desperate at this point and want to have a legal home; the second apartment was supposed to be a recreational room, weight room, or whatever according to a paper she found dated 1984; they walked into the house not realizing what they had; and now they have a big problem. She stated they cannot sell the house because of the illegal kitchen; and requested the Board's help to resolve the problem.

Chairman Higgs requested Zoning Official Rick Enos advise the Board of the process to be used, how the Board could hear this issue, and the six months waiting period.

Zoning Official Rick Enos advised the request is to waive the six months waiting period to allow them to re-apply for a conditional use permit; the RU-2-4 rezoning request was denied, which put them into the six months waiting period before they could re-apply; however, the Board can waive that time period.

Chairman Higgs inquired when did they apply; with Mr. Enos responding late last year, in October or November. Chairman Higgs inquired what zoning agenda could they get on; with Mr. Enos responding they cannot submit an application until April and would not be heard until June. Chairman Higgs inquired if they cannot be heard for six months, or cannot apply for six months; with Mr. Enos responding they cannot apply for six months from their previous hearing date unless the Board waives that time period; so if the Board waives the waiting period, he could take their application immediately and they could probably get on the April agenda.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to waive the six-months waiting period to allow Mary Lou Breininger to re-apply for a conditional use permit for a second kitchen.

Commissioner Scarborough advised when the Board waives the six-months waiting period, it should have new information or extenuating circumstances to consider, otherwise it will be setting a dangerous precedence and will be waiving it constantly for rehearings. Mr. Enos stated that is a concern; the Code specifies if the new request is of sufficient difference from the original request; and in this case, the original request was for multifamily and this request is for a CUP for a second kitchen facility in a single-family residence, which is of sufficient difference. Commissioner Scarborough inquired if the maker of the motion would include that as the reasoning for waiving the time period; with Commissioner Cook responding he does not mind, but every time they re-apply they have to pay the application fee. Commissioner Scarborough advised there were a number of people who came out for this issue when it first came up; and if the Board keeps giving re-hearings, it could get into a dangerous mode of granting to one person and not granting to another. He stated if there is a reason included in the motion, he could support it. Commissioner Cook stated they are asking for something different, so it is proper.

Ms. Breininger advised it is still a two-family home and they are saying it is not; they just want to keep the second kitchen; she has talked to the neighbors that live adjacent to her property and they are scared of rezoning, but they are supporting her in this request. She stated they will come with her or she will bring letters from them supporting this request. She stated she did not go over the whole area, but in the area where the home is, she has their support. Commissioner Scarborough recommended Ms. Breininger get the names and addresses of those people who spoke at the original rezoning hearing from the Clerk's Office.

Chairman Higgs advised the motion is to waive the six-months waiting period to allow the Breiningers to re-apply for a conditional use permit for a second kitchen because of new information and a substantially different issue; and called for a vote on the motion. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - MAC JONES, SUNNYLAND BEACH PROPERTY OWNERS ASSOCIATION, RE: FISHING IN RESIDENTIAL MAN-MADE SALT WATER CANALS

Mac Jones, 297 Nikomas Way, Melbourne Beach, representing Sunnyland Beach Property Owners Association, advised Sunnyland Beach is off SR A1A about five miles north of Sebastian Inlet with about 225 homes on four finger canals; Section 122-1 of the County Code deals with fishing within residential man-made salt water canals; subparagraph (d) states, "It shall be a violation of this Section to take fish from any residential man-made salt water canal within the County by any means other than allowed herein; and paragraph (e), exceptions, states, "it shall not be a violation of this section to take fish from any residential man-made salt water canal within the County by hook and line or cast net thrown by hand." He requested the Board consider an amendment so that paragraph (e) would read ". . .from any residential man-made salt water canal within the County by hook and line or cast net of six feet or less thrown by hand." Mr. Jones advised the intent is to limit the size of the cast net to six feet; the reason they want it is because the ban on gill nets will take effect on July 1, 1995; and predicting the human behavior that will follow enactment of that ban indicates fishermen will look for easy places to fish with what gear they have to stay in that business. He stated they are allowed to have cast nets as large as they can throw; an easy place to catch fish in those circumstances is a residential canal; their canals have been visited in the past and fished out very thoroughly; and the reaction of the homeowners up and down Brevard County will be a considerable amount of anger that their fishing resources are being totally depleted. He stated it is not fair for the fishermen to wait that long; they have big decisions to make about their livelihood; and if the Board agrees, it should accomplish the amendment ahead of time and let the fishermen know what other restrictions they might face.

Commissioner O'Brien advised Mr. Jones made a well-thought out presentation; he did the right thing to get ahead of the game before it happens rather than wait until after which is a bad habit they all have; and if the Board listened to what he had to say, the right thing to do would be to amend the Ordinance to limit cast nets to six feet in diameter. He stated if the Board does not do that, people will go out there with 20 and 30-foot nets and take everything out of there. Mr. Jones advised he thinks cast nets are rated by radius, but he would have to check to make sure.

Commissioner Ellis inquired how big a cast net can a person throw; with Mr. Jones responding a 12-1/2-foot net stretches out to a 25-foot diameter; he has seen those thrown beautifully in his canals; and as a matter of fact, there was one last night. He stated Special Act 79-429 limits cast nets during the hours of 11:00 p.m. to 7:00 a.m. in man-made salt water residential canals; and what he is seeking is to take that Act and increase the time period to 24 hours a day through a local ordinance rather than the Special Act. Commissioner Ellis stated limiting the cast net to six-foot radius would be 12-foot diameter.

Motion by Commissioner O'Brien, seconded by Commissioner Ellis, to direct staff to prepare an amendment to Section 122-1, Brevard County Code, to limit cast nets in residential man-made salt water canals to six feet or less; and return with the proper wording for the Board's consideration at the second meeting in February, 1995.

Commissioner Scarborough advised it is clear what the Board would like to accomplish, and rather than direct staff to bring back the language, it should authorize staff to prepare an ordinance and advertise the public hearing rather than delay this issue. Commissioner O'Brien stated he agrees. Commissioner Cook advised it is a simple alteration of the Code, so he would support going ahead with the ordinance and public hearing.

County Manager Tom Jenkins inquired if the County Attorney needs to confirm that the Board can do that; with County Attorney Scott Know responding if the Board is authorizing the preparation of an ordinance and advertising the public hearing for the second meeting in February, they can do that. Mr. Jenkins inquired if the Board has the authority to do the ordinance; with Mr. Knox responding if it is more restrictive than the Special Act, the Board can do it.

Commissioner Ellis inquired if it can be enforced by the Marine Patrol; with Mr. Jones responding he talked to the Marine Patrol after he got complaints from his neighbors, and they told him they had the Act and referenced it and said they would enforce it. Commissioner Ellis stated he remembers the Board had to go through the Legislature because they were doing drag lines through the canals; so he wonders if the Board should follow this up next year in the legislative package. Assistant County Manager for Environmental Services Stephen Peffer advised the Legislature reserved regulation of salt water fishing to itself, and the Board needed to get a special act to get the changes it wanted to make when it applied the Ordinance Countywide regarding salt water fishing; however, he will defer to Mr. Knox as it may be, as he said, that the Board can be more restrictive.

Chairman Higgs recommended the Board assume it can go forward with the motion as stated, and if it gets information otherwise, it will communicate with staff to go to the Delegation as opposed to being able to act on it.

Commissioner O'Brien inquired if the Board could ban the sale of any nets more than 12 feet in diameter in the County. He stated if it is going to make a Code, it should back it up, because stores are selling 20-foot diameter nets. Commissioner Ellis advised larger nets can be used in the open river.

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

PERSONAL APPEARANCES - LOU RACITI AND BRETTA WOODFORD, RE: AD HOC COMMITTEE MEETINGS FOR MANATEE PROTECTION PLAN

Louie Raciti, President of Citizens for Florida's Waterways, representing over 600 concerned citizens, requested the Board give the residents of Brevard County back their waterways that are being controlled, restricted, and taken away by a group of over-protected minded environmentalists. He stated with no disrespect to Chairman Higgs, he knows what her agenda is and she stressed that to him before. He stated he has been to the Ad Hoc Committee meetings on the Manatee Protection Plan, and the Board can see by reading the minutes that the Committee's main goals and objectives are not to have responsive manatee protection with a co-existence between man and manatee, but to close and restrict the use of the beautiful waterways. He noted the Committee, selected by Sandra Clinger, only has at most three members who oppose them; it is deplorable and unjust; and requested the Board take action to dissolve the Committee and select a new and fair one with individuals who see both sides of the issue and not just one. He stated they can protect the manatee and come up with a plan without shutting down the rivers. Mr. Raciti stated if no one wants to stop the crime being committed by Florida Power & Light Company and Orlando Utilities Company of creating a false environment for the manatee by discharging warm water into the waterways, they should close those areas off where 300 or so poor manatees congregate in the winter time to survive the cold waters. He stated they are for manatee protection and responsible decision making, but to take away and restrict over 70% of the 72-square miles of Brevard County waterways is absurd. He noted the Committee suggested using a borrow pit for boating and recreational activities which is ridiculous when there are two of the most beautiful rivers in the state; and the real burner is the move and acquisition of land they want to charge County residents and taxpayers for. Mr. Raciti advised this is a golden opportunity for the Board to stop over-zealous rules and restrictions being imposed on Brevard's waterways and let the citizens enjoy their waters like they have known in the past. He stated at a Board meeting on September 30, 1994, when the Board was trying to pass the Manatee Protection Plan and Patrick Rose was present, Commissioner Scarborough requested more scientific data or information from Mr. Rose concerning his wants and needs for closing down the waterways; that information has not been provided to the Commissioners; and the rules keep coming down on the County without scientific data and proof that manatees are endangered the way they speak of. He noted they say one manatee death is too much; if they see one manatee in the river, they want to restrict that waterway; and that is not proper and not right. He stated they have to live with the manatee, get along with it, and co-exist with it; a manatee plan should not be restricted solely to closing down and restricting waterways; there should be a co-existence between people and the manatee; and that is the kind of protection they would like to see.

Bretta Woodford, member and officer of Citizens for Florida Waterways and employee of Sea Ray Boats, advised the state mandated a manatee protection plan; the Board charged Natural Resources Management Division to do what was supposed to be a good cross-section of interests for the Manatee Ad Hoc Committee to develop the Brevard County Plan; and after attending all but one of the Committee meetings, she has come to the conclusion of staff's inability to properly prepare the Committee with tools they need to make very difficult decisions. She stated staff is constantly unprepared and their excuses change on a monthly basis; and it alarms her that staff is unable to do their jobs because it is a plan Brevard County constituents have to live with. She stated it appears that the Ad Hoc Committee is window dressing for the Department of Environmental Protection's plan; but some very intelligent people on the Committee have recognized DEP's agenda and have given opposition to rubber stamping the plan they offered. Ms. Woodford advised the make-up of the 24-member committee include four staff members, one staff advisor or scientific advisor, nine members with environmental interests, six members not from Brevard County, and two who claim they represent something they do not. She stated the Committee is top heavy to staff's and DEP's benefit; so no matter what the issue is, the vote is in DEP's favor. She requested Sandra Clinger be replaced with someone able to handle the task at hand, as her excuses have worn thin, and members of the Committee are very frustrated and have to work with 10-year old data. She inquired how can the Committee come up with a plan that will work for the current population when they and DEP do not know what that is. She advised upon repeated requests, the members of the Committee have asked that the minutes be true reflections of what happens in those meetings, and they are not. Ms. Woodford requested Oli Johnson and Jackie White be replaced and removed from the Ad Hoc Committee because their representation is under false pretense. She stated Ms. White was never an elected representative from the Kennedy Space Center Barracuda Club and stated she now represents an Eco Club that is not chartered and has no formal meetings or membership; and Mr. Johnson is a park ranger who recently appeared on the cover of USA TODAY holding a manatee skull. She noted after discussing it with Palm Bay City Council, she expects a letter addressed to the Committee denouncing his position. She requested members of the public and industries that the plan will affect be considered to replace those two positions on the Committee and the Board look closely at the remaining members. Ms. Woodford advised her next concern is that at the last meeting of the Ad Hoc Committee, a staff member said none of the Commissioners requested any information from the meetings, let alone the meeting minutes; and she finds it very hard to believe due to the impact the plan will have on the County. She stated DEP and County staff are only looking at quick-fix solutions and not what causes 74% of the manatees' deaths in the months of November through March; boating regulations are addressed as #1; and DEP wants the Port to retrofit bumpers and reconstruct docks for one manatee death in 10 to 20 years, but they do not look at FPL's effluent discharge where they had two deaths in one week. She stated she thought it was a plan to protect all the manatees and not just the trust fund. She requested the Board listen to its constituents; stated all they are asking for is a co-existence on the waterways and the plan be approached from a well-researched and thought-out process not be a quick fix and worry about the rest later, because later the manatee may not be endangered as the proposed rule will have doomed them.

Commissioner O'Brien advised Ms. Woodford made a very serious complaint about a County employee, Sandra Clinger; and inquired if there is something wrong with the data she presented to Ms. Woodford; with Ms. Woodford responding the data that comes to the Committee members comes sometimes at midnight the night before the meeting, or a day before the meeting, or the day of the meeting; there is no way, with the amount of information they have to consider, that the members can sift through that information and make well-researched answers; the information is not getting to the members; and they have been given a plan from DEP which DEP is expecting them to rubber stamp. She stated if they do not get the information where they can read it and research it, there is no way they can make a very informed opinion on those things.

Mr. Raciti stated since Sandra Clinger's staff has been doing the minutes, they are not reflecting the true feelings; that came from Wes Hoaglund from Titusville who seems to be in opposition quite a bit to having his waterways and Brevard County's waterways shut down; it was not reflecting his true feelings; and it seems that it entails just in short detail how they really feel, so they wanted more detailed minutes in case the Board would like to read them and see actually what has been going on at those meetings. He stated he also complained immensely about the short amount of time they have to work with the information they can get.

Commissioner O'Brien inquired who is Ms. White from the Barracuda Club; with Ms. Woodford responding Ms. Clinger enlisted Jackie White's help on the Ad Hoc Committee, and she put down that she represented the Kennedy Space Center Barracudas; because of the way Ms. White was voting, she contacted the Barracudas, and they wrote a letter to the Committee denouncing her position and saying she was never an elected representative; and now Ms. White says she represents an Eco Club which has no formal charter, meetings, or membership, so she should be replaced with someone because the Committee is supposed to be a cross-section of all interests, which she does not see.

Chairman Higgs inquired what dictated the membership of the Committee; with Natural Resources Management Director Lisa Barr responding the Committee membership was structured by the Board of County Commissioners and Department of Environmental Protection; it consists of representatives from each city with waterfront jurisdiction; and the cities appoint their own members to represent the cities' interests. She stated it also has one representative to represent environmental interests that was chosen through the Eco Group; it is the same group that chose the membership for the Habitat Conservation Plan Steering Committee; they have regular monthly meetings, but she is not sure about their charter; however, they are a recognized environmental coalition. She stated they have representatives from the marine industry and shellfish farmers; the one addition to the original Committee membership was the shellfish farmers industry; and that was done at the request of the Committee to get a more balanced perspective. Chairman Higgs inquired if Ms. White can represent Eco and isit a fairly recognized environmental group; with Ms. Barr responding that was corrected publicly at the last Committee meeting or the meeting before. Chairman Higgs recommended the item be put on the Agenda to get a thorough report on what is being done, what are the premises of and the precedent that are established for why they are going through the process, and discuss it from a knowledgeable position as opposed to one side of the story. She stated that is a side the Board needs to hear, but it also needs to hear the other side.

Commissioner O'Brien suggested reorganizing the entire Committee to have more public input into the system. He stated the Board created a Committee that is entirely environmental groups, County staff, and environmental staff from the County and state; and nobody is against saving the manatee, but the public has had no input as to the side it must be on as well. He stated there is no public input in this thing, and the Charter wanted government to seek more public inclusion. Chairman Higgs advised the municipalities designated their representatives. Commissioner O'Brien stated there are no Brevard County resident on the Committee; they have brought in Brevard County government, but not people from Merritt Island or never-never land; and there are a lot of areas that should have citizen activity groups involved in the process.

Commissioner Ellis stated he had someone contact him last summer about how the Committee was set up by the previous Board; and the problem to him is it is a stacked deck with government officials. Commissioner O'Brien stated it is strictly government officials without public inclusion.

Chairman Higgs advised she, Commissioner Ellis and Commissioner Scarborough were sitting on the Board when the Board established the Committee in 1993; for good or bad, they did it; and the cities designated their representatives, and elected bodies designated their representatives. Commissioner O'Brien stated if the Board did it, it can change it. Commissioner Ellis stated he made a mistake if he did it because there is definitely not a sense in representation the way the Committee is set up. Chairman Higgs stated if the Board does not like the representation the cities made, then it is saying it has to ordain for everyone a purity of thought for a committee; and she finds that most unsettling that the Board believes it can ordain what people think.

Commissioner Scarborough advised the Board should not assume everything is a mistake; maybe it needs some correction; and the fact that the cities are included, he would not want to tell them they are not included now. He stated he would like to see a list of all the members and where they are from, and review some of the minutes; then when the Board discusses it, it will have a better feeling of how it can approach it and strengthen the Committee.

Commissioner Cook advised even if the membership of the cities were kept, the Board could expand the Committee to get a more balanced group and more viewpoints; he shares the concern that there seems to be an effort to close the waterways; the waterways are a quality of life issue; and people have a right to use the waterways. He stated the County needs to protect the manatees, but not to theextent of closing off a natural resource that provides hours of enjoyment to families in Brevard County. Commissioner Cook suggested expanding the Committee and review of staff's support. He stated if the minutes are not reflecting what is going on, then he has a concern with that and would like to be kept up to date on what is going on with the Committee.

Ms. Barr advised they had a discussion as a Committee regarding the minutes; it is currently a 28-member committee and there was concern by one of the members that it did not reflect the flavor of the meetings; and by Committee consensus, it was decided that is not really an appropriate position for a secretary to try and get people's emotions or feelings, and that it is the process of reviewing the minutes and making any corrections. She stated they are already ten-page minutes which is probably one of the larger sets of minutes they put out for any committee; and as far as getting people's emotional viewpoints, that is usually corrected as they review the minutes rather than leave it up to a staff person to interpret somebody's intent.

Commissioner Cook stated that was not his suggestion, but if there is a complaint on that, it needs to be looked at.

Motion by Commissioner O'Brien, seconded by Commissioner Ellis, to schedule discussion of the Manatee Protection Plan and its development for February 7, 1995. Motion carried and ordered unanimously.

The meeting recessed at 10:20 a.m., and reconvened at 10:35 a.m.

ADDENDUM NO. 7 TO AGREEMENT WITH KEEP BREVARD BEAUTIFUL, RE: LITTER PREVENTION AND BEAUTIFICATION PROGRAMS

Commissioner Cook inquired if the $80,000 will come from the Litter Marine and Debris Prevention grant; with Solid Waste Management Director Richard Rabon responding $20,000 will come from that grant. Commissioner Cook inquired where the rest of the money is coming from; with Mr. Rabon responding from the Solid Waste Fund. Commissioner Cook stated he was under the impression the County was getting an $80,000 grant from the state; with Mr. Rabon responding part of the recycling and education grant funding received each year is now being earmarked for litter and marine protection, but that is only for $20,000 plus. Commissioner Cook inquired if it is an increase in their budget; with Mr. Rabon responding the litter and marine portion was increased from about $10,000 last year to $20,000 this year and is dedicated to the program they are doing for the County. Commissioner Cook inquired what kind of increase would it be; with Mr. Rabon responding $10,000 increase. Commissioner Cook inquired if the total increase to their budget is $10,000; with Mr. Rabon responding yes. Commissioner Cook inquired if it is mandated by the state; with Mr. Rabon responding no, the grant funding is restricted to certain types of litter and beautification type of projects they are contracted to do. Commissioner Cook inquired if it would be an $80,000 increase in budget; with Mr. Rabon responding no. Commissioner Cook stated that was his concern.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to execute Addendum No. 7 to Agreement with Keep Brevard Beautiful dated October 24, 1988, to administer the Litter Prevention and Beautification Programs at $80,482. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CODE ENFORCEMENT BOARD

Chairman Higgs called for the public hearing to consider an ordinance amending the Code Enforcement Board, changing Section 3(c) to reflect the code enforcement officer, upon personal inspection, has a reasonable belief that a repeat violation has been committed.

Commissioner Cook inquired if that is a repeat violation of the same nature and if the citation upon personal inspection would take place after a hearing before the Code Board; with Assistant County Manager for Environmental Services Stephen Peffer responding that is correct, the Code Board will have already taken action in order for the officer to write a citation.

There being no further comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Ordinance amending Chapter 2, Article VI, Division 2, Code of Laws and Ordinances of Brevard County, Florida, pertaining to the Code Enforcement Board, specifically amending Section 2-170 revising the process of appointment of Code Enforcement Board members; Section 2-171 relating to recovering costs incurred in prosecuting cases before the Code Enforcement Board; Section 2-173 providing for citations for repeat violations; revising the conditions under which a code inspector may immediately notify the Enforcement Board and request a hearing; Section 2-174, authorizing collection of cost to repair to be included in the fine; Section 2-176 revising the time period for imposition of a fine for repeat violations, and authorizing the County to collect costs of recording and satisfying the lien for cost of repairs; Section 2-177 authorizing the local governing bodies to collect costs for recording and satisfying a valid lien; Section 2-179 revising requirements relating to notice to the violator by posting; providing an effective date, as amended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE IMPLEMENTING ECONOMIC DEVELOPMENT AD VALOREM TAX ABATEMENT PROGRAM

Chairman Higgs called for the public hearing to consider an ordinance implementing the Economic Development Ad Valorem Tax Abatement Program.

Commissioner Ellis advised there are some things he would like to have changed; he does not want to give anyone 100% exemption because if they are totally exempt from taxes, there is no break for them to go out and have more taxes imposed; so he would like to maximize the tax credit at 50%. Commissioner Cook inquired what is the reasoning; with Commissioner Ellis responding if a person does not pay taxes, it is easy to support tax increases; so everyone needs to pay some taxes to have the continued effect to hold the tax rate down. He stated his concern is if they came in with a very large business and paid no taxes at all, they would not be concerned about tax increases; so they need to pay some percentage of taxes to keep that check in effect.

Commissioner Cook advised the actual exemption would have to come to the Board on a case-by-case basis for approval. Chairman Higgs advised the ordinance will allow the Board to grant exemptions up to 100% and Commissioner Ellis wants to cap that at 50%. Commissioner Cook stated if it is up to 100% it does not mean the Board has to give 100%. Chairman Higgs stated the Board is setting criteria that would allow it to give up to 100%. County Manager Tom Jenkins advised on a point scale it does that, so if the Board does not want to do that, it should change it. Chairman Higgs inquired if Mr. Jenkins is suggesting sliding the point scale down so the maximum number of points would get 50% as opposed to 100%. Commissioner Ellis stated the scale could be used for number of years; whereby six points would be ten years, four to five points may be five years, and one to three points may be three years, but it would be set at 50% exemption.

Commissioner O'Brien advised tangible personal property is one thing and assessed value of all added improvements to real property is another; he can see exempting 100% of all assessed value of improvements to real property and exempting up to 50% for tangible personal property which can be inventory, machines they have to buy for expansion, etc. He stated if the exemption is granted at 100% for ten years they would have no interest if taxes go up or down and would not care about being included in the process. He stated there are two areas the Board can look at, tangible personal property and assessed value on improvements to real property.

Commissioner Ellis inquired if that is differentiated in the ordinance; with Economic Development and Legislative Affairs Director Greg Lugar responding the Property Appraiser does that during the course of assessments; and although it is not a requirement of the statutes, the Board could ask him and he may be able to break that out. Commissioner Ellis stated he knows the Property Appraiser can break it out because he does it for tangible real property as far as improvements and also the land, but he wants to know if it is differentiated in the ordinance.

Chairman Higgs inquired if the Board can do that.

Lynda Weatherman, Economic Development Commission Executive Director, advised when the ordinance was presented to the people on November 8, 1994, it said up to 100% up to 10 years; and by cutting it 50%, it negates what was presented to the people. She stated there will be a lot of due diligence in reviewing the economic impact of the investment by a company into the community so it may very well be 50% for five years, depending on the nature of the impact; and in many ways Commissioner Ellis' concern would be addressed. She stated the reason EDC came to the Board and asked for the referendum is to provide a tool they could use in assisting companies to expand in an area or to relocate in the community; by cutting it immediately at the ordinance level to 50% is getting the tool they have and making it not the tool it was intended to be. Ms. Weatherman stated it should stand in regards to looking at the savings and should be based on the investment and whatever a company brings into the community if it is a relocation. She noted there should be some kind of rated savings. She stated with regard to expansions, the tax exemption would only be on the area that is expanded, so they will pay 100% of their taxes on their facility and maybe the exemption would be 40% or 100% on the expanded area of the facility, depending on the economic impact the investment made by that expansion. Ms. Weatherman advised there is an effort, with the guiding documents they provided the Board, that shows how they are going to look at tax savings and based on the recommendations they would present.

Commissioner Cook advised his concern is that it was sold to the public at up to 100% for ten years; if the Board is going to give them a tool, it should give them the strongest tool it can; it was clear in the referendum why people supported it; and they want the Board to go forward and give options to bring in corporations that could provide employment for the County. He stated he feels uncomfortable re-addressing this issue at this point and playing with the numbers.

Commissioner Ellis stated the Board is not actually re-addressing this issue; when it came up he brought up the 50% issue before; and the legal opinion from Mr. Knox was they could not draft the ordinance before the referendum and the referendum had to be worded as it was. He stated he brought up the issue before it got to the referendum, but the Board could not address it because for some reason the way the Florida Statute is written, the issue could not be addressed until after the referendum passed. He stated his biggest concern is when people do not pay taxes at all there is no break on them going out and lobbying for tax increases because they are not affected; and at least if they paid some share of the taxes, they would have an incentive, if the Board decides to double taxes, to show up at the meetings and complain.

Commissioner Scarborough advised the Board was in the middle of discussions at the last meeting on economic development and had other things before so it did not finish that dialogue and set it for a workshop on February 1, 1995; he would like to complete that discussion before doing the ordinance because if there is ongoing discussion, the Board should not vote on an ordinance and he would like to table it to the first meeting in February in order to get all the input before voting on the ordinance.

Commissioner O'Brien recommended staff give the Board a list of all the things involved, i.e. impact fees, ad valorem taxes, etc. so the Board can look at the big package and see where it wants to do some tinkering, otherwise it will look at things separately one at a time and start messing up.

Motion by Commissioner O'Brien, to table the public hearing on the ordinance implementing the economic development ad valorem tax abatement program until February 1, 1995.

Commissioner Cook advised he does not have a problem with tabling the hearing but he would hateto tie the hands of people after the referendum.

County Attorney Scott Know advised the Board needs to continue the public hearing to a time certain.

Commissioner O'Brien withdrew the motion.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to continue the public hearing on an ordinance implementing the economic development ad valorem tax abatement program until February 7, 1995. Motion carried and ordered unanimously.

Mr. Jenkins advised another option, since there are mixed views about going to 100%, is if the Board wants to address how frequent that may occur, it can look at the scoring in terms of capital investment numbers and the points that are assigned there. He stated if it makes those higher numbers it makes it more difficult to be eligible for 100%, so that is another possibility to make it more difficult to achieve 100% exemption.

Commissioner O'Brien advised the major concern of the public is that the good ole' boys will get the 100% and those who come and go to work will get nothing; this can be used as a tool for corruption; so the Board has to take a close look at how it can be restricted and handled.

Commissioner Scarborough advised it is important to him if they are describing how they track and keep industry by the elements, that somehow those type of things be keyed into this, i.e. what type of jobs are they looking for, where are the tax advantages, etc.; so that is why he wants to bring them together. He requested they be prepared to discuss that on February 1, 1995 which would really help him.

Commissioner Cook stated he wants it to be across-the-board which ever way the Board goes with it, but it has to come to the Board for approval, so that should be a check on how it is used.

DISCUSSION, RE: STATUS OF PORT CANAVERAL

Harold Bistline, attorney representing the Canaveral Port Authority, advised they heard some concerns about their proposed local bill before the Legislative Delegation, and will briefly explain the purpose of the bill. He stated Bill Ellis, Director of Government Affairs, briefed all the Commissioners and a lot of the staff individually on this item; and the only thing the bill attempts to do by designating the Canaveral Port Authority as a political subdivision of the state, has to do with the ad valorem taxation on their real property that they lease to private tenants to develop and promote business and industry in Port Canaveral. He stated Port Canaveral of the East Coast Florida Ports and ports in Georgia and South Carolina, with the exception of Palm Beach, is the only port which is faced with an additional operating cost they pass on to their industry at the Port; and that is the ad valorem taxation on their real property. He stated the tenants and private enterprise at Port Canaveral have always paid ad valorem taxes to the County on all their buildings and improvements; the assessed valuation at the present time is half a million dollars a year that the tenants are paying in ad valorem taxes to the County; and the additional tax which resulted out of a 1992 assessment and subsequent litigation, will increase the cost of all tenants operating at the Port and anybody who wants to relocate to the Port, which puts the Authority at a severe competitive disadvantage with other ports they must compete with for the same cargo and industry, including the cruise industry. Mr. Bistline advised they are asking the Legislative Delegation to clarify their status as a political subdivision of the state; they are a special independent taxing district created by the Legislature and charged with performing a state function of operating a deep water port; and they have done so very successfully in Brevard County to the benefit of all of the County. He stated they are doing what they are supposed to be doing and do not understand why anyone would want to handicap their ability to continue to keep the industry and jobs that they have and to create and bring in new jobs to the County, which is their primary objective. He asked Mr. Ellis to hand out a summary of the benefits that the Port Authority is providing and has provided to the citizens of Brevard County. Mr. Bistline advised they are in the process of negotiating with a very large organization to bring additional cruise ships into the Port; and if they are successful in doing so, it would be a major economic boom for all of Brevard County, the tourism industry, hotels, restaurants, transportation, and everything that goes along with it. He stated the talk of uncertainty which the proposals are creating is going to severely handicap their ability to bring this industry here; there is another competing port that the industry is examining; and they would not have the uncertainty or the additional expense in that port. He stated just the talk of what they have been hearing is jeopardizing their ability to bring this new industry into the Port. Mr. Bistline advised the article in Florida TODAY Newspaper is about the sand bypass project which, after 28 or 30 years of continued efforts by the Port Authority, has come to fruition; they are in the process, as local sponsors, of starting the sand bypass operation which is going to result in 600 thousand plus cubic yards of sand being deposited on Brevard County's beach to mitigate the erosion that is a problem up and down the County. He noted those are the things they are doing for the citizens of Brevard County besides creating jobs and keeping jobs. He stated Central and Northern Brevard County are facing very severe employment problems and the prospects are not good; he cannot believe anyone would want to do anything to jeopardize Canaveral Port Authority's commitment to bring jobs and industry into the County; so what they are asking the Board to do is support their proposed legislation which will simply clarify their status and keep them on the same level playing field as all other competing ports they have to deal with. He stated the legislation they are asking for will not result in any money leaving Brevard County; their money will continue to stay in the County and re-invested 100% in the Port.

Commissioner Ellis advised a lot of the Port's recreation benefits, $22,000,000 is based on land value; and inquired if the land was purchased at those prices or did the land come to the Port in 1946; with Mr. Bistline responding that is the Port Authority's property that was available for other uses and dedicated to public parks; in three of the four cases, they actually constructed improvements on the park at the Port's expense; and they have leased those parks to the County for a dollar a year. Commissioner Ellis stated it is not proper to include $22,000,000 for land since that came with the original Port and was paid for by the taxpayers. He stated as far as the environmental benefits of the sand transfer, there are a lot of people who believe the Port caused some of the sand losses down the beach; so that is more of a wash for him. He stated he does not mean to beat on the Port, but the citizens have put a lot of money into the Port and the benefits that are listed do not outweigh the tax dollars that have been put into the Port because a lot of the benefits were bought with taxpayer's money, especially concerning land values. Commissioner Ellis stated if the Board thinks about taking over the Port, it needs to remember the lawsuit in federal court with Stumpy Harris regarding sand erosion; they came to the Board trying to get the County to join the suit; so there is a potential liability out there; and if the County assumes the Port, the County is going to assume that potential liability; and that is another thing that he is worried about.

Bill Ellis, Government Affairs Director for the Port Authority, advised the legislation they are asking for this year was accomplished last year by the Jacksonville Port Authority in the same fashion they are asking for it; and they foresaw the tax issue coming and took appropriate action. He handed the Board the economic benefits that accrue to Brevard County and the region in a study done by Price Waterhouse which shows that the Port and its tenants create approximately 9,700 jobs a year with a $387,000,000 annual impact on the economy in Brevard County. Mr. Ellis advised the primary mission of the Port Authority as a deep water port for Central Florida is development of economic development and jobs.

Bea Polk, 101 River Park Boulevard, Titusville, advised the Board is now trying to bring the Port under the County; for years they have tried with the hospital in Titusville which has the same money being made; and inquired why the Board does not get money from the hospital. She stated they get no more benefits paying the hospital all those taxes, and anyone who comes into the state uses the hospital. She stated she has tried to get the Commission to bring some things back under the County, but now it is going to just pick on one; and stated if the Board decides to do it with the Port, she wants the same thing done for North Brevard Hospital. She stated they pay taxes; the hospital is taking money and putting it in side-by-side corporations; and the taxpayers are not getting the money. Ms. Polk advised there are millions of dollars that could come back to the County; so if the Board is going to do one, it should be fair to the whole County. She stated she paid the Port and the hospital; so if the Board is starting to work on the Port, it should remember she has been trying for years to get money back from the hospital and it cannot do one without doing the other.

Commissioner O'Brien advised Chuck Maxwell is one of his Aides; he asked Mr. Maxwell to bring forth the work he did at his request; and rather than he trying to present it to the Board, he felt Mr. Maxwell should do it.

Commissioner Scarborough advised in that regard, he would like to afford Commissioner O'Brien as much time as needed for the presentation because he wants to understand what his position is. He stated he does not know how to handle that, but he would like to hear Commissioner O'Brien's presentation in full before he can understand where he is on this issue.

Chuck Maxwell, 140 Minna Lane, Merritt Island, representing the District 2 Commission Office, advised one of his jobs in Commissioner O'Brien's office is to look into certain issues that he asks him to do; so this is a report on that issue. He stated they are not here to necessarily debate the benefits of the Port; everyone agrees it is beneficial; no one disagrees that it is successful; in fact, that is probably one of the reasons why the County should have a lot of time to look at the move, the very serious move they want to make; and that serious move is to get designated as a political subdivision of the State of Florida for tax purposes. He stated when a subdivision of the State of Florida is designated for tax purposes, it can also get designated from there on as a subdivision of the State for any purpose; and what they are talking about here is not the success of the Port or about a loser, they are talking about a winner and the impact, present and in the future, that the winner has on a suffering economy in Brevard County. He stated they are not debating whether the Port should or should not have tax exemption; that is in the courts; one court has said they should and another has said they should not, but that is not at issue here; however, what is at issue is whether the tax exemption should come as a state subdivision or as a County subdivision. Mr. Maxwell advised they heard a lot of talk about taking over the Port, annexing the Port, and running the Port; that has not been the position of the District 2 office; and all they have said is that if tax exemption is the issue, then Florida Statutes allow for the County to provide that tax exemption just as much as the state; so there is no issue on anything that has been discussed here today. He stated they do not disagree with anything that has been said here today as far as the benefits of the Port, the success of the Port, the impact of the Port, and the jobs the Port has been providing; that is why the issue should not be settled quickly; and the only issue they are facing today is whether or not there should be a free and open debate over whether or not the Port should get its tax exemption as a state subdivision or as a County subdivision. He stated they can be just as independent as a County subdivision or as a state subdivision; however, the benefits to the County if they become a County subdivision are significant, and that is what the Board should look at. He noted those benefits could include environmental control, or at least environmental influence over Port decisions. Mr. Maxwell advised the Port Authority has never said it has given up on the plan to run a jet fuel pipeline from Port Canaveral to Orlando International Airport; as a state subdivision, it is quite possible they would have access to state road right-of-way; one state agency will have access to another state agency's right-of-way; so the plan to put a jet fuel pipeline across the County that could leak or explode, could go through as an agreement between two state agencies. He stated as a County subdivision, the Board would have closer control over the environmental plans of the Port, including the effect of their dredging plans for the beaches south of the jetties. Mr. Maxwell advised, from a financial standpoint, it is possible the County could get the tourist tax expanded to include ship passengers; they talked about expanding which will be great to get more tourists out there; and if it is possible to expand the legislation on the tourist development tax and/or a tourist impact fee, that could be a few million dollars a year for Brevard County without taxing one citizen. He stated those are the things that should be explored; and those are the things they feel require a delay in the presentation by the Legislative Delegation to the Legislature of at least one year. He stated a Port Commissioner feels that also; Commissioner Ralph Kennedy put in a motion at the last Port Authority meeting asking their request to the Legislative Delegation be delayed a year so that the County could have a free and open debate; however, the motion was not seconded and died for lack of support. Mr. Maxwell stated the Board should agree with Port Commissioner Ralph Kennedy and ask the Delegation to delay the changing of the status of the Port until the County has a free and open debate and discussion, and the Board can negotiate with the Port if they become a state subdivision and negotiate certain elements to protect the people of Brevard County. He presented a handout to the Board.

Chairman Higgs advised in fairness to the Port, she will allow Mr. Bistline to clarify the statements.

Mr. Bistline advised Commissioner Kennedy met with Commissioner O'Brien and told Commissioner O'Brien he would bring up the issue to the Canaveral Pot Authority at Commissioner O'Brien's request to postpone the proposed bill; he committed that he would do that and that is all he did; however, it died for a lack of a second; so the intentions of Commissioner Kennedy were mis-characterized. He stated the Port Authority is willing and able to sit down with the Board or Commissioners and County staff to discuss any item of mutual benefit to the citizens of Brevard County; that has been expressed to everyone on the Board; and they look forward to doing that. Mr. Bistline reiterated the bill they have asked the Legislature to do is essential to their competitiveness and crucial to have done this session because of the things he discussed earlier; they do not have time to wait a year; it will not get any better in a year; and he has been instructed to tell the Board they are ready, willing, and able to sit down with the County at any time to discuss anything of interest and look forward to doing so.

Commissioner O'Brien advised he and Commissioner Kennedy met in his office and discussed this issue; they agreed that a one-year time will open up debate for the public inclusion; Mr. Kennedy agreed to that; it is a good idea; he kept his word; and for Mr. Bistline to mis-characterize Ralph Kennedy now is absolutely wrong and embarrassing because he has crossed what Mr. Kennedy said, and he said it in public as well. He stated Mr. Kennedy brought forth to the Port Authority exactly what he and Mr. Kennedy discussed; and there is no mis-characterization taking place. Mr. Bistline stated that is exactly what he said; he said he would bring it up and he did bring it up; but to characterize his intentions is a mis-characterization. Commissioner O'Brien inquired why is it mis-characterizing Commissioner Kennedy; were his intentions not true, and did he make the motion and say he did it just to look good and that is all. He stated he thinks Mr. Kennedy had real intentions in his mind that the public should be included and a one-year time frame to figure it out was crucial. He stated Mr. Bistline said the bill is crucial to the Port; it is just as crucial to the County; if they want tax exemption from ad valorem taxation, they can get it as a Brevard County subdivision exactly the same way they can under the state; and to try and convince the Board that they have to become a political subdivision of the state is misrepresenting the truth. Mr. Bistline stated he is sorry Commissioner O'Brien feels that way; the Canaveral Port Authority is a political independent special district of the state now; there is nothing on the table or any proposal before the Legislative Delegation to make it a subdivision of the County; and if it was a department of the County, it would be immune from taxation, so this is really a bogus issue. He stated there are some people who want the Port placed under the auspices of the County; he does not feel it is a good idea; the Authority does not feel it is a good idea; and he does not think the residents of the Canaveral Port District feel it is a good idea, and expressed that in a series of elections.

Commissioner Scarborough advised Commissioner O'Brien would like to have a delay of the action; he does not understand the effect or reason for the action going to the Legislature; County Attorney Scott Knox wrote a memorandum with several questions, as follows: "What is the difference between a political subdivision and agency of the County? None. What is the effect of being declared a political subdivision versus being declared a County agency for the purpose of ad valorem taxation? None. Does the County have the authority to make the Port Authority a County agency? No." Commissioner Scarborough stated he does not understand why the Board is having this argument; Commissioner O'Brien wants to hold off for a year and Mr. Bistline said it is essential they move forward now to capture all those opportunities; and inquired what opportunities will be lost if they wait a year. Mr. Bistline advised the Fifth District Court of Appeal case law says the Canaveral Port Authority is not entitled to immunity from taxation of its fee interest in land that it leases to Port enterprises; they are appealing that law to the Supreme Court because they do not think it is correct; and because of that case, people who want to stay or relocate in the Port, or bring in and construct new facilities in the Port have to factor in that cost. He stated the piers, land, and cruise terminals are very expensive things that will be assessed and passed on as an operating cost to them; and that will increase their cost of doing business in Port Canaveral as opposed to Jacksonville, Palm Beach, Port Everglades in Miami, Tampa, or any other ports that do not have that problem. Commissioner Scarborough inquired if it is basically a tax issue; with Mr. Bistline responding yes.

Chairman Higgs inquired who owns the cruise terminals; with Mr. Bistline responding the Port Authority owns the ones that are currently there. Commissioner Higgs stated the land is owned by the Port; the improvements are owned by the businesses; and inquired if the individual businesses pay ad valorem taxes on their improvements; with Mr. Bistline responding yes. Chairman Higgs inquired if the Property Appraiser said the Port will pay taxes on the cruise terminals; with Mr. Bistline responding if they build the terminal and lease it to an operator for exclusive use, there is no difference between that being taxable under the state laws right now without this legislation; it would be no different than if they leased raw land to that operator because the ownership will be on that operator; and it will not be entitled to a government exemption. He stated their cruise terminals in existence are common user terminals; anybody and any cruise ship that wants to come in is entitled to use it if they pay tariff rates; that is entitled to an exemption; however, that would not apply if they had a single-user terminal. Chairman Higgs inquired if $300,000 is the tax figure this year; with Mr. Bistline responding their tenants are paying in excess of $500,000 on the buildings and improvements out there. Chairman Higgs stated that is not in question because they will pay that regardless; with Mr. Bistline responding that is not in question; however, $323,000 is being assessed on the land that is leased to private enterprise now; and that figure will increase substantially when they have cruise terminals and large infrastructure. He stated the Canaveral Port Authority through its revenue, provides all the services at the Port; they pay $600,000 plus to the Sheriff to provide police protection every year, and almost $400,000 for fire and ambulance service to their tenants; and the County pays none of that and provides no services to the Port.

Commissioner Cook advised originally this came up on the basis of taxes which is $320,000 in comparison to the budget of the Port; and he has some of the same questions about the urgency to move forward immediately with this because he is not sure he understands all the long-term implications of the Port becoming a subdivision of the state. He stated Mr. Bistline said there would be no effect, but that concerns him; and inquired if the $320,000 in taxes will create a substantial burden on the Port if they were to pay it. Mr. Bistline advised it will create a substantial burden on many Port tenants; one tenant's tax liability will go up five-fold because the bottom land that the person has leased for many years is now going to be assessed and taxed to the Port through the lease with him; and that is going to put him out of business. He stated it is one more operating cost that no other competing port has that would be passed along to their tenants; it is something anyone who is going to locate in the Port has to consider; and why would they not go some place else where they do not have that cost on their bottom line. Commissioner Cook advised his other issue is generally when a Commissioner makes a motion he is in support of the issue; there are other ways to bring something before a board and not make a motion; and inquired if Mr. Bistline said Commissioner Kennedy made the motion but was not in support of it; with Mr. Bistline responding no, he did not say that; he was at the meeting and made the motion, and he indicated he had told Commissioner O'Brien he would do that; he brought it up, did it, made the motion, and it died for lack of a second; but his problem was with Mr. Maxwell characterizing or mis-characterizing Mr. Kennedy's intentions and he is not here today. He stated he would not have characterized him or his intentions, and does not think it is fair. Commissioner Cook stated when someone makes a motion, that person generally is in support of the issue; and inquired if Mr. Bistline does not think so; with Mr. Bistline responding he could not say and does not think anyone should say.

Commissioner O'Brien advised Mr. Bistline talked about a five-fold increase of taxes to a bottom land renting tenant; and inquired how many of those tenants at the Port are truly involved in intrastate and international commerce at the Port; with Mr. Bistline responding many. Commissioner O'Brien requested a percentage; with Mr. Bistline responding he could not give a percentage, but it is a substantial portion of them; and the ones that have major infrastructure and investments in the Port are the ones bringing in the cargo, taking out the cargo, operating the cruise industry, and supporting those businesses that do that. Commissioner O'Brien advised the Port has plans for hotel construction out there; if the Port is a subdivision of the state, the hotels would be exempt from tourist development taxes; and that is not a level playing field with the Radisson outside of the Port or any of the hotels along the beaches. Mr. Bistline advised he does not know about the tourist tax, but if anyone built a hotel at the Port, they would pay ad valorem taxes on the buildings and improvements; and the only issue they are talking about here is the land. He stated Mr. Maxwell's point was to bring it under the County and the Board would be able to assess the tourist tax on cruise passengers; and if the Board wants to make sure it runs every cruise operator out of Port Canaveral, it should talk about doing that. He stated in Dade County, Port of Miami is the biggest cruise port in the world and is county-owned and operated; they have not done that; and those cruise lines have no obligation to remain at Port Canaveral or any other port. He stated if they are asked to bring their new ships to Port Canaveral, change their marketing plan, and would possibly have a tourist tax imposed by the County on their passengers, they would not come. He stated Port of Miami has not done it; Dade County has not done it; Everglades has not done it; and it is not a good idea to even talk about something like that. Commissioner O'Brien inquired what taxes does the Port charge their passengers; with Mr. Bistline responding they have Port charges, tariff which are competitive and finely researched with all the other ports; and that is part of operating a port.

Commissioner Ellis advised the question of "What is the effect of being declared a political subdivision versus being declared a County agency for the purpose of ad valorem taxation? " is none according to the County Attorney; so he does not understand the reasoning on the political subdivision for tax exemption on the land if the Port is already a political subdivision. Mr. Bistline advised the Port is an independent special district of the state; there are many independent special districts in the state created by the Legislature; some are deemed to be political subdivisions of the state and some are not; and the leading case is Sarasota Manatee Airport Authority, which is a special independent taxing district that operates an airport. He stated in 1990, Sarasota Authority had the Legislature amend its charter and deem them to be a political subdivision of the state for tax exemptions; they were assessed by the tax collector as the Port is; they took it to trial court and lost; they claimed that they were immune and lost; and they took it to the Second District Court of Appeal which reversed the trial court and said they were a political subdivision of the state, their fee interest is immune from taxation, and sent the case back; and now the property appraiser continues to assess the buildings and improvements of the tenants which is where they have always been. Mr. Bistline advised in the case of the Port, Mr. Ford assessed it in 1992 base on the Department of Revenue's direction; they took it to the trial court based on the Sarasota case; they won in trial court; the court found that they were a political subdivision of the state and struck the assessment against the real property; however, Department of Revenue appealed that and the Fifth District Court of Appeal disagreed with the legal analysis. He stated they have two different courts going in two different directions. He advised the Port of Jacksonville saw all this coming and went to the Legislature with a local bill; they are a special district like Canaveral Port Authority; and they had the Legislature designate them as a political subdivision so that their property appraiser would not be compelled to do the same thing. He stated it passed both Houses unanimously solely for that purpose; and they are asking for the same consideration. He noted the Port of Palm Beach is also asking for it; their delegation is considering it now; the bill says "for the purpose of immunity from taxation only." and that is the only effect of this bill and the only reason they are asking for it. Mr. Bistline advised Mr. Knox can address it, but that is the only thing; and they are clearly an independent special district of the state created by the Legislature, and they answer to the Legislature. Commissioner Ellis inquired why would an exclusive use agreement make the property taxable; with Mr. Bistline responding if they do not have immunity from taxation that would not be considered a government purpose. He stated when they get into tax exemption as opposed to tax immunity, they get into the charitable, education, and scientific activities; religious and government are the only exemptions from taxation there are for real property unless it is immune from taxation. He stated immunity is available to the state, counties, and political subdivisions; it is complicated, but that is the whole issue; and that is the only issue. Commissioner Ellis inquired what if the leases are awarded on a competitive basis; with Mr. Bistline responding it would not make any difference; as soon as the property becomes subject to a leasehold interest of somebody other than an exempt agency, it becomes taxable. He noted if the property sits vacant, there would be no taxes. Commissioner Ellis inquired if the Port leases property out there; with Mr. Bistline responding yes. Chairman Higgs inquired if they are taxed; with Mr. Bistline responding yes, and the buildings and improvements have always been taxed. Commissioner Ellis inquired if the leased land is taxed; with Mr. Bistline responding yes. Commissioner Ellis inquired if they lease buildings and improvements and are they taxed; with Chairman Higgs responding the buildings and improvements are taxed; but their general use terminal is not taxed because it is a general use for transportation. Commissioner Ellis inquired if the Port owns the buildings and lease them out, are they taxed; with Mr. Bistline responding yes. Chairman Higgs advised the land the Port uses is not taxed. Commissioner Ellis stated but the buildings become taxed, so the terminal could fall into the same category as the buildings and the entire terminal could be taxed; with Mr. Bistline responding and the underlying fee interest, land and piers. Commissioner Ellis stated the court will take care of that one way or another; he does not have a problem with selling the Port or leaving it as it is; it would be the best way to repay the taxpayers for the Port by turning the whole thing private; but his greatest fear, if the Board takes over the Port, is that a future commission could drain revenue from the Port to pay for other County projects at the expense of maintaining and improving the Port. Commissioner O'Brien stated he and Commissioner Ellis share the same fears; this is not about taking over the Port; but if it becomes a political subdivision of the state, it would remain autonomous. He stated they could make it a political autonomous subdivision of Brevard County which will allow the Board in the future, if it wants to or can, to collect tourist taxes from the hotels that will be built there and other property taxes to keep those businesses, which have nothing to do with commerce, on a level playing field with all businesses in Cape Canaveral, Cocoa Beach, Merritt Island, Cocoa, and the surrounding 20 miles. He stated those people would not be on a level playing field because of the exemptions that the Port would get as a state subdivision. Commissioner Ellis inquired if the legislation would say even as a County subdivision the Board could not interfere. He stated his biggest fear if the County gets into an operating position, is taking money from the Port for other projects and draining the Port dollars. Commissioner O'Brien stated the Board does not want to do that; with Commissioner Ellis responding he knows this Board does not want to do that, but someone else might. Commissioner O'Brien stated if it is made an autonomous agency, then the Board cannot tinker with it. He noted the Board has the Merritt Island Redevelopment Agency, and it cannot reach inside their budget and take it out and put it some place else. Chairman Higgs stated the Board controls that budget; with Commissioner O'Brien responding the Board controls that budget, but that agency is not autonomous; the Board can make Port Canaveral autonomous; and that is what he would like to see done, but he does not want the Board giving up an advantage to always have a level playing field in the commercial industry at the Port and in the surrounding 20 or 30-mile radius. Commissioner Ellis stated they have raised some very good questions about being a state political subdivision, but he is worried about making it a County subdivision. Commissioner O'Brien stated that is why he wanted a one-year period to debate those things, come to some conclusion that would be good for the people of the County who have not been included in this process, and that upsets him because it is a charter government. He stated they could work all those things out and work out the best plan for the Port as an autonomous subdivision of Brevard County. Commissioner Ellis stated Option 5 is the Port Authority assuming TICO and Jetty Park and the Industrial Park; with Commissioner O'Brien responding in the one-year period, perhaps that can all be worked out without having to throw those things at them now. Commissioner Ellis stated that would be one way since the Board chose to put TICO Airport Authority back on the tax rolls; if the Board did that, plus removed the taxing ability of the Port, that would be one way to repay the citizens who have paid into the Port. Commissioner O'Brien stated the 17.8 million dollars paid by the public to the Port are pre-Jimmy Carter dollars. Commissioner Ellis stated he understands the value of the dollar, and that is why he argued over the value of the land for recreation because the Port could have bought property out there in 1946 for ten dollars an acre.

Commissioner Scarborough advised he wants the Port to be a team player in Brevard County; Commissioner O'Brien talked about tourist taxes; however, there are other ways they can be a team player in promotions, and there should be talk about a TDC joint effort with the Port in making things work. He stated he deferred meeting with the Port because he did not want to meet with them before hearing this dialogue; and inquired if the County can inter into interlocal agreements with the Port and would they still be valid if they evolved into a state entity; with County Attorney Scott Knox responding any two political subdivisions, whether they are state, county or otherwise, can enter into agreements. Commissioner Scarborough stated the Board can do that and make sure the legislation preserves that. He inquired if the Port Authority could absorb a roll to do things in a broader sense such as doing a more effective roll in promoting the industrial park the County is burdened with. Commissioner Scarborough stated he does not want to stop the Port, but at the same time that the Port is trying to solve its problems, he would like to see it listen to the larger community; and that would be great if they could do that. Mr. Bistline stated he can pledge that they want to do that and will do that, but the two issues are not connected; the effect of the legislation they are asking for is simply a tax issue; they are already answerable to the Legislature and an independent entity; and Mr. Knox is absolutely correct that they can enter into interlocal agreements and would be happy to discuss doing that. Commissioner Scarborough stated he sees the TDC issue coming up and the overall activities; and he would like to have it on the agenda later so the can have an opportunity to work with the folks. He inquired if it is too late to put it on the agenda; with Commissioner O'Brien responding it is going before the Legislature as part of the County's package. Chairman Higgs stated no, it is in the Port's package. Commissioner O'Brien stated he wants to also put one in the County's package which was why he brought it up the last time saying rather than a subdivision of the state, make it a subdivision of the County.

Commissioner Cook advised the Port coming under the County should be a referendum question if the Board even wants to pursue that; but today the Board has to decide whether it supports the position of the Port in asking to become a political subdivision of the state or if it opposes it. Mr. Bistline stated for the purposes of taxation only. Commissioner Cook advised or the Board can ask the delegation to delay that; and those are the options the Board has to consider.

Chairman Higgs advised the Board does not have to make a decision to either oppose or support the Port; it has until April when the Legislature actually goes into session; and it has the opportunity to direct the County Attorney to meet with the attorney for the Port and discuss those issues that are of concern to the Board that have been verbalized, then come back to the Board. She stated potentially the Board could have an interlocal agreement before the Legislature actually deals with this issue, then the Board could make its position; and she does not think it has to go to the Delegation at all. Commissioner Cook stated the Board should have a consensus if it takes a position that it would send it to the Legislature through the Delegation; and it either agrees, disagrees, or asks for a delay. Chairman Higgs advised the Board can make its position very clear to the Delegation if it is unable to get to an interlocal agreement with the Port that it feels it can support; so it should direct staff to begin negotiations with the Port on an interlocal agreement; and it will still have until April if it finds offense with the Port's proposal. Mr. Bistline stated in the meantime, the Board should let them proceed with the things they need to do to keep the Port competitive. Chairman Higgs stated the Port can pursue those interests and the Board will leave its options open to go to the Delegation if it feels an interlocal agreement cannot be satisfactorily worked out.

Commissioner O'Brien advised if the Port becomes a political subdivision of the state, then it no longer has to be responsive to the local public; and the only ones they would be responsive to would be the state delegation. He stated if the Board tries its best to make the Port a subdivision of the County, they would get the exact same tax exemption they are searching for now; there will be no change; and they gain what they want, except the County does not lose a piece of property that it paid for. Commissioner O'Brien stated time constraints are upon the Board; if the Port is going forward with its package now and lobbying the Legislators and this Board waits until April, it may not stand a chance and will lose an opportunity. He stated the Board can withdraw if between now and the time the Legislature meets a deal is made; but to not go forward now would be wrong.

Commissioner Cook advised the Legislature is aware the Board has concerns, and prior to April it needs to take a position on this issue; but he would like to delay it and get more information because he has some questions he wants answered. He stated he agrees with Commissioner O'Brien in a sense that prior to April the Board needs to decide which way it wants to go. Commissioner O'Brien recommended the Board go forward now and if it does make some agreements, it can withdraw its package. He stated if it does not do that, it will have made a serious call.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to schedule discussion of the status of the Canaveral Port Authority at the first meeting in March; in the interim the County Attorney and County staff meet on items of interest with the Port; and authorize the Chairman to send a letter to the Legislative Delegation indicating the Board met in public meeting with the Port, scheduled it for a March Meeting, and anticipate having its recommendations to the Delegation at the conclusion of that meeting.

Commissioner O'Brien recommended the February 21, 1995 meeting instead of postponing it until March. Commissioner Scarborough agreed and Commissioner Cook accepted the amendment to the motion.

Mr. Bistline advised the Port Authority meets once a month, and it needs to have a meeting if it is going to talk about things with the County. He stated they meet on the third Wednesday of each month. Commissioner Cook stated the Port's position is not going to change; with Mr. Bistline responding no, but if they want to have an opportunity to have dialogue with the County they have to have enough time to do that. Commissioner Cook inquired if they will meet prior to February 21, 1995; with Mr. Bistline responding that is not enough time to talk about those serious issues and interlocal agreements and give it a fair opportunity.

Commissioner O'Brien advised the Port has already lobbied Representatives Posey, Futch, and Ball on this issue; the Board has not been lobbying at all; and the longer it waits, the stronger their position will be. He stated he is not saying the Board will not end up agreeing with the Port's position, but it will allow its position to get much weaker and the Port will go forward with what they want to do. Commissioner Ellis stated for a matter this critical, the Port could call a special meeting.

Chairman Higgs advised they need to discuss it, and the first March meeting would be appropriate. She stated March 7, 1995 is not an unreasonable period of time for the parties to discuss the issues if the Board makes it clear to the Delegation and sends letters to the members that it is currently working and will solidify its positions on March 7. She stated that is a reasonable position, and she will support that motion.

Commissioner Scarborough stated March 7 is fine; this is a very important issue to the Board; if it has to have a special meeting it will; and he hopes the Port Authority considers the importance of this and would call special meetings to work it out. Mr. Bistline advised they need time for the staffs to get together, as this is a lot of technical detail.

Commissioner O'Brien advised the Board has an evening meeting scheduled for March 14, and a lot of important public input could be heard then. He stated the public should be included; they paid for it; and they should be able to talk about it.

Commissioner Ellis stated the Board needs to discuss it on February 21; his concern is the questions that arise at the meeting; and the farther back it pushes the meeting, it could be too late when answers come back. Commissioner O'Brien advised the Board has the option of requesting the Port become a subdivision of the County; and in April, it can also take that back. Commissioner Cook advised the motion authorizes the Chairman to write a letter saying the Board has concerns and is meeting on it which should put the Delegation on notice that it is looking at this very seriously.

Chairman Higgs advised the motion is to schedule the item for March 14, 1995 evening meeting; the attorney and staff meet with the Port; and the Chairman notify the Delegation the Board is meeting with the Port on the issues and has concerns about its proposal. She called for a vote on the motion. Motion carried and ordered unanimously.

Commissioner Ellis advised there were five options presented to the Board by staff; the Port could comment to the Board on those five options in writing; and that way they can have it done. Commissioner O'Brien stated in discussions they could probably find ten others; with Commissioner Ellis responding he understands, but it would at least get something back.

Commissioner O'Brien stated this is a very important issue to all of Brevard County and he cannot express how much; the tourist tax dollars are involved and other things; the Board wants to relieve the tenants of their taxes so they can be competitive, but they also want to establish level playing fields; and if they go under the state, there are not going to be level playing fields. Commissioner Cook stated staff should look at the transcript of this discussion and all the issues brought up.

DISCUSSION, RE: SR 520 GRAVITY SEWER CONSTRUCTION BY FDOT CONTRACTOR

Engineering Director Susan Hann introduced Marty Bryan and Dennis Kyle representing Florida Department of Transportation (FDOT), and stated the issue is the SR 520 MSBU gravity sewer project. She stated the Board entered into a joint participation agreement with FDOT to construct a gravity sewer line in conjunction with SR 520 widening project; that project is currently under construction at this time; the sewer project was started by the contractor; and during the course of construction, there were unforeseen site conditions discovered relating to coquina rock and considerable groundwater that was unanticipated. She stated the contractor filed a claim with FDOT for additional compensation, and staff has been negotiating with FDOT in order to obtain additional information to justify the claim or to provide additional information regarding the cost to abandon the project. She noted there is very little data supporting either of those alternatives because the contractor has chosen not to provide any additional data despite repeated requests by FDOT and the County; so the data the Board has is all the data that is available from the contractor. Ms. Hann advised staff provided several cost scenarios in their analysis; the first three relate to continuing the project; Cost Scenario #1 is the maximum estimate that the contractor has given FDOT for completing the sewer work; and Cost Scenario #2 is also an estimate provided by the contractor that is based on a cost per linear foot to install the sewer, and that is slightly lower than the not-to-exceed price. She stated Cost Scenario #3 is based on an option the FDOT has to direct the contractor to construct the gravity sewer, and County staff, as well as FDOT staff wouldmonitor that construction on a continual basis and negotiate the actual value of the work for the construction at the end of the project. She advised FDOT and the County staffs concur in their estimate of the value of the additional work at approximately $300,000; in addition, they have looked at other options to provide sewer service for the property owners in that area. She stated Cost Scenario #4 reflects an option that does provide gravity sewer to most of the property owners on the south side and provides a force main system with private lift stations for the property owners on the north side as well as some on the very east end of the project; however, this scenario did not really provide substantial cost savings nor the optimum sewer service for the property owners. She stated Cost Scenario #5 was a hybrid of the two options either to continue with the sewer on the south side with the gravity system and use the force main system on the north and east sides; that appeared to be a lower cost alternative for some property owners; but it does not provide gravity sewer service to all property owners which was the original objective of the project. Ms. Hann stated they have concerns that if they went with an option that abandons the current project, and the County comes in later to do any type of sewer project in that area, they would possibly encounter contaminated soil and water; FDOT, during its project, has encountered the situation; they are paying the cost to have the contamination removed that is not currently a cost to the County; but it would be if the County were to do an independent project. She noted in addition, they have expended funds as detailed in the Agenda Report for engineering and other activities related to the construction of the sewer line; the construction has started; consequently, they have gotten into a very complex situation where they have to decide on whether or not to proceed with the project because the contractor is now proceeding with the road project; and the County has to make a decision in order for FDOT to direct its contractor. Ms. Hann advised they recently met with the property owners last Thursday evening and essentially presented them with the same data the Board has in its package; although the property owners were not pleased with the situation and made comments regarding the way the project was managed by staff and the consulting engineer, especially in the area of additional geotechnical testing, they did manage to ask the property owners to come to a consensus as to what they would prefer to do with the project; and the consensus was to proceed with the project with their financial exposure limited to the price at which they were surveyed and distributed based on the formula in the preliminary assessment roll, which is 50% square footage and 50% front footage. She noted that way the assessment is fairly distributed based on the potential to build on the property as well as the front footage of the property. Ms. Hann advised the property owners have all been given an analysis of that, and the consensus was they would like the County to proceed with the project with that being their maximum exposure, and clarified that consensus with the statement they want the County and state to monitor the construction to make sure that they minimize the cost to the greatest extent feasible. She noted they do not want to imply this is what they wanted to pay, but it is what they are willing to pay as the worst case scenario. She stated there is a potential for some cost difference between what the property owners would like to establish as their maximum exposure and the potential cost of constructing the project; unfortunately, staff will not know that until the end of the project. She stated they presented some potential options for funding, including the Water/Wastewater Capital Improvement Fund in Merritt Island; and the Merritt Island Redevelopment Agency may be a potential source of revenue for the project.

Chairman Higgs inquired which Scenario most closely parallel the property owners' position; with Ms. Hann responding Scenario #3.

Commissioner Ellis inquired how will the difference in cost be made up; with Ms. Hann responding funding the difference between what the property owners have agreed to as their maximum exposure and what the actual cost of construction will be would have to be a decision ultimately made by the Board. Commissioner Ellis inquired how much; with Ms. Hann responding until the construction is completed, they will not know. Commissioner Ellis asked for an estimate; with Ms. Hann responding around $100,000 is the difference, but it is entirely likely that the cost could be less. She stated the big variable in the construction is the dewatering; they have included a rather substantial number in their estimate for the cost to dewater; and if that turns out to be less, they could be right on target or less or more. Commissioner Ellis inquired how much more; with Ms. Hann responding at this point the contractor's maximum estimate is $555,500; so that is the up figure and the worse case scenario if everything is as bad as it possibly can be. Commissioner Ellis stated the other number he has is $292,000; with Ms. Hann responding the $292,000 is the estimate the County and State have concurred is a reasonable amount of money for the extra work; so the maximum difference would be the difference between the $555,500 and the $292,000 plus the difference between the $292,000 and the price the property owners have agreed to pay which is about $100,000. Commissioner Ellis inquired if it could potentially go up to $350,000 if the contractor is correct; with Ms. Hann responding yes, in that order of magnitude.

Commissioner Cook stated it seems like the County is being held hostage by the contractor and he will not provide any additional data; and inquired what is his reasoning. Dennis Kyle with FDOT advised they have a construction contractor that, when he originally bid the contract, he was not aware of what kind of dewatering effort was required; by the permits that the Department pulled on this job, his maximum dewatering effort could not be more than the equivalent of about a million gallons per day; and when he first opened the hole in the deepest section of the gravity sewer project, he found the water was coming in much faster than he could handle with that equipment. He stated he put every pump he had on the job in that hole; he was pumping the equivalent of about eight million gallons per day; and it was not anything he had anticipated, and that is the reason he is afraid to give FDOT any solid price it feels is reasonable. He stated the estimate they worked on with the County is the best estimate based on the water he encountered right now and the fact that as he moves out of the deeper sections, he will likely encounter less of a flow. Commissioner Cook inquired if it was a failure in the County's testing procedures or something the County should have foreseen; with Ms. Hann responding the County could have directed its engineering consultant to do additional geotechnical testing before they designed or constructed the project; by doing so, they would have uncovered the presence of the coquina rock; but they would not necessarily have become aware of the magnitude of the water situation.

Commissioner O'Brien advised that is one of the major complaints being made by the people being held hostage, and that is the commercial enterprises along SR 520; the contractor can walk away from this; the property owners made a good faith agreement with the County, and they are stuck with liens on their properties; there are piles of dirt in front of their businesses; and they lost millions of dollars in revenues. He stated this project started out on a happy note and unfortunately it has come to be one of the worse little messes that the County as partners in business with those people could ever get itself into. He advised there will be a requirement for additional monies to finish the project as originally planned; his Aide Chuck Maxwell has a plan to bring forward to the Board; it is also where they can find the extra money needed; and one thing he does not want the County to do is stick it to the property owners any further than they already have. Commissioner O'Brien advised the FDOT said the County had to move forward now or they would cover the ground up and the County would have to dig it up again, but the cost would have skyrocketed.

Commissioner Ellis advised if the water conditions had been foreseen, it would have driven up the estimated cost of the project initially. Ms. Hann advised if they had foreseen any of those conditions, the cost of the project would have gone up; the advantage to that is the property owners would have known in advance; and the work would have been competitively bid where right now they are forced to work with one contractor. Commissioner Ellis stated if the cost was known, there would have been a possible no vote on the MSBU; with Ms. Hann responding yes, and they went back to the property owners last week to get their opinion on whether they would prefer to abandon the project or proceed under whatever circumstances they dictated. Commissioner Ellis inquired if the present contract could be terminated and the project put to bid, and if there is no time to do that in conjunction with the FDOT project. Ms. Hann advised if they did that approach, they would have to come in after the road was completed; there is no room to come back and do that unless it is done on private property; and they would encounter many of the same conditions. Commissioner Ellis inquired if the Board could kill the project and the liens; with Ms. Hann responding yes. Commissioner O'Brien stated it would not be in the best interest; they have already sunk County money into the project; and by abandoning it the County would probably lose more money than going forward and paying a little more which they can cover. Commissioner Ellis stated the County may or may not, they do not really know. He stated he does not want another Port St. John MSBU situation; there have been a couple of those already; he had problems in the Police Foundation with liens; and he talked about using other monies and was told that could not be done; so he does not know if legally the Board can move other money into this project.

Commissioner Cook advised he assumes in the future they will have plans, when they get into a project like this again, to do additional testing, because if the Board had known it was the higher rate, it would have been a lot easier to negotiate at the beginning than at the end.

County Manager Tom Jenkins asked staff to respond to two points they did not fully respond to previously.

Assistant County Manager for Community Development Dean Sprague advised regarding additional testing, what staff did normally would have been adequate; two things were going on, one that it was a project that was currently ongoing and already opened up and staff felt there was no real need to incur additional expense because testing is expensive and drives the cost of the projects up. He stated looking in retrospect, they would probably have done the same thing, not having the benefit of this additional information.

Mr. Jenkins advised the other issue is competition in bidding; and inquired if it is normal practice for DOT to have a contractor on site and the County have a contractor working at the same time; with Mr. Sprague responding it is not desirable and creates an environment where they could get into a lot of change orders for delays. He noted it is a situation the County would not encourage. Mr. Jenkins advised he does not think those points were made to the Board that it is extremely difficult for two contractors to operate on the same project at any given time, so it is standard practice to lump the project together. He stated Ms. Hann did not elaborate to the extent that she could have; based on their experience historically they would not have ordered the additional testing; there is a cost associated with it normally; they typically weigh the cost with the probability of having a problem such as this; and typically they would not have done that.

Commissioner Cook stated he understands that and is not assessing blame for the project; however, government seems to never learn from its mistakes; and he does not want to see a repeat of this if there is any way to avoid it. Ms. Hann stated as a result of this project, staff has learned to look at its testing program more closely to make sure it has a reasonably priced testing program based on the likelihood of problems like this; and they will be looking at that trade off more closely in the future.

Commissioner O'Brien stated the County has not learned yet when it has hurry up projects and those down the road, that procedures have to be changed; this project was a hurry up and get it done; and a lot of home work that should have been done was not done because they were in a big hurry to get it started.

Ali Tezel, 1980 N. Atlantic Avenue, Cocoa Beach, stated suppose a person buys buildings on SR 520, gets a phone call saying he does not have water and sewer and they will put it in and assess the property so much; that person gets excited and says okay go ahead and do it professionally and knowledgeably at the price they say it will cost; then they dig the road up in such a fashion that the tenants say they have seen this joke a year ago and people went out of business on the west side of SR 520 because of the dirt; and the pile of dirt and pipes and everything else is like condemning the businesses. He stated weeks went by and nothing happened, and the pile of dirt is still there; he is in negotiations to try and rent to people and they say they are not going to rent anything under that mess and conditions; in the meantime as a businessman he has to pay taxes, insurance, and mortgage, and has no control over the whole situation; and a few months later they are called to a meeting because somebody made a mistake. Mr. Tezel advised they work and pay taxes; it is no picnic to find a tenant and make a few bucks; there are a lot of vacancies in commercial buildings; and they say they made a booboo and the booboo is the County in its great wisdom basically condemned his property by federal and state laws and human rights and civil rights and should at least have the courtesy to buy it from him. He stated the County made a mistake and it is too bad; they will close it up and walk way; but nobody is comfortable. He stated it destroyed his business; it is costing him thousands of dollars not to be able to have a tenant and to lose his tenant; and he may have to close things down. He stated the County should have gone out and gotten bids to do the job professionally; they engineered it and did not know, but everyone who lives on Merritt Island knows there is coquina and after four feet there is water; everyone knows for that size project bore and tests are essential; and it is very little cost compared to this mess. Mr. Tezel stated it has cost him tens of thousands of dollars, and nobody is saying he is a good citizen who paid his taxes and the County made a mistake and wants to compensate him because for all practical purposes it condemned his property. He stated it is business as usual because somebody made a mistake and they end up paying lawyers who get the money from the taxpayers time after time. He inquired how long will the County continue to break their backs and assume no responsibility.

Commissioner Ellis inquired if Mr. Tezel voted for the MSBU; with Mr. Tezel responding they were called and told it was going to cost so much to put the water and sewer in, and he said it was a great idea. Commissioner Ellis inquired if Mr. Tezel did not understand the construction consequences of that; with Mr. Tezel responding any construction he does and gives it to the low bidder he makes the specifications and spells it out; there is proper engineering; and everything is covered. Commissioner Ellis stated when the people agreed to have the work done, they knew construction would go on out there; with Mr. Tezel responding yes, but in a timely fashion and not to start, dump everything, and walk away for months.

Jim Hooper, 1515 N. Indian River Drive, Cocoa, advised he is one of the property owners involved in the sewer mess on Merritt Island; and the roll of the Board is to recognize the problem that has occurred that led to several hundred thousand dollars in cost overruns attributable to what the County has or has not done directly or through its engineering consultant. He stated when a project is designed to be put underground, the conditions underground have a bearing on the design; and gave scenarios of designing the Empire State Building and a channel. He stated in this case, the County prepared the engineering specifications and went to its engineering design firm without spelling out that there would be any determination as to what the underground conditions were where the sewer line was to be placed; the engineering firm designed the system without that knowledge; and it had given an estimate of what it would cost for the design, but did not factor in any geotech work which would have been borings to determine if there was rock down there, what the composition of the rock is, what sort of water they may run into, and other usual things one would get from a geotech design. Mr. Hooper stated contrary to what Mr. Sprague told the Board, those tests do not take very long nor do they cost very much; it is a day or two of field work for a team of geotech people and a week to draw the report up at a cost of a couple of thousand dollars; this project is now reaching into hundreds of thousands of dollars; and Mr. Sprague has not told the Board the way it is or at least the way he sees it is and the way engineers have told him it is. He stated beyond that, there was extensive local knowledge as to what the conditions were on that section of Merritt Island; it is no surprise to anyone that there is coquina rock down there or that there is lots of water there; the maximum elevation above sea level is less than ten feet; Sykes Creek is on one side and the Banana River on the other side; so why are they surprised that they ran into water. He stated those facts were known; the problem is the information was not put in the package the contractors bid on; so the contractor has an excuse to come in and nail the County for overruns. He noted the County set him up for that and he is taking advantage of it. Mr. Hooper advised there is every reason to believe the contractor putting the sewer line in knew that; a lot of people believe that; and even some County employees will tell the Board that. He stated they agreed to the original assessment, but beyond that it would behoove the County to pick up the tab; the tab may be as little as $100,000; but the Board best not think it is going to be that little. He stated staff saying they do not ordinarily order additional tests is a defensive posture; the business of needing those tests is not something that is gained from hindsight although it is abundantly clear in hindsight that they were needed; and that is something that should be normal procedure. He noted a proposal may be put forth by the Redevelopment Agency that may show the way out of the wilderness, but the project should go ahead because that is what the property owners want; and they should not be assessed ten cents more than they originally agreed to. He noted some of them were reluctant about the assessment, but agreed to it initially, and he is one of them; and the County should go ahead, get the money, and pick up the tab because it is appropriate for it to do that.

Chuck Maxwell, 140 Minna, Merritt Island, advised they are "Johnny Come Latelys" in this program, and the best role they can play is to assist to correct whatever difficulties may have occurred; and he will give the Board the genesis of the plan they came up with. He stated Commissioner O'Brien asked him and staff to review government agencies to look for cost-cutting possibilities; one of the agencies is the Merritt Island Redevelopment Agency; and they were careful not to present this plan at the meeting of the property owners because they did not want to influence their decision on whether or not to proceed with the project. He stated they did send out a letter to them, a copy of which he will give to the Board. Mr. Maxwell advised basically they feel MIRA is an excellent agency; the concept is excellent; however, like most government agencies that do not have constraints of the free market, they found a lot of fat there. He stated their rent is $20,000 a year for a two-man office; for a redevelopment agency which is theoretically in a blighted and slum area, it is exceedingly high and quite exorbitant; and they have signed a three-year lease for that rent. He stated their initial moving into that building was based on the cost-cutting because County Utilities was there and they got a good deal; the continuation of their being there is just the opposite; they are paying way above what the buyers' market for rental office space is going for; and they feel that can be cut. He stated they also feel an effort should be made to go into negotiations with the lessor to terminate the lease; if properly done, it may be possible; and that would free up $20,000. Mr. Maxwell advised there is office space available at the former District 2 Commission Office on Kiwanis Island if that is a good place to move; there is office space in the Central Government Center; so that money for luxurious office space can be cut and applied to the problem area they are talking about here. He stated they feel salaries which amount to $85,000 are much too high on the cost benefit ratio consideration and for the level of performance that is required right now; so what they are looking at right now is about $105,000. Mr. Maxwell advised they are recommending the position of Executive Director be eliminated and the job be contracted out to the Growth Management Department of the County. He stated they feel Growth Management Department can perform those tasks just as well if not better than they have been; they feel the Board of Directors should remain independent as they are to set policy to make the plans and be comprised of Merritt Islanders; and they feel the independence of the Board is important for the Agency to be relevant to what its mission is.

Chairman Higgs requested Mr. Maxwell address the issue before the Board today which is the sewer line. She stated if he has a total cost savings, perhaps that is relevant, but at this point the Board cannot go into all those suggestions. Mr. Maxwell advised the savings from MIRA can be redirected to help pay for the sewer overruns. Chairman Higgs inquired how much would that total; with Mr. Maxwell responding $105,000, depending on how much of the plan the Board decides to adopt and if it wants to spend it all on the sewer project.

Commissioner Ellis stated that is the total budget of the Merritt Island Redevelopment Agency; with Mr. Maxwell responding it is not the total budget because the total budget is much higher than that. Commissioner Ellis inquired if those funds can be legally directed to a capital project; with Mr. Maxwell responding yes, as far as he knows and has been able to find out. He stated they made that proposal to Bud Cantwell who is the Chairman of the MIRA Board, and he is going to bring it up to his Board on Thursday.

Chairman Higgs asked Mr. Knox to answer Commissioner Ellis' question; with County Attorney Knox responding his recollection of the statute is that the Board can do that; and he will check it to make sure, but he thinks it can.

Kurt Easton, 775 E. Merritt Island Causeway, Suite 320, Merritt Island, advised he attended the meeting Commissioner O'Brien called with the property owners and presented the option to them; and a general consensus of the people at the meeting was that the Agency, rightfully so, should be spending dollars on capital infrastructure that supports future growth and development in the Redevelopment District. He stated in support of that, one of the goals and objectives contained in the Merritt Island Redevelopment Plan clearly states, under public facilities goal, "provide necessary public facilities at acceptable levels of service to accommodate the new development proposed within the Redevelopment area consistent with the policies of the Capital Improvements Element of the Comprehensive Plan." He stated the second objective under that goal is that the Agency work with the Brevard County Water and Wastewater Department to develop a sanitary sewer collection system that will serve the entire Redevelopment area, including all proposed new development; and it is on that basis that the Board discussed this issue at the December Board meeting and felt it was a reasonable request that the Agency participate financially in resolving the problem. Mr. Easton advised his figures are different than the ones Ms. Hann presented; he took those off the assessment rolls; they came to an agreement with the property owners that they would pay their fair share of the cost; and that was the $75.00 survey price that was presented to them. He stated the $75.00 per linear foot price is what initiated the entire project; and the property owners actually initially approached the Agency and District 2 Commissioner to get the sewer in the ground. He noted it is not something the Agency or the County said it would do; it was done at the request of the property owners; and they agreed to $75.00 per linear foot, or agreed to pay $413,650 for the project. Mr. Easton advised, based on one of the estimates which is Scenario #3, something that both the County and State Engineers have looked at as being a reasonable price for this project, the total cost came to about $557,227; so, there is a difference in cost of $143,577; and in discussing it with the Board, they were very surprised and concerned about the situation. He stated they felt if the Agency were to participate, it wanted to be able to assure the County and contractor they could afford those payments; so one of the concerns is they have enough time to pay it back and suggested it be financed through the Utilities Enterprise Fund and the Agency participate at the level of $143,577 to be paid over a period of time as new tax revenues come on the roll. He stated they have the budget to perform that and would entertain that with the Board; it is a very reasonable solution to the problem; and it seems to be one in which all the parties involved have moved forward in agreement. He noted he would present that as an alternative to his Board.

Commissioner Ellis inquired if Mr. Easton is saying $557,000 is the final price; with Mr. Easton responding that is a tentative price based on Scenario #3 which is the best estimate that the County and State Engineers came up with; and they would direct the contractor to proceed at that price and then they would oversee the construction to insure that price does not get over-extended to any great extent. Commissioner Ellis stated the contractor has not agreed to that price; with Mr. Kyle responding that is an option DOT has written into its contracts when the state and contractor cannot agree to a fair amount for a changed site condition. He stated they have the option of directing the contractor to proceed based on their best estimate of the actual cost and what is considered a fair and equitable cost; then they monitor very carefully the actual equipment, the people he uses, the time it takes for him to do the work; and the contractor may come back at the conclusion of the contract and continue with the claim if he feels that is not a reasonable price. He stated it puts the state, when it has a contract like this with a changed site condition, in a much better position to defend the price that it has paid the contractor. He stated it would be unreasonable on their part and considered unfair to force him to do the work at $17.00 per foot then negotiate the settlement at the end of the contract; this way they are paying him about $125 a foot as opposed to the $250 a foot he is asking for. Commissioner Ellis stated but that means the $140 is not a locked in figure; with Mr. Kyle responding that was one of the major concerns of the Board and they felt that if the County would agree, they could determine a price not to exceed; and that the Agency would be liable for whatever price that is. He stated if it was $175,000 and they proceeded with the project, if it extended beyond that $175,000 other options would probably have to be looked at. Commissioner Ellis advised even if staff did the engineering work and testing and found unforeseen conditions, that would have driven the price up; not all the price increase is due to unforeseen conditions; and had the conditions been foreseen, they would have had a price increase, perhaps not as much, but they would have had an increase. Mr. Kyle agreed the price would have been much higher. He stated the $17.00 a foot, the biggest part of that savings is the fact that the County and State entered into a Joint Project Agreement; and normally when a sewer line is installed, the price includes the cost of rebuilding everything from the sewer up through the roadway. Commissioner Ellis stated he understands why it was done that way and it makes sense to do the line when the state is doing the road. Mr. Kyle stated the $17.00 a foot was a very low price initially created by the fact that the contractor is coordinating the work only with himself and not with a separate subcontractor. Commissioner Ellis stated his point is the additional costs are not all due to the lack of testing, and had they done the testing, those costs would have been initially set out with the MSBU. Chairman Higgs stated the decision may not have been foreseen. Commissioner Ellis stated he understands, and that is a decision the Board still has which is to take a closed end liability and stop the project, or an open end liability and continue; and that is where his concerns are on this project.

Commissioner O'Brien advised if they had all the borings and all the proper bidding procedure from the outset, and if those numbers were $700,000 before the water was found, then the property owners probably would have turned the MSBU down because it would have exceeded the $75.00 per foot cost; but now they are into it and they are saying they have to go forward because of all the problems they have already had, and put a cap on their expenses at $75.00 per foot. He stated they have to have other ideas of how the excess can be funded and some way to actually make up for some of the problems the County may have created.

Commissioner Ellis stated the County did not necessarily create all the problems because they would have had a higher MSBU cost if the tests were performed. He stated he voted against the MSBU when it came to the Board and the project; and he tried previously to get the Board to go into cost sharing agreements and have those done privately and get the County out of this business. He stated there is no reason why they could not have had a private company come and lay the sewer line down instead of the County getting involved. Mr. Easton advised he does not think a private property owner or group of owners could enter into a joint project agreement with FDOT and they have to be a governing jurisdiction to be able to do that. Commissioner Ellis stated a group of private property owners could have done the project by themselves. Mr. Easton indicated they more than likely would not with the cost of right-of-way and not at the cost savings the County has with the state agreement. Commissioner Ellis stated if a private entity lays down a sewer line and turns it over to the County for maintenance, they can put that in the right-of-way; with Mr. Kyle responding they could go through the state maintenance engineer and get a permit to do that work. He stated he would be speaking out of turn as far as whether they could enter into a JPA, but typically they have avoided issuing permits during construction contracts because of the potential for delay to them. Commissioner Ellis stated he understands that, but after construction; with Mr. Kyle responding after construction is complete, the price goes significantly up because they would destroy much of what has been built to put the line in and they would have to rebuild the road all the way up.

He stated in this particular case, they also have a condition where they have gasoline in the groundwater in some locations; currently the state is handling the cost of that decontamination; and that is another cost that if it were put in privately would have to be borne entirely by the owners.

Sandy Crawford, Clerk of the Circuit and County Courts, advised he lives on Merritt Island, and was surprised to hear about the decimation of the Merritt Island Redevelopment Agency to pay for a sewer line; he has worked with MIRA since its inception and worked with the homeowners when it came into being; he watched Kurt Easton, the presentations of the Agency, and the plans they put in for SR 520 corridor; and if there are any doubts about the accomplishments of that Agency by anyone, they need to look at old and new pictures of the SR 520 corridor. He stated he worked with Mr. Easton and the businesses along that area on the Board of Adjustment when they came in for plans to make changes which were against the Ordinances; but Mr. Easton looked at it and came up with alternatives of the best way to handle the situations as they existed because of the widening of the street. Mr. Crawford advised Mr. Easton has been instrumental in coordinating the effort with the people along SR 520; there are a lot of new businesses that have come in such as Home Depot, Applebee's, Chili's, Office Depot, and a new market; and he is impressed with the park that they put in at the end of the Hubert Humphrey Bridge, the things they have done, and the plans they put into being, all at essentially no cost to the taxpayers. He stated the increase in taxes in that area would go into the redevelopment of the area; so the only monies that they are putting into redevelopment and the trees and other things are funded from the increase in taxes that come about by the improvements in the area. He stated he is appalled to think that the Agency would be eliminated; as a citizen of Merritt Island, he does not like that alternative; the sewer has nothing to do with MIRA; and there are other areas to obtain funds from without doing away with an Agency that has done an excellent job of coordinating with the businesses and citizens of Merritt Island. Mr. Crawford stated he looks forward to working with MIRA in the future to make sure that corridor is developed properly and in the best manner possible.

Chairman Higgs advised the issue before the Board is the sewer line and not the existence of MIRA; with Mr. Crawford responding he understands that, but Commissioner O'Brien said he wants to eliminate the Agency. Commissioner O'Brien stated Mr. Crawford misinterpreted what was said earlier; he has no intentions of eliminating or decimating MIRA; it is one of the finest organizations Merritt Island could have; but he is saying MIRA should be restructured and what he considers fat within the Agency be plowed back into MIRA itself. Mr. Crawford inquired how many employees do they have; with Commissioner O'Brien responding two. Mr. Crawford inquired if both employees would be eliminated as well as their office; with Commissioner O'Brien responding the two employees would come under the County's payroll as County employees under any Department they want to go, whether it be Growth Management or not. Mr. Crawford advised the person he worked with was Kurt Easton; all the plans that came out to the homeowners and businesses came from Mr. Easton; and the proposals that were there were recommended by Mr. Easton. Commissioner O'Brien stated that is only because Mr. Easton has been the only director of the Agency for eight to ten years; that is the only reason his name is mentioned; but it does not mean that Mr. Easton is the only person who can do that as there are others within the County. Mr. Crawford stated if other employees are going to be put in there, it would not save anything; with Commissioner O'Brien responding no, and the Agency would pay the County for the time they actually use. He noted if they have to go to Growth Management to look at a project, they would pay only for that; and it would be a cost savings that would put the money into MIRA. He stated it is not to decimate or eliminate MIRA. Chairman Higgs suggested the Board focus on the issue at hand which is the SR 520 sewer line and the decision the Board needs to make on that.

Commissioner Scarborough advised it would be a mistake at this time to undertake a subject as broad as that; but if Commissioner O'Brien sees issues to make it a more effective Agency, he has every right to bring it before the Board. He stated perhaps there are some easier solutions; Commissioner Ellis mentioned Port St. John East Water MSBU a few times; in doing that, they used the state statutes which did not allow a re-adjustment of the rolls; and by the time they were setting the actual amounts, they were stuck. He stated subsequently, they came back and offered the opportunity to readjust; and if there is a concept out there that the County is making absolute commitments to the original amounts, that is dangerous because there are unexpected things. Commissioner Scarborough stated as for this issue, he would like to accept the Merritt Island Redevelopment Agency's offer; it is something that is workable; it allows the County to proceed; there is some logic to it; and it allows the Agency to fulfill its role. He stated it will allow the County to proceed with a project that will serve some people who are in business out there; and if it was in a residential area, there may have been some problems, but this makes sense; so he would support what MIRA is recommending.

Commissioner Cook advised part of the problem seemed to be because the project was under the gun; and inquired about the time constraints; with Ms. Hann responding she has only become a recent participant in this project, so she cannot speak to its beginning, but maybe Mr. Easton can.

Mr. Easton advised the reason the project was under the gun is because it took some time for the previous Commissioner to make the decision that she wanted to pursue the project; and she wanted to be sure she had a consensus from the property owners that this was something they desired before imposing an assessment on the properties. He stated what drove it after that was that DOT was under a very definite time line in terms of completing all its plans and design specifications in order to get a timely bid on the project; there was a deadline of March to have all plans in hand to be reviewed and analyzed then put out as a package to bid in July; so by the time the decision was finally made that they were going to move forward on the project, the engineering consultants had to get kicked into gear and come up with a plan; so they may have relied on the preliminary soil borings that were already done out there, three of which were deep soil borings that did not show a huge amount of water underneath there. He noted they proceeded on that basic geotechnical information and provided the plans just in time to get them included in the bid.

Commissioner Cook inquired why is every major project in the County a problem, and is there a problem in the departments, as it is unbelievable to him that this keeps happening. Mr. Jenkins advised it is probably several issues; the private sector has regular problems with construction also; it is just the public sector construction probably gets a little more scrutiny. He stated in this case, there are too many hands in the pot to try and decide what was going to be done; there is a host of easons why something like this might occur; there was a short amount of time to do it and assumptions were made that they had some borings that were available that DOT had obtained for its project; therefore, they used it. He stated to do the project in the time frame they were talking about doing it, and tying it into the state project, they were somewhat locked into using the contractor and going through the DOT process; and there are a host of reasons why those things got complicated. Commissioner Cook advised the Board needs to look at some of the projects that it had tremendous problems with to find out what went wrong and why.

Chairman Higgs advised she is willing to support a motion that would look at some semblance of Scenario #3, taking the MIRA offer as a potential, and the bulk that is leftover be shared with the property owners. Mr. Easton commented hopefully it will come in lower if they can stay on top of the contract. Chairman Higgs inquired if the property owners basically support Scenario #3; with Ms. Hann responding the property owners support proceeding with the project with their maximum financial exposure limited to the survey price; and that was about $420,000 total for all the property owners. She stated Scenario #3 is an activity of moving forward with the project and having DOT direct the contractor to continue work on the project; it gives an idea of about what the state and County estimate the cost to be; the property owners have not agreed to pay that cost; but they have agreed to something less than that estimate and that was the difference of approximately $140,000 that Mr. Easton referenced. Mr. Easton indicated Scenario #3 gives the lowest figure as a guideline on a means by which they could proceed.

Commissioner Ellis inquired if the owners want to go with the survey price or preliminary assessment; with Ms. Hann responding the owners have agreed to go with $421,954.50 which is the survey price. Commissioner Ellis inquired if Mr. Easton has agreed to $140,000; with Mr. Easton responding his figures are wrong, and it is about $143,052.75. Commissioner Ellis inquired about any costs above and beyond that; with Mr. Easton responding the concern of the MIRA Board is that the project not get blown out of proportion, but if there is a reasonable amount, they may agree to that as long as they can negotiate and cap their contribution at a level that is acceptable. Ms. Hann advised they cannot guarantee what the maximum price will be, and that will probably be determined after the road construction project is finished. Mr. Kyle advised the state has determined, based on the amount of dewatering effort that they know is required and on the additional borings in the direct line with the sewer line, that Cost Scenario #3 is their best estimate of what is a fair price for the contractor to do the work. He stated under the DOT contract they can direct the contractor to proceed; he is refusing to proceed under the contract price of $17.00 a foot; and once they direct him to proceed, he does not have the option of refusing to do the work; however, both the contractor and state, with the County, will monitor exactly what it takes to do the work, and at the conclusion, it does not prevent the contractor from continuing with his claim for money beyond what the DOT estimate is.

Commissioner Scarborough inquired when is the amount locked in under the current MSBU; with Ms. Hann responding at this point, the Board has adopted the preliminary assessment roll, but it has not adopted the final assessment roll, and that may be changed. Commissioner Scarborough inquired when were they locked in with the Port St. John East Water MSBU; with Ms. Hann responding at the preliminary assessment roll stage. Commissioner Scarborough inquired at what time does the County Ordinance lock it in; with Ms. Hann responding at the final assessment roll. Commissioner Scarborough inquired if they have not gotten the final yet; with Ms. Hann responding that is correct.

Motion by Commissioner Scarborough, seconded for discussion by Commissioner Ellis, to accept the Merritt Island Redevelopment Agency's offer with a cap of $175,000; staff do not do finals until the project is completed; and at that time the Board determine what responsibility should be the County's as opposed to the landowners.

Commissioner Scarborough stated if the Board at that particular time feels the County should bear the responsibility because of failures on its part, then the general taxpayers and the total area can pick up that tab. He stated he does not know any other way to proceed at this time because there are no better figures.

Mr. Jenkins advised the MSBU is a multiple year commitment by the individual property owners as well as MIRA; there could be some opportunities to reduce or transfer some of the cost that MIRA is currently experiencing over a period of five or ten years; then the recurring monies that will be there would be sufficient to make up any shortfall, particularly if the Engineering Department attempts to monitor the costs of the project very closely and keeps control over it. He stated if there is a way to deal with the office space alone, that would be sufficient to pay $100,000 over five years; so there is a lot of potential to generate some savings.

Commissioner Ellis stated if the circumstances had been foreseen, the cost would have gone up; to get $175,000 out of the Redevelopment Agency is a heck of a subsidy for the project; and he will not support any more County subsidy beyond that point. He stated he wants everyone to understand that if the costs go beyond that, it is going back to the property owners or the project will be scrapped. He stated he does not have a problem scrapping the project because at least that is a known loss; the County is out $800,000 in Port St. John; and he is not looking to set up an open-ended liability with this project. Mr. Easton advised their intention is to try and minimize the liability as much as possible, but also keep the project in context of what is in the best interest of the community at large; and that is getting sewer in now at probably the most feasible cost possible. Commissioner Ellis inquired how will it benefit people in Cocoa or Eau Gallie; and stated that is a legal problem the Board has with trying to make up the shortfall. Mr. Easton indicated it is a potential environmental degradation to the lagoon system; and Department of Environmental Protection may decide to come back at a later date and say the County is tripping thresholds that are no longer acceptable and must put in sewers. Commissioner Ellis stated that can happen on any septic tank in the County; with Mr. Easton responding that is true, but here is an opportunity to move forward. Commissioner Ellis stated he does not think that is valid; and the Board can give the property owners another chance to speak because he would like to know for sure; but he will not vote for any more County money beyond the $175,000.

Commissioner O'Brien advised he cannot support the motion; the property owners at the outset agreed to their cap of what they would spend; a few of them did not even have to be in the MSBU such as Island Lincoln Mercury because they already have sewer; yet they were willing to go ahead and spend $65,000 to $85,000 to be part of this new system. He stated Wal-Mart already has a lift station; they are not worried about all this; but they are being good neighbors to one another. He stated it was a hurry up project; they already agreed to go in and how much they were willing to spend on it; and they were sold on the idea. He stated there are other avenues; and the rent for Mr. Easton's office at $20,000 a year would be $200,000 in ten years to offset the cost of the overruns.

Commissioner Scarborough stated the problem is going out and committing absolutely at the preliminary level, then things come up, and a subsequent figure is established; they say that is the County's fault and the general taxpayers should pick up the tab; and that will be the argument every time. He stated several years ago it was put in a County Ordinance that the County is allowed to adjust the assessment; whether they should adjust on an individual case is an issue for the Board; it could say in this case there should not be an adjustment and the specific reasons why there should be an exception made; but that does not have to be argued today. He stated the Board should not negate the Ordinance which allows the Board to come back, because as soon as they do it as a policy, he will vote against every MSBU that comes up.

Chairman Higgs advised there will be situations where the average homeowner group does a little project; one in South Brevard had some unknown site conditions the County ended up paying more for; but they went to the final assessment roll, and the people had to pay more. She stated she appreciates what these people are confronting, and it certainly is not pleasant for any of them; but it was no more pleasant watching people that she represents cough up more money either. She stated it is not a happy situation for anyone; but she has real problems, having assessed those people the full value of the MSBU project that had some unknown site conditions they had to pay for if she turns around here and is not consistent. She stated she can take the offer of MIRA and move forward, but it is going to be hard for her, if not impossible, to go to the County picking up beyond what the property owners are doing.

Commissioner Cook stated if the property owners would like to address this any further, he would be happy to hear them.

Commissioner Scarborough stated there are always extenuating circumstances in how those things are set out and events that occur that where the property owner should not bear the brunt; he would like to reserve that as a separate issue only if it arises; therefore, he does not see a need for the Board to answer a question that may not happen. Commissioner Ellis stated if it does happen, because there is a commitment now of $175,000 out of the Redevelopment Agency, and that is a very sizable commitment, more than on most of the other MSBU's, he cannot vote to spend another nickel beyond that. He stated he looks at the $175,000 as a loss; and if the Board kills the project, the loss would be less than that. He stated the property owners may want to speak now.

Chairman Higgs advised the Board needs to come to some sort of closure on this issue; and she is willing to allow the property owners to speak, but it will be one minute to give their summations.

Mr. Hooper advised what they have is not a subsidy, it is a sewer system that is going to belong to the County; the County is not subsidizing his business; he is buying a sewer system for the County that it is going to get revenue off of for the rest of his life and his grandchildren's lives; so it is no subsidy. He stated the County made the errors in this particular deal; because of its errors, the cost has come about; surely there might have been extra costs; but the County ought to stand up to it. He stated he understands Commissioner Ellis is not prepared to pay ten cents for the mistakes that were made in Engineering and by the County's contractor; and the County's contractor has liability under errors and omissions for what is a flawed design.

Commissioner Ellis stated $175,000 is a pretty substantial amount of money; with Mr. Hooper responding but that is coming from the Redevelopment Agency which is coming from increases in taxes so it is giving them their money back. He stated the County has an obligation not to have an open-ended deal and come back for more money from the property owners; and there is not one of the property owners in the MSBU that thinks they had any obligation beyond what they originally agreed to anyway. Commissioner Ellis stated that was never the case; with Mr. Hooper responding he realizes that was not the case, but they were not aware that it was an open ended obligation they were undertaking by getting in the MSBU.

Mr. Jenkins stated there are two issues; one is the philosophical issue of MSBU's and the fact that there is a preliminary roll and a preliminary amount that will be encountered anytime there is an MSBU; and they should not take that to be the final word. He stated the other issue is in terms of MIRA and the Board's control over the MIRA budget; if the Board is concerned about keeping Countywide funds out of the project, it has the ability to steer MIRA funds to this purpose; it is an appropriate legal use of MIRA funds; redevelopment agencies have historically used money for capital infrastructure within the redevelopment districts; and that is exactly what this is. He stated he does not think the Board has a philosophical or legal problem funding the differences from the MIRA account.

Mr. Tezel advised someone said kill the project, but they are already killed by the County's action and are practically out of business. He stated it will take them ten years to recover; they did not make the mistake; they did not take action; they are paying substantial real estate taxes; and part of the real estate taxes goes to this project. He inquired why do they have to pay for the County's mistake, who runs the County, who makes that kind of decisions, and what gives the government the right to abuse them when they pay their taxes. He stated it is a County sewer and water system and part of the real estate taxes will provide the services.

Commissioner Cook inquired if the Board could maintain the assessments at the current level, proceed with Option #3 and the difference come from MIRA; with Chairman Higgs responding that is basically what Commissioner Scarborough moved. Commissioner Scarborough stated he capped it at $175,000, and inquired if Commissioner Cook wants to remove the cap if the seconder would accept. Commissioner Cook stated he would second the motion if Commissioner Ellis will not. Commissioner Scarborough amended the motion to remove the $175,000 cap and include that MIRA will pick up the difference in cost. Commissioner Cook seconded the amendment.

Mr. Easton advised the Agency Board is ultimately going to make a recommendation; he does not think they will have a problem of revisiting this once they know what the final figure is; but he is not sure the Commission can commit the Agency Board to that amendment at this time.

Commissioner Scarborough stated it is in the County's budget. Commissioner Cook inquired if the Board controls MIRA's budget; with Mr. Jenkins responding the Board controls their budget annually.

Chairman Higgs stated it would be inappropriate, without having the budget presented to the Board, for it to dictate on the front end what their budget will be. Commissioner Cook stated it is an appropriate expenditure of the funds from MIRA. He stated the property owners would like a decision today on how much they are going to end up paying; if the Board moves forward with Scenario #3, their assessment will be what they thought it would be; and there may not be a need for additional funds. Commissioner Scarborough suggested getting the project completed then seeing what the problems are. Chairman Higgs inquired if there were other property owners who wish to give their summation; and hearing none, advised a motion is on the floor.

Ms. Hann requested clarification of the motion that the property owners' maximum financial exposure would be the price at which they were surveyed, distributed based upon the preliminary assessment roll formula, and that total number is $421,954.50; and that staff direct DOT to proceed with the work based on the directed procedure where they would direct the contractor to proceed with work and the County would monitor the work; and that any additional funds necessary to pay for the balance of the project would come from MIRA. Commissioner Scarborough advised Mr. Easton said it would initially come from a loan from Utilities to be repaid as agreed to by MIRA, so they would have to work out repayment terms otherwise it would overly impact one year's budget. Ms. Hann advised they could treat MIRA as another participant in the MSBU. She requested the motion include authorization for the Chairman to execute a modification to the Joint Participation Agreement with Florida Department of Transportation to increase the cost of the project by an amount not to exceed $300,000. Mr. Kyle stated with that motion they could proceed. Ms. Hann also requested the Board authorize payment to Florida DOT in an amount not to exceed $300,000 from Fund 4040, Account 72003, Water Resources Department, Merritt Island Capital Projects.

Commissioner Scarborough amended the motion to include authorization for the Chairman to execute a Utility Work Order Change No. 1 modifying the Joint Participation Agreement with Florida Department of Transportation increasing the cost of the project by an amount not to exceed $300,000, and to authorize payment to FDOT in an amount not to exceed $300,000 from Fund 4040, Account 72003, Water Resources Department, Merritt Island Capital Projects; and Commissioner Cook accepted the amendment.

Commissioner Ellis inquired if it would be repaid; with Ms. Hann responding yes, through the MSBU as well as through a similar payment agreement with MIRA to be negotiated following completion of the project. Mr. Kyle suggested the Board negotiate what the structure of that agreement will be.

Chairman Higgs inquired if the Board, in advance of the Redevelopment Agency making a request for their budget, can direct what their budget will be which is the essence of the motion; with Mr. Knox responding the Board is not necessarily directing it, they are agreeing to it; and if they agree, it is not a direction. Chairman Higgs stated they have not agreed to the open-ended amount and suggested an amount they thought they could deal with; with Mr. Easton responding he will present it to the Agency Board as a recommendation and thinks he could convince the Board that it is the logical course of action. Chairman Higgs inquired if Mr. Easton is committing the Agency; with Mr. Easton responding he is doing his best to commit them. Commissioner Cook stated it is the logical conclusion to the problem.

Mr. Easton advised he has responses to every recommendation or allegation presented by Mr. Maxwell; and he was shocked to find that was in the hands of the Merritt Island Press as of today. Commissioner Cook stated that is a separate issue which will be on the Agenda; and called a question.

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

The meeting recessed for lunch at 1:12 p.m., and reconvened at 1:38 p.m.

UNPAVED ROAD AGREEMENT WITH VIKTOR RUDNIZKI, RE: CONSTRUCTION OF TREASURE LANE IN COUNTY RIGHT-OF-WAY

Viktor Rudnizki, 198 Vin Rose Circle, Palm Bay, owner of properties on Treasure Lane and applicant for the permit, requested fairness. He stated he respects the law; has lived in Brevard County for three years; spent about $35,000 on taxes; and invested $400,000 in the Country and this region to help businesses, but he has gotten nothing back. He noted he is only asking for fairness.

Lisa Lombardi, 1011 Rockledge Drive, Rockledge, President of Lombardi Engineering, registered civil engineer and representative of the applicant as the engineer of record for Treasure Lane, advised she would like to brief the Board on how this project is designed and give it the background on all the permitting loops they had to go through. She stated the project is located on the south side of Grant Road in the Grant area; Treasure Lane is about 1,300 feet long and is a proposed unpaved road within a 50-foot County right-of-way; and they are proposing to design the road to meet the Brevard County unpaved road standards, which is a 22-foot wide stabilized road, not a paved road, with roadside swales for stormwater retention. She stated that is how the design of the project began; and after they submitted it to the County, there were some concerns about offsite drainage that may be entering this area, so they got into a more detailed plan to address the concerns of adjacent property owners. Ms. Lombardi advised they included 20-foot easements along the sides of the lots on the east side of Treasure Lane to allow any offsite drainage from the east to enter through the easements and swales into the roadway, and created a stormwater retention area on one of the lots on the east side of Treasure Lane which is about a half acre. She stated normally with unpaved roads, the only criteria that applies for design is the stormwater design within the 50-foot right-of-way, so they have gone outside of the right-of-way and are providing easements and side lot swales on individual lots and rear lot swales. She stated on the west side of the road, they are also providing swales for stormwater treatment that will convey the water from the west back to the site and into the ditches. She noted Mr. Rudnizki owns eight lots which front on Treasure Lane; that is about 11 acres of property; the road is about 1.5 acres of land; and in addition to the stormwater design the County also recommended, as a condition of approval, that each individual lot, as it applies for building permits, will be required to have its own stormwater management system that will have to be approved by the County Engineering Department prior to issuing a building permit. She stated that is another condition they have agreed to; so they have gone beyond the design of the road and into the lots which front the road and provided treatment and conveyance on individual lots. Ms. Lombardi advised it started out as an unpaved road project, and because of some concerns in the area, they have gone beyond the normal requirements and met the conditions as the County and St. Johns River Water Management District asked them to do. She stated there have been some concerns about the capacity of the ditch on Grant Road, but she received a letter from Mahmoud Najda that states he feels there is capacity on the Grant Road ditch for outfall. She stated last month they went to the St. Johns District with the permit application for approval; one of the conditions the District placed on them was that they felt the stormwater master plan should be performed in the area before the permit can get its final approval; and Carol Senne and Carla Palmer are working with the County to try and get the plan expedited. She noted she agrees there are some very serious drainage problems right now in the Grant area; there are some valid concerns that the neighbors have with flooding on their properties; she did some research and got the rainfall analysis for the state from the District; and the document tells her they have been in a drought for the last 15 years and now are coming out of it, so the rainfall is going to increase, the water table is going to become higher than it is now, and they are probably due for a hurricane. She stated her concerns with the neighboring property is that the people who are adjacent to this property are experiencing flooding now; the way the project is designed, they are going to have a negative effect and are not going to increase flooding problems in their area; but she does see flooding problems increasing in the next few years due to natural conditions, heavier rainfall and higher water tables; and the County needs to address those issues as the area continues to grow. Ms. Lombardi requested conditional approval of Treasure Lane with the contingency that it becomes part of the stormwater master plan in the Grant area, because the project with the eight lots owned by Mr. Rudnizki and the way they have the swales set up is going to be able to handle some offsite stormwater and stormwater flows from the eight lots; but as the area continues to grow, there is going to be problems with additional runoff that needs to be addressed in a master plan. She stated she sees the neighbors' problems with stormwater increasing as the climate changes, and she would like to know that something is going to be done to address the problems so it is not looked at as Treasure Lane being the one that impacted those sites because that will not be the case.

Commissioner Ellis inquired if the design has an outfall into Grant Road ditch and has ditches on both sides of Treasure Lane; with Ms. Lombardi responding yes. Commissioner Ellis inquired if there is a culvert under Treasure Lane; with Ms. Lombardi responding there is a culvert under Treasure Lane to keep the conveyance in the Grant Road ditch running east/west and they are putting another culvert under Grant Road running north/south. Commissioner Ellis inquired if Treasure Lane water flows east to west; with Ms. Lombardi responding the area is fairly flat; there are some areas that will flow east to west and some that flow west to east, depending on where the divide is through there; and they have the topographical information on that. Commissioner Ellis inquired if they will have a conveyance between the two ditches on the east and west sides of Treasure Lane; with Ms. Lombardi responding the ditches will be connected where they meet at Grant Road; the east side ditch is not connected to the west side ditch on Treasure Lane; they are two separate ditches and each ditch outfalls to the Grant Road ditch; then where Treasure Lane comes into Grant Road, there will be a culvert underneath Treasure Lane to keep the Grant Road ditch continuous. Commissioner Ellis inquired if there is a cross culvert; with Ms. Lombardi responding no. Commissioner Ellis inquired if they looked at the possibility of doing cross culverts from the east side to the west side under Treasure Lane at a couple points; with Ms. Lombardi responding that would not be necessary because the stormwater will come into the swales whether it is on the east side or west side and be carried out to Grant Road depending on which side it came in on, so connecting one side to the other is not going to increase the capacity that significantly. Commissioner Ellis stated a lot of the problem in that area is not flow from those lots but flow from other lots further back that comes towards Treasure Lane area; and if the majority of flow comes from the east, they would be able to send water to Grant Road through both ditches with the culvert underneath the road. Ms. Lombardi advised the way the ditches are designed, they are sized adequately so that the east ditch can take the drainage from the east and the west ditch can take the drainage from the west.

Chairman Higgs inquired about the status of Grant Road drainage system; with Public Works Director Henry Minneboo responding the Grant Road drainage system was designed about 25 years ago, and at that time it was for what they thought would be minimal residential intrusion in the area; that is the way the system is today; and it appears there is no capability to expand that system, and that is the problem. He stated they always have flooding conditions even in fairly drought years, so they are not pleased when a lot of extra water comes into Grant Road ditch.

Commissioner Ellis inquired if there was some assistance when the County cleaned out Trout Creek to get the flow down; with Mr. Minneboo responding yes, it helped.

Chairman Higgs inquired if Mr. Minneboo's opinion is that the Grant Road drainage system is at capacity; with Mr. Minneboo responding yes it is at capacity because they designed it for a dirt road 25 years ago and today every inundation impacts the system more. He noted he is not sure they can clean Trout Creek any further than they have done.

Commissioner Ellis inquired if there are other outfalls into Grant Road ditch other than Treasure Lane; with Mr. Minneboo responding no, all Treasure Lane water must go to the east; and he was not sure if the project was going to put a pipe across Grant Road either because he is not familiar with it. Commissioner Ellis inquired if the County is currently issuing other building permits along Grant Road; with Assistant County Manager for Community Development Dean Sprague responding yes, and it is a County-maintained road. Commissioner Ellis inquired if there are other people who have outfalls into Grant Road Ditch; with Assistant Engineering Design and Review Director Mahmoud Najda responding there are other ditches that were constructed a long time ago from the north side of Grant Road which convey some water from certain parts of the land to the Grant Road ditch; and also on the south end of Grant Road there is a conveyance ditch and treatment swale for stormwater. He stated the conveyance ditch on the south side is not really a ditch per se, it is a conveyance swale a little deeper than a normal swale; it does receive some runoff from the southern end of the properties; there have been some constructed small swales and pipes which convey water from the south to Grant Road ditch; and they do not know the water quantity, but it is there. Commissioner Ellis inquired what would it take to speed the flow through those ditches; with Mr. Najda responding when Mr. Minneboo conducted the maintenance for Trout Creek and Grant Road ditch, it brought the water down tremendously. He stated the distance from Grant Road to the river is approximately 19 to 20 feet NGBD in elevation which means a distance of approximately two miles from where Treasure Lane is to the river with a difference in elevation of 20 feet; and that is quite a bit of fall. He stated with proper maintenance, the water would be carried away at a faster rate. Commissioner Ellis inquired if the railroad tracks is the plug in the system; with Mr. Minneboo responding that has been a problem over the years and Florida East Coast Railway Company will not let them clean it. Commissioner Ellis inquired if there is pressure they could exert on FEC; with Mr. Minneboo commenting nobody can put pressure on FEC. Commissioner Ellis inquired what would happen if they poured the water against the tracks and let it sit there; with Mr. Minneboo responding their attorneys would be here very quickly. Commissioner Ellis commented it is the state's water.

Commissioner Cook advised if it would improve drainage, the Board may want to consider a resolution requesting permission to open it up; with Commissioner Ellis responding it is worth making an effort or send a letter to FEC to get something because that is a lot of fall. Chairman Higgs stated it would then flow directly into the lagoon, and they would need permission to go directly into the lagoon. Commissioner Ellis stated it would not reach the St. Johns from there. Chairman Higgs stated it has to be treated before it goes into the lagoon. Mr. Najda advised there are two pipes under the railroad tracks; he thinks one of them was partially plugged on purpose by FEC because there is a plate or concrete grout that is closing one of the culverts; and he is not sure why, but he noticed it when he was out there recently. Commissioner Cook stated the Board needs to know why and if there is anything it can do about it. Commissioner Ellis stated if the Board gets a reply from FEC then it can get something done, and maybe it would be worth it to go through the State Delegation rather than staff beating their heads against the wall.

Ms. Lombardi advised their St. Johns River Water Management District permit is pending the stormwater study being done as a joint effort between the District and the County; and she feels the area should be a priority for doing a stormwater master study because it has direct discharge to the Indian River Lagoon. She stated it is a growing area; there are serious flooding problems out there; and she would like to see some action if possible by the Board to try and expedite some type of group effort to get the master plan going in that area. Chairman Higgs advised of a letter she received from St. Johns District regarding the master plan. Ms. Lombardi stated she does not know if it would be possible to set a time schedule today for that plan if that is an action the Board wants to go forward with. Chairman Higgs stated the Board does not really know what the District is asking for at this point.

David Gravas, 4226 South A1A, Melbourne Beach, advised he is a realtor who specializes in vacant land and has been active in the area; Mr. Rudnizki purchased the property after he walked it; it is not wetlands; and there is wetland in Section 32, but his property is not wetland. He stated some neighbors have problems with water accumulating on their properties, particularly Mr. Scott, but Mr. Rudnizki's property has been walked by the Engineering Department and St. Johns District and they do not find it to be wetlands. He noted there was some discussion in the past that he was improving wetlands, and that is not the case. Mr. Gravas stated Mr. Rudnizki is not speculating with the property; he purchased it to use for himself; he informed himself about the dirt road ordinance and MSBU arrangement; and now that the MSBU does not apply, he was told he could put in a dirt road. He stated he has been endeavoring to do that for six months or more and keeps getting road blocks and impeded in his sincere attempts to build a road so he can live there; there are thousands of other owners in the same situation who purchased lots in the area that have been taxed thinking they have a homesite; there is no road to their properties; and there is some obligation on the part of the Board to offer them some encouragement that they are going to be able to use their land some time. He noted many of them bought site unseen and were probably foolish in buying it without looking because some have cypress and would never be able to be used for homesites; however, that is not true of all of it; and those like Mr. Rudnizki who has upland and not wetland should have the right to not be impeded in their attempts to get a road under the present law. Mr. Gravas stated he is only asking for a quarter mile dirt road which is feasible; he is frustrated and wants justice; and he should receive justice so this matter can be solved and he can have the home he wants to build.

Commissioner Cook advised Carol Senne's letter refers to objectors to the proposed project; and inquired who are they; with Mr. Gravas responding the Board will hear from them today.

Chairman Higgs stated according to the layout for the MSBU, Mr. Rudnizki owns 11 lots on Treasure Lane; with Mr. Gravas responding he does not own that much on the section of road he is proposing to build now; there are about eight lots that front on Treasure Lane; but he owns other properties to the south that would have been on the MSBU route that is not affected by this application. Chairman Higgs inquired if it is true that Mr. Rudnizki owns 11 lots; with Mr. Gravas responding he sold a few to his friends. Commissioner Ellis stated he could not have 11 lots on Treasure Lane. Mr. Gravas stated there is not 11 lots that front on the quarter mile section, but there are other properties farther south that he owns that are not on the right-of-way. He stated on the quarter mile he is applying for, he owns several of the lots and his friends own some of them. He stated there are eight lots that will be impacted and would be buildable as a result of the road; and he and his friends own the majority of those lots. Chairman Higgs inquired if Mr. Rudnizki and his friends own those lots that continue down the right-of-way; with Mr. Gravas responding it is at the end of the half mile where he owns another 11 acres.

P. T. Rampy, 1322 U.S. Highway 1, Sebastian, advised he is a Public Relations and Legal Affairs Department head of a small multi-national American-owned corporation based in Monroe County and operating in Brevard, Indian River, and St. Lucie Counties; he is a member and spokesman and officer for a locally-founded nonprofit corporation which has a goal of promoting sound environmental legislation; he serves as President of the Treasure Coast Archeological Society which is another nonprofit organization; he has strong ties to the community; and his activities demonstrate that he is concerned for both environmental and cultural integrity of the region. He stated currently he resides in Indian River County, but in the process of attempting to navigate the bureaucratic hurdles that have been placed in front of him and other owners off Grant Road, he is here regarding the proposed construction of Treasure Lane within Section 32, Township 29S., Range 38E., of Brevard County. He stated somewhere along the road the process got side-tracked; the monster of political intervention has reared its ugly head and managed to squelch the rights of ordinary normal citizens who want nothing more than to construct a single-family dwelling, that is all, a house; those future taxpayers are being stopped by nine different engineering changes over the last 16 months facilitated by the whining of one resident who does not want neighbors and who built his house and probably it is too low anyway; and the end result is the St. Johns District changing the original agreement of issuing a permit and now require a master stormwater management plan. He stated that is horrendous. Mr. Rampy advised up until that point, all engineering parties concerned agreed on one thing, there is going to be absolutely no impact on any of the surrounding properties if the homes are built back there; they are not talking about highrise low-income government housing projects; and they are not talking about 10,000 homes, a little city, and a mall. He stated Mr. Rudnizki owns two lots, one of which he put a substantial down payment on, but is not going any farther on it because he has seen what is being stopped here; he personally knows of 1.7 million dollars in property and development Brevard County has lost because of the hurdles; those are ridiculous bureaucratic hurdles that have been put in place; and he does not know where to turn other than to urge the Board to speed the process on by assisting in any way possible with the St. Johns District's recommendation to now generate a master stormwater plan. He begged the Board to let common sense prevail, and stated it will cost the County more in legal fees than what the whole situation is worth if it continues.

Robert Reese, 3635 Grant Road, Grant, advised he is here to speak in opposition to the Treasure Lane project; in the wake of Tropical Storm Gordon, Florida TODAY printed several articles lamenting the deplorable drainage systems or lack thereof in Brevard County; they cited numerous incidences of flooding attributable to poorly designed drainage systems and lack of foresight on the part of County planners who failed to accommodate the intense downpours experienced during the past year; and the bottom line conclusion, after reading those articles, is that all new development in Brevard County must not be permitted without an approved master drainage plan in place for areas affected by proposed development. He stated by that he means a plan which considers the intrusion upon natural drainage of the proposed sites and the pertinent interest of all governmental agencies which would be affected by approval of a given application. Mr. Reese stated applications for projects like Treasure Lane should not be considered in isolation with no regard for any other legitimate concerns, not if the County wishes to avoid the problems Gordon created and not if it wants responsibly-planned growth in Brevard County.