August 27, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on August 27, 2002, at 9:05 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Susan Carlson, and Jackie Colon; County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Tomas Lares, Jehovah Rapha Christian Church.

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

REPORT, RE: AGENDA ITEM VI.F.2., COMMERCIAL PAPER LOAN FOR WIDENING
OF BARNES BOULEVARD

Commissioner Carlson requested Item VI.F.2., regarding a commercial paper loan for widening of Barnes Boulevard, be postponed until September 17, 2002 when she will ask for a time certain because there are a number of folks from Rockledge who would like to speak on the issue but cannot be here today.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to table Commercial Paper Loan, Interlocal Agreement, and Budget Change Request for Widening of Barnes Boulevard until September 17, 2002. Motion carried and ordered unanimously.

REPORT, RE: RESCHEDULING OF BUDGET HEARING

Commissioner Carlson advised the Board has a budget hearing on September 11, 2002; and inquired if it is possible to move it to September 12, 2002 because of a conflict with the anniversary of the terrorists’ attack on the United States. She stated a number of events will be occurring throughout the day and in the evening to commemorate that day.

Chairman Scarborough stated the TRIM notices have already been mail; and the only way to do that is to mail every taxpayer a new notice. He stated everyone has a right to appear at the hearings; unfortunately, someone had to take that date, and it fell on the Board; and if it is moved, it will begin to have conflicts with other jurisdictions. He stated there is something special planned for that evening, so the Board will be recognizing that tragic loss.

Commissioner O'Brien inquired how was that date chosen; with County Manager Tom Jenkins responding it just evolved that way. Commissioner O'Brien stated the Board usually meets on Tuesdays and Thursdays, and September 11 is a Wednesday; and he recalls bringing up the subject of not meeting on Wednesdays. Mr. Jenkins stated that is just the budget hearing; with Commissioner O'Brien responding he knows that. Chairman Scarborough stated there has to be an opportunity for every taxpayer who pays taxes in multiple jurisdictions to attend the hearings; and the Board cannot have a conflict with any municipality. Commissioner O'Brien recommended for 2003 the Board choose a Thursday now and have the cities change their dates. Commissioner Carlson stated she was not sure if the Board was under the wire on that or not so she brought it up.

REPORT, RE: SALE OF UTILITY TRAILERS

Commissioner Carlson advised she has a constituent who wants to sell utility trailers on a BU-1 site; he was told by staff he has to have BU-2 zoning to do that; the Zoning Code, as reviewed by her office, does not clearly define utility trailers as opposed to U-hauls or mobile homes; and requested staff bring back a report on exactly what zoning is required for sale of utility trailers. She stated the site is located on Fiske Boulevard.

REPORT, RE: TRIM NOTICES

Commissioner Carlson advised while out campaigning, a couple of homeowners brought up the issue of their TRIM notices; and they were concerned about the increase in property tax based on the increase in assessed value of their property. She stated a constituent said he received five TRIM statements; a president of a homeowners group in Suntree received four separate TRIM notices under different stamps for a total of $4.38; since she was at their doors, they figured they would get her; and she said she would bring it up and see if the Board could get a straight answer from the Property Appraiser. She stated there were four statements for 18 cents; they have to put 37 cents stamps on them; so it does not seem like a cost-effective way of getting things out. Commissioner Carlson stated she is curious if the Board could get the Property Appraiser to give it a bottom line limit for a TRIM notice being sent out or some rule that does not defy common sense. She presented the TRIM notices to the Commissioners for review; noted she was amazed; and reiterated she would appreciate a report from Mr. Ford. Commissioner O'Brien stated he is not amazed because that is government. Commissioner Carlson stated her point is government should be doing a better job.

REPORT, RE: BUDGET CONCERNS

Commissioner Colon advised the Property Appraiser shared some concerns regarding decisions made during the budget process; she spoke to County Manager Tom Jenkins about it, and both of the offices have been keeping in touch; but she wanted to bring it to the Board because she has concerns about some things Mr. Ford is questioning and some actions the Board has taken.

REPORT, RE: SERVICE IN AFGHANISTAN

Commissioner Colon advised there was an email of a letter from a person named Michelle regarding her husband Tony, who is an Air Force Commander in Afghanistan, and who said they need for the community to pray to protect the troops and give wisdom to the commanders because it is a bloodbath there. She requested everyone keep in mind there are many men and women overseas fighting for our freedom and the liberties we enjoy.

REPORT, RE: VISIT FROM FRIEND

Commissioner Colon advised this is an exciting day for her because her close friend from New York, who survived the attack on the World Trade Center and who everyone helped her pray for, is coming to visit; she will come through Melbourne Airport; and it is an exciting day for her.

REPORT, RE: HOMELESS ISSUES

Commissioner Colon advised the Board discussed issues regarding homeless persons and what it can do about it; and Jack Gilbert will give the Board an update of what some of the faith-based communities are doing to help government make housing a reality for some of the homeless persons.

Jack Gilbert with HOPE Properties, a community housing development organization recognized at the State level, advised their charter status is soon to be awarded in Brevard County; and they provide affordable housing throughout the State. He stated they have a development of 160 units in Fellsmere mostly for migrant workers; Indian River County awarded about $60,000 to them, which they leveraged for about $15 million in State and federal funds; and they would like to use the little bit of money they have available in Brevard County to leverage for State and federal funds and accomplish the task in Brevard County. He stated there are 2,000 to 3,000 homeless persons in Brevard County on any given day; they did a count of that and they are everywhere; and there are 7,000 plus of 18 to 65-year olds who are on SSI in Brevard County, most of whom are either mentally or physically handicapped or challenged. Mr. Gilbert advised the three categories they found in the homeless are: (1) the mentally-ill individuals, majority of whom are homeless because they are not on medication, not receiving the care they need, and not in a program; (2) the down and outers who were evicted or their property foreclosed on and forced to move out because they were not able to pay their bills, or there was illness, wrong choices, family fights, etc. that caused them to be evicted, but they are capable of working and to be productive members of society; and (3) the criminal element, drinkers, druggers, and partiers who want to stay out there; and there is not much they can do with them because that is their choice. He requested the Board join HOPE Properties in its belief to affirm and practice Paul’s admonition to the Galatians that we are to bear one another’s burdens in doing good works to all men. He stated he and his staff developed a program, which they affectionately dubbed, “from the tenthouse to the penthouse”; they take individuals who are living in the woods and homeless and provide them with emergency shelter for 30 days, then transitional housing for up to six months; and those can be combined into one facility. He stated they propose to build three 100-unit facilities in Brevard County over the next four years in South, Central, and North Brevard to accommodate the needs of those individuals; and the next phase would be to provide low-income housing for them. Mr. Gilbert advised they are working with County staff and the Affordable Housing Council on an RFP to address the mental health issues and individuals with mental problems; they can provide 15 units for mentally-ill individuals, but cannot put any more in one particular unit or they would lose their Medicaid; and they can provide another 250 units per facility for people who come out of transitional housing and go into low to moderate-income facilities and are capable of paying rent, keeping jobs, etc. He stated the third and final phase would be home ownership; they are currently writing applications to the State; last year they wrote for different subsidies for 55 homes in Palm Bay; and there are enough subsidies out there from different sources they can utilize and apply for to bring the first mortgage down below $50,000 so within a two-year timeframe, they can take them from a tent and put them into home ownership. He stated it is feasible and realistic to use the little bit of money they have to operate with and bring in funds and subsidies; the emergency shelter program for the first 30 days would consist of a lot of social services, including physical and mental evaluations, job skills, life skills, and to slot them in appropriate positions to be productive again and bring them back into productive society; and that would alleviate a lot of issues they currently have.

Chairman Scarborough thanked Mr. Gilbert and Commissioner Colon for their continued interest in the homeless issues; and stated he would like to meet with Mr. Gilbert, and other Commissioners would probably like to also.

REPORT, RE: AGENDA ITEMS III.A.1. AND III.A.2.

Chairman Scarborough moved Agenda items III.A.1., Acknowledge Receipt of Ordinance #32-2002 from City of Titusville, Re: Annexation; and III.A.2., Acknowledge Receipt of Ordinance #18-2002 from City of Cocoa, Re: Annexation, to Section VII for discussion.

REPORT, RE: BILLBOARD AMENDMENT

Chairman Scarborough advised he included in the Agenda packages information on support of billboard legislation amendment that is before the Florida Legislature; and he will bring up the issue at the end of the meeting.

RESOLUTION, RE: PROCLAIMING BREVARD COUNTY FIREFIGHTERS
APPRECIATION WEEK

Commissioner Higgs read aloud a resolution proclaiming August 27 through September 2, 2002 as Brevard County Firefighters Appreciation Week.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to adopt Resolution proclaiming August 27 through September 2, 2002 as Brevard County Firefighters Appreciation Week, and commending the firefighters for their efforts on behalf of the Muscular Dystrophy Association. Motion carried and ordered unanimously.

Commissioner Higgs presented the Resolution to Public Safety Director Jack Parker, Fire Chief Bill Farmer, and Dave Hover, who thanked the Board for its support and noted the boot drive will be held Friday, Saturday and Sunday. County Manager Tom Jenkins advised Mr. Hover is the recipient of the Award of Excellence.

PRESENTATION, RE: EMPLOYEE LONGEVITY RECOGNITION PLAQUES

County Manager Tom Jenkins advised this is an opportunity for the Board to recognize the employees who have been with the County for a long time; Karen Weise with the Public Works Department has 25 years of service; Stephen Norman with Parks and Recreation Department has 25 years of service; and Cary Salter with Housing and Human Services, and Tim Hilton with Solid Waste Management also have 25 years of service with the County.

Commissioner Colon presented plaques to Karen Weise and Stephen Norman who were present at the meeting.

RESOLUTION, RE: SUPPORTING MELBOURNE INTERNATIONAL AIRPORT

Commissioner Colon read aloud a resolution supporting Melbourne International Airport.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to adopt Resolution supporting Melbourne International Airport and its efforts to attract additional airlines, flights, and nonstop destination services, and its application for federal funds from the Small Community Air Service Development Pilot Program. Motion carried and ordered unanimously.

Commissioner Colon presented the Resolution to a representative of the Airport who thanked the Board for its continued partnership, and noted Commissioner Colon insured her friend would fly into Melbourne and provided leadership for all of Brevard County to follow.

REPORT, RE: CONSENT AGENDA ITEMS

Chairman Scarborough advised he received a card for Item III.D.6, Contract with Logan Ventures, Inc. for Snack Bar and Vending Machine Services, which will be discussed after the Consent Agenda is approved. Commissioner Higgs stated she removed it earlier and is concerned about the procedure of moving it again from the end of the Agenda.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to leave Item III.D.6. for discussion under Section VII. Motion carried and ordered unanimously.

Chairman Scarborough advised he has a card for Item III.A.4., Final Plat Approval for Wal-Mart at Viera only if there are questions, and a card for Item III.B.4., Amendment with Coastal Technology Corporation for Alternate Site Study for Pineda Causeway Boat Ramp in favor of the item.

ACKNOWLEDGE RECEIPT OF REQUEST #AR-2002-140 FROM CITY OF MELBOURNE,
RE: ANNEXATION

Motion by Commissioner Carlson, seconded by Commissioner Colon, to acknowledge receipt of Request #AR-2002-140 from City of Melbourne annexing approximately 14.3 acres at the
southeast corner of the intersection of Wickham Road and Business Center Boulevard. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: WAL-MART AT VIERA

Motion by Commissioner Carlson, seconded by Commissioner Colon, to grant final plat approval for Wal-Mart at Viera, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE:
WINGATE ESTATES, PHASE 2

Motion by Commissioner Carlson, seconded by Commissioner Colon, to grant final plat approval for Wingate Estates, Phase 2, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining jurisdictional permits; and execute Contract with The Viera Company guaranteeing improvements in the project. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND TRI-PARTY AGREEMENT WITH HIVIS DEVELOPMENT
GROUP, INC., RE: FLORA VISTA SUBDIVISION

Motion by Commissioner Carlson, seconded by Commissioner Colon, to grant final plat approval for Flora Vista Subdivision, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining jurisdictional permits; and execute Tri-Party Agreement with HIVIS Development Group, Inc. and Admiralty Bank guaranteeing improvements in the project. Motion carried and ordered unanimously.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: CYPRESS
WOODS, PHASES 2 - 5

Motion by Commissioner Carlson, seconded by Commissioner Colon, to grant final engineering approval and preliminary plat approval for Cypress Woods, Phases 2-5, subject to minor engineering changes as applicable and developer responsible for obtaining jurisdictional permits. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH NABEEL CHAUDRY, RE: WHYNOT DRIVE

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Unpaved Road Agreement with Nabeel Chaudry for a building permit off an existing right-of-way known as WhyNot Drive, which is constructed to the standards of the Unpaved Road Ordinance. Motion carried and ordered unanimously.

POLICY BCC-82, RE: CONTINUED USE OF TEMPORARY RESIDENCE AFTER
ISSUANCE OF CERTIFICATE OF OCCUPANCY

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve amended Policy BCC-82, Temporary Residence After Issuance of Certificate of Occupancy, contingent upon the Board adopting Florida Building Code and amended Chapter 1, Administration. Motion carried and ordered unanimously.

INTERLOCAL AGREEMENT WITH BAREFOOT BAY RECREATION DISTRICT,
RE: STREET LIGHTS IN BAREFOOT BAY

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Interlocal Agreement with Barefoot Bay Recreation District, transferring maintenance of streetlights in Barefoot Bay to the County over a three-year period, beginning October 2002. Motion carried and ordered unanimously.

CONTRACT MODIFICATION #1 WITH VILA & SON, RE: LANDSCAPE AND
IRRIGATION INSTALLATION ON SR 405

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Contract Modification #1 with Vila & Son for enhancement of landscape and irrigation installation contained on pages 2B and 3 of the SR 405 Highway Beautification Project at $91,716.56. Motion carried and ordered unanimously.

AMENDMENT TO CONTRACT WITH PBS&J, INC., RE: PINEDA CAUSEWAY
EXTENSION PROJECT

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Amendment to Contract with Post, Buckley, Schuh & Jernigan, Inc. (PBS&J, Inc.) to provide additional engineering services needed for the Pineda Causeway Extension project at $591,073.12. Motion carried and ordered unanimously.

ACCEPTANCE OF DEED FROM BRYAN S. BELCHER, ET AL, RE: CONVEYANCE
OF D’ALBORO ROAD RIGHT-OF-WAY

Motion by Commissioner Carlson, seconded by Commissioner Colon, to accept Deed from Bryan S. Belcher and Joy T. Belcher, Co-Trustees of the Belcher Family Trust, for a road right-of-way known as D’Alboro Road on Merritt Island. Motion carried and ordered unanimously.

PERMISSION TO ISSUE WORK ORDERS TO OUTLAW, RICE, AND JONES, INC.,
RE: DESIGN SERVICES FOR HARRY T. MOORE PROJECT

Motion by Commissioner Carlson, seconded by Commissioner Colon, to authorize issuance of work orders to Outlaw, Rice, and Jones, Inc. to provide continuing design services for paving,
drainage, sidewalk, curbs, fire hydrants, and landscaping for the Harry T. Moore project in East Mims. Motion carried and ordered unanimously.

RESOLUTION, GRANT APPLICATION, GRANT AGREEMENT, BUDGET CHANGE
REQUEST, AND TEMPORARY LOAN, RE: VIERA REGIONAL PARK

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution authorizing amendment to the Capital Improvements and Programs Element of the Comprehensive Plan to include the development of Viera Regional Park Referendum Project; authorize grant application to Department of Environmental Protection for $200,000; authorize the County Manager to execute the Grant Agreement; and approve Budget Change Request and temporary loan from the General Fund if the grant is approved. Motion carried and ordered unanimously.

AGREEMENT WITH FRIENDS OF THE ENCHANTED FOREST, INC., RE: VOLUNTEER
SERVICES AT ENCHANTED FOREST SANCTUARY

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Agreement with Friends of The Enchanted Forest, Inc. to provide volunteer services at the Enchanted Forest Sanctuary. Motion carried and ordered unanimously.

AMENDMENT WITH COASTAL TECHNOLOGY CORPORATION, RE: ALTERNATE SITE
STUDY FOR PINEDA CAUSEWAY BOAT RAMP

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Amendment to Agreement with Coastal Technology Corporation for an alternate site study for development of Pineda Causeway boat ramp. Motion carried and ordered unanimously.

AGREEMENT WITH MEDTRONIC PHYSIO-CONTROL, RE: MAINTENANCE AND
REPAIR OF LIFE PAK CARDIAC DEFIBRILLATORS

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Agreement with Medtronic Physio-Control to provide maintenance and repair of Life Pak Cardiac Defibrillators as a sole source provider at $75,260 payable in annual installments. Motion carried and ordered unanimously.

AGREEMENTS WITH OFFICE OF THE STATE COURTS ADMINISTRATOR AND
CIRCLES OF CARE, INC., RE: DRUG COURT PROGRAM

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Agreement with Office of State Courts Administrator for $360,000 grant-in-aid to fund the Drug Court Program; execute Agreement with Circles of Care, Inc. for treatment and education services to Drug Court clients; and authorize the County Manager or his designee to execute the one-year renewal option instead of rental option with Circles of Care if funding is approved in FY 2003-04. Motion carried and ordered unanimously.

INTERLOCAL AGREEMENT WITH ST. JOHNS RIVER WATER MANAGEMENT DISTRICT,
RE: USE OF PROPERTY AT SR 46 AND HATBILL ROAD

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Interlocal Agreement with St. Johns River Water Management District for the use of property at the corner of SR 46 and Hatbill Road in Mims to construct a well as part of the El Nino wildfires recovery grant. Motion carried and ordered unanimously.

APPROVAL OF POLICY, RE: DRUG AND ALCOHOL TESTING OF TRANSIT SERVICES
DEPARTMENT SCAT APPLICANTS AND EMPLOYEES

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve the Policy for drug and alcohol testing of Transit Services Department and Space Coast Area Transit (SCAT) applicants and employees. Motion carried and ordered unanimously.

REVISED POLICY BCC-35, RE: INTRA-GOVERNMENTAL DEPARTMENTS

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve revised Policy BCC-35, Intra-governmental Departments, establishing a system to finance and account for goods and services provided. Motion carried and ordered unanimously.

APPROVAL, RE: EXTENSION OF TAX ROLL PRIOR TO FINAL CERTIFICATION BY
THE VALUE ADJUSTMENT BOARD

Motion by Commissioner Carlson, seconded by Commissioner Colon, to extend the tax roll prior to final certification by the Value Adjustment Board. Motion carried and ordered unanimously.

AGREEMENT WITH BERMAN, HOPKINS, WRIGHT & LAHAM, RE: EXTERNAL
FINANCIAL AUDIT SERVICES

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Agreement with Berman, Hopkins, Wright & Laham to provide external financial audit services for fiscal years ending September 30, 2002, 2003, and 2004. Motion carried and ordered unanimously.

RESOLUTION, BILL OF SALE, AND WATERLINE EASEMENT WITH CITY OF COCOA,
RE: PORT ST. JOHN PUBLIC LIBRARY

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution and execute Bill of Sale and Waterline Easement with City of Cocoa for permanent water service at the new Port St. John Library. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA POWER & LIGHT COMPANY, RE: EMERGENCY
PREPAREDNESS FOR FY 2002-03 AND FY 2003-04

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Agreement with Florida Power & Light Company for emergency preparedness of the County Radiological Support Plan of the St. Lucie Nuclear Power Plant at $32,000 annually for two years, and authorize the County Manager or his designee to sign all future administrative submissions to the Contract. Motion carried and ordered unanimously.

AGREEMENT WITH DEPARTMENT OF COMMUNITY AFFAIRS AND SUBCONTRACT
WITH BREVARD COMMUNITY COLLEGE, RE: SHUTTER RETROFIT FOR BREVARD
COMMUNITY COLLEGE BUILDING 5, MELBOURNE CAMPUS

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Agreement with Department of Community Affairs for shutter retrofit for building to be used as a hurricane evacuation shelter; authorize the County Manager or his designee to sign all future administrative documents, amendments not having fiscal impact, and correspondence concerning the Agreement; and execute Subcontract with Brevard Community College to install the shutters on Building #5 at the Melbourne Campus. Motion carried and ordered unanimously.

RATIFY MODIFICATIONS AND AUTHORIZE COUNTY MANAGER TO EXECUTE
AGREEMENT WITH LABORER’S INTERNATIONAL UNION, LOCAL 678, RE:
COLLECTIVE BARGAINING

Motion by Commissioner Carlson, seconded by Commissioner Colon, to ratify modifications to 11 Articles in the Collective Bargaining Agreement with Laborer’s International Union, Local 678; and authorize the County Manager to execute the Labor Agreement as provided for in Section 447.309, Florida Statutes. Motion carried and ordered unanimously.

APPROVAL, RE: AVIATION INSURANCE FOR FY 2001-02

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve placement of aviation insurance for Mosquito Control aircraft and operations with ACE USA at $267,111, Valkaria Airport liability at $6,250, and Space Coast Airport Premises liability at $1,450, as recommended by broker Nation Air Insurance Agency, Inc. Motion carried and ordered unanimously.

RESOLUTION, RE: CONVEYING BEST WISHES TO KETTERING, ENGLAND

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution conveying the County’s best wishes to the town of Kettering, England. Motion carried and ordered unanimously.

RESOLUTION, RE: ENACTING REGULATIONS ON TAKING AND HARVESTING OF
LAND CRABS

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution enacting regulations on the taking and harvesting of land crabs. Motion carried and ordered unanimously.

APPROVAL, RE: REVISED AND NEW PRECINCT LEGAL DESCRIPTIONS

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve revised and new precinct legal descriptions. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Carlson, seconded by Commissioner Colon, to appoint Vicky Fischer to the Parks and Recreation Merritt Island/Beaches Service Sector Advisory Board with term expiring August 26, 2003. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve bills and budget changes as presented. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PORTION OF WAVECREST STREET
IN PLAT OF CANAVERAL - DANIEL F. AND EDEL GROSKI

Chairman Scarborough called for the public hearing to consider a resolution vacating a portion of Wavecrest Street in Plat of Canaveral, as petitioned by Daniel F. and Edel Groski.

Edel Groski presented documents to the Board but not the Clerk; stated they petitioned the Board to vacate the right-of-way at 1772 Wavecrest Avenue; and advised she provided a time line showing the history of frustration, costs, and efforts over the last ten years trying to regain land they lost through erosion. She stated had they been able to repair their seawall, they would not be here today; however, she only wants to focus on their request to vacate a portion of the green area in the right-of-way, which would give them the necessary footage to meet setbacks and buffer requirements. She stated she wants to emphasize to her neighbors that the green area will remain unchanged and would be the same as it is today. Ms. Groski stated this is not a frivolous appeal, but one that arose out of hardship and good faith reliance; and they lost approximately 25 feet of land on the front and side of their lot, thereby decreasing its size. She stated they purchased the property in July 1994 after an agreement was reached among their engineer, attorney, State, and County officials that they could use the green area in the right-of-way to satisfy the buffer requirements. She stated the letter from PBSJ and survey map on the easel shows the area agreed to; and prior to the purchase, their engineer gave them a more specific plot plan showing the specific area in which they could put their home and the specific area for the septic system, which is on the second survey. She stated it was in reliance of that, which led to the purchase of the property; and they hired an architect to design their home within the areas that were agreed to. She stated those same plans were presented; it is in reliance of the good faith agreement that brings them here today; and it was not until February 2002, when they went to pull their permits, that they were informed the agreement would not be honored. She stated they then tried again to get permission to build their seawall and were denied; they look at other alternatives and at the right of use; and they were informed that they would need a State variance, and the time frame and cost would also be an issue, which would most likely bring them back here. Ms. Groski advised they looked at hooking up to sewer and were given estimates in excess of $30,000; and as the alternatives were not feasible, they are requesting the Board, in the interest of justice, to grant their request and end their long frustration so they can start on their quest to build their home.

Dan Groski advised last Saturday and Sunday was spent with neighbors about their concerns regarding the request to vacate land; they heard a rumor he would be blocking off the roadway to the river where many of them take walks, watch launches, and fish; using the survey maps, he discussed what was being requested; and they also walked the area of concern. He stated he assured them he would not in any way interfere with their rights; the roadway to the river will remain open; they looked over the green area needed for their buffer of the septic system; and he explained to them that they will see no change in the green area, but they will see a new home on an old vacant lot. Mr. Groski advised the neighbors told him as long as their right to walk to the river was not interfered with they were not opposed to the green area being used as a septic field. He stated the County would be granted an easement over the area so they may carry on their duties; they would also be working with Road and Bridge on necessary culvert work; and after having spent ten years and thousands of dollars for the right to build the same house on the same lot, they plead with the Board to grant their request so they can finally build their home.

Frank Wolking, representing his mother, stated he was born and raised on that street and is puzzled because the driveway on the petition goes into the public access area and the septic system would go to the edge of the street; and inquired if that is true. Mr. Groski advised that was the general concern because it looks that way; however, Road and Bridge informed him they were not in a position to continue the road out, and it was his obligation to put the driveway the rest of the way to the end of the street; and it does not interfere with the access to the river. Mr. Wolking stated the whole issue is because of Mr. Groski’s drainfield; he cannot have a driveway to his house that does not go through what was historically public access to the river; eight years ago or so there was a boat ramp at the end of Wavecrest; it was County property; and there seems to be an assault at the end of the street to limit access. He stated according to his mother’s memory, the County came in and filled the area, eliminating the ramp and now they have drainage issues because when it rains the water goes all the way down the river. He stated he does not know if environmental regulations required the blocking off because of the street runoff; but in any case, it gives the appearance it is no longer a public access to the river. He stated he does not have a problem with the drainfield, but he does have a problem with the driveway on a public access because it will be another assault on that public access. Mr. Wolking stated even though he trusts Mr. Groski that there will be continuing public access, whoever comes after him or perhaps after using it seven years he may change his mind; and the thought of losing that public access is hard for him to take.

Commissioner O'Brien inquired if Mr. Wolking looked at the map of what is being requested, if he saw the blacked out area, and does it take away from the public access; with Mr. Wolking responding no, he understands it goes to the end of the street, which is fine; but as they look further east, it shows a driveway in the public right-of-way; and inquired if the Board is going to address that; with Mr. Groski responding he asked the County if it would extend the roadway so he could have a straight shot like everybody else does on the street. Mr. Wolking stated other neighbors may have other concerns; but the driveway is his concern.

Road and Bridge Director Billy Osborne advised the area that is requested for vacating is beyond the edge of the existing pavement; it does not interfere with the riverfront access in any way; so there is not a problem there. Mr. Wolking inquired if the access will be the same as it was historically; with Mr. Osborne responding yes. Mr. Wolking inquired if the access is going over where the old ramp was; with Mr. Groski responding that does not belong to them; and they have to pay for that section, but the road will belong to the County.

Commissioner O'Brien inquired if that eases Mr. Wolking’s fears; with Mr. Wolking responding yes, as long as where the historical boat ramp was remains free and clear.

Commissioner Colon stated the Groskis will be their neighbors and they should keep that spirit of cooperation. Mr. Wolking stated Mr. Groski has his sympathies; and he understands their difficulties and frustrations. Commissioner O'Brien stated they will not lose access to the old boat ramp. Mr. Wolking stated when the other homeowner across the street from his lot filled that in, it was infuriating because it looked like a direct assault on public access and stealing property from the other homeowners. Commissioner O'Brien stated that is not happening.

Donna Whaley advised she has lived in the area since 1957; maybe they do not have enough information; Mr. Wolking expressed their concerns about access to the boat ramp; there are significant drainage problems on the street where it is backing up and flooding; and it has been doing that since the boat ramp was filled in. She stated the elevation to drain into the river has been interfered with; and now water backs up further down the street. Mr. Osborne advised the petitioner is required to purchase and culvert the entire frontage of his property to accommodate the flow of drainage because the existing swale does not convey any roadside runoff. Commissioner O'Brien stated it will be better than it is now. Ms. Whaley stated it would be nice to have those plans in their hands so the residents of Wavecrest know what the plans are in its entirety before making a decision on vacating of the right-of-way. Commissioner O'Brien stated he has to add onto the drainage system so it drains into the canal and take the water off the street; and he is going to pay for it. Ms. Whaley stated he has paid dearly already. Mr. Osborne stated looking at the blueprints will not change a thing; Mr. Groski has to prove how it will be done; and it should be satisfactory to the residents. Ms. Whaley stated the driveway goes over public access and may set a precedent; it concerns them even though it is not on the Agenda item; and inquired if they say they are okay with vacating the right-of-way, how will that impact them, because it was not addressed in the petition. She stated two people had to replace their existing drainfields and did not have to petition to vacate the right-of-way; one neighbor had to move an entire drainfield away from the right-of-way after it was built and it took another area of his yard to move it ten feet from the road.

Commissioner O'Brien stated there is a lack of information in the neighborhood; Mr. Osborne is here and the applicants are here; and perhaps if they can all meet with Mr. Osborne and look at the plans and discuss everything, and bring it back before lunch, it may be better. Ms. Whaley stated there are other speakers who have to go to work. Commissioner O'Brien stated he wants to ensure they are satisfied the drainage problem will be resolved; that the access to the old boat ramp is not going to be changed; and there is going to be no damage done to the looks of the street. Ms. Whaley stated she would like to see some of the questions answered before she removes her name from the petition in objection to the vacating.

Chairman Scarborough stated the Board is in the middle of a public hearing; asked the people who want to take a break to raise their hands; and no one raised their hands. Chairman Scarborough stated he will continue with the public hearing.

William Chandler advised if the Board allows people to use County property to put their septic systems in, it would prolong the three remaining streets that do not have sanitary sewer of getting it. He stated he spent a considerable amount of money putting in a new drainfield; the only place he could put it was the front yard; the County gave him a problem getting a permit because they were too close to the street; but it allowed him to back up in the yard to keep from getting into the County right-of-way. He stated he wonders if this is the right way to go; and inquired if it is done on County property, will the County be responsible for repair, maintenance, and replacement, who will control that; is this going to become common practice throughout the County; and are they going to start using public right-of-way for everything.

Commissioner O'Brien stated part of the answer is the County is not giving up the road right-of-way; if sewers ever come to that area, the Groskis would be forced to give up that right-of-way they are using for a septic field so the sewer pipe can go in there; and they would not need it, but that is a long time from now. He stated before they put sewers in East Merritt Island, they would be talking about tearing up every street in every subdivision; and that is not going to happen. Mr. Chandler stated the environmentalists probably gave the County a quota of getting existing houses off septic tanks; and they pretty much met that so they are dead in the water.

Ed Patrick advised he is a concerned neighbor and agree with the previous statements of his neighbors.

Joseph Judge stated he moved into Wavecrest in 1990; he lives at the end of Banana River and walk his dog down there every day; and he can attest that when it rains sometimes an hour later the water is backing up. He stated in 1971 through 1973 he worked for the State Road Department as a land surveyor and knows about elevations; the water flows in a certain direction, gets down to the third street, and starts coming back on the other direction; and he thought one yard had artesian wells because the water was always muddy and black like a swamp. Mr. Judge stated when the street was designed, it was to drain towards the river; they created a dam by filling in where the driveway would go; they have pipes on the side for drainage; but debris blocks the drainage pipes creating a problem. He stated he stopped walking his dogs in the grassy area because they had leeches on them that came from the river; it is coming into the street; and his concern with the drainfield closer than the rest of the neighbors’ drainfields is when the water backs up, it will leach into the water and towards the houses, which could create a major health problem. He stated they have culverts, Building Codes, and environmental regulations to protect the neighborhood; and the easiest solution would be to let Mr. Groski take back the land that was there. He stated he would attest that the land was there; Hurricane Erin took a big portion of it; and they would not have a problem if he had his original property back. He stated Building Codes are designed to work; the house is too big for the property he has; and with that size house, there will be more runoff because it is not going to percolate into the land. Mr. Judge stated Mr. Groski hired an engineer, but engineers are not infallible; there are laws on the science books, but they are revised all the time; so before the Board makes a decision to give right-of-way, they would have to look at moving something closer to where it could endanger his environment because he is always down there and walks his dogs early in the morning and late at night. He stated Mr. Groski brought in fill, which raised his property, so more runoff will go into adjacent properties; and inquired if that is the case, why does the County not do the easement for the whole block and increase their properties in case some of them have a drainfield they want to do. He stated he understands that everybody has rights; he wants Mr. Groski to build his house; but he has to do it to the restrictions that exist. He stated if his engineer did not give him the right information, that is a legal issue; but he does not want his health and rights violated by letting something like this come in. He stated with the drainfield being closer than it needs to be and water problems there, just because there is a culvert that goes to the river does not mean it is not going to be blocked up; and that is a big concern for him.

Commissioner O'Brien inquired if staff thinks the extra drainage facility will reduce the flooding on the street; with Mr. Osborne responding it will help with it, but he cannot tell the Board it will eliminate the problem. Mr. Judge stated thinking and knowing is two different things; if his family lived two houses down and his children played in the road that would be a concern; and they blocked off a drainage area going to the river, which needs to be opened up.

Lawrence Duffield stated all of East Merritt Island is not without sewer; there are three streets without sewer; and he has no problem with the Groskis and does not know them even though he lives next door, but they want to put a sewer in front of his front door and take away his rights of having that property the Board is trying to vacate. He stated three or four years ago the County put a new driveway in for him because it blocked the end of the street and washed his driveway out; a few years ago, they dumped stuff on the property and pushed it to the river; and he has a problem with the Board destroying the river. He stated he has lived in the County for 35 years on Merritt Island; he put convertibles under Commissioner O'Brien and worked for him; and now he is taking away his rights by putting a septic tank in his front yard. He stated the lady across the street paid $6,800 to have a septic system raised because the County would not give her a vacating; the people up the street had to move theirs back because the County would not give them a vacating; so now it is going to change the rules. Mr. Duffield stated the Board should allow them to build a house within the Code; and it has to do something to help them instead of vacating the property, blocking the right-of-way, and telling children they are not to be in the river because it was their property and they had a right there. He stated it is everyone’s property; the County flies a flag in the front and gave the Pledge of Allegiance at the beginning of this meeting so it should do it right; if it has already been over there and surveyed the property, it would know there is a fence built in the County right-of-way; and it has not done anything about that. He stated when he comes in after a heavy rainstorm, he needs waders to get into his house; Commissioner O'Brien stated it is not going to hurt; but it has already hurt; the County can put in all the culverts it wants; it already paid for a driveway for him because it washed it out; it did not want to put culverts at the end of the street but it wants to pay for his driveway; and Commissioner O'Brien wants to tell him East Merritt Island will not have sewers in his lifetime, but he is wrong. He stated the County let a guy put fill in the middle of the canals and build over the swamp land; it should do what is right and fair and not deny the Groskis the opportunity to build a home, but let them build a home within the Code. He stated the only guy who has anything over on people is the man upstairs; if he washes away your property he washes it away; it is God that took that land away; and it is not the Board that can put it back unless Commissioner O'Brien has some way to take care of hurricanes since he seems to be the one sitting up there and being light about this with the County Engineer. Mr. Duffield inquired if they have been in the area, on that street, seen it during a rainstorm, and did they care; and stated it did not sound like it to him when he was sitting back there and Commissioner O'Brien was joking about it. He stated he lives there with the mosquitoes; now the County wants to let a drainfield come into his front yard; and it wants to let the people be pushed out of the river because someone is afraid of their privacy.

Commissioner O'Brien inquired if the property will remain open to the river as public property; with Mr. Osborne responding yes. Mr. Duffield stated it is not going to remain open; if the Board vacates the front, as the next door neighbor, he wants to vacate his portion, and wants the County to give him that property; and if Commissioner O'Brien is right and they never put a sewer in there, he would own the property forever and his property value would be better because he would have more property. He stated the Board can give him that and he would not have to pay like the elderly lady across the street who paid $6,800 to put a drainfield in because she could not vacate the right-of-way. Commissioner O'Brien inquired when did that happen; with Mr. Duffield responding two or three months ago. Commissioner O'Brien inquired what does staff know about that; with Ms. Osborne responding he does not recall that and would have to look into it. Mr. Duffield stated staff needs to look into all the issues so the Board can make an intelligent decision about taking away his rights. Commissioner O'Brien stated Mr. Duffield made a statement about the lady across the street who applied for vacation; and that never came to the Board. Mr. Duffield stated if the County issued a permit to the septic people, they should have known about the vacation; the lady is 80 years old and the septic people took $6,800 from her; and this is getting to be ridiculous. He stated if they want 3,800 square feet, they could buy two or three acres somewhere else; but if they want to build 1,500 square feet like most of the houses on Wavecrest, they can build one; and they can all live in harmony.

Commissioner Higgs stated she does not recall any other vacations in the area; and inquired if staff had other requests for vacations on Wavecrest; with Cynthia Streeter responding no. Commissioner Higgs stated she does not know about the septic tank permit, but the Board did not deny someone a permit and is now entertaining another one; but it is considering a request made of the Board, and not asking to vacate anything.

Edward French stated Mr. big bucks engineer should get off his rump and go down to Wavecrest and maybe he would know what he is talking about; they are already losing their right-of-way to the river; somebody put a fence there over the top of the boat ramp, so they cannot get to part of it now; and the County did not notice that. He stated the County condoned or went along with the flooding problem they have now; and inquired why the County does not scrape the dirt off the road and let the water run naturally like it is supposed to run into the river. He stated every time it rains, his front yard becomes a swamp; two of his neighbors had to bring in fill and put it on top of their driveways to keep water from going into their garages; now the County is going to put a pipe on one side, which will clog up; and inquired who is going to maintain it every week and what about the other side of the road. Mr. French stated Mr. Groski’s driveway goes pass the middle of the road, which means water is going to spill to both sides of the road; his house is going to be flooded worse than it is now; what will happen next is that people will have water in their living rooms; and inquired what does anyone have to say about that, and how is the County going to guarantee that is not going to happen. He stated they never had a problem for 45 years until the County allowed someone to dump dirt at the end of the road; now they have a problem; and when Mr. Groski builds a house there, he is going to cause more of a problem because he is going to have more water spilling down his driveway on both sides of the road. He inquired if anyone has an answer to that.

Mr. Osborne advised Mr. and Mrs. Groski requested the public hearing be continued at this time; with Chairman Scarborough responding the Board cannot continue a public hearing once it starts until everybody who came to speak has been heard.

Mr. French stated it was said they are not losing their right to walk to the river, but somebody already put a fence up, took part of it, and is working his way across; and eventually they will not be allowed over there, and the Board is letting it happen. He inquired what about his water problem; stated they are getting flooded; and inquired why will the County not scrape the dirt off so the water can flow naturally into the river, then it would have no maintenance and no flooding problems, and what is the reason why the County cannot do that.

Commissioner Higgs stated the issue of water sheet flowing into the river off houses may be an environmental quality problem; the Board needs to look at that because untreated water is a problem for the river; so she hears what Mr. French is saying but needs to look at that. Mr. French stated Mr. Groski wants to build a house; he has no problem with that; but when he puts the house there with the driveway it is going to create a worse water problem; and requested the Board fix the problem before addressing Mr. Groski’s problem. Commissioner Higgs stated there are two water problems--(1) drainage, and (2) water quality, which is untreated water off the roads and homes going into the river. Mr. French stated the drainage problem was allowed or created by the County; they never had that until the County got involved and put dirt at the end of the road or allowed it to be put there; the man who did it was supposedly fined $1,000; and they do not care about the fine, but want the drainage to work again and the dirt scraped off the road and not be told the County cannot do anything about it. He inquired if that means he can take a truckload of dirt, put it in the road in front of his house, be fined $1,000 and leave it there, and there is nothing the County can do about it.

Chairman Scarborough stated that is a separate issue, and the Board needs to get a report on it. Mr. French stated it is not a separate issue because when Mr. Groski puts a house there, it is going to make the issue worse. Chairman Scarborough stated it is related, but the Board did not have any backup material on it as part of this item. Mr. French stated if County staff goes down there and looks at the situation maybe they would see the problem.

Sharon Weber stated she lives next door to Mr. Wolking whose mother had to put in a septic system above ground, during high-water season, and install a mini-lift station; and it is not only not pleasant to look at, but causes further drainage problems on the street. She stated her concern is setting a precedent; she appreciates the Groskis’ right to build their home and know they can build up to a 3,000 square-foot home on that very small lot and still be able to have a septic system and drainfield that would work; and she does not want to take away their property rights or set a precedent of vacating public right-of-way for access or to meet setback requirements. Ms. Weber stated they may not get sewer service on that street, but that is okay because a number of them have gone through great expense to redo their septic fields and would not support it; the septic field setback should not be allowed; when property is vacated it is turned over to them; they may not live there next year; and that property could be turned over to people who come in and do something completely different than what the Groskis said they would do. She stated good faith and building plans are not the issues right now; the issue is allowing a public right-of-way to be vacated for use as a septic drainfield setback; and that is setting a precedent which is not right. She stated it does not work for the good of every neighbor; their property is at the end of the street, which causes more of a problem for public use of the right-of-way; people who move into that end of the street tend to take over the property as their own, whether their intentions are good or not; and obviously the owner to her right took over the property, filled it, and created a lot of drainage problems. She stated this is going to go on and on unless it is the rule that they can build a house by the requirements; and that is why they are asking the Board to deny the vacating.

Mr. Groski advised he can appreciate the concerns of the neighbors; the vacated land would only be used as a buffer area; and several times it was mentioned as a septic field, but it is not. He stated three people on the street had to have new septic systems installed recently; all of those homes had to move the septic systems from the back of the house to their front yards; he spoke with two of those residents personally and they showed him where the fields were; he did not know the system could be so confusing; and those fields are using buffer areas that are in the County right-of-way. He stated he does not know how systems work; he wants the neighbors to know what is occurring on the street currently; septic systems are a problem; and if their septic system is going to cause water, it will not be any more than anyone else’s septic system on that street. Mr. Groski stated drainage has always been a problem; the officials and engineers mentioned that putting their driveway in will improve the drainage because the culvert must be installed; there is no culvert there, but there is a makeshift storm sewer put in by someone that is plugged; but he is required to put a culvert in, which he assumes will be supervised by the County and should improve the drainage.

Ms. Groski advised her husband has talked about the septic system and the neighbors have talked about a fence; and all those issues have nothing to do with the vacating of property they are requesting. She stated they have been frustrated over issues that other neighbors created, but not that they created; and what they are going to be required to do will fix some of the problems other people have created. She stated their driveway going into the road is going to be no different than other driveways; it still remains County property; their driveway will end on their property; and the rest is County property just as other driveways got to the main road by going over the County right-of-way. She stated the green area is going to remain a green area buffer and not a septic field; their drainfield will be raised and on their property; and requested the Board table the public hearing if it wants additional information before making a decision rather than deny their request.

Commissioner Carlson stated there is concern about using right-of-way for a septic drainfield; she has an un-revised agenda item that states the petitioners have requested a public hearing be continued three to four months to try and get a waiver of setback requirements for placement of their drainfield through Florida Department of Health; and that part was stricken, so they are not trying to use the right-of-way for a septic tank drainfield. She stated she wants to make sure the Board does not allow septic drainfields in any rights-of-way.

Commissioner O'Brien stated the neighbors may want to discuss their fears, ideas, and concepts with the Groskis; and suggested a meeting with the petitioners, neighbors, and Mr. Osborne with the blueprints describing the driveway and septic field, etc. so that most of them could be satisfied. He stated today’s problem was the drainage on the street and not the Groskis’ property; he wants Mr. Osborne to look at the drainage issue and report back to the Board, along with what yards have septic tanks in the front and not in the back yard; what is the effect of septic systems in front yards on neighboring properties; is the street being contaminated with sewage with two or three systems on the front yards every time it rains; is there a blockage in the drainage system; who filled the historical drainage and was fined $1,000; and when did that occur. He inquired if the County wants to put a culvert box in the street to improve the drainage will it be for the entire street; is there culverts in place along the entire length of Wavecrest; will the public have access to public property; and can staff provide words for signage saying something like it is County property and open to the public to have access to the river so there is no question in the future. Commissioner O'Brien inquired if the Groskis are putting in a culvert; with Mr. Osborne responding yes, along the entire frontage of their property. Commissioner O'Brien inquired if the water will run down the street and into a gully; with Mr. Osborne responding into a swale. Commissioner O'Brien inquired if it will go into their culvert and out to the river that way; with Mr. Osborne responding yes. Commissioner O'Brien suggested Mr. Osborne bring a drawing, sketch, computer animation, or something to show the people how that drainage will work that might improve the system on the street by volume and speed of the water draining out.

Motion by Commissioner O'Brien, to continue the public hearing on a resolution vacating a portion of Wavecrest Street in Plat of Canaveral as petitioned by Daniel and Edel Groski.

Commissioner Higgs inquired if there are solutions to work this out so they can get a septic tank permit without vacating the right-of-way; with Cheryl Dunn responding there is always opportunity to go before the State Variance Review Board for Onsite Sewage Disposal and request a variance. Commissioner Higgs inquired what variance would they request; with Ms. Dunn responding for an obstructed area because they do not have enough area on their property to accommodate the size of the septic system required for their home. Commissioner Higgs inquired if that is frequently granted; with Ms. Dunn responding she does not know, but they would have to present a hardship to the board. Commissioner Higgs stated someone made a statement about a 3,000 square-foot house versus a 3,800 square-foot house; and inquired if one downsizes a house, would that significantly decrease the buffer or size of the drainfield requirement; with Ms. Dunn responding affirmatively, noting reducing the size of the house would require a smaller drainfield and smaller unobstructed area associated with the drainfield. Commissioner Higgs inquired if the Groskis would be able to get it all in on the size of lot they own if they went from 3,800 to 3,000 square feet; with Ms. Dunn responding yes, but the size of their house is over 4,000 square feet, and they would have to go down to 3,300 square feet to fit an onsite sewage disposal system on the property.

Chairman Scarborough stated he will vote against continuing the public hearing because there are a lot of problems with septic systems near waters; there is a problem with drainage in that area; direct drainage into the lagoon is never proper; with mosquitoes it is not safe to have standing water; and the problems are tremendously complex, so he does not think they will be worked out. He stated in this instance there is an option to downsize the house; and that is where the Board should direct the applicants at this time rather than give them encouragement that somehow this is all coming together, because he does not believe it is.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to continue the public hearing until October 29, 2002, and direct staff to return with a report. Motion did not carry; Commissioners O'Brien and Colon voted aye; and Commissioners Higgs, Carlson, and Scarborough voted nay.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to deny the petition to vacate from Daniel F. and Edel Groski. Motion carried and ordered; Commissioners Scarborough, Higgs and Carlson voted aye; and Commissioners O'Brien and Colon voted nay.

Chairman Scarborough advised it would be appropriate to get a comprehensive report on the drainage issues, standing water, septic tanks, etc. Commissioner Higgs recommended the report include the property that may have been filled by a private individual.

REPORT, RE: SURFSIDE PLAYERS

Commissioner Carlson advised she forgot to bring up under her report the Surfside Players group; and there is someone who would like to say a few words about it.

Lanea Adams, General Manager of Surfside Players in Cocoa Beach, advised the playhouse is a family-oriented community theater in Cocoa Beach; they do six productions a year along with jazz festivals, fundraisers, and golf tournaments; and they are involved with the Cocoa Beach Chamber of Commerce and are interested in supporting the arts and community on political things that are going on as well as different issues. She stated they have a display in the lobby for everyone’s perusal.

The meeting recessed at 10:33 a.m., and reconvened at 10:50 a.m.

PUBLIC HEARINGS, RE: RESOLUTION INCREASING COUNTYWIDE EMS RATE;
ORDINANCE AMENDING SECTIONS 42-78, 42-81, AND 42-95, EMERGENCY
MEDICAL SERVICES; AND RESOLUTION DESIGNATING AMBULANCE SERVICE
AREA FOR BREVARD COUNTY

Chairman Scarborough called for the public hearings to consider a resolution increasing the Countywide EMS rate; Ordinance amending Sections 52-78, 42-81, and 42-95, Emergency Medical Services; and Resolution designating ambulance service areas for Brevard County.

Public Safety Director Jack Parker advised Agenda Item IV.I. is a public hearing regarding potential increases to the Countywide and Micco Service area rates; staff is proposing the Countywide rate be increase from $41.12 to $44.58 on each residential and commercial establishment; and that increase is made up of two components: (1) $2.78 for the establishment of a new ambulance operation, and (2) $0.68 for the first responder program. He stated the municipal fire chiefs requested the Board increase the first responder program by 10%; and the cost of that is $0.68, which brings the Countywide proposed EMS rate to $44.58. Mr. Parker advised Item IV.J. is a public hearing regarding the Micco area; Micco has a separate EMS benefit area; it is the only area in the County that is separate; and the rate in Micco is $55.88. He stated what makes Micco unique is there is no billing for ambulance service; about a year ago his office received phone calls on the fire engine located in Micco that is not staffed with the same number of people as other County engines; there are 20 paid fire engines available 24 hours a day and 19 of them have three firefighters at all times; but the Micco fire engine is staffed with one person officially. He stated there are two people assigned to the ambulance in Micco; that brings their total staffing per day to three paid people; the people in Micco asked why they paid the same tax rate and have less staffing; and the answer is a quarter of a million dollars of the Micco fire tax is used to supplement the salaries of those assigned to the rescue unit because those people have primary responsibility of fighting fires as well. He noted it enables their EMS system to operate cost effectively, but they do that at the cost of losing service on their engine. Mr. Parker advised Public Safety is recommending elimination of the $250,000 expense and using that money to acquire six new firefighter/EMT positions, then try to recover the funding for the EMS Unit with one of two options. He stated Option 1 is to eliminate the Micco EMS Benefit Unit and place the area into the Countywide Unit, which would reduce their EMS assessment rate from $55.88 to the Countywide rate; and that would incorporate the use of ambulance billing to make up the $250,000. He stated Option 2 is to not bill for ambulance service, but raise the Micco EMS rate for residential and commercial establishments from $55.88 to $96.07; and those are two options that would provide the six firefighter/EMT’s. He stated they have shifts where firefighters work one day on and two days off; they are asking for six positions so there will be two for every day; and that would bring the staffing on that engine from one to three persons. Mr. Parker advised Item IV.K. is a housekeeping item; they are asking the ambulance resolution point towards the Ordinance when it comes to service areas; they do not believe the service areas should be part of the resolution; and that is more for billing rates.

Thomas McDevitt thanked Mr. Parker, Chief Farmer, and Chief Mills for running an awesome organization; stated he has been a career employee for 24 years, 14 of which have been spent at Micco; and thanked the Board for listening to the subject. He stated with just three of them there, sometimes they need extra manpower on the engine; when his crew is out saving lives, it is difficult for one man to do all the things required; and this issue is about the life and safety of his crew and the people. He stated the people will be better protected by faster response time; and they would be able to protect public property more efficiently if they have a full staff. He noted the Brevard County Fire Department will probably be one of the best in the State if it is not already; and their staff is doing a wonderful job.

Johann Brockhausen advised he works in Micco Station 86 on the B shift and is concerned with the staffing they currently have; his crew could be in jeopardy at one time or another based on call volume; and he cannot fight a fire by himself. He stated he needs more people on the truck; sometimes the rescue crew goes out and he is left at the station alone; and it is difficult to fight a fire alone. He stated volunteers will be there and he counts on them and want them there; but there can be a delay in response because they have to come from their homes. Mr. Brockhausen advised his crew recently fought a brush fire on Whispering Pines where two homeowners and their houses were threatened by fire; they were able to accomplish a rescue only because the rescue crew was on the scene; and if it was just him, it probably would not have happened and could have resulted in a loss of life. He thanked the Board for letting him speak and for listening to the issue as it is very important to him.

Commissioner Higgs recommended taking the items separately; and stated the first is the Countywide EMS rate which is Item IV.I.

There being no further comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution superceding and replacing Resolution No. 01-292 providing for an increase to the Emergency Medical Services assessment; and providing for an effective date. Motion carried and ordered unanimously. (NOTE: Redone at September 11, 2002 Meeting.)

Commissioner Higgs advised the next Item is IV.J.; from discussions she had in the Micco area, the vast majority are in favor of moving the six new positions to ensure public safety, which is important to the community; and they have a wonderful volunteer group, but need to recognize the call level and demands for services that require the Board to approve this item. She stated the question is whether to go with Option 1, which is to fold Micco into the Countywide Benefit Unit with a net effect of reducing their overall EMS assessment, or Option 2, which is to raise the assessment rate. She stated it was her assumption that people did not want their rates increased; but as she went around the community and attended meetings, she questioned whether her assumption was right because she heard very strongly that the community wanted their rate raised. She stated she does not want to increase rates, but if the community wants a special level of service, she is willing to vote for that alternative. She stated they want to pay up front and want certainty as opposed to being billed and dealing with insurance, etc.; it is not a case of anybody getting anything free or a difference in rate than the rest of the County; the community supports continuing a no-bill situation and paying for those services on the front end; however, she would like to have a straw ballot at the poll in Micco to ask residents to give a clear indication of what they want the Board to do. She noted with the size of the increase, the County would lose nothing by allowing the residents to tell it clearly on Election day what they want; and she is willing to work with groups to man those straw ballots.

Chairman Scarborough inquired if there would be a problem waiting on a decision until September 11; with Mr. Parker responding not if the roll is certified by that date. Mr. Jenkins stated to do that the Board would have to continue Item IV.I., which is the rate resolution; and while the Board has tentatively set the Countywide rate by approving Item IV.I, the Micco component of the Resolution would have to be continued to September 11, 2002. Chairman Scarborough advised there are a lot of restrictions that take place around polling places; and inquired if Commissioner Higgs talked to Supervisor of Elections Fred Galey; with Commissioner Higgs responding yes, and he is willing to work with them. She stated they can accomplish the mission of getting a good indication from the people at the poll without violating Election laws; and they cannot go into the actual polling place. Commissioner O'Brien stated he cannot support the straw ballot because there is no huge public outcry today saying they want a straw ballot. Chairman Scarborough stated he does not have a problem deferring it, but will leave it up to Commissioner Higgs and Mr. Galey to structure it where there will be fair representation and a process that works. He stated when not using a standard process, there may be key people who will comment about the process; but if Commissioner Higgs feels comfortable, he can support it. Mr. Jenkins stated if it is raining and they cannot be inside of the polling place, it may be a problem; with Commissioner Higgs responding they have umbrellas. Commissioner Higgs stated if the Board feels strongly about going to one rate Countywide, then it would be of no use to defer it. Chairman Scarborough stated he has no problem doing what the people want, but there is no great public outcry; he received some contacts in his office asking to increase the rate so they do not have to pay for rides; and if that is the consensus and it is clear, he has no problem proceeding in that direction. He noted going with one uniform rate is contrary to what he has heard from Barefoot Bay. Commissioner Higgs stated within the Benefit Unit is Barefoot Bay, Snug Harbor, Micco, Little Hollywood, and a number of other subdivisions; and they said yesterday they want to increase the rate. Commissioner Carlson stated the Board should go with Option 2 unless Commissioner Higgs is uncomfortable about it; she said she is comfortable on one hand then uncomfortable on the other hand, so she should make the call; and the Board will support her. Commissioner Higgs stated she prefers to be sure before raising the rate by $40.

Chairman Scarborough inquired if the Board should table all of the items; with Mr. Jenkins responding the Board can table IV.J. and the second half of IV.I., but the first part of IV.I. is fine and the Board voted on it.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to continue the public hearing on the ordinance amending emergency medical services and a portion of the Resolution increasing the Countywide EMS rates until September 11, 2002. Motion carried and ordered; Commissioners O'Brien and Colon voted nay.

Commissioner O'Brien stated he supports one Countywide rate to make it a level playing field for everyone and reduce the cost to the residents of Barefoot Bay. He stated it may have been the way to do it 30 years ago, but he cannot support it any longer because the County cannot bill Medicaid and insurance companies, which could save the people and probably the County a considerable amount of money. He stated the rate should be the same for all residents no Matter where they live or who they are; there should not be a special rate of $95 per year for a given area and everybody else has to do something different; and it makes no sense to do that.

Commissioner Higgs stated the Micco Benefit Unit covers all the subdivisions and areas of Micco; there are places in the State where an up-front payment is what happens as opposed to the billing situation; there are communities that go with that up-front payment; and she would not oppose that as long as the cost is being covered. She stated it is not being done unfairly; nothing is being done in Micco that could not be done Countywide as long as that is what people wanted to do; it is an opportunity for a community to say that is the level of service they want; and they are willing to pay for it; but she wants to ask them to ensure that is consistent. Commissioner O'Brien stated the County loses out because it does not collect Medicare and Medicaid funding for those types of operations; and it is strictly a cash deal for a very small group of people. Commissioner Higgs stated whether the County covers the cost by up-front payments or collection of insurance, it is covering the cost; and it is not a question of covering the cost, but a question of when do they pay. She stated the people are saying they would rather pay more and up front because they do not trust insurance companies and Medicare to pay the full cost and deal with them fairly on the back end; and they would rather pay up-front and know what is going to happen. She stated it was also nice to hear people in the community say they are willing to pay more because there are some folks who cannot pay and might not call for help; and that was a wonderful community spirit in terms of being sure everybody got good medical care.

There being no further comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution designating ambulance service areas for Brevard County. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PORTION OF RIVER DRIVE IN NEW
MELBOURNE BEACH - RICHARD M. AND ANN MARIE LA VISTA

Chairman Scarborough called for the public hearing to consider a resolution vacating a portion of River Drive in New Melbourne Beach as petitioned by Richard M. and Ann Marie LaVista.

Ann LaVista presented a packet to the Board but not the Clerk; stated she has lived in Melbourne Beach for 40 years; they own a home on the corner of SR A1A and River Road; and the house was built with the driveway access from River Road. She stated subsequent to the house being built, River Road has been closed to vehicular traffic; the request was from the community behind SR A1A for safety reasons; they did not want the road open to vehicles but wanted to be able to use that road for beach access; and as it stands now a footpath has been paved from Palm Drive to A!A, known as River Road, and a driveway has been paved from A1A on the southerly portion of the right-of-way into the back of her property leading to her garage. She stated it is evident that no one is caring for the driveway or vegetation; when they purchased the home, they were conveyed no rights, easements, or entitlements; and they would like to be able to maintain the driveway and the landscaping for security, safety, and beautification reasons. She stated they would like to have the right, responsibility, liability, and assume the taxes, because the property as it is now has been vacated by the County and has no benefit to the neighboring community, and is being used solely as their driveway. Ms. LaVista advised she spoke to the members of the community behind the area; and their sentiment is whatever happens, they do not want the bikepath closed nor the portion of River Road opened to vehicular traffic again. She stated in 1989 there was a petition to vacate the entire right-of-way; that is when the community expressed their concerns because they wanted to maintain beach access; the road has not been formally closed yet, but there are signs saying no vehicular traffic; and the only place a vehicle can be driven on that portion of River Road is on her driveway leading to her garage. She stated for safety and security reasons they would like to assume the liability and responsibility; the driveway is in need of repair; and the vegetation has not been tended to. She stated two surveys were presented with the petition; the first was footage given to her by the previous owners; and the second was based on footage given to her by Public Works Department. Ms. LaVista stated she does not intend to rip up any trees or landscaping but would like the privilege to plant more plants; the footpath is not on the survey; it was requested of her on Friday to obtain a third survey, but she did not have time to do that; and before putting a third survey up for the Board’s review, she requests the Board provide some type of relief with this hardship.

Commissioner Higgs stated this is a unique situation; the 50-foot right-of-way goes from A1A to the next street; it is not a used right-of-way except for the basic driveway and footpath; but the footpath goes all the way through. She stated there is benefit to the public to work out some arrangement with the petitioners to take care of the pavement and vegetation; and there is benefit to the petitioners to be able to maintain it in a manner consistent with residential property, which the County is not able to do; however, the Board just spent an hour talking about vacating right-of-way; and she is fundamentally concerned and not supportive of giving up public right-of-way. She stated there is no point in putting a road through the right-of-way, so it has characteristics different from the previous discussion; but she would be more comfortable having staff work with the petitioners to look at a long-term use agreement that would allow them to maintain it in a manner consistent with their property, but if something ever came up that the public needed the right-of-way, the County would be able to get it back. She noted she is concerned about vacating right-of-way even though the road should never be built through.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to direct staff to work with the petitioners on a long-term use agreement for River Road.

Commissioner Carlson advised the Agenda item talks about allowing the LaVistas to put up a fence; and inquired if there is a safety issue involved; with Ms. LaVista responding part of the right-of-way looks like her backyard and she cannot put in a fence without putting it around a portion of that right-of-way. Commissioner Carlson inquired if Ms. LaVista feels it is a safety issue; with Ms. LaVista responding yes, although she does not have small children but would like to fence a portion in for children and dogs. Commissioner Carlson stated so it is not a safety issue because the pathway is near the right-of-way. Ms. LaVista stated there is an area in the back that is open to the path where no vegetation exists that is a security issue.

PUBLIC HEARING, RE: RESOLUTION VACATING PORTION OF RIVER DRIVE IN NEW
MELBOURNE BEACH - RICHARD M. AND ANN MARIE LA VISTA

Commissioner O'Brien inquired if Ms. LaVista has a back yard; with Ms. LaVista responding yes. Commissioner O'Brien inquired if her property runs along the back yard; with Ms. LaVista responding yes. Commissioner O'Brien stated she can put a fence along her property line; with Ms. LaVista responding there is a fence there, but it does not completely close in the back yard; and she is not familiar whether or not they can put a fence post in the concrete because the back corner is paved. Commissioner O'Brien inquired if it is paved on her property; with Ms. LaVista responding it is paved right up to her property and they paved it further back in the back yard than the driveway to allow a car coming out of the garage to back up into that corner and come out on A1A head first. Commissioner O'Brien inquired if her fence could be moved over out of the cemented area in the back yard; with Ms. LaVista responding yes. Commissioner O'Brien stated so she could put up a fence. Ms. LaVista stated she does not know if she could back her car out into the area to come out head first on A1A, and her vision would be obstructed; with Commissioner O'Brien responding the fence could be a four-foot fence and not obstruct her vision. He stated she could follow the property line and put a fence on her property any time she wants to; and if she wants to beautify the other side, nobody would stop her.

Chairman Scarborough stated there is a motion and second on the floor; and called for a vote on the motion. Motion carried and ordered unanimously.

Commissioner Higgs advised the motion is to direct staff to work with the LaVistas regarding a use agreement and bring it back to the Board.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY IN BANKERS
RESERVE PROPERTIES, INC., FIRST ADDITION - LEONARD D. HEARNDON

Chairman Scarborough called for the public hearing to consider a resolution vacating a right-of-way in Bankers Reserve Properties, Inc., First Addition, as petitioned by Leonard D. Hearndon.

Commissioner Higgs advised Mr. Hearndon requested the item be continued until September 17, 2002; and she is willing to do that, but if it cannot be resolved, then she will vote against it.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to continue the public hearing to consider a resolution vacating a right-of-way in Bankers Reserve Properties, Inc., First Addition, as petitioned by Leonard D. Hearndon until September 17, 2002. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHTS-OF-WAY IN PLAT OF
FLORIDA INDIAN RIVER LAND COMPANY - ATLANTIC RIDGE CORPORATION
AND RNR PROPERTIES, LTD.

Chairman Scarborough called for the public hearing to consider a resolution vacating rights-of-way in Plat of Florida Indian River Land Company as petitioned by Atlantic Ridge Corporation and RNR Properties, Ltd. Chairman Scarborough advised Dan Nelson is here to answer any questions; and inquired if Commissioner Higgs had any questions.

Commissioner Higgs stated she will vote no unless Mr. Nelson can explain to her how this would be consistent with the previous agreement the Board had in regard to the item it looked at on July 9, 2002, and what assurances the Board has. Mr. Nelson advised it was brought to his attention that perhaps the Board was not filled in on everything that has been happening over the last couple of months. Commissioner Higgs stated the item says vacating the rights-of-way will allow the development of Cypress Creek, Phases 2 and 3 or creation of flag lots, which were approved by the Board on July 9, 2002; and given the either/or she is not willing to move forward with the vacating. She stated the Board approved flag stems and easements on July 9, 2002 with the large lots, which was an outstanding thing to do in terms of decreasing density, but now it is an either/or situation; and she is not willing to move forward unless she knows what the either/or is and have some substantiation of that.

Mr. Nelson advised the either/or is the way it was presented to him; and when he went to the Development Department, he was told that he was still vested to do Cypress Creek, Phases 2 and 3 because the preliminary plat was submitted and approved and the plans were approved by the County. He stated the alternate plan was to see if there was interest in the six lots and changing 96 lots to six lots for the northernmost phase; they are in the process of doing that, but he cannot see if there is any interest because of a 20-foot road reservation platted in 1912 for a highway in the middle of the property. He stated when he started talking to different Departments and met with the MPO staff, he tentatively came to terms with the engineer the County hired, Mr. Sweeney, on how they were going to participate with the County on the greenway; but Mr. Sweeney has not had time to go into the field and take a close look at the property. He stated Plat Book 1, Page 166 shows the 20-foot easement; it was platted in 1912; and the plat states if it is not used for a highway, it would revert back to the abutting property owners. Mr. Nelson advised when he submitted the plat for Phases 2 and 3, they were told that the plat having been preliminarily approved would automatically eliminate the 20-foot north/south easement; in talking to County Departments, he has not found a Department that has intentions of using that 20 feet; and intermittently over the years it has been vacated throughout the entire plat, including the middle of the Section. Commissioner Higgs stated although the County has not used it does not mean it would not use it. Mr. Nelson stated it has not been used since 1912; and reiterated no Departments have intentions of using it and parts of it have been vacated over the years.

Commissioner O'Brien advised the picture he has shows Mr. Nelson wants the vacation all the way down four lots; and inquired if he is saying parts of those have been vacated; with Mr. Nelson responding the half Section line of Section 29 has already been vacated where it runs east and west; in the middle of the north/south line has been vacated in Cypress Creek; and it has been vacated in various other places.

Commissioner Higgs inquired if the plats for Cypress Creek, Phases 2 and 3, that the Board approved years ago, continue to be in existence and are over those rights-of-ways; with Mr. Nelson responding yes; and the County’s Plans Development Review Department confirmed that by recording the plat it would be automatically vacated. Commissioner Higgs inquired if that is correct; with Permitting and Enforcement Director Ed Washburn responding he would have to get the final plat approved; and Mr. Knox may be able to tell the Board whether or not it would automatically be vacated. County Attorney Scott Knox responded automatic vacation applies to it if replatted and approved. Mr. Nelson stated he was told by County staff when the plat is recorded the existing 1912 20-foot easement would automatically be null and void; and the rest of it in Section 29 has been dissolved because of platting for Cypress Creek, Phase 1. Commissioner Higgs inquired if the item the Board considered in July is not what they are going to do or Mr. Nelson does not know if they are going to do it; with Mr. Nelson responding he is pursuing it but cannot do that unless the easement is vacated. He stated he cannot convey the six lots and has not marketed them yet because they would have a cloud on the title with the 20-foot easement running through the middle of them; and that is why he is here today. He stated the vacating would eliminate the cloud on the title and allow him to sell those lots; and the agreement he made with County staff is when he submits the paperwork with Zoning to sell the first lot, then he loses the vesting for Phase 3, and they would have to stay with the sale of the six lots. Commissioner Higgs inquired if the right-of-way would be transferred to the bikepath they talked about; with Mr. Nelson responding the people working on the pedway and their engineer do not want it because it is too far to the east; however, there is a man-made ditch along the north/south slough, which is a buffer for Cypress Creek, offered to the County by Atlantic Ridge for the greenway in the future. He stated they are willing to allow the County to take the 20 or 30 feet or more that runs all the way down the Section line; and they met on that about six weeks ago, but Mr. Sweeney has not been able to look at it; however, in theory that is what he would like to have. He noted the greenway is so far in the future, that Mr. Sweeney has not worked out a way to get around the airport yet.

Chairman Scarborough inquired if it is something that needs to be worked on further; with Commissioner Higgs responding if Mr. Nelson is willing to commit that he will dedicate the right-of-way for the greenway, she could support the vacating. Mr. Nelson stated he told Mr. Sweeney that. Commissioner Higgs stated he needs to commit to the Board that he will commit to a minimum of 20 feet. Mr. Nelson stated yes he will, and in fact is excited about it; and Barbara Meyer feels it is the most logical position. Commissioner Higgs inquired if 20 feet is wide enough; with Ms. Meyer responding 20 feet is okay but not wide enough; there are environmental constraints out there; because of Mother Nature they have not been able to get out there, as the property is under water; and the consultant wants to have about 38 feet, but staff cannot confirm that. Mr. Nelson stated he would agree right now that they would run it down along the man-made ditch. Commissioner Higgs inquired if it is 30 feet; with Mr. Nelson responding Mr. Sweeney wants to go from the berm to the east; and some areas may be 20 feet and others 30 feet. He stated in the past they have been cooperative with the County numerous times on giving right-of-way; they will do whatever it takes to make Mr. Sweeney happy; and if he elects to go down the north/south slough, they will accommodate him and do it.

Commissioner Higgs stated if the Board moves to vacate the right-of-way, could it be contingent on the applicant’s continued cooperation with the County regarding the greenway through the property; and inquired does the County need to be specific in terms of anything beyond that because it is a yet to be determined location. Mr. Knox stated typically the Board cannot impose conditions once it vacates and the resolution is recorded; and to carry the condition over would be difficult to enforce because the right-of-way would be gone and cannot be taken back. Commissioner Carlson inquired if Mr. Nelson could put it on the plat as a condition that there will be a greenway through the property; with Mr. Knox responding he could dedicate that.

Chairman Scarborough stated the vacating does not have to become effective until Mr. Nelson does what Commissioner Higgs instructs and accomplishes the other tasks. Mr. Knox stated the problem may be that Florida Statutes require the resolution be recorded in 30 days to be effective; and the only way to do that is not pass the resolution until whatever Mr. Nelson is going to do is done. Chairman Scarborough suggested the public hearing be continued to structure the request correctly. Commissioner Higgs inquired if Mr. Nelson sees a way to structure it so it is nailed down; with Mr. Nelson responding he can determine where the particular line is that runs north to south that Mr. Sweeney would like to have then provide a legal description if it is not already on paper. Chairman Scarborough inquired if it is something the Board can accomplish today, or would it be better to table it to do it right. Ms. Meyer stated it is similar to what they did with The Viera Company when they were trying to work out the zoo alignment; they did a legal description, but had six to eight months to define the corridor once they did their field work; so maybe they can do the same thing with this issue.

Mr. Nelson stated he understands the reluctance in a way, but what they are going to do is in the spirit of cooperation, which they have done before; their company has given property to align Valkaria Road, realign Old Dixie Highway, etc.; and they have been in Brevard County since the 1950’s and are not going anywhere. He stated Gwen Heller knows they have cooperated with the County on many requests made to them; and they have never reneged on anything yet. He stated he did not realize the vacation was tied to the greenway and thought it was two separate issues; but if the County wants to come down the north/south slough in Section 219, that will work and they will do it.

Chairman Scarborough inquired if Commissioner Higgs is comfortable proceeding with the vacating; and if so, a motion is in order; with Commissioner Higgs responding the Board has a meeting on September 11 if it could wait until then; and it has a zoning meeting on September 5, which would give a few days to work things out so she can feel better about protecting the public interest. She stated their idea of the 120 acres is great and she would like to see that happen; she has no problem understanding why he needs to do the vacating; and if she can nail down the other issue, it can get done easily. Chairman Scarborough inquired if that is a motion to continue the public hearing.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to continue the public hearing to consider a resolution vacating rights-of-way in Plat of Florida Indian River Land Company, as petitioned by Atlantic Ridge Corporation and RNR Properties, Ltd. until September 5, 2002. Motion carried and ordered unanimously.

Mr. Nelson inquired what does the Board want so he would know for sure; with Chairman Scarborough recommending Mr. Nelson meet with Commissioner Higgs and County staff. Commissioner Higgs stated she wants to nail down the bikepath cooperation.

PUBLIC HEARING, RE: RESOLUTION VACATING PORTION OF FOURTH STREET IN
PLAN OF TOWN OF PINEDA - THOMAS E. SHINE, THOMAS F. CONSTANTINO,
AND GEOFFREY SCOTT THOMPSON

Chairman Scarborough called for the public hearing to consider a resolution vacating a portion of Fourth Street in Plan of Town of Pineda, as petitioned by Thomas E. Shine, Thomas F. Constantino, and Geoffrey Scott Thompson.

Thomas Shine advised Geoffrey Thompson owns the parcel to the east of the portion of Fourth Street requested for vacating; he owns Lots 4, 8, 10, and 12; Fourth Street runs from Pineda Boulevard north through the north boundary line of his Lot 12; and the property on the opposite side of the street named the Plaza Lot is in his name and Thomas Constantino as Trustees. He stated the petitioner was Mr. Thompson joined by him and Mr. Constantino as co-owners of the property to the west; the street has always been vacant; and north of the 300-foot area has been closed up to an unnamed street at the end of Deerborn Reserve, which is now the hospital property. He stated one objection has been filed by the owners of Lots 13 through 16, which is north of Lot 12; but that property does not abut the existing properties they are trying to close; the owner or predecessors to the owner closed Fourth Street to the north on the west side of their property; and Lots 13 through 16 have access through a paved road over Third Street, which is also an adjacent entryway into the new hospital building from the south off U.S. 1. Mr. Shine stated the request is to allow them to vacate the road, which would be beneficial in most respects; it will allow the petitioners to develop their properties, take the liability if any from the County, and the property would be put on the tax rolls rather than the present dormant property; and it is not detrimental to the property to the north own by Dr. Saladino because he has access to his property from Third Street.

Dr. Carl Saladino explained a survey of the area; identified his office building and Third Street, and the 500-foot long and 50-foot wide right-of-way he had paved to access part of his property; stated he purchased about eight acres in 1997 and sold some of it but retained about two acres; and he has 25-foot frontage on Fourth Street at the southwest corner of his parcel that would bring it out to Suntree Boulevard. He stated there was very little development in the area from 1997 to 1999; he put the right-of-way in at a cost of $45,000, which did benefit his parcel and neighboring parcels; and they also put in a large lift station, which is the first lift station on the east side of the railroad tracks that Water Resources Director Dick Martens was happy about because they bored under the tracks. He stated he coordinated that and paid the majority of the cost for the lift station; and it was one of the largest lift stations built in the County at a cost of $160,000, that is capable of serving from Landscape Depot to about half a mile north and all the way south to Florida TODAY building and commercial and residential areas. He noted it was built to County specifications and turned over to the County. Dr. Saladino advised he has parking and retention around his building, but left a 90-foot parcel between the back of the building and the west border and about 300 feet north to south that is not improved; he has future plans to build that out to either ingress or egress since it is not wide enough for both; and it would go through Fourth Street to access Suntree Boulevard. He stated he has access on Third Street currently, but the HealthFirst building is about to open in two months; and it is their intent to use Third Street off Suntree Boulevard as the main ingress/egress even though they have frontage on U.S. 1. He stated that will make Third Street an extremely busy road; the hospital will have about 500 employees in that building; so it will go from a sleepy road that he put in, to one of the most active roads in the County at the morning and afternoon rush hours. He stated it would be beneficial for him to have an alternative ingress or egress one way or the other through Fourth Street to get to Suntree Boulevard; it would help relieve the pressure of his patients trying to leave his parking lot to get to Suntree Boulevard because there will be a lot of traffic congestion there soon. Dr. Saladino advised Mr. Shine’s property is on the west side and Mr. Thompson’s property is on the east side of Fourth Street; the vacation would only benefit them privately and not the public; and it would be a detriment to development of the westerly portion of his parcel. He stated he has shown that he can build a 500-foot road if he has to and is willing to improve that road in the near future as he expands his office building. He stated his Civil Engineer Dave Menzel said it would be feasible on 25 feet to have an ingress or egress, but not both; and requested the Board deny the vacating because it will have a negative impact on development potential and value of his property.

Commissioner Carlson advised she did not get a chance to talk to Dr. Saladino about this issue; he brought out a lot of new information; and she would like to get clarification on the traffic flow patterns in that area. She stated she is not willing to deny the vacation, but willing to meet with Dr. Saladino and HealthFirst to find out exactly where the traffic flow patterns are so another traffic hazard is not created on Suntree Boulevard. She noted it is a very short street with a lot of negative impact potential; so she wants to review what HealthFirst is planning to do and find out the timing, and if they have that many employees that are going to be in their offices while Dr. Saladino’s patients are going in and out of his property during the day. She stated she would like to figure that out a little more before going forward with the vacating.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to continue the public hearing to consider a resolution vacating a portion of Fourth Street in Plan of Town of Pineda as petitioned by Thomas Shine, Thomas Constantino, and Geoffrey Thomas until September 17, 2002. Motion carried and ordered unanimously.

Commissioner Carlson advised Dr. Saladino to call her staff so they can get a meeting together.

PUBLIC HEARING, RE: RESOLUTION VACATING UTILITY EASEMENT IN PUESTA
DEL SOL - JAMES D. AND ANA L. CARRAWAY

Chairman Scarborough called for the public hearing to consider a resolution vacating a utility easement in Puesta Del Sol, as petitioned by James D. and Ana L. Carraway.

Ernest Popplein, contractor representing James and Ana Carraway, requested vacating of a small drainage easement on the back of his clients' property to install a covered boat hoist, lift for jet skis, and to do some irrigation, which they were told they could not do because of the easement.

Commissioner Colon advised she did not receive any objections, but wants feedback from the Commissioners.

Commissioner Higgs inquired if the Carraways can do a use agreement to facilitate their needs without vacating the easement, and are there any utilities or drainage needs in that area; with Road and Bridge Director Billy Osborne responding there is nothing in that easement, but staff will look into doing a use agreement. Commissioner Higgs inquired if the only thing that is encroaching is the roof overhang; with Mr. Popplein responding yes; and presented photos to the Board, but not the Clerk, showing it is nothing new in the canal as overhangs have been done before. He stated it seems a moot point to him, but they have to proceed with the vacating in order to do it. He stated the homeowner is emphatic about having the overhang that provides a level of protection for his boat; he is duplicating an existing boathouse that he has on the river; and because of illness he is moving and wants to move the boat and hoist.

Commissioner Colon inquired if Mr. Carraway would be willing to consider a use agreement; with Mr. Popplein responding he would consider it, but would prefer to vacate it since there is no potential use for the easement. He stated it is only five feet wide and on a bank of a developed seawall canal; there is no real access to it; and there is no equipment he knows of that can operate in five feet to maintain the canal. Commissioner Colon stated a use agreement is better than a denial; with Mr. Popplein responding if it comes to that, he would consider a use agreement. Commissioner Colon inquired if Mr. Popplein would like to have the item continued so he can speak to his client or is he at liberty to decide that today; with Mr. Popplein stating if it is an either/or situation, he has the authority to agree to a use agreement, but his preference would be the vacation. Commissioner Colon noted vacations have not been doing well today.

Commissioner O'Brien stated normally a vacating like this, in a backyard and along a seawall, is approved on a regular basis; and there is nothing wrong with this one because nothing will occur along the seawall.

Motion by Commissioner O'Brien, to adopt Resolution vacating a utility easement in Puesta Del Sol as petitioned by James D. and Ana L. Carraway. Motion died for lack of a second.

Chairman Scarborough stated the diagram of the subject easement shows it only extending a small bit along the 40-foot drainage right-of-way; and inquired if it does not run the full length of the property, and what is the reason for the short line; with Mr. Osborne responding they are not vacating the side easements, only the rear. Chairman Scarborough stated the five feet sits next to a 40-foot drainage right-of-way; with Mr. Popplein responding the 40 feet is the canal. Chairman Scarborough inquired if the five feet run the length of Lots 11, 12, 13, 14, 15, and 16; with Mr. Osborne responding yes. Chairman Scarborough stated when considering vacations, the Board needs to understand once it breaks a linkage it will end up with something that does not make a whole lot of sense; and to make sense of vacatings, the Board needs to ask if it should vacate the full length of the easement, otherwise it will end up with a useless easement compelling other people to come in and vacate theirs. Commissioner O'Brien stated he asked that same question four years ago why the Board cannot vacate the entire right-of-way.

Mr. Popplein advised there are at least two properties west of his client’s property that are already encroaching, but whether it is legal through vacation or illegal without permits, he does not know. Chairman Scarborough stated the Board should table the item to see which way to go in a more wholistic sense. Commissioner O'Brien inquired if staff will re-advertise to vacate every property along that ditch; with County Manager Tom Jenkins responding it will come back on September 17; and if that is the Board’s conclusion, then it would direct staff to re-advertise the others. Commissioner O'Brien inquired if that is what the Chairman is searching for; with Chairman Scarborough responding if the Board wants a use agreement, it should do a use agreement for the entire easement; if it wants to vacate, it should vacate the whole easement; and there are things that need to be cleared up from time to time and looked at as a whole picture rather than bits and pieces. Commissioner O'Brien inquired if the Board decides to vacate the entire easement, will the petitioner get a refund of his application fee; with Chairman Scarborough responding that is another issue; but if the Board is going to do it for others without a fee, then he should not have to pay either.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to continue the public hearing to consider a resolution vacating a utility easement in Puesta Del Sol as petitioned by James and Ana Carraway until September 17, 2002; and direct staff to return with a report on vacating the entire easement instead of portions of it. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION ACCEPTING IMPROVEMENTS AND ADOPTING
FINAL ASSESSMENT ROLL FOR TREASURE LANE ROAD PAVING MSBU

Chairman Scarborough called for the public hearing to consider a resolution accepting improvements and adopting the final assessment roll for Treasure Lane Road Paving Municipal Service Benefit Unit (MSBU).

William Sambor advised he owned the property at 3575 Grant Road, and is appealing the tax assessment for the asphalt project on the back part of his property, which fronts the west side of Treasure Lane. He stated his property does not need access to Treasure Lane; therefore, he should not have been assessed; he was never notified that he was going to be assessed for that road; his driveway fronts Grant Road, so he does not need access to Treasure Lane; but unfortunately a lien was put on the property and for a year he was never notified in person, by phone, or by letter by anyone in the County that a lien was on that property. He stated he was called by the title company a week before he sold the property informing him that he had to pay off the lien in order to sell the property. He stated he finally talked to Tony Vitale and found out that on April 3, 2002, in order to sell his property, he had to pay the County $4,200 immediately, which he did. Mr. Sambor advised a person across Treasure Lane on the east side has a back lot like his and contested the assessment, so he was not included in the assessment; but because he was not notified, he did not have a chance to do that and did not know about the non-inclusion. He stated all the people on Grant Road have houses; and the property he sold was a vacant lot in the back of his present house.

Commissioner Higgs requested staff explain the difference between the two properties and if the property owner at the time was notified about the MSBU.

Public Works Finance Director Greg Pelham advised the owner of record was notified; Mr. Sambor bought the property on April 23, 2001; and on April 24, 2001, the Board considered the preliminary assessment roll for Treasure Lane. He stated the advertisement requires staff to provide 20 days notice to property owners prior to the hearing; so on March 20, 2001, they mailed a notice to the owner of record at that time. He stated Mr. Sambor’s ownership of the property was not recorded until after April 24, 2001, so staff did not know he was the owner of record. Commissioner Higgs inquired if the owner of record was notified at the time; with Mr. Pelham responding yes, he was notified by certified mail and signed the receipt for it. Commissioner Higgs stated the property does not qualify for an exemption; it is different in character as described; so she will move to adopt the resolution accepting the improvements and establishing the final assessment roll for Treasure Lane Road Paving MSBU.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution accepting improvements in the Treasure Lane Road Paving Municipal Service Benefit Unit; adopting the final assessment roll; establishing the procedure for the collection of assessments; establishing an interest rate; and establishing an effective date.

Chairman Scarborough stated at closings on properties, they have to sign a non-lien affidavit because certain liens can attach later such as mechanics and materialmen’s liens; so there is a capacity to reach back and obtain recourse from the seller who failed to disclose the assessment. He stated not everything is in the public record; people cannot totally rely upon the title investigation; therefore, that is the reason for non-liens. He stated this issue s a private matter as opposed to any failure on the part of the County; so he will support the motion.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered; Commissioner Colon voted nay.

PUBLIC HEARING, RE: RESOLUTIONS ADOPTING SOLID WASTE SPECIAL
ASSESSMENT RATES, FEES, AND CHARGES, AND RATIFICATION,
CONFIRMATION, AND CERTIFICATION OF SOLID WASTE ASSESSMENT ROLLS

Chairman Scarborough called for the public hearing to consider resolutions adopting the Solid Waste Special Assessment rates, fees, and charges, and ratification, confirmation, and certification of Solid Waste Special Assessment rolls.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolutions adopting the annual Solid Waste Disposal, Collection, and Recycling Special assessments; approve Solid Waste Impact Fee rate; and ratifying, confirming, and certifying the annual Disposal, Collection, and Recycling Special Assessment Rolls. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE VI, LAND
DEVELOPMENT REGULATIONS RELATING TO COMMERCIAL AND INDUSTRIAL
DEVELOPMENT STANDARDS

Chairman Scarborough called for the public hearing to consider an ordinance amending several Sections of Chapter 62, Article VI, Land Development Regulations, relating to commercial and industrial development standards.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Section 62-1102 to add a definition for floor area ratio; amending Sections 62-1344 and 62-1481 to prohibit drive- through lanes in the neighborhood commercial land use designation; amending Sections 62-1344, 62-1481, 62-1482, 62-1483, 62-1511, 62-1512, 62-1541, 62-1543, 62-1544 to provide floor area ratio allowances in commercial and industrial classifications; amending Section 62-1542 to reduce the minimum site acreage in PIP to three acres; and adding Section 62-2110 establishing floor area ratio allowances in accordance with the Comprehensive Plan; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING LAND DEVELOPMENT REGULATIONS
RELATING TO BU-1-A, BU-1, AND BU-2 SETBACKS

Chairman Scarborough called for the public hearing to consider an ordinance amending the Land Development Regulations relating to BU-1-A, BU-1, and BU-2 setbacks.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Colon, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Sections 62-1481, 62-1482, and 62-1483, to clarify setbacks; providing for conflicting provisions; providing for severability; providing for area encompassed; providing for an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE REPEALING SECTION 62-4216(3), CONSTRUCTION
REQUIREMENTS SEAWARD OF COASTAL CONSTRUCTION CONTROL LINE

Chairman Scarborough called for the public hearing to consider an ordinance repealing Section 62-4216(3), construction requirements seaward of the coastal construction control line.

Commissioner O'Brien advised Section 62-4216(3) says, “construction requirements seaward of the coastal construction control line must be repealed in its entirety”; the Florida Building Code reduces the wind speed from 140 mph to 130 mph; he would prefer to see a stronger code for wind speed; and inquired if the Board can adopt a new wind speed requirement that is stronger than the State’s requirement. Commissioner Higgs advised the Board could do that, but not today because it does not have documented evidence and technical information that would substantiate the higher speed requirement. Commissioner O'Brien stated condominiums along the shoreline meet 140 mph wind speed; it will now be downgraded to 130 mph; and if there is a hurricane, those buildings will be the most exposed in the County. He noted the State must be planning for somewhere else, but not for Brevard County.

Permitting and Enforcement Director Ed Washburn advised the State developed maps that indicate there is 140 mph wind speed in the southern part of the State; however, in order to deviate from the map with a higher wind speed, the County needs to have a committee develop technical information to override what the State said it should be.

Chairman Scarborough recommended passing the ordinance today and directing staff to return with a report on how to analyze whether or not the Board should have a higher standard.

There being no further comments or objections heard, motion was made by Commissioner O'Brien, seconded by Commissioner Higgs, to adopt an Ordinance of Brevard County, Florida, amending Chapter 62, Article XII, Brevard County Code of Ordinances, relating to the coastal setback and control lines; specifically repealing Section 62-4216, Construction Requirements Seaward of Coastal Construction Control Line in its entirety; providing for conflicting provisions; providing for severability; providing for area encompassed; providing for codification and renumber; and providing for an effective date; and direct staff to return with a report on how to analyze whether or not the County should have a higher standard of wind speed. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING SECTIONS OF CHAPTER 22,
BUILDING AND BUILDING REGULATIONS

Chairman Scarborough called for the public hearing to consider an ordinance amending Chapter 22 relating to building and building regulations.

There being no objections heard, motion was made by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt an Ordinance of Brevard County, Florida, amending Chapter 22, renaming Article II to Florida Building Code; amending Section 22-46, Definitions, specifically renaming adoption; amending Section 22-47, Administration; creating Section 22-49, Basic Wind Speed Lines; creating Section 22-50, Building Permits; creating Section 22-51, Penalty; providing for the maintenance of Sections 22-52 through 22-70 as reserved sections in the Brevard County Code; repealing Division 2, Standard Building Code; repealing Section 22-71, Adoption; repealing Section 22-72, Amendments; repealing Section 22-73, Building Permits; repealing Division 3, National Electrical Code; repealing Section 22-101, Adoption; repealing Section 22-102, Additional Regulations; conflicting provisions; repealing Section 22-103, Penalty; repealing Division 4, Standard Gas Code; repealing Section 22-126, Adoption; repealing Section 22-127, Amendments; repealing Section 22-128, Penalty; renumbering Division 5, Standard Housing Code; renumbering Section 22-151, Adoption; renumbering Section 22-152, Penalty; providing for the maintenance of Section 22-73 through 22-100 as reserved sections in the Brevard County Code; repealing Division 6, Standard Mechanical Code; repealing Section 22-176, Adoption; repealing Section 22-177, Amendments; repealing Section 22-178, Penalty; repealing Division 7, Standard Plumbing Code; repealing Section 22-201, Adoption; repealing Section 22-202, Amendments; repealing Section 22-203, Penalty; repealing Division 8, Standard Swimming Pool Code; repealing Section 22-231, Adoption; repealing Section 22-232, Amendments; repealing Section 22-233, Penalty; repealing Division 9, Standard Unsafe Building Abatement Code; repealing Section 22-251, Adopting; repealing Section 22-252, Penalty; renumbering Division 10, Standard Existing Buildings Code; renumbering Section 22-261, Adoption; renumber Section 22-262, Penalty; providing for the maintenance of Sections 22-103 through 22-275 as reserved in the Brevard County Code; repealing Division 11, Accessibility Code; repealing Section 22-270, Adoption; repealing Section 22-271, Penalty; providing for conflicting provisions; providing for area encompassed; providing for codification and renumbering; providing for severability; and providing for an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE ADOPTING THE 2000A COMPREHENSIVE
PLAN AMENDMENTS

Chairman Scarborough called for the public hearing to consider an ordinance adopting the 2002A Comprehensive Plan Amendments.

Commissioner Higgs advised the property in the first amendment is more than a half a mile from the interchange, yet the Comprehensive Plan says developments located within one-half mile of the intersection of the off ramp with the connecting roadway; and inquired if there is a conflict. Planner III Todd Corwin advised the property is already designated neighborhood commercial; and the policy that designates location criteria for commercial designations is a “should” and gives the Board some leeway in unique situations, such as this instance, where there is close proximity to interchange and intersection between two arterial roads. Commissioner Higgs stated the Board should discuss the impacts of going more than a half mile; and inquired if staff can explain the impact of going a full mile as opposed to a half-mile. Planning and Zoning Director Mel Scott advised the Board placed a mixed use district over the property; at that time the developer offered the Board an opportunity to control that segment from I-95 to Grissom Parkway as opposed to offering what typically occurs, which is strip commercial; and at that time the Board’s rationale was by recognizing up front the market pressure that will be placed on that segment, it would be able, with one owner, to control the access points off that roadway so it does not fall to the same fate that other corridors did with strip commercial and curb cuts every couple of feet and the traveling public unable to get from Point A to Point B and instead is mired in traffic. Mr. Scott stated the Board has the latitude to assign the higher grade community commercial future land use designation, which would allow the properties to enjoy the full commercial zoning designations. Commissioner Higgs stated it already has a mixed use district; with Mr. Scott responding when the Comprehensive Plan was updated, all lands that previously had mixed use district, which was the only future land use designation, were converted to neighborhood commercial or community commercial future land use designations based upon underlying zoning classifications; because this property has not yet been developed, it did not have BU-1 zoning, which would give it automatically a community commercial designation; it received a default neighborhood commercial on the future land use map; and what they are hoping to restore through this application is their ability, when the time is right, to apply for BU-1 or BU-2, which is consistent with the community commercial future land use designation. He stated this amendment would restore their ability to at least request rezoning, which represents the full intensity of the County’s commercial zoning classifications.

Commissioner Higgs stated Policy 5.2 of the Conservation Element says, “commercial/industrial land development shall be prohibited in wetlands”; then around interchanges (d) says, “within a half mile of the intersection”; and she is concerned about expanding commercial at the interchange and whether that is consistent with the Conservation Element and the Wetlands Policy. Mr. Scott stated regardless of the future land use designation, when it comes time for commercial development activities to take place, the wetlands will be preserved; that is what the policies talk about; development activities are no longer able to destroy wetlands; so even if they receive community commercial future land use designation, it would not bring into jeopardy the wetlands along the corridor, which have been excluded from this amendment. Mr. Scott stated they have identified a few additional wetlands within the Comprehensive Plan amendment; the applicant has provided a survey of them so they are well informed that come zoning and more specifically site plan time, those wetlands will be preserved.

Doug Robertson advised the amendment was approved by the CRG, LPA, and Port St. John Dependent Special District Advisory Board; they went a little farther than the half mile because they broke it up into four nodes--two adjacent to the interchange and two adjacent to Grissom Road; and they feel they are appropriate nodes to be planned for and developed as commercial use. He stated the question is what is the appropriate commercial category; and their opinion is neighborhood category is not appropriate for that type of corridor and intersection; and community commercial would be more appropriate. He stated they have eliminated all the wetlands from the application, so they are not an issue.

Amy Tidd, Port St. John, stated she is a member of the Advisory Board; they did vote on the amendment several months ago; and it is the issue that caused the boundary problem because it is an area that impacts Port St. John. She stated the Advisory Board was not allowed to have any input and did not receive any notice of this issue.

Chairman Scarborough inquired if Ms. Tidd is opposed to the amendment; with Ms. Tidd responding no. Chairman Scarborough inquired if any of the board members opposed going from neighborhood to community commercial; with Ms. Tidd responding when it was presented to them, it was a hotel. Chairman Scarborough inquired if Ms. Tidd has a problem with what is being proposed; with Ms. Tidd responding no.

Commissioner Higgs inquired about the half mile versus the mile; with Ms. Tidd responding that was not brought up; it was zoning for a hotel; and the board approved that. Ms. Tidd noted it was brought to them as a courtesy item, which they appreciated. Chairman Scarborough inquired if they voted, and what was the vote; with Ms. Tidd responding yes, to go forward with it as all the community issues were resolved.

Chairman Scarborough stated there is an interchange off I-95 that goes into Grissom Road, which is a major north/south corridor that runs through Port St. John; the community desires to see commercial clusters there because there has been a tremendous drive to go with commercial on Fay Boulevard and Grissom Road, which are essentially residential streets; so there needs to be areas identified for commercial. He stated enhanced commercialization would create less curb cuts and provide a more organized development. He stated if Port St. John becomes incorporated, it will be the fifth largest city in Brevard County; it is not a small area; and he has not heard anything in opposition to the concept proposed.

There being no further comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County; entitled the Comprehensive Plan; setting forth Plan Amendment 2002A; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part IX entitled the Transportation Element; specifically amending Section 62-501, Part XI entitled the Future Land Use Element; specifically amending Section 62-501, Part XIII entitled the Capital Improvements Element; specifically amending Section 62-501, Part XVI(E) entitled the Future Land Use Appendix and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

The meeting recessed at 12:33 p.m., and reconvened at 1:25 p.m.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE, RE: EXPANSION OF
PORT ST. JOHN DEPENDENT SPECIAL DISTRICT BOUNDARY

Carmine Ferraro advised there was a request by the Port St. John Dependent Special District Advisory Board, that voted by a majority vote of three to two, to bring this issue to the Board to extend the boundaries of the District; and the Board instructed the advisory board to go back and get more public input. He stated they held an additional public meeting and there were mixed feelings about who supported it and who did not; and the Board had mixed feelings as well. He stated those who were against it felt the timing was poor because of the confusion with the incorporation issue, coupled with the fact the developer is no longer active and it does not appear he will be active by the end of this year. He stated those supporting it felt it was in the public interest, and it was their public duty to bring the issue to some kind of fruition.

Chairman Scarborough inquired if Mr. Ferraro voted in opposition; with Mr. Ferraro responding yes, and so did Maureen Rupe.

Ann Coburn expressed her opposition to any expansion of the boundaries of Port St. John Special District; stated the Port St. John Dependent Special District Board was formed to deal with the uniqueness of a residential community within the unincorporated area; the boundaries currently contain the residential area; and the Brevard County Planning and Zoning Board hears all other requests for the unincorporated area of the County. She stated the Planning and Zoning Board format is like the Board of County Commissioners where everyone has a right to attend and have their say; being an advisory board, its decision is not rubber stamped by the Board of County Commissioners; but apparently they have done a good job. Ms. Coburn advised the area into which the Port St. John board wants to expand includes the exit off I-95, known as Port St. John Parkway; it is a conduit to I-95 and serves people in many areas, including Canaveral Groves, Sharpes, Williams Point, Frontenac, Hardeeville, Port St. John, and North Cocoa; and for that reason it is important that the County Zoning Board maintain the right to hear applications for planning and zoning changes. She stated a viable solution might be for the District 1 Commissioner to appoint someone from Port St. John to the County Planning and Zoning Board; there are openings for alternates at this time; in that case the Port St. John resident could attend the meetings and have input; and if one of the regular members was not there, could vote in his or her place and resolve Port St. John issues that way.

Richard Mickle, President of the Civic League of Port St. John, stated in April he came to the Board with a suggestion to move the district boundaries to Camp Road; he was asked to go to the overlay plan and directed to go back and have a public meeting with the people; and they were to determine whether or not it was a good idea and bring it back to the Board of County Commissioners. He stated one paragraph of Mr. Ferraro’s letter says they want to go to the I-95 connector north or south side more or less; it was discussed they might go 600 feet to the north with no boundaries on the east side of Grissom Parkway; and the second part of his letter suggests they would like to go to the comprehensive overlay plan, which goes to Camp Road. He stated as President of the Civic League he opposed the boundary lines being moved at all; and the League still takes the position that the boundaries of Port St. John should end at Bridge Road where it was originally set, and would like to see the boundaries stay there.

Hal Gettings advised he is a resident of the southeast corner which is a neglected area, but they contribute taxes for Port St. John Recreation MSTU; and he does not want any more control by Port St. John because they already have too much.

Amy Tidd, member of the Port St. John Dependent Special District Advisory Board, stated she did not vote on the issue because she was out of town; the advisory board was contacted on February 1, 2002 asking for its input on a proposed hotel rezoning at the I-95 interchange; they had currently no advisory rights to that area, but the board was created to handle all zoning matters that would affect the residents of Port St. John and to have a group of local residents advise what is important to their community; and they would have like to be able to comment officially on that zoning. She stated the interchange is very important to the residents because they want to make sure the businesses that go in there are compatible with their quiet residential community; however, this is not a good time to be addressing the issue. She requested the Board table it; there are only two months before the community decides on its future; there are no zoning items pending; and the issue will not be relevant if they incorporate in November. She stated if they do not incorporate, she would recommend the Board readdress the boundary issue at that time. Ms. Tidd stated with all the problems Port St. John is facing right now with the proposed airport runway extension, air ordinance on power plants, and others, the community has more important issues to deal with than discussing expansion of the boundaries at this time; and thanked the Board for its support of the advisory board and the community.

Chairman Scarborough inquired if Ms. Tidd was there, would she have voted for it or in opposition; with Ms. Tidd responding in opposition. Chairman Scarborough stated it is important for the Board to understand it would have been a split vote.

Jill Rippon of Brentwood Heights advised Brentwood Heights is considered part of Williams Point North; and requested the Board not allow the Port St. John board to extend its boundaries at all. She stated they have come back a lot of times to address this issue; and they would like for it to be put to rest and the boundaries be as they are currently. She stated she has a petition from people in their area who do not want to be part of Port St. John. Chairman Scarborough inquired how many names are on the petition; with Ms. Rippon responding about 25.

Fred Rippon stated he lives in the southeast corner of the new proposed area; one of the biggest problems he has is it seems that the advisory board keeps changing its mind; they were at a meeting and the discussion was predominantly negative for them expanding pass the interchange corridor; but they want the whole thing. He stated he does not want to be part of Port St. John now or ever; he is happy with the Board of County Commissioners representing him; and they pay for a lot of things in Port St. John that they do not use. He stated a civic center and everything else in Port St. John is about six miles from them and not used by their residents; but they are taxed for those things because they were lumped into it when it was voted on and Port St. John have more votes than they do so they ended up paying the bill. He stated Port St. John wants their tax base and is looking for tax revenue from U.S. 1 and river front properties; the residents of Brentwood would not see a dime of that revenue; it has happened in the past; and they are paying for things they do not use. He recommended the Board finally resolve this issue and say the area will stay as it is from now on or dissolve the board and let them deal with the Board of County Commissioners. He stated they tell them one thing and do something else, so he cannot depend on what they tell him to be the truth.

Pete VanderHaeghen advised he lives in an area that is part of Williams Point; many of his neighbors have spoken; he supports their position; they cannot see any advantage of becoming part of the incorporation; the police issue is not an issue to them; there is no law enforcement service in Port St. John that is going to improve; and they are so far out in the boonies compared to the center of the residential area that there is not going to be policemen out there anyway. He stated benefits for them would be negligible; the tax issue is a problem; many of them moved in the area within the last few years primarily because it is part of the County; and services are more than adequate. Mr. VanderHaeghen stated if they become part of Port St. John, they want to know what the services are going to be, what the tax base is going to be, how much taxes they are going to pay, etc.; he has been through an incorporation process in California with a new city; and it took several years before the problems were resolved. He stated the bottom line was there was no appreciable gain for the community after they went through the process; having been down that road before, he is not interested in going down it again; and recommended eliminating their area that has a few houses along the water and small industrial areas as it is a no gainer and an additional tax burden.

Assistant County Manager Peggy Busacca stated to clarify the record, the Agenda cover sheet the Board received was an error on staff’s part; it was not a result of any action of the Port St. John advisory board; when the error was brought to their attention, it was corrected; and she wanted to let the gentleman who spoke about Port St. John changing its mind that it was an error on the part of the County staff.

Chairman Scarborough stated the County is struggling with joint planning agreements with the municipalities; anything that happens near an area affects it; whether Port St. John is incorporated or not, they will always have the overall concern; and it is never going to be perfect. He stated at this juncture there is a split vote with no recommendation if Ms. Tidd’s vote is taken into consideration; so no action should be taken by the Board unless he hears a motion.

The Board took no action to extend the boundaries of the Port St. John Dependent Special District.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS,
RE: MARK HANKINS

Chairman Scarborough called for the public hearing to consider a request from Mark Hankins for a determination of vested rights to allow him to pursue a building permit for property that does not have access to a County-maintained and accepted road.

Planning and Zoning Director Mel Scott advised Mr. Hankins was told his time was coming up about half an hour ago; and suggested delaying the item.

The Board postponed the public hearing on a request from Mr. Hankins for determination of vested rights until later in the meeting.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS,
RE: BERRI PATCH PRESCHOOL

Chairman Scarborough called for the public hearing to consider a request from the Berri Patch Preschool for a determination of vested rights to exempt the new building in the Town of Malabar from payment of transportation and correctional facilities impact fees.

County Manager Tom Jenkins advised the item has been resolved.

PUBLIC HEARING, RE: REQUEST BY ROY E. ROSSINI AND RICHARD W. MULLER
FOR VARIANCE TO THE COASTAL SETBACK LINE

Chairman Scarborough called for the public hearing to consider a request by Roy E. Rossini and Richard W. Muller for a variance of 25 feet to the Brevard County Coastal Setback Line.

Roy Rossini introduced his business partner Richard Muller; advised they brought a visual aid to expedite their presentation; and inquired if they could use it; with Chairman Scarborough responding yes. Mr. Rossini advised they acquired some land on the southern end of the barrier island by A1A north of Patrick Air Force Base to develop it and for his future home; and when they purchased the property, they were excited about the renourishment project. He stated while going through the process, they found some inefficiencies that were less desirable than they wanted; and their goal is to develop a product that will be reasonably used, upscale, and will enhance the area that is in transition. He stated Ed Fleis and Mr. Bennett are their civil engineers, and a representative of Coastal Tech, who is an expert in wave crest analysis, is here to talk to the qualitative and quantitative information required from the technical side. He identified on the model where they were told to locate their building by the State and County; and stated the other buildings along the side of their site are about 75 feet in front of their building envelope. He stated they are asking to bring the building up about 25 feet, which would make it even with the back end of the other building; it will allow them the ability to put in additional dense landscaping in the front to keep the noise from A1A and the adult bar across the street from affecting their development; and presented pictures to the Board, but not the Clerk. Mr. Rossini advised other than the landscaping they want to put in, the relocation of the building will allow trucks, emergency vehicles, and refuse trucks, which require a 58-foot turnaround, to come in and out. He stated a handicapped lady, who is interested in their building, brought something to light; as opposed to going up and down the elevator to put her garbage in a dumpster, they want to put a trash shoot in; and to do that they need additional footage. He presented a picture of the building adjacent to their site, identifying a red car, and noting it would be even with the back end of the garage and allow those two things for the residents and himself.

Ed Fleis, representing the applicants, advised the property is zoned RU-2-15 and would allow seven units; what is proposed is a six-unit condominium, three stories in height over one level of parking; and the project qualifies for a 25-foot variance under Ordinance No. 85-17. He stated the Ordinance was adopted in 1985 after a storm in 1984, and established the line 25 feet landward of the State’s Coastal Construction Control Line, which prohibits any building seaward of the line; and in the storm of 1984, there were areas that experienced severe erosion, some no erosion, and some accretion. He stated the Board set up a basis for variances to be evaluated site-by-site; if a person demonstrates he had less erosion than 25 feet, he would be eligible for a variance; the formula was 25 feet less the amount of erosion that occurred over a 30-year period since 1972; and this site qualifies for a 25-foot variance. Mr. Fleis stated the exhibits he gave the Board show the 1972 profile and the 1997 profile done by Department of Environmental Protection; there are two other profiles done by surveyors also, one done after the renourishment project; and the results of the State’s surveys is that eight feet of accretion occurred at the site between 1972 and 1997. He stated because there is accretion, the site is eligible and qualifies for a 25-foot variance; Mr. Rossini pointed out some of the characteristics about the site on the visual aid; and the north and south sides have existing buildings that project substantially seaward of the Coastal Construction Control Line by about 45 feet and almost 80 feet of the Brevard County Setback Line. He stated the site has extensive native vegetation on the ocean side of the building that will be preserved; and all the pepper trees will be removed from the site and the barren areas will be replanted with sea oats. He stated the building is slightly askewed to the north and south property lines and not perpendicular to the Coastal Construction Control Line; and in addition to removing the pepper trees and planting sea oats, the applicants propose to a prohibition against armoring of the ocean frontage.

Chairman Scarborough requested a motion to extend the time for Mr. Fleis; and hearing none, asked if Mr. Fleis wants to use his rebuttal time. Mr. Fleis responded he would like to respond to any comments from Commissioners.

Mr. Fleis requested the Board grant the variance of 25 feet since the profiles clearly show the site is eligible and was eligible before the renourishment took place. He stated the renourishment added 200 feet of beach to the site; the site is located between two existing buildings making it like a tunnel and not ideal to develop; but the proposal will be a suitable way to develop the site. He stated the development will not be injurious to the adjacent properties and would be an asset; it is not contrary to public interest; and even though it is not a factor to granting of the variance, the renourishment has added 200 feet of beach, which adds to the stability of the dune in the area. He stated Steve Bonig is a professional engineer and an expert in engineering analysis for coastal systems in the area; and he is here to respond to any questions the Board may have.

James Wichlacz, President of Waters Edge East Condominiums, advised they have 48 owners and support the development; it will be an asset to the area that needs positive transition; and after hearing them and knowing what is across the street, their need for the vegetative barrier would enhance and benefit the area and their development. He stated they have a trash collection problem in their building with trucks moving in and out; Crescent Beach Club also has a problem; so he appreciates the 58 feet they require for the turnaround of the trash trucks to move in and out of their development.

Commissioner O'Brien stated the applicants have proven on page 2 of their application that analysis of the profile reflects eight feet of accretion; between 1972 and 2002, the survey indicates 12 feet; and between 1972 and 2002, the beach was renourished and increased by 190 feet. He stated from reading the documents and listening to the presentation, he feels they have met the criteria of not being injurious to adjacent properties and less than 25 feet of erosion; and he would prefer that the buildings line up evenly.

Commissioner Carlson inquired if since 1972 up to the renourishment, was the amount of accretion 20 feet or eight feet; with Natural Resources Management Director Conrad White responding the re-survey done in 2002 showed 12 feet of accretion in that area; between 1972 and 1977, there was eight feet; and the difference between the two was based on the expected accretion extrapolated from 1977 to 2002. Commissioner Carlson inquired if the total is 12 feet; with Mr. White responding staff believes their interpretation of the Ordinance allows eight feet. Commissioner Carlson inquired where did the 12 feet come from; with Mr. White responding based on a model that says if there is so much accretion between 1972 and 1977, the difference between 1977 and 2002 would give the additional accretion. Commissioner Carlson inquired if that would be 12 feet; with Mr. White responding yes. Commissioner Carlson stated it would not be eight feet plus 12 feet; with Commissioner O'Brien responding no, the March 2002 survey indicates accretion of 12 feet and not plus eight feet. Commissioner Carlson inquired if the County has a policy, since the beaches were renourished, to identify how they will look at these issues because it is difficult to determine; with Mr. White responding staff would appreciate some clarification from the Board in terms of how the Board would look at the beach renourishment project in the context of its Coastal Setback Ordinance, and whether or not there is 190 feet of accretion or eight feet of accretion.

Commissioner O'Brien stated where the beach is currently is where the line should be; accretion may not be the right word, but the beach was renourished and will be there for a long time.

Commissioner Higgs inquired if the County is going to evaluate each of these requests in terms of any kind of erosion since the renourishment project, and if so, how much erosion has taken place since then; with Mr. White responding staff is not sure how much erosion has happened, but when the beach renourishment was designed, it was designed such that erosion would occur in those areas; and staff has seen significant erosion in this area. Commissioner Higgs stated she does not think the Board should start measuring from the new renourished line yet. Commissioner O'Brien stated it is expected to flatten out; with Commissioner Higgs responding exactly, but if it is measured from there today, it would have to measure erosion from the first established renourishment project. Commissioner O'Brien stated the applicants have shown there has been accretion since 1972 and they have not experienced erosion; with Commissioner Higgs responding she is not questioning that.

Assistant County Manager Stephen Peffer recommended the Board adopt a policy for these matters that they would determine erosion based on the profile as it existed immediately prior to the renourishment. He stated the renourishment is neither accretion or erosion; it is a man-made situation; the beach was designed in the renourishment project to erode and flatten out; so that would be an unfair way to measure erosion because it is expected to occur. He stated the renourishment project was not intended to provide additional benefit to the property owners other than storm protection; so it would be consistent with prior actions if the Board would look at erosion data as it existed prior to the renourishment and base variance decisions on that as a limit. Mr. Peffer advised the Ordinance allows the Board to consider up to a certain amount based on erosion or accretion profiles; it would be a no-change scenario as a result of the beach renourishment project; and it would be as it existed before renourishment took place.

Commissioner O'Brien stated because it is on the books, the Board has to change its way of doing business; people who have houses or condos on the beach have gotten their sand back that was taken away by the Corps of Engineers via the Port Canaveral entranceway; and to penalize them and hold the line where erosion took place up until beach renourishment would be unfair because, even with erosion, the renourishment will still be further out than what it was last year. He stated it may be 30 years before the beach renourishment erodes away; as a governing body, the Board needs to look at what is fair to all parties; it is not to sit back and act like beach renourishment never occurred because what has occurred by renourishment is that people got the sand the government owed them, so that line has changed. He stated the Board cannot say it is not going to move the line now because it will pretend renourishment never happened; it did happen; it erodes back every year a little at a time; and to keep it as is would be a punitive action. He stated the sand is there and will be there for a long time; it may take 30 to 35 years for erosion to take place far enough back where it may be dangerous; Commissioner Higgs signed the Contract with the Corps of Engineers for 50 years of renourishment; but whether that comes or not depends on funding. He indicated Tourist Development Council is saving money to pay half or a quarter of the renourishment; it probably would bond it 30 years from now; and the Board should not say this is how it did business, beach renourishment has taken place, but that line should not move forward. Commissioner Higgs stated if it is moved forward, it will have to move backwards because of erosion; with Commissioner O'Brien responding then it can move forward now and move back later. Commissioner Higgs stated the accurate measurement would be where it was when the project was completed and how much has eroded in a year if the Board goes that route; but she is not sure that is the route it wants to go.

Commissioner Carlson stated the bottom line is if the Board takes the long-term perspective, which is what beach renourishment is supposedly about, in the long term of 25 to 30 years or how long the sand stays on the beach, it will still be addressing the issue of where the line is going to be. She stated by keeping the line and sand the way they are makes good sense because the Board does not know when in the future it is going to renourish that sand whether it wants to or not; and it is protecting the property rights of those who live on the beach and other things besides tourism. She stated the Board is using a responsible method of keeping the line as it is; she is okay with 12 feet, but is not sure about 25 feet; 12 feet is how much it has accreted; so the Board can give that back to them.

Commissioner O'Brien stated by the beach renourishment, the County gave them 75 feet; that 75 feet may be 65 feet in 25 years; but to use the train of thought that it should not issue building permits for anyone on the beach because 50 years from now it may erode all the way back and their building may fall into the ocean is ludicrous. Commissioner Carlson stated the same argument can be used before beach renourishment occurred there; they are having the application of law on them; and inquired what would the Board do on those folks who paid to move their buildings back based on the law of the land as it stands today. Commissioner O'Brien stated the law of the land at that time was based upon what was there at that time; that has now drastically changed by renourishment; with that change, the Board can change the way it looks at requests for variances; but it should not sit back and pretend it did not happen. He stated with the renourishment there is a dynamic change to how wide the beach is and how far out the setback line is now; some say it is going to erode; 30 years ago when they built those buildings originally, it eroded; but sand is back and there is no damage to those buildings. He stated although he does not like condominiums along the beaches, and prefers single-family homes, their property rights say they can build them; things have changed and the Board has to look at it differently; and repeated previous comments.

Mr. Peffer advised the facts as presented would allow the Board to grant the 25-foot variance; the issue the Board is debating is a policy of how to deal with properties on renourished beaches; and suggested the Board defer the item since it does not affect this case, and allow staff to present options at a later date.

Chairman Scarborough stated the Board takes Tourist Development Council and federal money because it has to renourish the beach it is losing; then all of a sudden, it gets data there is accretion and the beach is actually increasing; and inquired if staff can tell Tourist Development Council it does not need beach renourishment because it is not a problem. He inquired if there is accretion, why did the County do the renourishment project and take Tourist Development Council funds. Mr. White stated the accretion is minor, as eight feet is not very much. Chairman Scarborough stated everything can be measured in minors and majors, but the presumption is the County is losing the beach; there were storm events; the Board went through the whole thing about fortifying and not fortifying; there could be a lot of accretion, but a storm event could cause disaster; so it is not measured on a day-to-day basis. He stated the overall presumption is that there was no accretion and diminished sand on the beach, so the County had to go the route of renourishment and prove a case that it is losing a beach. Mr. Peffer advised one thing that could be causing the confusion and the best reference he has is Figure 2 of the applicant’s proposal; the Ordinance takes a specific measurement, which staff refers to as the toe of the dune; they look at whether that toe moved landward or seaward over time with either erosion or accretion; and the actual facts are that it does not measure the length of the beach in front of the toe of the dune, so sand can erode and the dune remain stable. Chairman Scarborough stated if he was sitting in the audience, he would ask what is going on because one moment the Board says it has to get the beach renourished, then someone says there is natural accretion; and there is a fundamental flip in the whole philosophy, so he is having difficulty with it.

Commissioner O'Brien stated from Cape Canaveral, which is close to the jetties, all the way down to Cocoa Beach, there was severe erosion; as it got farther away from the jetties, the erosion became less; and accretion or erosion takes place, depending on the currents caused by the outflow of water at the changing of the tides. He stated the worm rock in Satellite Beach was not exposed before, but it is now; so it could be that every time Patrick Air Force Base puts sand on its beach, the sand shifts to the north and causes accretion on the beach in back of the applicants’ property. He stated no one knows for certain, but according to the County’s rules, the beach accreted; there are spots along the beach that were created and others eroded severely; and that is why 300 people are suing Congress and the Corps of Engineers over the tremendous loss of the beach caused by the channel cut at Port Canaveral. Commissioner O'Brien stated Mr. Rossini is a lucky property owner and gained 12 feet of beach; however, now that the beach has been renourished, he has 190 feet; and not changing the way the County thinks about where the 25-foot line should be and how it was set does not make sense other than it is an arbitrary line on paper, which is not a true line. He stated it was set by measurements and surveys and given lines based on the toe of the dune; the toe has moved forward, not backwards; the dune can erode away, but that is a long way off; and it is ludicrous to contemplate it unless there is a major hurricane that blows everything away.

Mr. White advised they recently received the independent coastal expert’s report on the beaches south of the Port; and it shows very succinctly that the portion south of Port Canaveral was eroding over a long period of time due to sand interruption along the near shore area because of the Port and jetties. Chairman Scarborough inquired if the area includes the subject parcel; with Mr. White responding it includes the Cocoa Beach area. Chairman Scarborough inquired if it would include the parcel; with Mr. White responding yes.

Commissioner Higgs stated the Board chose to use a point on the dune as the measurement of erosion when the Ordinance was written; there are other ways that people do it and other things that can be done; so as part of the discussion about what to do with the newly renourished beach, the Board ought to look at what the different measurements are and more accurately reflect erosion and accretion on the beach. She stated when the Board gets a policy back on how it is going to deal with this issue, it needs to look at what factors it is using because there may be better ones.

Commissioner Carlson stated in 1981 the State put in place the Coastal Construction Control Line; the County added 25 feet; and inquired what was the purpose of doing that except to protect the properties. Mr. White advised the intent of the Ordinance was to buffer major structures from ocean forces and prohibit construction of major structures within the area seaward of the Coastal Setback Line; and it was to discourage further construction of rigid coastal and shore protection structures while allowing the Department of Environmental Protection to maintain jurisdiction and control over regulation of such structures. Commissioner Carlson inquired if staff has any idea who in the State is looking at renourishment projects based on its 1981 line; and stated if the State is not willing to change its line, she is not sure the County should change its line. Mr. Peffer stated since 1981, the State has reset its Coastal Construction Control Line considerably landward. Commissioner Carlson requested that information be put in a report to the Board. Commissioner O'Brien stated that line was set before renourishment; and even the State may want to consider moving it waterward now because of the renourishment of the beach. He stated if the sand was moving towards the land, the line could move back; but the opposite has occurred; so the line should move the other way to be fair.

Motion by Commissioner O'Brien, to grant a variance to the Coastal Setback Line for Roy E. Rossini and Richard W. Muller. Motion died for lack of a second.

Commissioner O'Brien stated the applicants meet all the criteria. Commissioner Carlson stated there are questions in regards to this issue; and the Board should wait and get the policy back before going forward with something that would set a precedent.

Motion by Commissioner Carlson, to continue the public hearing on a request for variance to the Coastal Setback Line by Roy E. Rossini and Richard W. Muller, until October 15, 2002.

Commissioner O'Brien stated tabling would not do anything for the County or the applicants because they meet all of the current criteria. Commissioner Higgs stated based on the Ordinance, they may qualify for the variance; however, it is not a must, but a may, which does not mean the County has to grant it. Commissioner O'Brien stated the Board is here to determine if they meet the criteria or not. Commissioner Higgs stated there are not three Commissioners saying they are going to vote for it; when Commissioner O'Brien says it qualifies, it does qualify to be considered; but it is not a requirement to grant it just because they meet the criteria. Commissioner O'Brien stated the Board is here to consider it today; and inquired if it wants to table it and have it considered again and again; with Commissioner Carlson responding no. Commissioner O'Brien stated the Board has already tabled seven items today. Commissioner Higgs stated she wants to be sure how the Board is going to deal with the other issue. Commissioner Carlson stated if the Board does not set a policy ahead of time with the Coastal Setback Line, it is going to be in trouble; so it needs to make sure the policy is agreed upon, whether it is moving the line forward or going backwards.

Chairman Scarborough stated usually with a motion to table there is no discussion; and inquired if the Board wants to move to waive the rules. Commissioner O'Brien stated there was no second to the motion to table.

Chairman Scarborough seconded the motion to continue the public hearing until October 15, 2002; and called for a vote on the motion. Motion carried and ordered; Commissioner O'Brien voted nay.

Commissioner O'Brien stated the Board should be making decisions as items come along because that is what it is here for.

PUBLIC HEARING, RE: REQUEST BY MARK HANKINS FOR DETERMINATION OF
VESTED RIGHTS

Chairman Scarborough called for the public hearing to consider a request by Mark Hankins for a determination of vested rights to allow him to pursue a building permit for property that does not have access to a County-maintained and accepted road.

Mark Hankins advised his proposal is for vested rights on property he owns in Canaveral Groves that is not on a County-maintained road, but is not far from the County-maintained road. He stated there were homes built next to his property, behind it, on one side, and across the street; and he is requesting vested rights to pull permits to put in a doublewide mobile home on his property.

Chairman Scarborough advised there are certain criteria for vested rights, so he will ask Mr. Hankins questions to determine if he is entitled to vested rights. He inquired if anyone on behalf of the County led him to believe that he should do something because he had a right to pull a building permit; with Mr. Hankins responding nobody did anything contrary to that; and he had no idea it was not properly zoned. Chairman Scarborough inquired if there was somebody he contacted in the County who should have advised him but did not; with Mr. Hankins responding no, he bought the land in 2000 and never received anything on the contrary that it was unbuildable. Chairman Scarborough stated the Ordinance was amended on July 24, 2001; and inquired if he purchased the property before or after that date; with Mr. Hankins responding after. Planning and Zoning Director Mel Scott stated he purchased it in November 2000 before that date. Chairman Scarborough stated purchase of land is not an act of reliance; that is one of the problems here; and there has to be an act or omission on the part of the County that Mr. Hankins relied on to be entitled to vested rights. He stated based on the legal interpretation, he has not established factual evidence showing that he has a legal right to vesting. Mr. Hankins stated he bought property in a residential area, and went through the process of title, surveying, and everything else; all the properties are zoned the same way that he is trying to rezone his property; but then he is told he cannot build there or put anything in there. He stated he is living in an area that is too small for his family; and this is the only way he can get to a bigger place. Chairman Scarborough stated if the Board was to take the posture that every place where there are nonconforming lots that were built on before the Code changed and automatically vested those lots to do likewise, someone could put a bar in because there is a bar in the area; so it is a slippery slope to travel.

There being no further comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to deny vested rights for Mark Hankins. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: APPEAL FROM COURTNEY ROBERTS ON DENIAL OF
SURFACE WATER PROTECTION PERMIT

Chairman Scarborough called for the public hearing to consider an appeal from Courtney Roberts on denial of his surface water protection permit application.

Courtney Roberts advised he is appealing the Office of Natural Resources Management’s decision; it is his understanding they were reluctant to interpret the Code, which would allow him to have a roof overhang over the surface water setback area because it is not in the Surface Water Ordinance part of the Code; however, the general provisions state, “allows up to four-foot roof overhangs to project into any required setback.” He stated staff denied his building permit because they feel they do not have the authority to speak to the general provisions, only to the specific Surface Water Ordinance provisions; and requested the Board allow him to have the roof overhang since it is not environmentally detrimental and complies with the intent and spirit of the Surface Water Ordinance. He stated he will reserve the remainder of his time to respond to comments that may be made.

Scott Roberts advised the applicants are his father Courtney Roberts and his mother Carol Roberts; they came to Brevard County about 25 years ago; he watched them go through the process; and they applied formally in February, but have been going through the process with the Office of Natural Resources for as far back as he can remember on various issues. He stated their goal was to build their dream retirement home; he was copied the emails and watched them go through every step and try to appease every request of County staff; and he came to the meeting because he thought it would be adversarial, but in reviewing staff’s comments on the Agenda Report, he realizes it is a matter of them asking the Board to make an interpretation under Section 62, which is the zoning section, and subsection of Section 62, which does not specifically allow roof overhangs, but the general provisions of Section 62 do allow roof overhangs. Mr. Roberts stated only a small section of the house is affected; and in staff’s quotes, they are basically saying his father cannot have a roof overhang, but he can have an elevated walkway. He stated his dad is an engineer and his mom is a nurse; his dad is not the most diplomatic person; and he knows Office of Natural Resources can interpret things a little stricter than they would otherwise if they are rubbed the wrong way; but he is not suggesting they did that. He stated the intent of the Ordinance was not to prevent a two-foot roof overhang 35 feet in the air; the water is still going to percolate or do what it is supposed to do; to the naked eye, his father’s home conforms with all other houses in the area; and they talked about environmental issues on land that was dug up from the river and dumped there to begin with. He stated the house would be an improvement to the area; and it is a very nice home that would conform and add to the value of adjoining properties.

Commissioner Carlson stated about a year and a half or two years ago the Board had an issue about a roof overhang; she thought it determined that the stormwater could be diverted so it would not be injurious to the area; and inquired if staff recalls that item; with Mr. White responding the only overhangs he recalls dealt with the Coastal Setback Ordinance.

Commissioner Higgs stated as she recalls, it was an existing home and it was mitigated so they did not have to tear it down. She stated she remembers the intent of the Ordinance and was on the Board when it was passed; it was to protect the surface water; and it is very specific in what is allowed. She stated the Ordinance is very clear on what is allowed; the roof overhang will result in water coming closer to the surface water at an enhanced speed; and it is not an erroneous interpretation by staff. Chairman Scarborough inquired about gutters; with Commissioner Higgs responding gutters are not allowed either. Chairman Scarborough stated gutters can divert water to a retention area if engineered properly. Commissioner Higgs stated the Surface Water Protection Ordinance says 50 feet; the Board tried to accommodate people who had small lots and said they can engineer it to protect the surface water; however, those engineered systems are not monitored over time and they may or may not be maintained; so the Board should follow exactly what the Ordinance says. She stated houses and roofs are not allowed; the line is drawn and nothing is allowed beyond that other than what is in the Ordinance; and maybe the 25 feet is not far enough because people are not maintaining those systems and not used the retention areas as they were supposed to. She stated she is not inclined to approve a waiver on this issue.

Commissioner O'Brien advised the Agenda Report says, “roof overhangs are not specifically listed as a permitted use in the Surface Water Protection Ordinance”; Section 62-2121(F)(3) allows up to four feet of roof overhang to project into any required setback; this is a required setback; and the Ordinance says up to four feet are allowed in any required setback. Commissioner Higgs stated the Board is dealing with the Surface Water Protection Ordinance; that is the variance the applicant is asking for; the Ordinance is very specific about what is allowed in the shoreline protection buffer; and because it is so specific, it does not give room to allow other things. Commissioner O'Brien inquired what would happen if they have gutters along the edge of the roof overhang and brought the water back four feet into a French drain. He stated essentially they would attain the goal of the Ordinance by reducing loss of water and percolating it more before it gets into the river system; so the Board can accommodate the applicant and still meet the goal of higher water quality.

Mr. White advised the setback is 50 feet from Class II shellfishing water; and if the lot was platted prior to 1988, they have the ability to encroach 25 feet. He stated Section 62-3668(3), Alteration and Construction Within the Shoreline Protection Buffer, says, “Other than what is permitted under the provision shall be prohibited unless it can be shown to be in the best public interest and does not adversely impact water quality and natural habitat”; so if the Board approves this request, it would have to find it is in the best public interest.

Chairman Scarborough advised if the Board moves in favor of the request, it has to find that it is in the best public interest; and asked Mr. White to explain best public interest. Mr. White advised best public interest is connected to a public project. Chairman Scarborough inquired if it is for the greater good of a number of people beyond an individual; with Mr. White responding that is correct.

Mr. White advised in 1993, Mr. Roberts applied for a structure on the site. Mr. Roberts stated he applied for a five-foot setback on the right-of-way; the lot was identified as a legal lot; and the same footprint plans were approved and brought to the Building Department; but they are still on hold. Mr. Roberts stated there are no environmental issues; everything was okay except the waiver was denied because the neighbor across the street rallied other neighbors that he would block their river view if he built on the lot; they started a lot of controversy; and when they came before the Board, the Board denied the five-foot waiver. He stated since the Zoning Code has changed and is now a 20-foot setback instead of 25 feet, they brought their plans back, the same plans they had ten years ago that are in full compliance, because they did not need the five feet. He stated since then, he had one objection after another from Natural Resources on different issues; it has been on hold since February; he was told this is the last issue; and the last one was because they had an elevated walkway that extended from the back of the house to give them access to the backyard that was considered a covered structure because of the roof overhang. He stated staff decided, when he showed them the Ordinance, that it was allowed specifically in the Ordinance; so they said it was okay, but the roof overhang was not allowed and they would deny the permit on that. He stated he is appealing the decision because the general provisions say, “roof overhangs of four feet or less may project into any required setback”; and staff is reluctant to go into the general provisions because they feel constrained to the Surface Water Protection Ordinance, so he had to come to the Board for a decision. He stated the Board has the power to interpret the general provisions as they apply to surface water protection.

Chairman Scarborough inquired if the general provisions apply; with County Attorney Scott Knox responding the interpretation of waivers committee debated the issue and recommended the more restrictive view; however, the Board is free to take a different view. Chairman Scarborough inquired if there are general rules when there are specifics; with Mr. Knox responding generally they would go with the more specific. Chairman Scarborough stated Florida Statutes are interpreted that way, but he was not sure how it applied to Ordinances. Commissioner Higgs stated the specifics of the Surface Water Protection Ordinance would be applicable. Mr. Knox stated the interpretation is if there are specific and general provisions, one would go with the specific provisions. Mr. Roberts inquired if the general provisions apply to all subsections of the Section and that is why they are general provisions; with Chairman Scarborough responding when there are conflicts in the law, the question becomes whether to look to the general or specific provisions; and that was his question to the County Attorney. Mr. Roberts stated there is no conflict with anything in the Surface Water Protection Ordinance because it does not talk about roof overhangs. Mr. Knox stated the committee took a different view, and that is why the item is before the Board. Mr. Roberts stated there are no environmental impacts as he understands it from Natural Resources; the roof overhang is 25 feet or more in the air; and by the time the rain falls, it is going to be on the side of the building and hit the sand and soil that is there to percolate. He stated he will have rain gutters to catch the runoff from the roof and run it back into the forward section; and he has a retention system he built on the property. Chairman Scarborough advised Mr. Roberts he is going beyond the question; he had his time to speak; and he should take a seat. Mr. Roberts stated he saved some of his time to respond; with Chairman Scarborough advising he can respond to Commissioners’ questions.

Commissioner O'Brien stated the Board has to look at the spirit of the Ordinance; and as long as it attains the goal, which is protection of surface water quality that enters the Indian River Lagoon system, it should have the elasticity to consider those who say they can make it better and accomplish that goal. He stated the Board should accommodate its citizens as much as possible without restraining them to the point where it loses common sense; if the applicant says he is going to put gutters up and have a retention system, he met the intent or spirit of the Ordinance; sometimes that would do better than what was planned; and there was a comment made that there are no environmental damages done. Mr. White stated Commissioner Higgs responded that the four feet overhang has minimal environmental damage, but it does overhang into the area and requires some treatment of runoff water; and a gutter system would probably do it. Commissioner O'Brien inquired if it attains the goal of the ordinance, why would the Board want to be punitive.

Commissioner Carlson stated she understands the applicant is going to the general provisions, but her question is when the Board sets forth something that is more specific and the group determines the more specific is the one to go with, why does staff not go through the general provisions under Section 62 and make sure there is some consistency. She inquired why does the County not have some form of consistency so the Board does not have to have these sort of discussions; and stated it is also very confusing to the applicant to be led down the road because he read the law and the law is conflicting. Mr. Knox stated he did not write the Ordinance so he does not know why they did it; but there is a huge book of Ordinances where inconsistencies will be found from time to time; and that is why there are appeal provisions, so the Board can consider whether or not it is appropriate or something needs to be changed in the Ordinance. Mr. Knox stated if the Board thinks it is in a gray area, it can interpret it the other way and make staff go back and fix it.

Mel Scott advised in the one-stop permitting process, there are 15 departments that oversee certain aspects of development; everything the 15 departments hand out for a typical home come to the Zoning front counter; and they go through the book, direct the applicants to the other agencies, and say to the customer this is your house and buildable envelope for the purpose of the Zoning Code, and make sure to check with Office of Natural Resources, Environmental Health, etc. because they may have more stringent comments. He stated the general provisions being referred to in Section 62-2121 are to address roof overhangs in a typical subdivision; and they advise customers to be sure to go to the Office of Natural Resources Management if they have waterfront property because there is a Surface Water Protection Ordinance; and at that point it helps the customers navigate through the process.

Commissioner Higgs stated the Code is clear, and she will follow the letter of the Code; in recent weeks the Board has been criticized strongly because it approved something in a public session that may not have followed the letter of some other policy; so she is going to follow the letter of the law. She stated if the Board wants to amend the law, then it can be brought up; but it is clear; it says those things that are specifically permitted; and if the Board wants to rewrite it and do something different, then that is what it ought to do, so her motion is to deny the request.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to deny the appeal by Courtney Roberts of staff’s denial of a Surface Water Protection permit and waiver of the appeal fee of $250.

Commissioner O'Brien stated there is a conflict in the law that says it allows up to a four-foot overhang into any required setback; Commissioner Higgs stated the other Ordinance is more strict and the Board has to go by that; the Board directed staff to go strictly by the book and not have elasticity, but apply the highest standard; and he has received more phone calls in the last two months from people saying it has gone beyond reality and into the ludicrous of constraining people they represent, and being punitive, mean spirited, and forcing people to do things they should not have to do. He stated the Board is not doing things that are sensible and not allow staff to be sensible and use their common sense; Brevard County is blessed to have some of the most intelligent people working for it, probably better than any county in the State; but the Board restricts their brains and says here are the rules, read them and weep; and staff has to turn to the public and say read them and weep because the Board is taking it too far. He stated it is a mistake on the part of the Board of not allowing mature people on staff to use their common sense in decision-making. Commissioner O'Brien stated the idea of the Ordinance is to protect the waters; Mr. Roberts said he would put gutters up and has a retention area; that would attain the goal of the Ordinance; and the environmental damage would be absolutely minimal. He stated the Board is forcing him to cut off his overhang; and it is so restrictive that its own staff cannot do things that are more beautiful and better.

Chairman Scarborough stated his problem is maybe this is and maybe that is; the library closes at a certain hour, but maybe it should stay open another five minutes; but there is a point where the Board has to draw lines. He stated a vet told him that it is amazing to have medication for dogs that go out of date; there is a certain date he cannot sell the drug and it goes in the garbage; and he does not know what the magic is, but there is a point to the way they design and do things. He stated maybe it is four feet or five feet; perhaps the Ordinance needs to be addressed; Commissioner Higgs wants to be more conservative, and Commissioner O'Brien wants to be more liberal; but there is a point, whether it is arbitrary or makes sense. Chairman Scarborough stated for clarity in dealing with issues, there is a line that is drawn; and the question becomes what Mr. White said, that the Board has to go beyond the discussion to how it is in the public’s benefit and how people as a whole will benefit by allowing this to occur. He stated if Commissioner O'Brien wants to go there, he is willing to listen, but without that, he is in a quandary of how to proceed other than to accept the motion because that is the law and the Board has to abide by its own laws unless it changes them. Commissioner O'Brien stated the public does not benefit from this law. Chairman Scarborough stated people benefit from the certainty of the law; and if there were no expiration dates on milk, they would stay on the shelf and may be sold four years later; there has to be some certainty even if it is stupid; and it is the only way civilization can move forward. Commissioner O'Brien stated a good librarian would stay open five more minutes for someone doing research and needing additional time, and so will a clerk in any store; it is service to the people; and the Board is here to serve the people. Chairman Scarborough stated it has to be based upon public benefit.

Chairman Scarborough called a question on the motion, and called for the vote. Motion carried and ordered; Commissioners O'Brien and Colon voted nay.

The meeting recessed at 2:57 p.m., and reconvened at 3:13 p.m.

RESOLUTION, RE: AUTHORIZING ISSUANCE OF UTILITY REVENUE REFUNDING
BONDS, SERIES 2002

Finance Director Stephen Burdett advised the County will be saving just under $300,000 a year with the refinancing; and there are 12 years left on the bond until it is retired.

Chairman Scarborough inquired what would be the total savings; with Mr. Burdett responding approximately $2.9 million. Commissioner O'Brien inquired if it means the Board can reduce its budget by $300,000; with Assistant County Manager Stockton Whitten responding Water Resources Department will realize the savings starting when it is refinanced; and the next scheduled payment will be approximately $300,000 less than anticipated.

Commissioner O'Brien inquired if Water Resources could reduce its budget by $300,000; with County Manager Tom Jenkins responding it can reduce its debt service by that amount. Chairman Scarborough stated it will have less pressure on rate increases and allows more opportunity for that enterprise fund to be generous. Commissioner O'Brien stated if they are paying $300,000 less per year for the bonds, they should also be able to reduce the sewer rates by $300,000, which may be a dollar per household.

Water Resources Director Richard Martens advised it will reduce the debt service by about $300,000 a year; that does have a direct effect on the bond covenant that generates the required rates; but in 2002-03 budget year, he would not recommend changing what was presented so far. He stated they could take it into consideration for the budget year 2003-04.

Commissioner O'Brien inquired if the bond is reduced now, would it save $300,000 this year; with Mr. Burdett responding the Board will not see much of a savings this year because it is almost over, but it will next year. Commissioner O'Brien inquired how much is left this year; with Mr. Whitten responding they still have to make a payment for the existing bonds this year, and a reduced payment next fiscal year; but he does not know the net effect of that.

Financial Advisor David Moore with Public Financial Management, advised there will not be any savings this year; it will be about $300,000 for FY 2002-03; and they are hoping to sell it in a week and a half, if it is approved today, before the rates go up, which they are starting to do.

Commissioner O'Brien advised the budget starts on October 1, 2002; the savings will be realized in FY 2002-03; and inquired what effect will it have on the consumer. Mr. Martens stated they will have a $300,000 benefit in the rate calculation for the next year because of the reduced bond payments.

Chairman Scarborough inquired when are the rates set; with Mr. Martens responding the rates for water and sewer remain in effect until changed, so the Board can change them at any time. Chairman Scarborough instructed Mr. Martens to come back to the Board with a memo about when it would be prudent to look at this issue further to determine if the Board can pass that savings on to the consumers.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt a Resolution supplementing a Resolution adopted by the Board of County Commissioners of Brevard County, Florida on June 5, 1984, as supplemented and amended, and restated; providing for and authorizing the issuance of its Utility Revenue Refunding Bonds, Series 2002 in the aggregate present value principal amount of not to exceed $65,000,000 to refund the County’s Outstanding Utility Revenue Refunding Bonds, Series 1993 maturing after March 1, 2003; authorizing the Chairman or Vice Chairman of the Board of County Commissioners and the Clerk or Deputy Clerk of the County to award the sale of such bonds to UBS-Painewebber Inc. and Salomon Smith Barney Inc. on a negotiated basis; approving the form and authorizing the execution of a Bond Purchase Agreement or a Forward Delivery Purchase Contract; specifying methodology to determine the date, purchase price, interest rates, interest payment dates, provisions for redemption, series designation and maturity schedule for such bonds and establishing a reserve requirement therefor; approving the form of a Preliminary Official Statement with respect to such bonds, authorizing the delivery thereof, and authorizing the Chairman to deem it final for purposes of SEC Rule 15C2-12, and to execute a Final Official Statement with respect thereto; approving the form of and authorizing the modification and execution of an Escrow Deposit Agreement and designating an Escrow Agent thereunder; designating the Bond Registrar, Paying Agent, and authenticating Agent for said bonds; providing for the transfer of certain moneys held in funds and accounts for the refunded bonds; providing covenants to comply with applicable tax and arbitrage rebate requirements; providing certain covenants for the benefit of the Bond Insurer as an inducement for it to issue its municipal bond insurance policy with respect to the bonds; providing an effective date for this Resolution; and providing certain other details with respect thereto. Motion carried and ordered unanimously.

REQUEST TO ABATE CODE ENFORCEMENT ACTION, RE: MERRITT ISLAND
MOOSE LODGE FAMILY CENTER

Attorney Leonard Spielvogel, representing the Merritt Island Moose Lodge, advised he came before the Board and the Board instructed staff to look at the possibility of changing the AU zoning classification, which if adopted, would allow his client to continue to maintain a limited number of travel trailers that have been allowed on the property from visiting members. He stated today his request is to hold in abeyance the Code Enforcement proceeding that is pending until the Board hears from staff on its recommendations.

Chairman Scarborough inquired when will the Board get staff’s recommendations; with Assistant County Manager Peggy Busacca responding in October or the last meeting in September 2002.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to direct staff to hold in abeyance Code Enforcement proceedings against the Merritt Island Moose Lodge pending staff report concerning permitting recreational vehicles as an accessory use to a private club. Motion carried and ordered unanimously.

DISCUSSION, RE: CONSTRUCTION STANDARDS FOR PRIVATE BOAT RAMPS

Commissioner Higgs advised the Board discussed problems with the construction of private boat ramps, and directed staff to come back with a report; in June 2002, the Board received that report; and suggested moving forward with advertising an ordinance on the standards for private boat ramps on man-made bodies of water. She stated staff has done an excellent job drafting what the specifications of ramp construction would include; and recommended the Board go forward with the legislative intent.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize staff to advertise a public hearing to consider an ordinance amending Chapter 22, Building and Building Regulations, to include standards and permitting conditions for private boat ramp construction.

Commissioner O'Brien stated a permit for a boat ramp in a man-made body of water will take three reviews and three inspections; and inquired why are those required. He stated the Board is taking this so far that it becomes ludicrous; and construction standards and a specific list of permit conditions for a minor project will require a person to come to the Government Center, make application, pay a fee, have three inspections, and tie up staff. He stated it happens so seldom; and inquired where is the Board going with this. He stated the Board is creating more and more laws, rules, and regulations that have no benefit to the County. Chairman Scarborough stated the neighbors might care, as there are very expensive properties on canals; with Commissioner O'Brien responding the Board should not make more laws that require three reviews and three inspections and tie up staff for that.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered; Commissioner O'Brien voted nay.

LEGISLATIVE INTENT, RE: REVISING LPA MEMBERSHIP FOR SCHOOL DISTRICT
REPRESENTATION

Chairman Scarborough inquired if staff heard from the School Board; with Assistant County Manager Peggy Busacca responding no, the School Board has not had a chance to review it. Chairman Scarborough inquired if it is imperative to take action at this time; with Ms. Busacca responding no, it can wait until staff receives information from the School Board.

Commissioner Higgs recommended the Chairman send a letter to the School Board Chairman to alert him that the Board of County Commissioners is interested in this issue; with Chairman Scarborough responding he will make personal contact one way or another.

PERMISSION TO ADVERTISE, RE: PROPOSED ORDINANCE AMENDING GROUP
HOME ZONING REGULATIONS

Chairman Scarborough advised people need to know it is not something the Board initiates, but there are federal rules it has to comply with; and requested staff expand on the issue.

Planner Robin Sobrino advised in May 2002, the Board approved the legislative intent for a proposed ordinance that would amend the group home regulations in the Zoning Code; and many of the changes deal with making sure the County is in conformance with the Fair Housing Act, which is the U.S. regulations, and that it is consistent with the State regulations. She stated the State regulations change from time to time and the Zoning regulations, although consistent with the State regulations at one time, have not kept pace with the State; and this ordinance will allow the regulations to be more dynamic. She stated the important items are removal of the conditional use permit process and having two types of group homes; Level 1 will be up to six residents, and Level 2 will be up to 14 residents; and those residential occupancy levels are consistent with the State regulations. Ms. Sobrino advised currently the group home regulations require 1,000-foot spacing between group homes; the State’s regulations are 1,000 feet for up to six residents, but 1,200 feet for seven to 14 residents; so staff is proposing to amend the Ordinance to be consistent with the State. She stated the State also requires a 500-foot spacing for group homes with more than seven persons from a single-family residential zoning classification; and staff is proposing to include that in the County’s regulations. She stated they are also proposing to remove the facility standards on bedroom space, dining room space, recreational space, etc. and instead will defer to the State’s regulations, which set forth facility standards. Ms. Sobrino advised, pursuant to the Fair Housing Act, staff is also building in a reasonable accommodation clause; there are certain circumstances where a group home may not be able to meet some of the spacing requirements; and that section of the Code would enable the Board to review such circumstances and provide some guidelines for determining whether there are particular reasons why a group home may need to locate in a certain area even though it cannot meet the spacing requirement; and that would be an avenue for relief. She stated they are also moving the parking and site plan requirements in the Zoning Code to the Land Development Regulations since they usually regulate those types of requirements.

Chairman Scarborough stated Ms. Sobrino advised him that certain classes of people are protected under federal law; and requested she explain that to the community. Ms. Sobrino advised under the Fair Housing Act, there are protected classifications of persons; and the County Attorney may be able to give insight to the legal aspects of that. She stated they are recognizing any protected class set forth in the Fair Housing Act and providing the reasonable accommodations requirements. Chairman Scarborough inquired if the County has to put those provisions in because federal law compels it to do so; with Mr. Knox responding he is not an expert on the Fair Housing Act, but since this is just for advertising, he can bring back a memo explaining it in detail. Chairman Scarborough stated some of these things are driven by initiatives and some are required by federal and State laws.

Commissioner O'Brien inquired if the federal and State laws already set out the rules, what purpose does a County ordinance have; with Mr. Knox responding the ordinance is set up to regulate local land uses; the federal law says if the County is going to do that, it is fine, but there are restrictions of how far it can go with the regulations as they apply to those types of people, such as the disabled or those with special needs. Commissioner O'Brien stated instead of amending the Ordinance, they should strike out everything and refer to the federal and State laws; with Mr. Knox responding the Ordinance covers more than those types of people. Commissioner O'Brien inquired to what extent; with Mr. Knox responding the federal law covers certain kinds of people; and the County’s Group Home Ordinance goes beyond those type of people and include those who are not suffering from disabilities. Mr. Knox stated the State and federal laws do not say where group homes can and cannot be allowed, but have certain restrictions about what the County can put in the ordinance that limits people’s ability to find places in residential neighborhoods. Commissioner O'Brien inquired if they are defined; with Mr. Knox responding yes. Commissioner O'Brien stated then the ordinance is not necessary; with Mr. Knox responding it goes beyond disabled people; it is a land use and zoning issue; the Board gets to decide what regulations apply to group homes; but the federal government says there are certain situations when the Board cannot use discrimination tactics in a group home ordinance. Commissioner O'Brien requested a report to the Board that delineates between the laws of the State and the ordinance and if the ordinance compliments the law or make it better, worst, stronger, or weaker. Mr. Knox stated he will prepare that memorandum for the Board. Commissioner O'Brien stated if it is all about spacing, separation, etc., those do not need to be added to the ordinance because that is the law. Mr. Knox stated it is not as simple as that; and he will prepare a memorandum so the Board will understand more about it. Commissioner O'Brien stated he would like the memo to describe what the Board is talking about; and if it is the same as the State law, then the County should not waste paper.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant permission to advertise proposed amendments regarding group homes; and direct the County Attorney to provide a memorandum to the Board concerning the County’s ordinance complimenting State and federal laws. Motion carried and ordered unanimously.

WAIVER OF PERIMETER BUFFER, WIDTH OF RIGHT-OF-WAY, AND SIDEWALKS,
RE: ST. PATRICK PUD

Ed Fleis advised the proposed project is St. Patrick Planned Unit Development (PUD); it is located off Viera Boulevard between U.S. 1 and Murrell Road; and the Board approved a preliminary development plan for the project on February 3, 2000. He stated he met with a number of staff members, put together a pre-application package to submit to staff for their comments, and found out there needs to be clarifications on how to proceed in a PUD zoning classification. He stated in many cases the Land Development Regulations come into play;
there are other cases where they are looking at waivers; the project is 155 acres approved for 615 single-family homes; and when the preliminary development plan was approved by the Board, it was based on a site plan that was prepared without having done the field work for wetlands and scrub jays. He stated since then, they have done the wetlands and scrub jays work, and found out the wetlands are located on different areas than shown on the plan; they are looking at scrub jays on the site and what they can do to preserve the occupied scrub jay site; and to do that he needs more flexibility with design, which is the primary purpose of the PUD. Mr. Fleis advised he submitted a request for six waivers; but even after working on the waivers and meeting with Peggy Busacca, Mel Scott, Ed Washburn, and Rick Enos, it became evident there has to be clarifications made within the PUD Ordinance. He stated his initial request is to reduce the width of the streets within the single-family attached and detached pods from 26 feet to 24 feet back of curb to back of curb; and the smaller streets will provide a more efficient use of land and reduce development costs while providing an adequate road for ingress/egress, including emergency vehicles. He stated Section 62-1442(5) talks about trying to be creative and innovative, preserve open space, and efficient use of land, which may result in smaller streets and utility networks; when he brought it up to staff, he did not think they had a real objection to it, but they did raise concern about safety issues, fire trucks getting through, and what would happen with narrower roads. He stated 24 feet was the standard width for local streets until about eight or nine years ago; the main road into the development would comply with the standards for a collector road; and they are asking for approval to go from 26 feet to 24 feet for roads in the single-family attached and detached pods.

Chairman Scarborough stated he will take the items one at a time; and inquired if staff had any comments or objections; with Permitting and Enforcement Director Ed Washburn responding the only concern he had is if people park in front of residences on each side of the street at the same location, they could not get an emergency vehicle through; so if the parking is limited to one side of the street, he would not have an objection.

Commissioner Higgs inquired if the Board has the authority to grant that kind of waiver under the PUD Ordinance; with Mr. Washburn responding yes, through the Subdivision Regulations. Mr. Washburn noted the Land Development Engineer could have done that, but staff decided to bring it to the Board.

Chairman Scarborough inquired when will the community get something for the waivers, and is this a binding site plan action; with Mr. Washburn responding when Mr. Fleis presents his plans, it will become binding. Chairman Scarborough inquired if the Board can hold all the requests in abeyance and none of it will become effective unless the community is given something by the developer. He stated his problem is the Board never gives a person property rights; the property is fluid and moves between different owners; so if it is dealing with one person and the person changes, then it has a dilemma without a simultaneous commitment. He noted the County’s commitment is to be more lenient and the developer’s commitment is to open areas. Commissioner Higgs stated the Board wants to make sure it gets the whole deal if it is giving anything. Commissioner Carlson stated it is hard to go through the items one-by-one because one affects the other. Chairman Scarborough stated they are all extractions from the County; and rather than jump around with questions, the Board can take them one at a time then put them as a whole at the bottom line; question 1 is on the table; and inquired how would the Board know what it is going to get. Mr. Fleis stated he does not think the County would quite get that; they are at the submittal of a pre-application stage; the kinds of comments they got back from staff basically dealt with subdivisions; and this project is a PUD where there is supposed to be a lot more flexibility and creativity in the design. Chairman Scarborough stated Mr. Fleis told him the flexibility should be granted because the plan is a better plan that has other things not mentioned in the letter; and inquired how does the Board put it together as a package.

Mr. Fleis stated the preliminary development plan was approved by the Board with 32 acres of open space preserved, enhanced, or provided on the site; now they are looking at preserving, enhancing, and providing about 43 acres; and that is about 11 acres more. He stated what they are looking for is how can they be creative. Chairman Scarborough stated the Board is willing to be creative, but contractually it has to bring it together; it is ready to talk; and inquired how does it know it has not given away the farm and find it has been sold. Ms. Busacca advised it will come back as a preliminary plat; and if Mr. Fleis does not do what he represents to the Board, the Board will have the ability to deny the preliminary plat at that time. Chairman Scarborough inquired on what basis; with Ms. Busacca responding Mr. Knox can tell the Board there is a portion of the Code that says there is flexibility for the Board, much as it discussed with Sawgrass development; and the Board has the discretion to say it is not consistent if it does not represent what he told the Board. Mr. Knox stated it is a PUD, so the Board has more flexibility dealing with all kinds of conditions it can impose to the extent he makes representations today that he is going to do certain things and does not do it. Chairman Scarborough inquired if they are representations or firm commitments; with Mr. Knox responding it is how the Board wants to handle them; and if it wants them to be conditions, it can make them conditions. Chairman Scarborough noted Mr. Fleis may walk away with concessions from the Board and not conditions. Commissioner Carlson stated and he would have waivers for three basic things. Mr. Knox stated it is still part of a PUD, so however, the Board works it into the plan, it has to be part of whatever future development permits are required, including the preliminary plat. Chairman Scarborough stated they are concessions and his problem is he does not know what the County is going to be getting; and inquired how would he know that side. Mr. Knox stated if the Board does not know that and is concerned about it, it should not make concessions until it knows what it is going to be.

Commissioner Carlson stated when the Board looked at this development before, it was from a different person and it was a different plan; there was no binding development plan (BDP), but there was a motion and specifics that were ironed out; and she would like to see it all come together so Mr. Fleis has the flexibility to do some of the neat things he wants to do. She stated the Board may need to create a BDP or something that sticks because there are so many different things it could waive; part of the reason he is trying to do that, even though it is a PUD and gives a lot of flexibility, the actual Ordinance says minimum this and maximum that; so there are a lot of descriptions on a PUD. Commissioner Carlson stated for the Board to do whatever it wants to see done in a PUD, it needs to look at what are the give and takes in a big picture format; and the only way to do that is to come up with a BDP that establishes that when the preliminary plat comes back. Chairman Scarborough stated that is fair, and the Board will go through this today then come back with a BDP that will incorporate all the thoughts if that is okay. Mr. Fleis stated he has a problem with a BDP; he does not know what that is in a PUD because the Board already approved a preliminary development plan; and they have to stay consistent with that plan. Chairman Scarborough stated it is okay to be creative; it will be creative for the developer if the Board reduces the size of the streets and the sidewalks; but it may not be creative for the person who is going to have a house in there some day. Mr. Fleis stated in giving up ten more acres, what can the Board consider waiving so he can do a better development and one that is more in harmony with nature. Chairman Scarborough stated the Board can talk about it, but it needs to make sure it has closure.

Mr. Knox stated one of the ways the Board acts is through resolution; so if it is going to grant x number of waivers for certain purposes and expects to get something back, it can put that in a resolution format, which is equivalent to a BDP that sets forth the conditions under which the waivers will be granted.

Commissioner O'Brien inquired if Mr. Fleis is giving up ten acres of land; with Mr. Fleis responding one of the first things a developer looks at is whether or not to mitigate off site and impact the occupied scrub jay habitat or try to work with it on site; there are other environmental features on the site; they have to consider all the alternatives; and in this case they are trying to preserve the scrub jay habitat on site, which means saving a parcel of land and working around it with the development. Commissioner O'Brien inquired if that land is developable; with Mr. Fleis responding yes. Commissioner O'Brien inquired what is the mitigation; with Mr. Fleis responding for scrub jay habitat it is four to one and the choices the developer has to look at is off site mitigation and do an incidental take or mitigate on site. He stated a lot of developers mitigate off site because of the difficulties of trying to work around preserved lands; that is what they are trying to do; but to do that they want to know if they have a certain amount of flexibility to work with so they can still attain the amount of units in a different fashion than shown in typical subdivisions. Commissioner O'Brien stated item 6 says to waive the required 15-foot perimeter buffer imposed by Ordinance No. 01-77; however, the Board denied Dick Thompson his request for perimeter buffer waiver about a month ago.

Mr. Fleis stated there are issues that should go back to staff and have them make another recommendation; when the PUD was approved, there was extensive discussion about the boundaries of the site and the planned development plan required; and the developer proposed a 25-foot vegetative setback from Indian River Colony Club developed parcels and also a wall to be constructed there. He stated on the other side by Holiday Springs is a 25-foot vegetative buffer; they are not changing that; the Board also approved waivers of no buffers on the north and south sides and part of the east side next to wetlands; a year later it has a new Ordinance that creates a 15-foot perimeter buffer; and inquired how does that work with what the Board previously approved on the PDP. Commissioner O'Brien inquired if they have vested rights; with Mr. Fleis responding that is a clarification; he does not know if it is a waiver, but when he met with staff, there was a question whether it is waived or imposed; and they cannot go forward until they know what that situation is.

Chairman Scarborough stated there was a site plan earlier today for property north of Port St. John bordered by Florida Power & Light Company’s right-of-way; the Board considered why it would need the 15-foot buffer; Mr. Fleis has a good point; but he would like to go down item by item so he does not miss any; and when the Board gets to that one, it can go into further detail. He inquired if the Board waived the 26 feet to 24 feet before, and when was the last time it did that; with Mr. Washburn responding he does not recall any waivers, but it used to be 24 feet back to curb. Commissioner Higgs inquired if speeds are relative to how wide a lane needs to be; with Mr. Washburn responding some people say a narrow street has traffic calming devices. Commissioner Higgs stated if traffic calming is a good idea and they are willing to go with a lower speed limit, the Board might consider it a useful thing. Chairman Scarborough inquired if the Board wants to discuss Item 2. Mr. Fleis advised it reduces the width of right-of-way from 50 feet to 40 feet within the single-family pods and provides utility drainage and street easements five feet on each side to comply with the 50 feet. Chairman Scarborough stated the request is 30 feet. Mr. Fleis stated he presented a plan to staff to review for the pre-application, and the comment came back that the requirement is 50 feet; with townhomes it imposes a very high front setback from the right-of-way; and staff said there are provisions to go from 50 to 40 feet, but he wants 30 feet.

Mr. Fleis stated there is a problem how the PUD Ordinance brings in the Subdivision Ordinance; on his page 221 called Development Standards, it says, “The minimum construction requirements for streets or roads, sidewalks, sewer facilities, utilities, and drainage shall be in compliance with Article VII of this Chapter pertaining to subdivisions.” He stated what staff interpreted it to mean is that he has to come into compliance with all the requirements of Article VII; and that is not what it really says. He stated it was intended to be that they had to go to that Section of the Subdivision Code, Article VII, to get the design standards for sub-base, base, and pavement, but not the right-of-way width in a PUD.

Chairman Scarborough stated Mr. Washburn handed the Board a document that says 40 and 5 as opposed to 30 and 10; and inquired if the request was changed; with Mr. Washburn responding in the attached single-family area he can go from 50 to 30 feet for right-of-way and make up the 20 feet on the lots with easements; staff has not done that in the past, but it is not that it cannot be done; and staff has done it internally in the single-family portion. He stated No. 3 is to reduce the right-of-way width from 50 to 40 feet and make up 10 feet on either side with easements; however, staff has not gone from 50 to 30 feet.

Commissioner Carlson inquired how is the Subdivision Ordinance introduced into the PUD Ordinance since there is a new Open Space Ordinance, and can it be utilized in this sense and give Mr. Fleis the flexibility that he needs; with Planning and Zoning Director Mel Scott responding unfortunately it cannot be used; the Open Space Subdivision Ordinance was something that the private sector could take advantage of without the benefit of rezoning; staff hoped to bring them into that process with incentives, one of which is density; however, in the PUD, they already have incentives built in. He stated the table that is part of the Open Space Subdivision Ordinance has built-in conversions for all single-family zoning classifications except PUD’s because they already had built-in incentives; so it cannot apply to this project; and he would have to rezone his property to something other than PUD to get the conversion table and use the Open Space Subdivision Ordinance.

Commissioner Higgs stated the County wants to have maximum flexibility to achieve the additional ten acres of preserved open space in this area, which environmentally is important because species are at risk. She inquired how can the Board do that without going through each item. Mr. Washburn responded if the Board agrees with the waivers; with Commissioner Higgs responding she does not agree unless she knows what the County is going to get. Mr. Washburn stated whatever the Board agrees with, it would be his recommendation that it consider saying it will approve the waivers subject to presentation of a preliminary plat containing the additional open space, which Mr. Fleis said was 11 acres that he would give. Commissioner Higgs stated it could be passed in the interim because going through the actual plat would be time consuming and costly; and inquired if the Board could direct Mr. Washburn to meet with Mr. Fleis and discuss those items and come back to the Board in the next few weeks with recommendations, understanding that the Board is willing to entertain the waivers if it feels it is getting something worthwhile. Mr. Washburn stated they can do that; he can tell the Board his recommendations now; but it may be beneficial to meet with the applicant.

Commissioner Carlson stated that is the only way to really do it because the Board went through a lot of time and effort with the original plan, homeowners associations, etc. with the previous applicant; so staff could come back with what they are willing to provide based on the waivers they want, whether in resolution or report format. She stated that would be a better way to go, then the Board can take the next step; but it may require meeting longer and working with staff on some of the issues. Mr. Fleis stated he would do that, but there is another issue that has come up on the clarifications. He stated the issue is what is a substantial change; and it is clear what it is, but staff tells him they are not confident in making any change, so that means it has to come to the Board.

Chairman Scarborough stated he has a problem not calling the waivers substantial because when he asked if the Board waived those before, no was the answer; once the door is open, a lot of people will come in; and he wants to make sure the Board has an agreement showing what was given to the County for the waivers. He stated it needs to be sent back to staff to find out exactly what the County will get.

Commissioner Carlson stated she understands the perspective in terms of needing the waivers to be flexible because the Board wants it to be flexible and wants to see more PUD’s, but it is hard to deal with the whole issue; and there are too many waivers and the potential implications of one versus the other. She stated it is something the Board cannot get its arms around right here and needs to sit down and work on it a little more; so she will move to table the item.

Motion by Commissioner Carlson, to table waiver of perimeter buffer, width of right-of-way, and sidewalks in St. Patrick PUD.

Mr. Fleis inquired if it can be set for the next Zoning meeting. Commissioner Carlson inquired if staff can get it together by then. Chairman Scarborough responded staff said no. Commissioner Carlson recommended September 17, 2002; with Assistant County Manager Peggy Busacca responding they would have to have it done by next week because that is the deadline for the September 17 Agenda, so September 24 would be more reasonable. Chairman Scarborough stated there are complex issues involved; and the Board is going to be disappointed if it pushes staff and will have to spend more time with it in the end.

Commissioner O'Brien stated the request is to reduce the width of streets in single-family attached and detached pods from 26 to 24 feet; smaller streets will provide a more efficient use of land and reduce the cost, etc., and refer to Section 1442(b); and inquired what does Section 62-1442(b) of the Ordinance say. Mr. Scott advised in Section 1442(b), under the purpose and intent section of the PUD Ordinance, there are a series of paragraphs that set forth the spirit of the PUD zoning classification; Mr. Fleis is saying that it talks about encouraging developers to be innovative with their designs, which includes narrowing streets, tighter grids, etc.; so he is supporting the premise he can go from 26 to 24 feet based on that provision. Mr. Scott stated he agrees that Mr. Fleis is entitled to request that for the PUD. Chairman Scarborough stated the issue of creative becomes a part of the whole rather than individual. Commissioner O'Brien stated he just wanted to know what the Ordinance said; and if the Ordinance says it is supposed to be 26 feet, then the Board should go with the Ordinance. Mr. Scott stated that section does not contain specifics; and it is the introductory paragraph that sets the spirit of the PUD zoning classification.

Commissioner Colon stated when she met with Mr. Fleis in her office, he wanted to find out if he was going to get the blessing of the Board in regards to how creative he was going to get; obviously they are receptive and are going down the avenue he wanted; so she is excited about what is happening here. Mr. Fleis stated his biggest concern is the time frame.

DISCUSSION, RE: CURRENT CODE ON FENCE PLACEMENT

Frank Blaylock advised he is in violation of the Building Code by putting up a privacy fence because his neighbor on three occasions denied him access to her property to nail the fence from her side in order to put the good side toward her property; and requested recommendations on what he can do to comply with the Code. He stated he would have to trespass in order to nail the fence or move in far enough on his property; his neighbor told him not to step foot on her property under any circumstances; so he nailed the fence the only way he could from his side of the property. He stated he is looking for recommendations on what he can do, other than give up two or three feet of his property, to nail the fence; one County employee suggested he did not need to put up a fence; but he has as much right as anyone else to put up a fence. Mr. Blaylock stated in order to meet the Code he would have to violate the law of trespassing; and unless the Board can come up with a solution to his problem, he is requesting it change the Ordinance that says he has to give her the good side of the fence.

Commissioner O'Brien suggested running a stringer at the post, sinking screws to pull the fence into his side of the property, or drilling through the 4x4 and put a rosette on the end, then have a long enough bolt to reach through and pull the fence to his property. He suggested another way isto put a 2x4 off the side of the 4x4 and toenail it in, then nail or screw the fence to the 2x4. Mr. Blaylock stated if Commissioner O'Brien would draw it out, he will try it; the fence is erected; he was denied access to the neighbor’s property and knew there was going to be a problem, so he contacted the building inspector and discussed it with him; and his comment was to write a letter explaining what had happened, and he would put it with the building permit, and there probably would not be a problem. He stated unfortunately, there was a problem; and the lady complained even though he told her he had to get on her property to nail the fence. He stated if Commissioner O'Brien can detail what he is talking about, he will try it even if he has to take the fence down and re-erect it; however, the logical thing to do is change the Code because it does require a criminal act of trespassing to comply.

Chairman Scarborough stated before the Ordinance was passed, there were a lot of complaints; this is the first event the other way; and whatever the Board does will have a certain amount of problems. He stated he understands Mr. Blaylock’s dilemma of trespassing; and inquired if staff has any suggestions. Mr. Washburn stated he is not sure what distance it takes to nail a fence, but a lot of people put their fences a foot inside their property line. Mr. Scott stated they see a lot of fences inside the property lines, especially block walls or stucco fences, primarily for maintenance purposes. Chairman Scarborough stated the Board does not want to change the Ordinance.

Mr. Blaylock inquired if there is a way he can get a variance. Commissioner Carlson inquired what does Mr. Blaylock have to do now if there is a Code violation; with Mr. Washburn responding Mr. Blaylock will be going before the special master because he is in violation of the Code; and he could ask for a variance, but he has to demonstrate hardship; and that would be up to the Board of Adjustment.

Commissioner O'Brien presented a diagram to Mr. Blaylock; noted he could use metal brackets and screws; and explained what can be done.

REQUEST TO ISSUE PERMIT, RE: INSTALLATION OF SHED AT 4125 LITTERALL
LANE IN VALKARIA

John Richard Volk, Sr., representing his son John Richard Volk, Jr., presented documents to the Board but not the Clerk; advised his son is at work and wanted to be here but does not get paid if he does not work; his son wants to be in full compliance with the Zoning Code and spirit of the Code; and identified on the survey where he wants to locate a shed. He stated he is being told to stay behind a line that he identified on the survey, so the only place he can put the shed is in the front yard; the front of the property is Litterall Lane, which was established in 1978 when the house was built; and no reasonable person viewing the property would conclude otherwise. He stated if the Board would look at the pictures, it is quite evident that Litterall Lane is the front of the property; his son is entitled to full use of the property; the lot is a nonconforming lot and less than 200 feet deep; but that does not preclude building a house and placing accessory buildings on the lot provided other Codes are not violated. Mr. Volk stated he does not believe putting the shed where the green mark is would violate any Codes; other factors are the mailing address is 4125 Litterall Lane and has been that forever; the Energy Management is on record to go on Litterall Lane to access the property; Florida Power & Light Company is the same way when they put the power in; and when the permit was pulled, the address was Litterall Lane. He stated there is no access from Valkaria Road; there is a 25-foot wide by 20-foot deep canal that runs the complete length of Valkaria Road; and the property cannot be accessed from Valkaria Road. He stated along Valkaria Road is a barrier of trees, hedges, and shrubs; the house cannot be seen from Valkaria Road; and for staff to insist the front of the property is Valkaria Road is incorrect. Mr. Volk inquired what is the purpose of the 200-foot depth requirement; stated apparently it prohibits odd-shaped lots, such as long skinny pieces of property or a circle, etc.; and the purpose would not be violated here, no matter what the Board rules, because putting up a shed will not change the size or shape of the lot. He stated he believes the reason the situation arose is because it is a double frontage lot; it has frontage on two streets; that cannot reasonably be disputed; and staff can parse the language of the Code all it wants, but the fact is the lot fronts two streets. He stated the Zoning Code of Brevard County clearly states, “A double frontage lot is defined as a lot that has frontage on two streets. In the case of double-frontage lots, one such lot line shall be elected by the owner to be the front line for the purpose of this Article.” He stated the owner elected Litterall Lane as the front of the property in 1978; and he uncovered other facts.

Chairman Scarborough advised Mr. Volk’s time expired; with Mr. Volk responding he only has a few more issues. Mr. Volk stated he found 20 properties that are less than 200 feet deep that have homes built on them and they were interior lots; 16 of those properties have no variance dealing with the 200-foot depth, and four do; the precedent has already been set; and the 200-foot depth rule for RR-1 properties cannot and is not enforced. Chairman Scarborough advised Mr. Volk his time has expired; and inquired if the Board wishes to extend the time.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to grant Mr. Volk an extra minute to complete his presentation. Motion carried and ordered unanimously.

Mr. Volk advised there are other Zoning Code provisions besides lot depth requirement; most important are provisions that prohibit homeowners from placing sheds in their front yards; and inquired what is the purpose of that, and is it aesthetics. He stated it will be unattractive to place a shed in the front yard; and putting a shed in his son’s front yard will be consistent with the lot depth rule, but would result in violation of the provision that prohibits construction of such structures in the front yard. He stated he believes the proper place for the shed is on the left side of the house; but he was told by staff the only place he can put it is in the front yard.

Chairman Scarborough stated staff’s reasoning is the strict interpretation of the Code; the Code was created for aesthetics; and they do not want sheds in the front yard.

Commissioner Higgs stated in discussions with staff, part of the problem could be rectified if the RR-1 lots were defined based on dimensions of certain width and depth and not 200 feet depth; RR-1 requires one acre; and inquired if the Code says one acre, is it essential to have the depth of 200 feet. She stated Mr. Volk identified a number of RR-1 lots that did not meet the requirement; and the first step to solve the problem and make more rational sense is to ask staff to analyze the detrimental effects of defining RR-1 as one acre with a minimum width and depth, but not necessarily the 200 feet.

Chairman Scarborough inquired if the Board has the authority to say in this case, while it does not meet the literal intent, it meets the aesthetic purpose; with Mr. Knox inquiring if Chairman Scarborough is asking if the Board has room for interpretation of the Code. Mr. Scott stated he does not believe the Board can do that because the Code directs the user of the Code from what vantage point to calculate depth; so following the definition of lot depth, he can only calculate that depth from Valkaria Road to achieve the 200 feet. He stated it is not a nonconforming lot of record; it is a lot that meets the dimensions of RR-1; but it cannot meet the depth dimension from Litterall Lane. He stated this is one of the classic cases staff comes up against dozens of times a week where they might empathize with the client but understand they are here to implement the strict reading of the Code, which brings them to this conclusion.

Commissioner Higgs inquired if Ms. Busacca has come up with any adverse conditions that would come about as a result of reevaluating how to define the depth of an RR-1 lot; with Assistant County Manager Peggy Busacca responding it would make sense to say minimum dimensions and not necessarily lot depth and width; so it is worthy of staff to put their heads together and see if they can come up with any other reasons why the minimum dimensions rather than the minimum lot width would not work. Commissioner Higgs stated if the Board did that, it would say the depth would not be a problem on this lot or any lot, and Litterall Lane would be the front and the depth would be conforming to RR-1.

Mr. Scott stated the Board could come to that conclusion theoretically, but he would caution the Board when it gets into smaller lots, it would be allowing citizens to determine the front of their house and the neighbors would not have certainty as to what a rear or side setback might be next to them. He stated typically staff has subdivisions set up with side setbacks less than the rear setbacks; but if the owner of the property was able to flip the depth up, it becomes more acute with smaller lots because it loses the certainty around that lot regarding what kind of spacing it is going to have.

Commissioner Higgs stated she is not asking to do it on any other classification other than RR-1; so her recommendation is to look at the problem because she does not want the shed in the front of the house; and requested staff provide a report on the effect of changing the depth dimension on RR-1 lots. County Manager Tom Jenkins inquired if Commissioner Higgs wants a legislative intent; with Commissioner Higgs responding she is not asking for a change, just a report first. Mr. Jenkins stated it would move more quickly if staff went directly to legislative intent, but not an ordinance. Commissioner Higgs stated that would be fine.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to direct staff to provide legislative intent on the affect of changing the depth dimension of RR-1 lots.

Commissioner O'Brien inquired if his address is Litterall Lane, can the Board assume that is the front of the house; with Mr. Scott responding no, the Zoning Code does not dictate what the address has to be nor how they need to situate their house; in this instance, this is a corner lot and not a double-frontage lot; and the owner chose to drive down Litterall Lane because Valkaria Road has more trips and use it as his address and for all practical purposes have that be the front yard. He stated when it comes time to place a shed on that property, staff is left with only one way to look at this; and that is the shed needs to not face Valkaria Road, but face the interior of that lot or behind the house. He stated this is also a classic variance candidate; and the Board of Adjustment hears about 50 to 60 of those cases a year.

County Attorney Scott Knox advised Mr. Scott has put out two options that are available to Mr. Volk; one is to apply for a variance and the other is to appeal staff’s decision that it is not a double-frontage lot; and he is curious as to what the rationale for not being a double-frontage lot is in this case. Mr. Scott stated the Agenda Report omits a few words and phrases in the definition of double-frontage lot, which are critical; the double-frontage lot provision is a circumstance they do not come across a lot, but it is typically where they have roads on either side of the lot; it is a through lot; and this lot is a corner lot. Mr. Scott stated deciding that a property can be a corner lot and a double-frontage lot puts staff in a position, which he does not think the Code intended, of compromising certain Code provisions to implement other Code provisions; and in this circumstance it is a corner lot. Mr. Knox stated if Mr. Volk is appealing the double-frontage lot provisions, then the Board has to make the choice whether it believes it is a double-frontage lot or not; and the definition set forth in staff’s report seems to have some room for discussion whether it is or is not. Mr. Volk stated he can go on line and scan through and look for double-frontage lots; it is only referenced in three areas; one says double-frontage lot, other than a corner lot or waterfront lot; so they do classify double-frontage lot as a corner lot in the Code on page 315.

Commissioner Colon inquired when would Mr. Volk come back; and would it be at the same meeting the Board actually changes the Code so he would probably have another month according to how everything goes. She noted he can tell his son he did a wonderful job.

Commissioner O'Brien inquired if the Board intends to change the Ordinance; with Chairman Scarborough responding the Board will be looking at it. Commissioner O'Brien stated if the Board could abate Code Enforcement and allow Mr. Volk to put the shed where he wants to place it. Commissioner O'Brien inquired where is the front door; with Mr. Volk responding on Litterall Lane. Chairman Scarborough stated Valkaria Road is basically blocked off and grown over, so it is not the front; but the wording in some Ordinances is what has caused the problem. Mr. Volk stated he found 20 and there is probably more that are not 200 feet. Commissioner O'Brien inquired if the lot is an acre; with Mr. Volk responding it is a little less than an acre.

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

AGREEMENT WITH FLORIDA DEPARTMENT OF TRANSPORTATION, RE: TRAFFIC
SIGNAL MAINTENANCE AND COMPENSATION

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to execute Agreement with Florida Department of Transportation for traffic signal maintenance and compensation. Motion carried and ordered unanimously.

AGREEMENT WITH THE VIERA COMPANY, RE: VIERA REGIONAL PARK

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to execute Agreement with The Viera Company accepting donation of land for the site of Viera Regional Park. Motion carried and ordered unanimously.

APPOINTMENTS, RE: COMMUNITY BASED CARE OF BREVARD, INC.
BOARD OF DIRECTORS

Commissioner Higgs advised the Board talked about being involved with the responsibility of children in Brevard County who will be in foster care; this item requests three appointments, a Commissioner, Housing and Human Services Director, and an Assistant County Manager; and she would like to volunteer as the Commissioner.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to appoint Commissioner Nancy Higgs, Assistant County Manager Stockton Whitten, and Housing and Human Services Director Gay Williams to the Community Based Care of Brevard, Inc. Board of Directors.

Commissioner Colon advised the meetings regarding negotiations with DCF will probably take place in Orlando for the first couple of months; but it should come back to Brevard County because that is where the Community Based Care of Brevard, Inc. is; and she hopes future meetings will be here. She stated she does not have a problem with negotiations being in Orlando, but most of the meetings should be here; and inquired if Ms. Williams has any feedback on that; with Housing and Human Services Director Gay Williams responding not at present, but she could make sure that is addressed and hopefully it will be the case.

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

PERMISSION TO BID, RE: CLOSURE OF NORTH AND WEST SLOPES OF CENTRAL
DISPOSAL FACILITY

Commissioner Carlson inquired, because of the issue the Board had in terms of solid waste, can the Board get an explanation of why it costs so much to close a landfill.

Solid Waste Management Director Euripides Rodriguez advised one of the major reasons that it costs so much is the care that has to be taken when they lay the first 12 inches of soil on top of the garbage. He stated a layer of plastic (the non-technical term) has to be soldered and tested to insure there is no leakage, pipes are laid out all over the place to collect the methane gas in order not to pollute the air, and additional dirt is required; and all of that has to be certified by engineers and meet Department of Environmental Protection standards. County Manger Tom Jenkins advised approximately half the cost is the methane collection system; with Mr. Rodriguez responding that is a very expensive component of the project.

Commissioner Carlson inquired if staff will go out to get estimates for the closure; with Mr. Rodriguez responding the estimates are prepared by an engineer; staff is asking permission to bid the project; and when the bids come back and are reviewed, staff will return to the Board for permission to award the bid.

Commissioner Higgs advised the Agenda Report says it is pursuant to a Task Order approved with the consultant, that it has been permitted by Florida Department of Environmental Protection, and the specifics on both closures have been approved. Mr. Rodriguez advised they have been approved by Department of Environmental Protection. Commissioner Higgs stated the north slope needs to be closed first; and it is critical to the permit to move forward on that. Mr. Rodriguez advised the north slope has the oldest garbage; that is where construction would start; and it is the most critical portion to close out. Commissioner Higgs inquired if the project could be separated into the north and west closures; with Mr. Rodriguez responding there is a potential to do that; and staff could return in six months to start the process for the west slope.

Assistant County Manager Stephen Peffer advised State law requires closure occur within a timely manner and according to specific requirements that include the amount of fill, geo-membrane liner, gas collection system, leachate control, stormwater management, and others. He stated the County will meet State requirements and insure public safety and welfare of the residents who live near the landfill. County Manager Tom Jenkins advised the landfill is in Central Brevard.

Commissioner Higgs stated she understands a number of the aspects, but not all of them; and much of the discussion in recent weeks about the landfill makes her very sensitive that people do not understand a lot of the things that the Board has talked about over the course of ten years. She stated it would be very important to have a workshop for the Board to go over the plans that have been in place and have been discussed over the last eight to ten years so that there are no misconceptions in any of their minds about what is planned, what has been planned, what the long-term plan is, and how it all fits together to take care of the needs. She stated the Board talked about solid waste issues years ago when she and Commissioner Scarborough were on the Board; they talked about Deseret, how to minimize the amount of waste, etc.; and that history and discussions are lost in a number of discussions that are going on now, so she is reluctant to move forward on any of the solid waste issues until the Board has an opportunity to really workshop it and everybody once again puts on the table and discuss, both the Board and the public, where this issue is. Commissioner Higgs stated she can go ahead with the bidding on the north slope and closure of that part of the landfill, and at the same time schedule a workshop so that all the issues are discussed once again and the Board understands all parts of this complex situation. She stated there is a long-term plan, has been a long-term plan, and the Board needs to refresh everybody’s memory; she is reluctant to go forward on anything except the north slope, but do not want to stop what has to be done; so she would support the north closure today and a workshop so that everybody is back up to speed on what is involved.

Commissioner O'Brien inquired if after closure there are opportunities to use the land for recreation, such as grass skiing or a skateboarding park; with Mr. Rodriguez responding there is always that possibility, as baseball fields and all sorts of things are located on closed landfills; however, it has to be closed with that use in mind, especially if they are going to use more than just the top of the landfill. Commissioner O'Brien stated it would be important in the planning process for Mr. Rodriguez to meet with Parks and Recreation staff to see what recreational aspects can be pursued there after closure is completed and it is a safe area. He stated it should be put to good use; there are a lot of young people who have skateboards and would like to have a hill to ride on and have fun; and grass skiing is becoming a popular sport.

Commissioner Colon inquired about the time frame for closing the north slope; with Mr. Rodriguez responding the north slope should start this year, and the west slope should start towards the end of calendar year 2003. He stated they have to advertise for bids, receive the bids, review them, and make a recommendation to the Board, which could take about 90 days. Commissioner Colon stated because of the kind of scrutiny the Board has been under with the landfill, she wanted to make sure that staff is very careful and find out what other counties and municipalities that have landfills of similar size of Brevard County’s landfill have done with their closures and what kind of costs were involved. Mr. Rodriguez stated he can give the Board a good idea right now; to close out the north slope would be about $3.6 million; when they closed the east slope about five years ago, which was smaller than the north slope, it cost about $3.2 million; and that is a historical cost. Commissioner Colon requested the data in writing, not just from Brevard County, but all communities within the State. She stated she would like to have some comparisons so the Board will know exactly what it is talking about; if a landfill was closed five years ago, it would cost more now; and she would feel better if the Board has those numbers.

Chairman Scarborough inquired if Commissioner Higgs wants to make a motion to proceed with bids; with Commissioner Higgs responding she prefers to proceed with the north slope now and workshop all aspects of the solid waste program. Chairman Scarborough inquired if Commissioner Colon wants the Solid Waste Manager to bring back data on all closure costs throughout the State in recent years so the Board has comparables to look at as it reviews the bids; with Commissioner Colon responding affirmatively. Commissioner O'Brien recommended the recreational aspect be included, whether it is privatized or operated by the County. Mr. Jenkins stated that is a long use recreation and it has to be in the closing design. Chairman Scarborough stated it may be worth the additional cost to have the landfill available for recreational use after closure.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to grant permission to bid the Central Disposal Facility North Slope Closure Project; direct staff to schedule a workshop to review all aspects of the Solid Waste Program and recreational use of the landfill; and to report back to the Board with data on all landfill closure costs throughout the State in recent years that are similar in size to the County’s landfill. Motion carried and ordered unanimously.

The meeting recessed at 4:46 p.m., and reconvened at 5:04 p.m.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE, RE: ORDINANCES
AMENDING CHAPTER 94, SOLID WASTE CODE, AND CHAPTER 62, LAND
DEVELOPMENT REGULATIONS

Solid Waste Management Director Euripides Rodriguez advised the ordinance is a housekeeping task to comply with solid waste regulation changes from the State and bring them to the same level as the State. He requested the Board consider the legislative intent and grant permission to advertise a public hearing, at which time staff will return with the details of what they are planning to do.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the legislative intent of revising Chapter 94, Solid Waste, and Chapter 62, Land Development Regulations; and authorize staff to develop ordinances and advertise public hearings to consider amending those Chapters. Motion carried and ordered unanimously.

DISCUSSION, RE: WETLAND IMPACT ON SITE IN WICKHAM ROAD BUSINESS
CENTER ON INDUSTRY DRIVE

Barry Wallingford, owner of Atlantic Business Systems, advised of his residency, property ownership, and business venture, and stated he is in the process of developing new and larger facilities for his business and has a small poor quality wetland on his site that he would like a variance to impact to help him grow his business and employ more Brevard County citizens. He stated he will reserve the balance of his time for his experts Jake Wise of Construction Engineering and Jon Shepard of BKI Environmental.

Commissioner O'Brien stated he does not see why this item is before the Board when other developments are done by staff; with Natural Resources Management Director Conrad White responding staff did not see this until Thursday and did not have time to talk with the applicant. Mr. White advised typically when staff talks to people who are looking for permits, they discuss mitigation on site and configuring buildings to avoid wetlands; and if that cannot be done, then they look at mitigation off site. Commissioner O'Brien stated this presentation may be premature. Commissioner Carlson stated she would prefer for staff to look at it and come back with recommendations because wetland issues can be very complex. She stated the County has a Code it needs to abide by; and she does not know if it is applied in this case.

Jake Wise, Civil Engineer with Construction Engineering Group, advised the reason they are here is because they went to staff with an informal pre-application, which he does for all his projects. He stated when they surveyed the site, the first thing they did was to investigate the site to find out if there were any concerns with it; at that time a 0.13-acre wetland was identified; being a commercial/industrial site, they knew the Code required two developments prior to February 23, 1996, adjacent to their property to allow them to impact the wetland; so they went to staff with a pre-application and requested they identify whether or not, because of the unusual shape of the lot, it met that requirement. He stated it is a triangular-shaped lot with three sides; the property to the south was developed prior to 1996; the property to the west was developed after 1996; and the third side is the railroad. He stated because the railroad is private property, they considered it a commercial/industrial development prior to 1996, and asked staff to identify whether or not that qualified; staff said it did not qualify as development, so that eliminated one of the three sides of their site. He stated they are here so that the owner would not have to go through the site plan application process and spend a lot of money for fees involved when they could hopefully head it off and have a decision whether or not they could impact the wetland. Mr. Wise stated they feel they meet the intent of the Code although staff feels the railroad does not qualify as commercial or industrial development; and that is why they are here today to try and save his client time and money. He stated they worked with staff ahead of time; and staff gave them a letter stating the railroad, and thus the site, would not qualify to meet the two sides requirement.

Commissioner Carlson stated she can appreciate wanting to save money on the front end; and inquired if the Board has a copy of the letter from staff in the Agenda package; with Sherry Williams responding the Board should have a copy of that letter. Commissioner Carlson requested staff explain the provision they are talking about, the triangular parcel, and how that is treated in terms of the wetland issue; with Ms. Williams responding the Wetlands Protection Ordinance is very clear that industrial/commercial properties must be substantially surrounded by development prior to 1996 to be considered for wetland impacts. Ms. Williams advised development to the south was done in 1992; there is a property developed across the street but the substantially surrounded definition only looks at adjacent development and not across the street; and the building to the north was built in 2001. She stated the railroad has been there for quite some time, but staff considers it a transportation corridor similar to roads. Commissioner Carlson inquired what does the definition in the Comprehensive Plan say as far as treatment of roads, and if staff made their own interpretation about railroads and roads being transportation corridors; with Ms. Williams responding the substantially surrounded definition specifically refers to development crossroads not being considered.

County Manager Tom Jenkins advised the only variation is that the railroad is not publicly owned; it is a private for profit facility as opposed to rights-of-way that the government owns; and the Board may have to deal with the situation.

Chairman Scarborough inquired if the railroad is classified as industrial property by the Board today, not just for this case, but as a matter of fact, would the determination be such that the applicant would not have to come back to the Board later; with Ms. Williams responding if the railroad is deemed to be industrial/commercial use, the property would meet the definition of substantially surrounded. Chairman Scarborough inquired if the staff has adequately addressed railroads or is this the first time; with Mr. White responding this appears to be the first time. Mr. Wise stated the reason they feel it is commercial/industrial development is because it is private; and Florida East Coast Railway could sell the property, which could be developed as commercial or industrial. Chairman Scarborough stated everyone had their own recollection of why they went with the Ordinance; his thought was when property is substantially surrounded by a certain type of development, it would be problematic to move in another direction; and if that type of problem exists with a railroad to the same extent as some type of commercial or industrial operation, then it would be legitimate to say it has the same use. He stated it is not the size of the property, but the impact of developing the property as something other than what surrounds it; however, LaCita Country Club was developed next to a railroad track; so apparently it is not always impacted to the same degree that he historically thought it was.

Commissioner Carlson inquired what is the applicant asking for in terms of clarification of the interpretation of the Code or the railroad portion of it; with Mr. Wise responding they feel when the definition of substantially surrounded was developed, it did not consider triangular lots; their property is substantially surrounded on all three sides, but only two sides were developed prior to 1996, with one being the railroad; and if the railroad does not qualify, then the property only has two sides next to commercial/industrial development, but only one meets the Code. Mr. Wise advised the property is the back of an old industrial development that has been there for quite some time; the small wetland has been highly disturbed; and staff agrees with that assessment. He stated it looks like the wetland used to have a positive discharge, but perhaps maintenance of the railroad over the years blocked it off and it does not have much quality. He noted their ecologist is here and can testify to the fact that doing mitigation off site would be a better environmental condition; so they can have all the conditions improved if they are able to impact that wetland.

Commissioner Carlson inquired when the Board discussed the Comprehensive Plan amendments and talked about roads not being considered a facility that fits into the equation of substantially surrounded, can staff reflect back on the conversation as to why it chose to do it that way. Assistant County Manager Stephen Peffer advised the basic thought was trying to recognize the character of development that was occurring in an area and looking side to side along a road to see if property was abutting adjacent properties with similar type of development. He stated in this case it is commercial/industrial; and the Board, as he recalls the outcome of the discussion, did not wish to include property across the street and roads; so substantially surrounded could be three sides, but not the road side. Mr. Peffer advised this case is unique because the property is not four-sided; and it brings into question how the Board would treat that in terms of the definition of substantially surrounded. Commissioner Carlson stated the Board had another case like it at SR 520 and SR 524 with a triangular piece of property; and it was denied. Assistant County Manager Peggy Busacca advised that was a rezoning, which was denied for commercial use. Commissioner Carlson inquired if it was denied based on the interpretation of the wetlands policy; with Ms. Busacca responding yes.

Commissioner Higgs inquired if roads and railroads have a zoning classification; with Ms. Busacca responding no. Commissioner Higgs inquired if they have a land use designation; with Ms. Busacca responding no.

Commissioner O'Brien stated the wetland is 0.13 acre; the Board should picture how small that is; and perhaps the regulations should be changed to include a minimum size wetland. Mr. Wise stated this wetland does not fall under the jurisdiction of St. Johns River Water Management District or the Corps of Engineers because it is less than half an acre.

Commissioner Carlson inquired if the County Attorney can shed some wisdom on how to examine a railroad versus a highway since it is not public; with County Attorney Scott Knox responding it was probably not discussed when the Board talked about the Comprehensive Plan a long time ago; and the issue is whether the Board feels it is substantially surrounded when it only has three sides and two are commercial and one is a railroad. Commissioner Carlson stated if the Board considers the railroad as private, which it is and the Board knows it is, and considers the other one that falls under the date guideline, then they qualify under the Wetland Policy; the interpretation of whether a railroad is public or private is not a real question; it ought to be treated as commercial; and the Board cannot identify the railroad track as being anything but private, so it sounds like they meet the definition. She inquired if Mr. Knox thinks that is the case; with Mr. Knox responding he thinks the Board has room to make that interpretation, and if he was doing it, he might go that way. Commissioner Carlson stated she would like to know how the other Commissioners feel, and if there is a way to fix it; with Commissioner O'Brien responding he agrees that it is a highly-disturbed poor-quality wetland; the Board discussed how it would rate them; and they offered to mitigate the impact.

Motion by Commissioner O'Brien, to authorize wetland impact on a site in Wickham Road Business Center on Industry Drive of 0.13 acre as requested by Barry Wallingford.

Commissioner Higgs stated interpreting substantially surrounded on a triangular parcel seems to be the question the Board is dealing with; and inquired what does substantially surrounded mean; with Ms. Williams responding the definition says two sides; and whether it is two sides of a triangle or a quadrangle has never come up. Commissioner Higgs stated on one side there is a commercial/industrial use; then there is a railroad that has been there prior to 1996; staff never defined a railroad, but is saying because roads are part of the definition and a railroad is a transportation corridor, It is not calling it substantially surrounded; so the call is to the Board to determine substantially surrounded. She stated high quality or low quality of the wetland has nothing to do with the issue; the issue is what does substantially surrounded mean and does a railroad qualify as an industrial parcel; and in order to make that interpretation, there is a proper venue to render an opinion, but this is not it. Commissioner Higgs stated the applicant was rejected in writing by staff; and inquired if they have to come to the Board in a formal process to appeal staff’s decision. Mr. Knox advised Section 62-507 is the appeal process for the Comprehensive Plan interpretations. Commissioner Higgs stated there is a venue for appeals; the Board is not in that venue at this time; so she is not comfortable making a decision today. She stated there is a process to go through to appeal decisions of staff; and they have not done that. Mr. Wise stated this is the process identified by staff, and that is why they are here. Commissioner Carlson stated if that is the case, it would be an appeal, but it is not in an appeal form. Ms. Williams stated there has been no permit or site plan filed with the County; they came in for preliminary discussions on what they were thinking about doing and to find out what staff thought of it; and staff issued them something in writing based on what they were thinking of doing, stating according to the current Code they cannot approve the wetland impact. Ms. Williams stated no mitigation plan was submitted to the County, nor permits or site plans. Commissioner Carlson inquired what is the minimum they would have to submit to get to the point of an appeal; with Ms. Williams responding they would have to submit a site plan.

Mr. Peffer advised there is another matter that the Board will be hearing; that is the Sierra Club’s appeal; that case does not have a specific development proposal, but they are objecting to it; and they can appeal a staff interpretation according to the County Attorney. He stated it would seem in this case, where staff has interpreted the property as not being substantially surrounded because one of the sides is a transportation corridor, that would be the decision they would appeal; they could probably do that without submitting a site plan; however, they do have to follow the process Mr. Knox referred to as the Sierra Club has done in its appeal, and that step is missing in this process. Mr. Knox advised Section 62-507 requires an interpretation of some kind; they have received a written interpretation; so that can be appealed; however, the appeal has to go through the LPA or two public hearings; and that is why it is not proper today.

Chairman Scarborough stated if he disagrees with the interpretation that a railroad is a transportation corridor because a transportation corridor he assumes means the public can use it for their transportation needs, and it has a fairly intense usage that would fall into commercial/industrial type of connotation, and if the Board, on its own volition, changes or further defines railroads, it would eliminate the need to file an appeal. Mr. Knox stated what the Board would be doing is directing staff to change its interpretation; and that is within its realm. Chairman Scarborough inquired how would the Board do that; with Mr. Knox responding by saying it does not agree with staff’s interpretation.

Commissioner Higgs stated the Board can say it does not agree, but there is a mechanism to appeal staff’s decision; and that is the process they need to follow. Chairman Scarborough stated he agrees, but normally the Board would amend an Ordinance if it wants to further define or add something to it. Mr. Knox stated in the case of an Ordinance that is true, but in the case of a Comprehensive Plan, it is not as easy as that; and it has to go through the twice a year process. Mr. Wise stated the whole reason they went to staff in the beginning was to save the local business owner some money by not having to pay all the fees and go through the formal site plan submittal just to get rejected, and then start the appeal process; and that is all they are trying to do today. Commissioner Higgs stated there is potential to start the appeal process even without a formal site plan from what she heard today; but they would need to go through the appeal process. Mr. Wise stated this is the process that was identified to them by staff.

Chairman Scarborough stated the appeal should not be based on a site plan but upon the interpretation of whether or not the railroad is strictly a corridor or does it meet the criteria of commercial/industrial development for their property to be substantially surrounded; they would appeal that to the Board; and upon their appeal, the Board can render a decision, but there is a process they have to go through; and they should talk to staff about how to do that.

POLICY BCC-24, RE: ACQUISITION, SALE, OR EXCHANGE OF REAL PROPERTY

County Manager Tom Jenkins advised the Board directed staff to come back with revisions to the Land Acquisition Policy; staff has identified a number of potential changes and are submitting those to the Board in draft form; and the first one is expanding the title to also include sale and exchange of property in addition to acquisition. He stated the second change is the Board has the authority to establish agencies to proceed with acquisition or sale of property so staff would not be doing that on their own without prior Board approval; it also requires all acquisitions to be done by Land Acquisition unless the Board authorizes another agency to acquire property such as the Board has done with Parks and Recreation for the referendum projects as well as EEL’s; and it requires that property shall be purchased directly from property owners not persons holding contracts for sale or purchase options. He stated it also prohibits fast-track acquisitions unless pre-approved by the County Manager based on a demonstration of need; it requires all acquisitions valued at $1 million or more to be placed on the Agenda as new business; and it requires the financial history of the property be included within the Agenda information provided to the Board. Mr. Jenkins advised separate and apart from the Policy is an administrative matter; he has gone to the extent of establishing a Land Acquisition Committee, which would provide independent review of all land purchases in excess of $750,000; so under that scenario if a County Department is purchasing a piece of property, including land acquisitions in excess of $750,000, it would go through an independent staff committee to double check all the aspects of that acquisition to ensure it is in compliance with the Board’s policies and procedures. He noted those were the issues staff identified.

Chairman Scarborough inquired why was $1 million chosen to be on new business; with Mr. Jenkins responding it was an arbitrary number and could be any number. Chairman Scarborough stated if it is going on the Agenda, at what level does the Board have to approve it; with Mr. Jenkins responding right now the Board approves every acquisition, but this provision requires it be put under New Business as opposed to the Consent Agenda; but the Board can set that number at what it wants. Chairman Scarborough stated the Board can move through new business quite rapidly if there are no problems; so that number could be $50,000 or so.

Commissioner Higgs stated Item III.F. authorizes the County Manager to approve purchases at or below $35,000; and suggested all land purchases be put on the Agenda. Mr. Jenkins stated that is fine and is not an issue with him. Chairman Scarborough stated people want to know the person who is selling the property, when that person purchased it, and the price he purchased it for plus the appraised value; and all memos need to include that information. Mr. Jenkins stated that is the last bullet on the Agenda Report that requires the financial history of the property. Chairman Scarborough stated he did not understand that and inquired if it could be more specific.

Commissioner Colon stated the Board is discussing putting acquisitions under new business; she has a copy of the minutes of the August 26, 1997 Minutes when that direction was given to staff; and if staff is given this direction, the Board needs to make sure it is taken seriously because obviously it was not in 1997. She stated she brought it to the Board’s attention so that something like that does not happen again; and it is not something the County did not have in the past.

Commissioner Higgs recommended deleting Item III.F. and changing Item III.I. to “Acquisitions shall be placed on the Board’s agenda as new business.” She stated the Board said all acquisitions shall go under new business; Item III.D. says the Board of County Commissioners may waive this requirement; she assumes that would have to be done in a public meeting; and inquired is there any other procedure the Board needs to clarify if it is going to waive the requirement in which some other party other than the owner of the property can be negotiated with. Ms. Busacca stated she did not understand the question. Commissioner Higgs stated III.D. says, “Property shall be purchased directly from the property owner. Negotiations shall not be conducted with persons holding contracts to purchase or contracts for sale”; and then “The Board may waive this requirement.” She stated the Board can waive all requirements of its policies; but it would have to be done at a public meeting. Mr. Jenkins stated staff can insert the language “at a public meeting” to clarify it; and he does not know that the Board would need it, but it gives flexibility. Commissioner Higgs stated the Board can alter the policy and waive requirements; that is its ability to change policies and requirements; and it can do that at a meeting; so while it says the Board can waive it, it can waive the rest of it also. Mr. Jenkins stated that is correct, staff was simply making it formal that the Board has that flexibility; but that is correct that the Board has that authority. Commissioner Higgs stated it is assumed the Board may waive this requirement, but that has to be done at a public meeting because it cannot do it any place else.

Commissioner Carlson stated one of the changes says, “prohibits fast-track acquisition unless approved by the County Manager based upon need”; if anything needs to be fast-tracked, the County Manager needs to bring it to the Board and make sure it is approved; she does not know how to address that, but that was an issue that it was fast-tracked; and unless the County Manager wants to take on that kind of responsibility, it probably should come in front of the Board however it needs to do it. She stated if it needs to be fast-tracked for whatever reason, the Board needs to do it in this forum. Commissioner Higgs stated she does not know what fast-track means. Commissioner Carlson stated that is the point, none of the Commissioners seem to understand the definition of fast-track; but if something needs to be done in a couple weeks, the Board can certainly cover it on its Agenda. Mr. Jenkins stated it can be changed to the Board or the whole reference deleted. Commissioner Carlson stated it is fine, but needs to come to the Board and not be unless approved by the County Manager based upon need. Mr. Jenkins noted they can change it to say prohibits fast-track acquisitions unless approved by the Board of County Commissioners. Commissioner Carlson stated if the Board needs to fast-track something for an emergency or to get money from the federal or State governments, it needs to have that option.

Commissioner Higgs recommended Item III.F. be deleted, so if the Board is going to do something in a different way, it would have to amend the policy at the time it is going to do it. She stated it is understood the Board can amend the policy if that is what it wants to do.

Commissioner O'Brien stated it should be left in; it is already there and very simple; it states a fact; and it does not say the Board cannot waive that requirement. He stated by deleting it, it is taking out the elasticity that may be required. Commissioner Higgs stated the elasticity is what people are not happy about and are banging on the Board about, so it should be taken out; and if the Board wants to change the policy, it can do that, but it has to change it in order to negotiate with someone who might have a contract on the property. Commissioner O'Brien stated the Board can waive the policy, and go out and do what it has to do. Commissioner Higgs stated she does not want to waive it if it is not a good policy; if it is not a good policy, it should not be in the policy; and if something occurs and she ought to amend the policy, then she will amend the policy.

Chairman Scarborough stated if a person held property for a number of years, that is one thing, but if someone happens to have a contract on a piece of property the County wants, the question is could that person be dealing with inside information and picked up the contract and put himself in a favorable condition with very little down to make massive amounts of profit. He inquired if the Board wants to have people playing with contracts. He noted the Board always has the capacity to come back and change the policy. Commissioner O'Brien stated real estate law does not allow negotiations with an owner if a contract to purchase is held by another person; the County may have to negotiate with the contract holder and not the owner; and if it finds out he closed the deal, it can waive that requirement. Chairman Scarborough stated he understands, but people with sales contracts have minimal amounts of money on the table; and even with marginal increases in value, they have an opportunity to advance themselves tremendously; and there are risks when dealing with people who hold contracts. Commissioner O'Brien stated there may or may not be risks because the Board will have the financial history of the property as part of the agenda item; if the owner is in California and has a realtor representing him here, the Board would have to waive the policy to negotiate with the representative of the owner or say no, the County cannot deal with him or her, which means it may not be able to acquire the parcel it badly needs. Commissioner Higgs stated in that case she will alter the policy; but it is the only provision that says waiver. She stated policies can be changed by vote of the Board, so a waiver should not be inserted in that item. Commissioner O'Brien stated the Board does not waive provisions on its own accord; the County Manager or staff asks permission to waive provisions; and it leaves the door open for good business and closed to bad business. He stated in real estate law, if someone has a contact for sale or holds a contract to purchase, the County cannot negotiate directly with the owner.

Chairman Scarborough advised there are two types of contracts; one is the listing contract with a realtor to sell the property; but that is not what is being discussed. He stated the Board is talking about a person who basically has put a couple of thousand dollars down on property that may be worth several million, and can exercise the option to buy in six months; a lot of times people do that when they have inside information; therefore, the County runs the risk of that person knowing the County wanted the property. Commissioner O'Brien stated the Board can ask that question of a person holding the contract, but without the waiver it cannot ask the question. Commissioner Higgs stated the County can do that by amending the policy.

Commissioner O'Brien stated it is already in the policy, which would not require an amendment. Commissioner Higgs stated it is building in the waiver as an assumption; a waiver or change of policy would take the same action of three Commissioners; so the waiver provision should be deleted. Chairman Scarborough requested a motion to dispose of the item.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to delete Item III.D. of the proposed policy on acquisition, sale, or exchange of real property. Motion carried and ordered; Commissioner O'Brien voted nay.

Commissioner Colon inquired what amount requires acquisitions to be under new business; with Commissioner Higgs responding all land acquisitions will be under new business. Commissioner Colon suggested adding a presentation by staff because if nobody thinks anything of it, it is not going to be brought to the Board’s attention; so she would prefer a presentation on properties proposed for purchase.

Chairman Scarborough stated more than a presentation is the financial history that should include the assessed value and when a person acquired it; and if it was acquired in the last month or week, there is suspicion more so than someone who has held it for a while. He stated the Board does not want to deal with somebody who deals with inside information because that person can know certain things and can take advantage of the County. Chairman Scarborough stated later in the meeting the Board is going to talk about the agenda system; and if it comes to pass, people will be able to go to the agenda, point, click, and pull up the whole file for review. He stated now people have to go to the Commission offices or County offices to get that information; so a lot more data will be available to the public. He stated discussion depends on the Commissioners; regardless of what was said, the Board dropped the ball by not asking questions; and the questions need to come from the Commissioners.

Commissioner Colon stated another issue, which may not pertain to this, is the Board seriously considering having an appraiser work for the County instead of an engineering firm hiring an appraiser; and if this is not the time to discuss it, she will put it on the agenda. Commissioner Higgs stated there are appraisers under contract with the County and not anyone else; and with the EEL’s Program, the appraiser may be under contract with The Nature Conservancy, but she does not know that for certain. Commissioner Colon stated she will put it on the Agenda because there are a lot of different Departments involved. Commissioner Colon stated it is great that Mr. Jenkins has taken the initiative to bring the proposed policy forward in a timely fashion; it says a lot about the County getting things done because that is what the citizens want; they want to see some action and what the Board is going to do so those things do not happen again.

Chairman Scarborough stated there is potential for misuse of the process by realtors; a realtor who knows the County is doing something through inside information from the County could take a listing inappropriately to obtain a commission and could have a closed deal; so the Board needs full financial information, not only about the owner, but anything that may show improprieties on the real estate listing process because there is potential for abuse. He stated the Board should know when the property was listed. Mr. Jenkins stated they could include the date of listing.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve changes to Policy BCC-24, Acquisition of Real Property, as recommended by staff and amended by the Board, to delete “the Board of County Commissioners may waive this requirement” in Item III.D.; delete III.F.; change III.I. to read, “Land acquisitions shall be placed on the Board’s agenda under new business; include language in III.G. that all memoranda have information on when the person selling the property purchased same, the purchase price, appraised value, and full financial information including listing date; change Item III.H. to read “Fast-track acquisitions shall be prohibited unless approved by the Board of County Commissioners”; and direct staff to return with the final version. Motion carried and ordered unanimously.

Mr. Jenkins stated staff will investigate who hires the EEL’s appraiser and will add that language in the policy.

APPROVAL, RE: PROPERTY INSURANCE PROGRAM FOR FY 2002-03

Human Resources Director Frank Abbate requested authorization to bind coverage, effective October 1, 2002, for the County’s property program. He stated based on current market conditions, they have delineated what they anticipate; Gallagher went into the market to obtain coverage for the County at the low and high end where they think it is going to play out; that market is still very tight and it is extremely difficult to get reinsurance carriers and insurers to give the County any type of quote; and Judy Arenz with Gallagher is here to answer any questions. He stated they tried to provide the Board information on the high and low potentials as well as what else is happening in the market with similar public entities in Florida to give it an idea of what is going on and an analysis of what Gallagher is experiencing in the property market. He noted Ms. Arenz will give the Board a brief overview of what is going on in the insurance market for property.

Judy Arenz with Arthur Gallagher advised the purpose for coming to the Board now with a projection of premiums from a low to a high end is to give it the opportunity to review the current status of the marketplace and time to react, as well as allow its Risk Management Department to work Closely with Gallagher to get the final numbers to the Board in a timely manner. She stated there was no way prior to August 12, 2002 to have firm and hard numbers and the County’s program put in place; that is why they went to the workshop and asked permission to go back into the marketplace, continue working with insurance companies to put the pieces of the puzzle together, finalize the program, and try to get the broadest of coverage at the lowest possible premiums.

Commissioner O'Brien stated there is a 20% difference; with Ms. Arenz responding they went into the marketplace and talked to insurers and used their information from prior renewals through the biggest renewal season, which starts July 1 with a lot of large school districts and public entities, and tried to use that intelligence and what is happening in the marketplace to cerate realistic numbers. She stated they did not want to come to the Board with very low or extremely high unrealistic numbers; and not to put fear into the Board, but they are trying to be realistic because they do not want to miss it and have to come back to the Board to get approval to spend more dollars to meet their goals. Commissioner O'Brien stated 20% seems substantial; and there is nothing that indicates what the costs were last year so he does not have anything to compare with. Mr. Abbate advised on the bottom of the first page of the attachment is the expiring premiums. Commissioner O'Brien stated the premium is going from $1.5 million to maybe $2.013 million low and $2.399 million high; with Mr. Abbate responding that is not unusual; the last three pages of the report provides other public sector jurisdictions that increased 59%, 53%, and 56%; and Brevard County School Board increased 120%. He noted those are the ones that recently bound coverage in the last several months; and it is very common in the property marketplace.

Chairman Scarborough stated when he talked to Mr. Abbate who informed him that because of the volatility of the market and what is happening, they need to move on this item; and requested Mr. Abbate explained what is going on. Mr. Abbate advised staff and Gallagher are exploring all alternatives at this time; one is looking at pooled resources; there are a number of opportunities they are trying to explore; and the first is the Florida Association of Counties (FAC) program, which provides general liability and other coverages. He noted Commissioner Higgs is on that board, and they are trying to spearhead that effort and get them to offer the coverage. He stated staff provided information to the underwriters that FAC is trying to develop that pool; they have not indicated success in getting underwriters to underwrite that type of program yet; but they are still pursuing it. Mr. Abbate stated they are also exploring other options; Ms. Arenz met with three other counties down south to see if they are interested in forming a nucleus; and they are interested in getting together with different major jurisdictions in a pooled resource, such as Broward, Miami-Dade, and Palm Beach School Boards to talk about a pooling arrangement. Chairman Scarborough stated he is not interested in pooling with South Florida. Mr. Abbate noted they are trying to explore what opportunities there may be. Ms. Arenz noted it is to get the temperature of how people feel about pooling because they have to have a diverse group, cooperation, capital, and experience. Chairman Scarborough inquired where would Brevard County be pooling; with Mr. Abbate responding there are smaller counties throughout Florida, some in Central Florida, some on the West Coast and in the panhandle; and that is the main pool they are looking at, not the larger southern counties.

Commissioner O'Brien inquired how assured is Brevard County that a company like Lloyds of London would declare bankruptcy and not pay for losses if there was a catastrophic loss in Brevard County. Ms. Arenz advised their program is covered by multiple insurers, not all of the County’s business is with one carrier; and Lloyds of London only participates in a small piece of the County’s program. She stated Lloyds of London is putting out $5 million in one layer and $9 million in another layer; it may not even participate that much in the renewal program; they do not use Lloyds for the majority of placements; and they typically go to Lloyds if they start to get holes in the program and need some support. County Manager Tom Jenkins advised they have spread the risk around with multiple companies. Commissioner O'Brien stated he understands that, but if something bad happens it would not only be Brevard County but businesses and cities, etc. Mr. Abbate stated that is why the premiums are the way they are in terms of escalating costs; carriers are looking at their capacity and only willing to assume x amount of risk geographically; and that is part of what the market is addressing to the point of trying to limit maximum exposure they may have in terms of catastrophic loss. Commissioner O'Brien inquired what is the County’s protection from companies that may say they are not going to pay. Ms. Arenz advised all the carriers Gallagher is utilizing for the County’s program are A-rated carriers; those are the carriers with the surplus and financial strength to support paying claims when the loss occurs; and that is first and foremost. She stated those people have to be licensed to do business in the State of Florida; even Lloyds of London has to have a vehicle in the State where monies can be transferred to pay claims; it is controlled by the Insurance Commissioner; and there is not an A-rated carrier doing business in the State that would say they are not going to pay the claim. She stated the Insurance Commissioner is not going to allow that; those are major insurance companies they are dealing with; those companies also buy reinsurance so they are also protected; and some carriers they are using are carriers that paid claims in the World Trade Center catastrophe, so they are substantial insurers.

Mr. Abbate advised they are requesting authority to bind as much coverage as they can up to $150 million within the budgeted amount of $2.3 million; and upon successfully binding of that coverage, they will provide an executive summary to the Board detailing the final program they obtain. He stated potential insurers will not give the final numbers at this time; it will probably be 10 to 14 days before coverage expires; but they are working aggressively to get that. He stated many jurisdictions have to go through the same process the County is going through; in fact Brevard County is ahead of the curve compared to some other jurisdictions, which are having difficulties, such as West Palm Beach.

Chairman Scarborough inquired if staff gets the information and it is 14 days before coverage expires and the Board is having a meeting in two days, will it have to take action before bringing it to the Board; with Mr. Jenkins responding staff can bring it to the Board; last year it held a special meeting to approve the insurance program; but if the Board has a scheduled meeting, staff can bring it back, and if not schedule a special meeting. Chairman Scarborough stated it is a big number and important issue; and if the Board has to schedule a special meeting when staff has the numbers, it would do that. He stated there is a lot of risk and a lot of money involved, so it is worth a special meeting. Mr. Jenkins noted staff will do its best to get it on a regularly scheduled meeting agenda.

Commissioner O'Brien inquired if the County is insuring 100% of its assets or 60%; with Mr. Abbate responding it has $424 million of property on the scheduled and $150 million worth of coverage under the program; in any scenario, all property is not expected to be insured; but under the program the County would receive proceeds of $150 million. He stated the Board would also be seeking other monies if it goes outside of that amount, such as from FEMA, etc.

Mr. Jenkins requested a motion to schedule a special meeting if necessary.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve the property difference in conditions, boiler and machinery, and pollution liability insurance renewal for FY 2002-03; authorize A. J. Gallagher & Company to layer the program and maximize coverage within those identified layers with a goal of $150 million in coverage limits; and authorize the Insurance Director to bind the contracts immediately upon obtaining secure quotes, and to schedule a special meeting if necessary to bring back the results. Motion carried and ordered unanimously.

DISCUSSION, RE: DORI SLOSBERG DRIVER EDUCATION SAFETY ACT

Lawrence Victoria, Aide to Representative Slosberg, advised the Dori Slosberg Act allows county commissions to impose a $3.00 surcharge on traffic violations to subsidize drivers training in the schools; and his objective is to have the Board pass an ordinance implementing the surcharge. He stated Dori was Representative Slosberg’s daughter, and her death made him a strong safety advocate.

Chairman Scarborough stated there are 660,000 teen drivers in Florida, making 7% of the licensed drivers; teens are involved in 20% of all reported accidents; 50,000 16-year olds crash in their first year of driving; and 217 teens die in auto accidents each year. He stated that is a disproportionate number of fatal accidents. Mr. Victoria stated teenagers make up 7% of drivers and account for 14% of fatalities; and over the last ten years, 60,000 teenagers were killed in accidents.

Commissioner Carlson inquired what guarantees does the Board have that the money will go to the program if it does an ordinance; and is it written in the bill; with Mr. Victoria responding the Board controls the money and can use it for private and public schools. Commissioner Carlson inquired if it goes to the School Board; with Mr. Victoria responding yes. Chairman Scarborough stated it would be regulated by the ordinance and if they do not spend it for the intended reason, the Board can take appropriate action. Mr. Victoria recommended the ordinance include a provision that magistrates cannot waive the $3.00 surcharge and that the money is to supplement the driver training education program and not to replace funding for that program.

Commissioner Colon stated she supports putting an ordinance in place strictly to provide driver education; the letter talks about educational services to elementary and secondary schools; and that is not where she wants to go. She stated the Board needs to focus on what it wants to accomplish; and that has to do with teenage driving. County Manager Tom Jenkins advised Commissioner Colon is referring to a letter from the School Board. Commissioner Colon stated if the Board allows this to take place, it needs to make sure the money goes directly to where it supposed to and not to something like elementary traffic safety. Mr. Victoria stated if the ordinance is passed, it would amount to $350,000 going to the School District for safety education.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to direct staff to prepare and advertise a public hearing on an ordinance establishing a $3.00 surcharge on civil traffic violations, not to include parking tickets, to fund driving programs in schools; and that the fee cannot be waived by a magistrate and cannot be used to replace existing funding for the program. Motion carried and ordered unanimously.

CONTRACT WITH LOGAN VENTURES, INC., RE: SNACK BAR AND VENDING
MACHINE SERVICES

Arthur Pellizzi, representing Mash Hoagies, advised he is in the process of purchasing Mash Hoagies Restaurants; in doing so, he is moving to Brevard County from Marian County; he lived here eight years ago; and he welcomes the opportunity to return. He stated he is looking for a long-term lease for the restaurants; the present owner was given a long-term lease; the proposal is 5-2-2, and that is what he would like to have. He stated the new contract he signed is for ten years; the employees will stay; and the prices will remain the same.

Commissioner Higgs stated her concern is approval of the closing of the sale is pending Board approval of a new contract with the buyer; the current Contract expires in June 2004; that includes the vending and snack bar Contracts; the snack bar Contract has been in effect with Logan Ventures for about eight years; and when the Contract was approved, the Board discussed going out to bid. She stated she has no problem honoring the current Contract, which expires June 2004, but at that time, the Board needs to go out to bid for vending and snack bar services. She stated she does not have a problem with the service, but it is time to test the market; it is a public facility and contract; and it is time to go out to bid. She inquired if the Board has to approve transfer of the Contract; with Hugh Muller responding no. Commissioner Higgs inquired if the request is to extend the existing Contract; with Mr. Muller responding yes, and in that agreement they have the right to sell the business.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to deny approval of a contract with Logan Ventures, Inc. extending the snack bar and vending machine services until August 31, 2007. Motion carried and ordered; Commissioner O'Brien voted nay.

Commissioner Colon stated Commissioner Higgs said she would be willing to support allowing the Contract to remain until it expires in June 2004; with Commissioner Higgs responding her motion is to honor the current Contract but not extend it.

Mr. Pellizzi stated in the current Contract, he has first option to extend the lease. Chairman Scarborough stated what is in the Contract he has rights to as successor; however, the Board is dealing with the public’s right to do business; this is a monopoly; and it should go out to bid.

Commissioner O'Brien inquired if all profits from vending machines go to the Division of Blind Services; with Facilities Director Samuel Stanton responding the County does not have agreements with the Division of Blind Services. Commissioner O'Brien stated he thought it was a Statewide requirement; with Mr. Jenkins responding only if there is a contract with that Department. Commissioner O'Brien inquired if that is in all the County buildings; with Mr. Jenkins responding the County has Contracts with other entities in other buildings. Commissioner O'Brien inquired where do the profits go; with Commissioner Higgs responding to the vendor. Commissioner O'Brien inquired if the County gets a percentage of the profits; with Mr. Muller responding Parks and Recreation gets a percentage from vending machines in its facilities; however, the County negotiated lower prices and no kick back in the County facilities at the Government Center. He noted they pay for utilities and keep the cost of the vending supplies as low as possible; and they have to come to the County to raise the rates. He stated other County buildings have Blind Services that were grandfathered in; so the Department of Blind Services gets a cut of that because it has a Contract with a company to provide and stock the machines. Commissioner O'Brien inquired how much is a bottle of water; with Mr. Jenkins responding they do not vend water, but soft drinks are 50 cents, which is the lowest price in the County. Commissioner O'Brien inquired who is the vendor for all the newspaper machines; with Mr. Jenkins responding the newspaper companies. Commissioner O'Brien inquired if they sell the papers, take all the profits, and the County gets nothing for allowing their machines on its property; with Mr. Jenkins responding it is a public convenience. Commissioner O'Brien stated so are the vending machines. Commissioner Carlson stated the public does not come in and use the vending machines. Commissioner Colon stated she would prefer to have employees pay a lesser price than to pay more and the County get a kick back. Commissioner O'Brien stated there is no discount on the newspapers; with Commissioner Colon responding Commissioner O'Brien needs to talk to Florida TODAY about that. Commissioner Carlson commented it may be covered by freedom of speech. Commissioner O'Brien stated if vendors pay back to the County or cut their prices to have their machines in County buildings, then the newspaper machines should do likewise. Chairman Scarborough requested information back on that. Mr. Jenkins stated the County Attorney can research it. Mr. Muller stated his assumption is the vending machines use electricity, which is a cost to the County; and the vending machines for papers do not cost the County other than taking up space. Commissioner O'Brien stated that is true, but they could give a discount. Mr. Pellizzi advised they pay $650 a month for the space and still have the cheapest prices.

APPOINT NEGOTIATING COMMITTEE AND AUTHORIZE EXECUTION OF CONTRACT,
RE: RFP #P-4-02-09, DOCUMENT MANAGEMENT SYSTEM

Chairman Scarborough advised one of the greatest benefits of having the document management system is the materials that come before the Board will be available for the public to retrieve; they will have the capacity to point and click except for big charts, etc.; and he wants to make sure that part of the scope of service is the point and click capacity for people with computers as they look at the agenda to get the full information.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to appoint Scott Knox, Dennis Rogero, and Gino Butto or their designees to the Negotiating Committee to negotiate contract terms with the top-ranked proposer Matrix Information Systems, Inc. for a Document Management System; and to negotiate with the next best ranked proposer Datamaxx Enterprise Intelligence of Tallahassee if negotiations fail to establish a contract with Matrix; authorize award of a contract upon completion of negotiations; and authorize the Chairman to execute the contract. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: ORDINANCE #32-2002 FROM CITY OF TITUSVILLE
AND ORDINANCE #18-2002 FROM CITY OF COCOA, RE: ANNEXATIONS

Chairman Scarborough advised he was told the Board only has capacity to acknowledge annexation and even if it does not, it will still occur; staff needs to have the Board specifically say, when annexations occur, that it would like to have a follow up in a manner of an agreement as to maintenance of roads if that is appropriate; so the Board would have to simultaneously acknowledge these actions and authorize staff to work on agreements and come back to the Board. He noted some may be joint participation agreements, or memos of understanding at the staff level, etc.; and he does not care how they come back, but every time there is an annexation there needs to be follow up action; and staff wants to do it, so it would be appropriate for the Board to say yes.

Commissioner O'Brien inquired what would happen if the Board denied the annexation; with Chairman Scarborough responding it does not amount to anything. County Manager Tom Jenkins stated the Board cannot deny it. Chairman Scarborough stated it is not the acknowledgment but the collateral issues, streets, land usage, etc.

Commissioner Carlson stated she understood the City of Titusville annexed the Enchanted Forest and there were issues with the Airport’s future plans. Chairman Scarborough stated that may be some people’s interpretation, but the landowner of record is the State of Florida; and the Board cannot cut a deal with the City of Titusville that would affect property owned by the State. He stated some people were concerned about the City passing ordinances, etc.; but it is the State’s property and the County has arrangements with the State as caretaker and has a fiduciary responsibility to advise the State of all transactions, which is occurring. Commissioner Carlson stated she would like to get a report back on the fact that it is occurring; and something that would give her summary information she can provide to people who are concerned about it. Chairman Scarborough stated he had meetings with Mr. Knox and Ann Birch; and it may be appropriate to get a memo on the current status.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to acknowledge receipt of Ordinance #32-2002 from City of Titusville annexing approximately 1.46 acres along the west side of North Singleton Avenue, and Ordinance #18-2002 from City of Cocoa annexing approximately 21 acres southwest of the intersection of Grissom Parkway and Industry Road north of SR 528; and authorize staff to prepare joint participation agreements with the Cities regarding land uses and maintenance of roads. Motion carried and ordered unanimously.

PUBLIC COMMENTS, RE: PUBLIC COMMENTS AND PROPERTY APPRAISER’S
BUDGET

Bea Polk suggested the Board do what some cities are doing, and that is to have two public comments sections, one early in the morning and one at the end of the meeting. Commissioner Higgs advised Ms. Polk that she can comment on every agenda item. Ms. Polk stated the public may just want to come up and talk. Commissioner Higgs inquired if the cities allow the public to talk on every agenda item, because generally they do not; with Ms. Polk responding the Board meetings are so long that it would not hurt to give ten minutes at the beginning of the meeting for public comments.

Commissioner Colon advised what Ms. Polk stated is correct and what is happening; Palm Bay allowed folks to make public comments on things that are not on the agenda; therefore, they were able to speak and then go home and not have to sit for nine hours at a meeting. She stated the City timed public comments at no more than 15 minutes at the beginning of the meeting; it is on a first-come first-serve basis; and if the person did not get to speak at the beginning, he or she would have to wait until the end of the meeting. She stated it worked out well because only one or two people would stay until the end to speak.

Commissioner Higgs inquired if the City of Palm Bay allowed the public to comment on every substantive agenda item on the agenda the way the Board does; with Commissioner Colon responding yes it did. Commissioner Colon stated some folks could not stay through the entire meeting, but the Council was afraid that public comments would take a long time, so it put a time limit on it of 15 minutes, with each person having 3 minutes. She noted she pushed for public comments in the beginning of Board meetings before.

Ms. Polk inquired how did the County get the percentage of Property Appraiser Jim Ford’s budget at less than 3%, and does that count everything; with Assistant County Manager Stockton Whitten responding it is only the Property Appraiser’s general fund transfer of approximately 3.19%, which includes salaries and items that are itemized on his budget submittal to the State. County Manager Tom Jenkins advised that is next year’s budget. Commissioner Higgs inquired what was last year’s budget.

Ms. Polk stated the public was willing to come and speak about it, but Mr. Jenkins took it off the Agenda. She stated there is something funny happening in that position; either he knows too much or something; and she cannot believe that no one even looked to see how much more the taxpayers are paying for an attorney. She stated the Sheriff and Clerk have to give the Board more information about their budgets; she did not receive much the first time she asked the Property Appraiser for a copy of his budget, but finally got him to give her the rest of it; and inquired how can someone say publicly it was not over 3%, and how much more money is he going to get. She stated when he gives raises, that 3% is an amended budget; even his attorney admitted that he was getting more than what the Board said he gets; and suggested Commissioners go back and get their paperwork when it amended his budget. She stated it took her from 1991 to this year for the State to find it; she could not believe it was there, but it was back stamped; however, she cannot prove it. Ms. Polk stated he transferred $149,000 out of one part of his budget; and inquired where does the money come from and how much money does he have that is extra. She stated she came in 2000 and told the Board he gave raises to people who worked on his campaign; nobody ever proved it was not true; and his attorney said she was lying, but he never could prove it. She stated she said it was a bonus, but it was not; the attorney was right about that, it was a salary increase; every year the salary increases for certain ones get bigger and bigger; and she asked Commissioner Scarborough if he was going to give the same thing to the rest of the County employees. She stated she has received so many calls that her answering service cannot handle them; it is amazing how one constitutional officer can have all that money and all the others have to give an account of their money; and inquired if the Board is going to give $11,000 and $6,000 raises to people. Ms. Polk stated when they took depositions, everyone who came to the deposition had already gotten a big raise; that is where she found out where the money was going; and even though they never said anything against them, they got paid well and were honest. She inquired if the Board ever appealed his budget; she has copies of appeals that got results; one appeal had a person who was removed; and she wants the Board to run copies because she is tired of paying 15 cents a copy for everything she gets. She stated she has salaries coming from the Clerk’s office and has to pay nearly $9.00 for them, but she has to get the paperwork. She stated she was told three years ago that the Board appealed the budget; and inquired if someone can find it for her because the State could not find it. She inquired what does he have that the Board is so scared to appeal his budget; and stated everybody is asking her why the Board did not appeal some of his money.

Chairman Scarborough advised Ms. Polk has a list of appeals that took place from other counties; and those were successful appeals. Ms. Polk stated a lot of them were, but there are some that were not successful. Chairman Scarborough inquired if Ms. Polk is going to make copies for the Board; with Commissioner Higgs responding no, she wants the County to do that. Chairman Scarborough stated staff will make a copy; and Commissioner Higgs requested Ms. Polk give it to Mr. Jenkins, and he will get copies to the Commissioners. Chairman Scarborough stated the Board was under the impression that the State said it is going to run it and to keep out of that business; and that is the impression he was given over the years. Ms. Polk stated the Board are the five people who take the tax money; it is not the State’s money; and this is what the people are asking for. Chairman Scarborough stated he understands what Ms. Polk keeps saying and he keeps coming back that the Charter Constitutional Officers are independently elected and have a tremendous amount of autonomy; and while the Board has the ability to appeal; that does not mean it will prevail to be able to affect a change; however, they will look at it and see what it means. Ms. Polk stated it is too late for this year; and inquired when is the last day to appeal; with Mr. Whitten responding the last day to appeal the Department of Revenue’s budget to the Governor and Cabinet, which contains the Property Appraiser’s budget, is 15 days after the Board’s second public hearing on its budget. Chairman Scarborough requested a date; with Mr. Whitten responding he recently gave the Board a memo with the date of either October 11 or 15, 2002. Chairman Scarborough stated he is not trying to argue with Ms. Polk, but she is saying one thing and he is hearing something else; and he needs to reconcile the issue. Ms. Polk stated she understands, but if she was sitting in his seat and giving out taxpayers’ money, she would like to know where it goes. Chairman Scarborough stated the salary increases are a totally separate issue from what the Board does; and even if it appeals the budget, it would not be able to say Mr. Smith gets $10.00 and Mr. Jones gets $5.00. Ms. Polk stated if he did not have all that extra money floating around, he could not come up with that kind of salaries; and that was the reason she would have liked for him to be there the other day where she could have asked him questions on his budget and where the money is going and what is he spending it for. She stated the people have a right to know where it is spent; they may not have a right to say who gets what raises, but they should be able to take the budget and ask questions where he is spending it and for what purpose. Chairman Scarborough stated the Board will look at the appeals and see what the basis are and how they were successful or why they failed.

Commissioner Colon stated the Board had the Sheriff and the Clerk of Courts come to the meeting so it could ask questions; it is unfair not to include all Constitutional Officers; so for the next budget, the Board needs to make sure and make it clear that they all need to be present; and if they do not, then that constitutes grounds to challenge their budgets. She stated that is not asking a lot.

Ms. Polk stated he has so much money that he hired a labor and employment attorney out of Jacksonville to write her a letter and tell her he did not think what she asked for was public record; so there is a lot of money somewhere that he does not need.

Commissioner Carlson advised she appreciates Ms. Polk’s comments at the end of the meetings because she worked really hard to understand his budget; but what she is trying to work to understand is the methodology in which Mr. Ford increases evaluations on homes and property. She stated she made a request to get a report back earlier because there were some real estate notices that went out that were very nominal, 18 cents or whatever, and they had to have postage applied to them and everything else, which did not make a lot of sense, and there was no common sense applied; so she requested some sort of input from Mr. Ford’s office. She stated she would like to add to that request and ask Mr. Ford for the various formulas or methodology that he uses to increase valuation on property, whether it is a rule change or what, because she had a lot of constituents on her campaign trail complaining that their properties are going up in value and increasing their taxes terribly. She stated they were not talking about tax increases, they were talking about valuations; and there is some misleading thing out there that says the valuations can go up only 3%. She stated she wants to know how that is applied and if it is really applied; and that is the kind of information Ms. Polk needs to be looking at because there are a lot of folks out there who are concerned about that. Ms. Polk inquired how can she get that information when he has two law firms telling her that is not public record. Commissioner Carlson stated hopefully Mr. Ford will respond to the Board’s request.

REPORT, RE: BILLBOARD LEGISLATION

Chairman Scarborough advised there is a billboard amendment under Scenic Florida; and inquired if the Board wants to discuss it this evening or put it on the next agenda. He noted he will put it on the next agenda.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 6:43 p.m.

ATTEST: _________________________________
TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
___________________
SCOTT ELLIS, CLERK

(S E A L)