March 1, 2002

The Board of County Commissioners of Brevard County, Florida, met in special session on March 1`, 2002, at 1:03 p.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 Commissioner Jackie Colon.

Commissioner Susan Carlson led the assembly in the Pledge of Allegiance.

REPORT, RE: JESS PARRISH MEMORIAL HOSPITAL BILLINGS

Chairman Scarborough advised he received a letter from Jess Parrish Hospital advising that it inadvertently sent all billings to a collection agency before insurance companies were billed. He stated County employees do not have to pay the bill to the credit agency, and it will not hurt their credit; and people in the community do not have to pay the credit agency, and should call the Hospital or his office.

DISCUSSION, RE: VILLAGER CONDOMINIUM PROJECT

Staff's Summary of Issues

Chairman Scarborough asked the County Attorney to explain the issues the Board needs to discuss, so it would have a more meaningful discussion.

County Attorney Scott Knox advised the first question the Board needs to resolve is whether the Comprehensive Plan Policy 4.1 allows for an emergency exception to the general prohibition against hardening structures south of Patrick Air Force Base; it is a legal interpretation that the Board has to make about the intent of the original enactment; and it fundamentally boils down to whether or not Subsection (c), which contains the prohibition, also contains an exception for emergency. He stated if the Board decides that issue in favor of finding that there is an emergency exception, then the next issue it will confront will be whether or not this particular proposal it will hear today from Mr. Spielvogel and his clients would be compliant with Subsection (e) of Policy 4.1. Mr. Knox advised they would have to demonstrate compliance with the four criteria set forth in that Subsection; but the first issue is to decide whether there is an exception for emergency. He noted if the Board decides there is, then it will go on to determine whether the criteria have been met by the application.

Chairman Scarborough advised he will recognize Leonard Spielvogel, Attorney representing the Villager Condominium owners, then allow the County Attorney to answer any questions.

Commissioner Higgs stated there are other people who may wish to address the subject of the Comprehensive Plan, not just the applicant. Chairman Scarborough stated anybody who wants to address the issue of whether there is an exception for emergency may speak. Commissioner Higgs stated they may also address the interpretation of the Comprehensive Plan; with Chairman Scarborough responding as it applies to the issue.

Attorney Leonard Spielvogel, representing the Villager Condominium, advised they have a basic legal issue; and inquired if an emergency is found, are his clients limited to going through a major Comprehensive Plan amendment or can they avoid that necessity and go through Department of Community Affairs. He stated a unanimous vote would open the door to their having to go through Department of Community Affairs, go through the procedure for a major amendment, not a small area plan amendment, and get the Comprehensive Plan amended as it concerns the Villager Condominium property or the beach in front of the property. He stated they would have to go to Department of Environmental Protection also because it has jurisdiction; and it is their position that if the Board finds an ambiguity in its Comprehensive Plan provision, it has the authority to give him a letter which says they are in compliance with the Comprehensive Plan, which then allows him to go directly to Department of Environmental Protection and comply with all the procedures outlined by that agency. He stated he needs to know if they are in agreement on that.

Mr. Knox advised they are not exactly in agreement on that, and maybe he did not make it as clear as he could have. He stated there are two ways the current Comprehensive Plan can be interpreted; one is to say they would need an emergency amendment to the Comprehensive Plan in order to get a letter from the County saying they are consistent; and if the Board decides that is what the Comprehensive Plan says, Mr. Spielvogel is left with getting an emergency amendment to the Comprehensive Plan before he can get that letter. He stated the other interpretation available to the Board is that there is an emergency exception to the requirement of no hardening south of Patrick Air Force Base; and if the Board decides that is what Subsection (c) says, then it has to review Subsection (e) to see whether or not the situation warrants that kind of emergency exception; and if it does, Mr. Spielvogel will get the letter.

Mr. Spielvogel advised they are in favor of the latter interpretation; they need the letter; the Board has the option of one of those findings; and they are seeking the second choice, which is a letter because of the emergency nature of their request. He stated if the Board finds that an emergency exists, it would be illogical to require them to go through the long process of seeking a Comprehensive Plan amendment then going to Department of Environmental Protection, which could take a year or more; and it would seem the Board would not want to be precluded from responding to a true emergency in an expeditious manner. He reiterated they are seeking a letter; and stated the Board has to decide which of the two interpretations is available to them.

Chairman Scarborough stated the Board is not at the factual level yet, so everyone who wants to speak to the facts of the emergency will be given an opportunity to put in a card; it is a question of interpretation; and inquired if there is anyone in the audience who wants to discuss the facets of that issue. Commissioner Higgs requested an explanation of the discussion the Board is in so everyone understands the issue. Mr. Knox advised the Board has to decide whether Subsection (c) requires an applicant to get an emergency amendment to the Comprehensive Plan or does it say an individual or group of individuals who have an emergency are entitled to an exception to that requirement; and then it reviews whether or not the application meets the criteria of Subsection (e) of the Comprehensive Plan regarding hardening structures.

Commissioner Colon stated Mr. Spielvogel is an attorney, but he is one of many who wish to speak on both issues; it is a little complicated when they realize they are here to speak on the emergency that is before the Board; and the last time the people did not have an opportunity to speak to the Board. She stated she hopes before the Board has discussion, it will allow the residents one more time to speak to the Board.

Chairman Scarborough stated if the Board wishes to listen to all the discussion at one time, then come back and segregate the votes out, that is okay, but he and Mr. Knox decided it would be appropriate to have a sequence of votes; and in doing so, it may be clear for the Board to address the legalities first, then get to the factual issues.

Commissioner Higgs stated since staff made the interpretation regarding Subsection (c), as it applies to this situation, that no new shoreline hardening structures shall be permitted in the unincorporated Brevard County south of Patrick Air Force Base, they should explain their interpretation of the plan. She suggested Ms. Busacca, who participated in the structuring of the Comprehensive Plan as well as the Natural Resources Management staff explain their interpretation of that Subsection so it will be on the record.

Natural Resources Management Supervisor Debbie Coles read the specific section pertaining to shoreline hardening as follows: "No new shoreline hardening structures shall be permitted in unincorporated Brevard County south of Patrick Air Force Base property or within Archie Carr's Natural Wildlife Refuge with exception of emergency provisions as provided for in Florida Statutes, Chapter 163.3187(1)(a), amendment of adopted Comprehensive Plan." She stated the specific Florida Statute talks about submitting Comprehensive Plan amendments mid-cycle; there are two normal cycles for submissions of Comprehensive Plan amendments; and this would allow the applicant to submit a Comprehensive Plan revision mid-cycle to get some emergency provided for. She stated if there was an "and" between provisions and "as provided for," there might be an ability to read it in another way; but the way it is stated in the Comprehensive Plan, it is staff's opinion that the applicant would first have to submit a Comprehensive Plan revision and then go forward, if that was approved, with the criteria in Subsection (e).

Commissioner Higgs requested Ms. Busacca, who was Director of Growth Management, determine what her interpretation of Subsection (c) might be; with Ms. Busacca responding she agrees with the interpretation presented by Ms. Coles of the intent of the language.

Mr. Spielvogel stated he does not take exception to Ms. Coles' interpretation or Ms. Busacca's interpretation; what he has is a memorandum dated January 2, 2002, that was sent by the County Attorney to Debbie Coles in which the County Attorney found an ambiguity in the language; and he may or may not be right, but he agrees with him. He stated the fact is Mr. Knox is the chief counsel for the County and has found an ambiguity; he has an opinion and is also a member of the staff; and whether he is right or the rest of the staff is right, it gives the Board the flexibility to make a decision. He stated the Board has an honest difference of opinion between members of its staff as to the interpretation of the language; that is a blessing because it enables the Board to make a decision in this situation; it may want to tighten it up or liberalize it for the future; and it may learn from this experience that it cannot afford to tie its own hands and has to be responsive to emergencies that come before it. He stated that is what the Board is all about; and it is a blessing to have an interpretation other than the interpretation of the Natural Resources Management Office so the Board can exercise its flexibility. He stated that is the Board's discretion because it has a difference in opinion of what the language means.

Mr. Knox clarified there is not necessarily a difference in interpretation of the language, there is a difference in opinion as to whether the language is ambiguous or not; and the Natural Resources staff does not think the language is ambiguous, but he does. He stated the Subsection can be read in two ways; one is the way staff interpreted it; and the other is the reference to exception of emergency provisions relating to the definition of emergency set forth in the Florida Statutes that is referenced in Subsection (c). He stated if the Board looks only at the language that says what the definition of emergency is, it would then read Subsection (c) to create an exception for emergencies as defined in the Florida Statutes; those are the two choices the Board has in interpreting that Subsection; but he is not saying staff is wrong about what the intent of the Board was when it enacted the provision, he is just saying it is susceptible to two different interpretations.

Commissioner Higgs stated in talking to Mr. Knox about it and as the author of the language, she believes the intent at the time it was crafted was the interpretation that staff has given; she helped to write the language and was there when it was passed; and the intent continues to give the Board a great deal of flexibility of how it can help people protect their property; however, the issue of shoreline hardening in the language made it very clear how it has to be done. Commissioner Higgs inquired if Mr. Knox has any further guidance on how he would interpret that language as the Board's counsel; with Mr. Knox responding he would have to go back and ascertain what the intent of the Board was when it enacted the regulation. Commissioner Higgs stated the intent of the person who wrote the language was that if there were situations south of Patrick Air Force Base that seemed to need shoreline hardening, it would take an emergency Comprehensive Plan amendment in order for it to be considered. She stated the Board still has flexibility in its advice from its coastal expert who indicated clearly there are some options that can assist the Villager in protecting its property. She stated other options have been suggested, so it is not an unfeeling or uncaring attitude, it is simply that the Comprehensive Plan requires an amendment in order for shoreline hardening in the form of those structures to take place. She stated it does not mean that interpretation wants to see the property destroyed; there are options; but as the author of that language at the time, that was her intent.

Commissioner Colon stated the Board heard from the Villager's attorney; it heard from one Commissioner who was on the Board at the time the regulation was written; and it heard from
staff. She inquired if Chairman Scarborough was on the Board at that time; with Chairman Scarborough responding he does not recall the legislative intent. Commissioner Colon stated she wants to know when the people will have an opportunity to speak before the Board as well as the experts they have who want to speak to the Board.

Chairman Scarborough stated the Board can take the cards now, but the issue they are going to address is the emergency; and once the Board gets past the legal question of emergency, it may be a given as a factual issue because he does not think many of the Commissioners are going to say it is not an emergency. He stated the question is what can the Board do legally; but if Commissioner Colon wants to take the cards now, he will be glad to do it; however, the Board will return to this issue because that is what Mr. Knox wants the Board to approach.

Commissioner Carlson inquired if it would be prudent to have Coastal Engineering, the firm the Board engaged to go out and look at it and provide get their perspective to the Board so the people will have more to discuss and not be taken by surprise; with Chairman Scarborough responding that would be preferable. Assistant County Manager Peggy Busacca advised staff made copies of the report from Coastal Engineering; they are available in the back of the room; citizens may want to see those while Mr. Campbell is speaking; and staff could help distribute those copies if they would like.

Tom Campbell with Coastal Planning and Engineering, advised 30 years he has worked on coastal engineering projects throughout the United States, many of them in Florida; his original training was in structural engineering, and he has done a number of structural designs throughout the State, but more recently has worked in coastal engineering; and it is a good mix for the type of question the Board has before it today, because there are structural and coastal questions that come together on this issue. He stated he read the rules and policy; he is familiar with the State's policy; he read the entire package provided by the applicant; and he reviewed the report issued by the State. He stated his preliminary response to the permit application takes some calculation of storm recession into account at that location; he looked at the entire file and is ready to present his findings to the Board. He cautioned the Board that he is an engineer and looked at the project from an engineering perspective; there are issues that go beyond what an engineer can look at; and he wanted to make it clear that he evaluated the policies, laws, and rules from an engineering perspective. Mr. Campbell stated it is important to realize that structural engineers never predict failure, they predict stability; there is a big difference between those two things; they have to be able to say with confidence that something will stand; but they cannot say the exact moment it will fail because their mandate as professional structural engineers is to make sure the overwhelming majority of structures do well. He stated when they look at a structural engineering question, they are more conservative than when looking at coastal engineering aspects. He stated they visited the Villager and want to put in perspective the engineering issues relative to the proposal; the first question is would the structure be deemed necessary as an emergency against reasonably expected storm events before the beach nourishment is done; and that is a composite question and an engineering take on all the issues at hand. He stated the second question he will answer from their perspective is, if the structure is deemed necessary, has the applicant complied with the other provisions of Policy 4.1 of the Comprehensive Plan. He stated other considerations that are important to recognize are that beach nourishment is planned to occur in the area in the next nine to eighteen months; that is an important additional consideration; and he used the format where everything in yellow is his conclusions and white are those items presented to him; and the Board needs to consider that nourishment is pending at that location because it bears on what to do with the proposal. Mr. Campbell advised he was made aware of a recent letter from Mr. Headman saying the building may have been better supported on underlying rock than what is shown on the plans; he checked into that because it is an important consideration if that is the case; he called the builder Bob Cochran, Sr. and had a discussion with him on the details he observed on the plans relative to what his inspectors observed during the construction of that building some 30 years ago; and based on their discussions, he concluded that the building was built to the plans and specifications that he reviewed, so the following recommendations and review are valid as far as he knows. He stated the claim that possibly other things were done on the foundation needs to be further looked at, but what the Board is about to hear assumes the building was built to the plans and specifications in his possession. He stated he did visit the Villagers with Debbie Coles and Virginia Barker; and presented photographs taken on February 18, 2002. He stated they looked at the coastal side of the building and the sides of the building; looking at the slope of the escarp or beach dune at the face of the building on the left-hand side shows it has been recently exposed by storms; and the slope of the drop-off is steeper than the usual angle of repose of sand, which is an indication it is in disequilibrium and without further storms may move back some. He stated it is being held primarily by the roots of the vegetation that are there; and it is being held at an artificially steep slope. Mr. Campbell advised the second set of photographs is looking to the south; it is evident that the entire area was impacted by the coastal storms of November and December, and it lost significant dune width at the location; there is an over-walk to the south that has been impacted by those same storms; and it shows how big the escarp is, which is seven to eight feet high and a relatively large drop off near the face of the building within 25 to 30 feet in some areas that face the building. He explained a graphic showing multiple cross sections; stated it was given to him as part of the application, but one thing it does show is the left-hand side of the elevations; and across the bottom are the dimensions offshore. He stated zero elevation is on the left-hand side near the bottom; that is where the basic waterline is or average waterline would be; and it shows that the dune in the area, which is up around plus-10 to plus-18, has retreated about 30 feet since 1997. He stated in recent times the dune has retreated significantly in the area, while the shoreline has fluctuated but has stayed relatively close to being the same; and in essence, there is a problem where the dune retreat is progressive. He stated the dune seems to be out of equilibrium and will continue to retreat; the good news about looking at the graphic is that one of the questions at hand for the Board is whether to require that some sand be placed at the location as part of any repair; and it would bode well for placing sand at or about the dune location because it would not be part of the active beach profile, but would recreate a pre-storm condition. He stated the active beach seems to be staying relatively in the same location although there is some retreat at that location; however, the biggest retreat is on the dune itself. Mr. Campbell showed a picture of the applicant's graphic showing the proposed revetment, identified the building foundation in cross section view, and the cross section shown relative to the proposed rock revetment being considered. He stated the slope from the base of the foundation at one-on-five, which intersects to the right, intersects the rocks; and noted that is the envelope that has been analyzed by the structural engineer to be an important part of the structural foundation; so in essence a foundation does not just sit directly on the soil, it sits on and holds its restraint from that, but there is an envelope or failure plane that extends out from the base of the foundation and goes out beyond it. Mr. Campbell advised there have been various estimates of the slope, one-on-two, one-on-three, and one-on-five; the latter estimate of one on five has been done by more detailed analysis by the structural engineer and has some validity; and it does tell him that the sand in that zone is lost, and the structure will start to become less stable and start falling below the safety factors that are prescribed for that type of structure. He stated they cannot predict failure, but can predict when things are stable; this is becoming the point where it becomes less stable; superimposed on it is the State's adjacent survey profile; it is not actually the same as the project beach and is about 500 feet away; but the State did a calculation of if they had a 15-year return frequency storm, what would be the expected recession near the building. He noted the State's early conclusion is the recession only goes back as far as shown by the red line; therefore the building is not hit, but what will come out in subsequent responses to the agencies is that they have lost, without some way to stabilize the berm, the integrity of the resisting soil near the building; so he concluded, based on the assessment, the building cannot afford to see any further loss. Mr. Campbell advised the first evaluated criteria is would the structure be deemed necessary at that location to protect the building against reasonably expected storm events before the beach nourishment is built; and his conclusion is a structure of some sort is necessary to protect the foundation from reasonably expected storms at loading conditions they might expect during that interim. He stated speaking to the issue of the emergency situation, his recommendation or opinion is to support the application, which would have to meet the four different criteria. He stated, assuming a structure is needed, the first issue is, "rock revetments shall only be approved when less structural alternatives, such as beach renourishment, dune restoration, and sandbag systems have been determined not to be feasible." He stated Shell Island in North Carolina had a similar situation; North Carolina has an anti-structural policy similar to Brevard County's policy; and Mason Inlet was moving down the coast ready to eat the building, so they applied for revetments and seawalls. He stated in North Carolina that was resisted; and ultimately the applicant was allowed to build sandbag systems as shown in the pictures. He stated that system held the line against erosion and loss of the building while a more permanent solution, which was taking the inlet and moving it a few thousand feet to the north of the location, was implemented; it was not done easily; there was a lot of debate; and a lot of people were very nervous about it. He stated to answer the question if sandbag systems can be used to hold the line in the interim, it has happened; so in essence, that is a finding to hold the line temporarily with sand-filled bags. Mr. Campbell advised he does not feel the application has demonstrated the lack of feasibility of using another system or that sandbags is not a viable option. He stated criteria 2 says, "All shoreline protection measures shall be designed to minimize adverse impacts to the naturally-functioning beach and dune system and adjacent properties"; and in this case, the design is consistent with the criteria that the County set out, as long as the County requires sand cover or vegetation be placed at the location to minimize the impacts to the beach and dune system.

Commissioner O'Brien inquired if Mr. Campbell is saying a rock revetment can be considered as long as it is covered with sand and vegetation; with Mr. Campbell responding yes, it would meet the criteria. Mr. Campbell stated the County may require a dune restoration and revegetation program as a component of the shoreline hardening approval with whatever is done, whether it is the temporary or permanent project. He stated shoreline protection should be designed and constructed so as not to impede public access along the shore; a reasonable job has been done to set the proposed structures or a substitute for those structures to not impede public access during most conditions; and the reason is that a majority of the structure will be buried. He stated in most situations, where there is a storm, the rocks will be in the beach face; but during the recovery process, rocks or sandbags would be again buried and not restrict public access. He noted that would not be the case if long-term erosion were on the beach where the rocks, sandbags, or other structures would be allowed to sit in the water all the time. He stated in the case of sand structures versus rocks, sand structures are less of an impediment to public access than rocks by a small margin. Commissioner O'Brien stated regarding public access, rocks are harder to walk across; if it is vegetated, people would be required not to walk on the vegetation; so the public access goes away if they vegetate that area; with Mr. Campbell responding he was referring to the beach laterally, not across, but along the beach. Commissioner O'Brien stated it would be set back from the high water mark so it should not impede public access; with Mr. Campbell commenting if it is buried.

Commissioner Colon advised Mr. Campbell referred to sandbags as temporary; the Villager Condominium was built in the 1970's and temporary is not a great assurance; and inquired about a rock revetment. Mr. Campbell stated sandbag structures should be considered temporary; they are not permanent structures and have a limited life; if sand-filled tubes are constantly buried they have an eight to ten-year life; but if they are exposed and hit constantly, they have a four to five-year life, so it is not a long-term deal. He stated the sand-filled structure should be thought out in concert with the beach renourishment program, as they work together in the sense that the renourishment program will keep the beach wider at that location and the sandbags will be buried and/or removed. Commissioner Colon inquired what is the disadvantage of the rocks that will be buried and not seen; with Mr. Campbell responding the disadvantage of rocks relative to sandbags relates to the policy issue of no hardening or desire not to harden the shoreline in that area; but his preference as an engineer would be the rocks because they do a better job. He stated by the time they design a sand-filled bag structure that will do the job, they will probably spend comparable dollars to the rock revetment and they will not last as long; however, it relates to what the policy is and what the Board wishes to do in its Comprehensive Plan of hardening versus no hardening. He stated the sandbags would be considered temporary and something that can be taken out at the time the beach renourishment makes the critical problem go away or left in place as a last line of defense; but it would not necessarily set a precedent for allowing hardening structures at that location. Commissioner Colon stated Mr. Campbell is basing his opinion on the policy, but she is asking him as an engineer and expert, what is the better solution; with Mr. Campbell responding the rock revetment is a better investment from the perspective of the property owners.

Commissioner Carlson stated in reference to good investment, it is important to note the County is going to spend a lot of money eventually on beach renourishment; and inquired, given the degree of erosion, in Mr. Campbell's estimation, is the beach renourishment going to resolve the critical problem. Mr. Campbell stated beach renourishment can address the problem; he has not looked specifically at the details of the proposed renourishment program and does not have it handy; but beach renourishment can be designed in such a way that the problem would go away. He stated whether the particular beach renourishment makes that problem go away for the length of time they are looking at, he does not have an opinion on that at this time. Commissioner Carlson stated in order to solve the problem, a deeper beach is needed to accommodate the negative slope that is there. Mr. Campbell stated a moderate beach would turn the clock back to what they had 20 or 25 years ago; but he has not made an evaluation of whether that situation was safe at that time.

Commissioner Higgs inquired what are the consequences long-term for shoreline hardening structures, seawalls, and revetments from the perspective of the people who own the beach, not the people who own the building. Mr. Campbell stated as a general policy, putting this proposal aside, there is good rationale for having a policy of no hardening because over the long-term that helps the health of the beach and dune systems; and a lack of hardening policy would cause people who live on or near the beach to be supportive of good management practices including beach renourishment. He stated places where there are no hardening policies are more active in terms of management alternatives, which are softer like beach renourishment; so in general, there is an advantage to the program of the beach. Mr. Campbell stated if the Board changed the policy to allow hardening at this location, it is possible that erosion would continue; in New Jersey and Town of Palm Beach, some residents did not support putting sand on the beach because they felt they still had the view and were protected at the same time; so areas that have a total restriction to hardening are managed more effectively in terms of beach restoration and management. He stated in cases where there were no restrictions on hardening, a lot of places around Florida and in the country allowed the beaches to be destroyed because the beach moved to the structures. Commissioner Higgs stated in that case access of the public to the beach is limited; with Mr. Campbell responding when that happens, it would be limited. He stated in an ideal world, it would be good to have structures that are not vulnerable, 200-foot beaches, and some last line of defense in place in front of structures from an engineering perspective. He stated they would always have a beach for 99.9% of the time and in an extreme event, have the protection afforded to individual properties.

Commissioner O'Brien stated the talk is about beach restoration being the ultimate positive action; the reason for the erosion can be traced back to the deep water channel in Port Canaveral; the sand that would have come down on a natural accretion of the beach simply is not making it there; so the reason the Board signed a 50-year contract with the Corps of Engineers to renourish the beach again was because of that channel. He stated the problem is not going away; they are not going to close Port Canaveral nor fill in the channel; so if they put in a rock revetment, and next year beach renourishment covers all the rocks up and goes out 150 feet with good sand, erosion will start to take place again, and 20 years from now they would have the same situation, especially if the Corps does not live up to its side of the Contract. He stated if the Corps lives up to its Contract, the rocks would never be exposed and public access will be there; but with vegetation, public access goes away because few people are allowed to tromp on the dunes; and there is a beach crossover to the south of the building.

Commissioner O'Brien stated hardening with rock would be a good temporary measure, but also 20 years from now, if the government does not do what it promised to prevent this from happening, at least the rock will be there. He stated sand is being replaced under the Port on an annual basis; and if they continue to do that, the accretion would never expose the rocks again for a hundred years; but if they put sandbags in, and eight years later they rot and are gone, they will be back in the same situation. He stated he does not see a problem with a rock revetment because it will be buried for a long time; and if the government does not come back to do what it promised, at least the structure will be protected. Mr. Campbell stated all those things have validity, but he identified what he believed to be what the Board's rules asked for and how it plays out; and that should give the Board some guidance on how it feels it actions need to be taken relative to the request. Commissioner O'Brien stated with rock revetment, the velocity of the water is slowed down considerably; if it was a seawall, he would join everyone else and say no because the reflection off the wall would erode things much worse; but a rock revetment has the tendency to absorb the energy of the waves and slow them down.

Commissioner Colon inquired how long would the beach renourishment last; with Commissioner O'Brien responding the Corps expects it to last 20 years. Mr. Campbell stated beach renourishment in the federal system has two components, one is the designed beach, which is always supposed to be there, and the other is an advanced fill placed on top of that to account for the amount of erosion that occurs between renourishments. He stated about half of the sand typically is placed to provide a permanent feature that is always there, and the other half is to provide an erodable feature that occurs through each renourishment; so theoretically, there is always a component of the beach renourishment over the 50-year timeframe. He stated if it works the way they plan it to work, there will always be some protective sand there.

Commissioner Colon stated the Board is trying to determine whether it is an emergency or not; by the testimony Mr. Campbell has given, he thinks something has to be done, whether it is sandbags or rocks; he has determined there is an emergency and something should be done to help those property owners; and it is part of her job description to protect the public. She stated she asked Mr. Campbell, as an engineer, whether it should be sand or rock; he felt as far as an investment, rocks would be preferred; those people are planning to pay for the project themselves; and it would not be visible to the community. She stated she is concerned about seawalls also; but if the Board does not declare this an emergency, the reality is something could happen to those folks. Mr. Campbell commented that is correct.

Chairman Scarborough stated hardening refers to rocks and concrete seawalls; and inquired if he planted sea oats, would that be hardening; with Mr. Campbell responding no. Chairman Scarborough inquired when does it become less than hardening; with Mr. Campbell responding the transition is the sand-filled bags. Chairman Scarborough inquired if the sand-filled bags system is or is not hardening; with Mr. Campbell responding it is both. Chairman Scarborough stated there is another way to work around Subsection (c) by saying it is not shoreline hardening by using sand-filled bags; so it is a way out if the Board cannot find a way through the Comprehensive Plan; with Mr. Campbell responding right.

Commissioner Higgs stated there is some support for what was just said; Policy 4.1(e)(1) says, "Vertical wood or concrete structure and rock revetment shall only be approved when less structural alternatives such as beach renourishment, dune restoration. . ." Chairman Scarborough stated he looked at that but it does not define what is hardening and what is not. Commissioner Higgs stated it does not, but she spent a lot of time trying to find the definition of hardening, and talked to Ms. Coles about it. Ms. Coles advised what she found is in the previous iteration of that Section of the Comprehensive Plan dealing with sandbags, which calls them soft shoreline protection devices, and says, "such as three bags of fill, which may be acceptable to the County, when it can be demonstrated through competent engineering studies, that they will exert minimum effects upon the shoreline functions or dynamics as well as adjacent properties. Furthermore, these devices shall not impede the public access along the shore." She stated it is an option available as the next step after renourishment.

Chairman Scarborough stated he heard if they plant a lot of sea oats, it is a hardening device because it does not allow the sand to erode. Commissioner Higgs stated the presence of dune vegetation allows the dune to renourish itself and capture the sand, so it is a nourishment device and natural mechanism for helping the dune to restore and constantly enrich itself. She stated she does not agree that it is a hardening device. Chairman Scarborough inquired if the roots do not act as an impediment; with Commissioner Higgs responding to the contrary, because it is not a hardening but an enrichment process. Conrad White advised the roots serve as a stabilization for the sand dune and does not prevent erosion if there is wave action in that area. Chairman Scarborough stated if a tsunami sweeps across Florida from the east, Tampa Bay may be wiped out; they will put sand and sea oats there because they were there at one time; but when they begin to put things that are not natural, they begin to shy away from what is natural. He stated the Board may look at sandbags more gently than rocks because the rocks are out of character. Mr. Campbell noted people look at sandbags more benignly because they can be removed. Chairman Scarborough stated rocks can also be removed; with Mr. Campbell responding yes, but nobody does it. Mr. Campbell advised Mr. Schilling handed him a note indicating the State includes sand-filled bags in its definition of hardening, but he has seen it called both ways. Commissioner Higgs noted she believes staff was ready to permit a sand structure under the conditions present on the site. Ms. Coles stated they did consider that sandbags are something that could be permittable because they consider hardening structures to be seawalls created out of wood or revetments. Chairman Scarborough stated two people said they are hardening and Ms. Coles is saying they are not; with Ms. Coles responding the Code treats sandbags in two ways, both in the Surface Water Protection Ordinance as well as the Section of the Comprehensive Plan; it is also more difficult for the sea turtles to nest on a beach that is covered with rock as opposed to covered with sand and vegetation; and it is a less difficult structure to remove or move.

Commissioner Colon stated if sandbags and rocks are both considered hardening, then the Board should allow them to put the rocks in. She stated she would like the opportunity to bring some of the engineers who the citizens hired. Chairman Scarborough stated he has Mr. Shilling's card; and following the technical discussion, he will let the citizens be heard. Mr. White indicated Mr. Campbell may not be finished with his presentation.

Mr. Campbell advised the sandbag systems have not been shown to be unfeasible as a requirement; it would have to be demonstrated, but when they went to the drawing table, they could not fit the bags in, did not do the right job, or whatever; so it has not been demonstrated by the applicant to be unfeasible. He stated based on the Board's rules, sandbags could be approved at this time consistent with the Comprehensive Plan.

Commissioner O'Brien inquired as the sand around the sandbags moves, would the shape of the sandbag change; with Mr. Campbell responding it can change slightly, but does have the ability to move and still hold its capability. Commissioner O'Brien stated sandbags may also be undermined as the bags begin to rot and fall apart; they are not used to build buildings or hold up walls for more than a very short period of time; and he is concerned what would happen in the long term. He stated the military uses geotextiles and it still rots in three years; so there would be a shifting of the sand as the bags start to deteriorate. Mr. Campbell stated yes, but they are not talking about simply placing a few bags as a substitute. He stated sandbags in effect are a revetment as opposed to a rock revetment; they have to excavate and stack the bags in a triangle going up the face of the dune; and it would not allow the undermining to occur. Commissioner O'Brien inquired if it would slow the velocity of the water; with Mr. Campbell responding not as much. Commissioner O'Brien inquired if the sandbags would dissipate as much energy as rocks would; with Mr. Campbell responding they would dissipate energy because they are sloped as opposed to a vertical seawall, but not as much energy as the rocks would absorb. Commissioner O'Brien inquired if there is any way of knowing what the difference is; with Mr. Campbell responding it can be estimated, but there is no way of knowing for sure. Commissioner O'Brien inquired if there would be more erosion at the toe of the mound as the water runs off the bags; with Mr. Campbell responding probably not. Mr. Campbell stated the vertical escarping at the face of a seawall has to do with waves hitting it; and a sloped revetment of sandbags would have more uprush. Commissioner O'Brien inquired if there was a severe storm event, would there be sufficient energy within the waves to actually damage some of the sandbags; with Mr. Campbell responding yes, sandbags can be damaged, especially if there is floating debris. Commissioner O'Brien stated there is some downside to sandbags.

Commissioner Colon asked Mr. Campbell if she lived in the Condo and hired him, would he say the best way of protecting the Condo would be through sandbags or rocks; with Mr. Campbell responding as a representative of the Condo, he would say rocks would be the preferred solution from their perspective, but the question asked of him was different than that. Commissioner Colon stated she appreciates Mr. Campbell being fair, stating there is an emergency, and giving a comparison of rocks and sandbags.

Commissioner Carlson inquired if the uprush will damage the property; with Mr. Campbell responding in a severe storm it could with both rock and sandbag revetments; it would be more severe if they do not break up the energy with a series of irregular rocks because the uprush on a smoother surface like sandbags would go up further and could take out some windows on the first floor; and that has happened in other areas where huge storms have gone through and waves broke directly on the structures.

Commissioner Higgs stated Commissioner Colon asked what Mr. Campbell would recommend if he were advising the Condo owners; and inquired what he would say to the person who does not own the property but is a beach user, and what are the consequences of a total hardening of the shoreline. Mr. Campbell advised looking at it in terms of total hardening and not just this property, the policy has some basis to it; and that basis is trying to preserve the entire beach system by generally prohibiting those types of structures. He stated if the Board could do that over the long term, based on multiple decisions on what to do at particular spots and the overall aggregate of what to do relative to the beach restoration, the Board would come out ahead in terms of the average person in the County looking at a preserved beach 20 to 30 years from now because the decisions would be made relative to preserving beachfront rather than hardening areas. He stated in a general sense, it is good to have rules and laws in place at this location; but when the Board looks at a specific location, there is a question whether there will be direct impact to the overall beach system. He noted on an individual basis, the decision will always be to protect the structure, but when looking at the aggregate basis, it becomes better to have a nonstructural approach.

Commissioner O'Brien stated if the entire beach were rock, it would not be good, but this is a single case; because beach renourishment is going to occur, a request for this kind of hardening should not come back for 25 years if at all; so to try and look at the problem as being global along the entire beach may be disproportionate to what is going to occur. He stated if one area is hardened, it does not mean everybody is going to say harden our shore too; this is an emergency; and they are going to bury it. He stated 25 years from now, if the government has not done what it supposed to, then maybe others will say they have a problem; but by that time there may be changes in the laws and capabilities of stopping that kind of erosion from taking place. Commissioner O'Brien stated they understand hardening of the shoreline is not a good thing if allowed to occur all the way down the shoreline; but in a single case, and because of renourishment, there will be no further cases coming to the Board for a long time; so the statement made before is inconsequential to what the Board is looking at today.

Commissioner Colon inquired what kind of foundations are being built on the beach for condominiums today; with Mr. Campbell responding they would be built with pilings to anticipate this type of recession or loss in a big storm. He stated this project was built before that was a serious consideration; and building on pilings will have less problems than what the Board is addressing today. Commissioner Colon stated the Board has been trying to protect the beach and has not been allowing any development within 15 to 20 feet from the beach; what is critical about this issue is the technology of 30 years ago; and the condo owners are at a great disadvantage.

Commissioner Carlson stated Mr. Campbell talked about nonstructural is better in the aggregate, and Commissioner O'Brien said nobody will come back in the next 20 years; and inquired if staff knows of similar situations based on the proximity to the beach line; with Ms. Coles responding Virginia Barker has done an evaluation of that, so she assumes there is.

Natural Resources Management Supervisor and Beach Management Coordinator Virginia Baker advised there are dozens of other structures that are probably close to being as threatened as the Villagers; most of them are located south of where the Shore Protection Project will end, so they will not be getting nourishment; and there are other structures north of the South Reach Shore Protection Project, between Indialantic and Patrick Air Force Base, where there is no shore protection project planned because of the rocks and surf zone, that also have similar erosion as this project.

Commissioner Carlson inquired how staff evaluates the observation; with Ms. Barker responding from doing various kinds of surveys on the beach and seeing buildings that are extremely close to steep and tall bluff lines. She stated the weight of a building does not sit on the dirt directly beneath it; the dirt going out at some slope all supports the building; and if you see a big escarp in the dune and dirt is not there within the cone of influence, then you can acknowledge there is a problem. She stated up and down the shoreline south of Patrick Air Force Base there are probably several dozen structures that look questionable; but it would depend on the kinds of pilings underneath those structures.

Commissioner Colon stated based on the aerials, how many of the 12 structures are in the same position as the Villager about how close they are to the beach. Ms. Barker stated the Breakers, which is in the Town of Melbourne Beach, was in much worst situation than the Villagers two years ago following the storms of 1999; there is a house immediately north of the Beachfront Inn with the actual edge of the house sticking out beyond the bluff line; and there are buildings that are in worst shape than the Villager, either closer to the beach or hanging out beyond the bluff. Commissioner Colon stated it is not anyone's fault that they are not trying to fix their structures, but these folks are trying to make sure they do not go under. Ms. Barker commented she does not know why they have not come to the Board already.

Chairman Scarborough requested Ms. Barker explain who she is for the people watching the meeting at home. Ms. Barker stated she has been with the County six years, 2.5 years as Beach Management Coordinator, working on the federal Shore Protection Project. She stated she was promoted in August, 2001, to Supervisor in the Natural Resources Office, and is wearing two hats as she trains the new Shore Protection person.

Commissioner Carlson stated if the Board starts allowing big rocks to be driven underground and covered with sand, how is that going to impact turtle nesting along that area, which is one of the premier spots in the world for turtle nesting. Ms. Barker advised turtle nests are cavities where the eggs are deposited; they are about 30 inches below the surface; so it depends on what the slope of the rocks is. She stated if there is a steep rock slope, it will affect a smaller area where turtles would try to nest; but if it has a gentle slope rock face, it will affect a larger turtle nesting area. Commissioner Colon commented she does not think the turtles would mind 50 feet of the 72 miles of Brevard County.

Chairman Scarborough inquired if there is a way to make the rock revetment work and have enough sand on it that it becomes a natural environment; and it is there for a massive bad storm as opposed to something that may adversely affect nesting turtles. Mr. Campbell advised with the beach restoration in place, if the County requires the sand to be replaced to keep the dune maintained after it occasionally washes away, that would be a way to mitigate it; but it will probably never go back to a totally natural situation. He stated if the County requires the dune to be totally rebuilt and all of the revetment buried, it will probably stay there and be hit once or twice a year by storm events; and if the County requires replacement of the sand as continual maintenance, that would approach the natural condition, but not be as good. Chairman Scarborough inquired if that is a condition of rock revetments; with Mr. Campbell responding there have been those imposed, but he does not know if they have met those requirements or not. Chairman Scarborough inquired if it is hard to enforce; with Mr. Campbell responding yes, but in some cases where people needed to do it to protect their homes, they agreed to those types of conditions with the State. He stated he can check out how many of those conditions were imposed if the Board wants him to.

Applicant's Presentation

Dr. Lee Harris, Associate Professor of Ocean Engineering at Florida Institute of Technology (FIT), advised he was a coastal engineer with the Corps of Engineers in the mid-1970's and has worked in the coastal erosion field for over 25 years; he teaches courses in coastal structures and ocean engineering at FIT; and he has worked with beach nourishment projects, sand-filled container projects, and other coastal projects over the years. He advised his Bachelor's Degree is in ocean engineering from Florida Atlantic University; his Masters Degree is in coastal engineering from University of Florida; and he has a Ph.D. in ocean engineering from Florida Atlantic University, specializing in ocean structures. He thanked the Board for reviewing this case and extended special thanks to Tom Campbell for the excellent presentation on the facts he reviewed in such a short time. He stated since it is an emergency situation, they are all working in a short amount of time; and he wants to review the points of concern. He stated in reviewing Tom Campbell's report, which he received yesterday, finding #1 in his report and in his presentation today, confirms his findings and findings of other consulting engineers, especially on the structure and foundation; and they all agree there is an emergency situation. Dr. Harris advised the structure was built before the current regulations requiring pilings for beach structures; and the building is in jeopardy with further erosion lessening the soil support that the floating slab foundation offers for the building. He stated in Mr. Campbell's report, the foundation could be jeopardized by a relatively minor storm and needs to be protected; they realize there is a beach renourishment project planned, but it looks like it is going to be about a year; and during this summer and fall, the structure will be subjected to potential damages. He stated there has been a lot of discussion between sand-filled container systems or sandbags and rock revetments; and advised of his conference on sand-filled containers, a presentation he did for the State of Texas, and examples similar to that shown by Mr. Campbell, but in more detail. He stated in Mr. Campbell's report, he mentioned the failure to demonstrate that sandbag systems are not used for interim measures; and he also says they would not be as good protecting the building, they can be punctured by floating debris or vandals, and they have a limited life-span. He stated they are not talking about not trying to protect the bluff; they are looking at putting a system in to protect keep the foundation of the building intact; the building is not a temporary structure, it is permanent; and the foundation warrants a permanent protection. He stated they are blessed that a beach renourishment project is going to come into place; he can understand the thoughts that they can provide a sand-filled container system as a temporary protection until the beach nourishment comes into place; but it is important to remember that a beach nourishment project is something that is not just done once and stays there forever. He stated it is a very effective way to stabilize the beach and shoreline, but they are more concerned about the dune erosion, beach erosion, and foundation of the building. Dr. Harris stated there is erosion to the beach between beach nourishment events; just because the sand is put out there does not mean it stops the erosion; they are still subject to erosion, storms, and erosion events that remove sand from the beach nourishment project; and time between nourishments and severity of the storms during those times govern how much sand they actually have on the beach. He stated they are trying to protect the foundation of the building and cannot afford to have that in jeopardy; they are at the north end of the beach nourishment project, so they are more subject to losses due to the equilibration as the beach nourishment project spreads out along the coast; so he is concerned with that as well as the time period and the vulnerability between beach nourishment and renourishment events. Dr. Harris stated in the area they have a peculiar situation where they are in the middle of some beach outfalls; there are four outfalls, two north and two south of the property within a few hundred feet; during severe storm events with lots of rainfall, the rainfall gathers in the storm outfalls and flows out on the beach; and in the area where the Villager Condo is located, after severe rainfall, the water rushes through the beach outfalls and washes the sand off the beach. He stated that is going to affect the beach nourishment project and protection the Villager would receive from that; that is the main item in Policy 4.1(e), as he mentioned in his letter, and the sand-filled container systems are temporary and subject to puncture or tear by water-borne debris; so they need a permanent fix for a permanent foundation of a permanent building. He stated Item #2 says revetment minimizes the impacts on the beach dune; Mr. Campbell said that is true, and he agrees; they will have a beach nourishment project and expect the system to remain totally covered; and it will be there in the event of a very severe storm. He stated the building is susceptible between beach nourishment and renourishment; the Board saw the 15-year storm design profile done by the State; a 15-year storm could easily occur this summer or fall, prior to the beach nourishment project coming in; and that puts the foundation of the building at risk. He stated once the beach nourishment project goes in, the beach will erode as it has over the years; and if a storm comes in just before they are about to renourish the beach again, and there is a limited amount of sand, the foundation could be in jeopardy. Dr. Harris stated the beach nourishment project addresses the shoreline erosion problem and assists in minimizing effects on the beach; in terms of shoreline hardening, they are not hardening the shoreline and are doing a hardening behind and within the dune system up against the building as far landward as possible; and it will be a slope structure to minimize any impacts to the beach due to wave reflection. He stated once it is installed, it will not be seen and should never be seen except in a very severe storm event; and it will also have returns that are gently sloped to the north and south that will minimize impacts on adjacent shorelines. He stated Item #3 on dune restoration and revegetation is included in the design; once the rock revetment is in place, it will be covered with sand and the dune will be vegetated as part of the project; and as far as impeding public access, the beach nourishment project will address the shoreline erosion problem and allow the public to traverse the area. He stated the property owners will have dune walkovers to reach the beach and adjacent walkovers to allow the public onto the beach; and the lateral access along the beach should be maintained. He stated if the Board wants him to further address examples of sand-filled containers versus rocks, he has a Power Point presentation he could show the Board; and if not, he will be happy to answer any questions it may have.

Commissioner Carlson advised when the State permit was in process, Department of Environmental Protection was interested and preferred a vertical wooden retaining wall; and requested Dr. Harris give the Board the pros and cons of that; with Dr. Harris responding the State likes to do that because a steeper face occupies less of the beach; but their problem is the five-to-one slope of sand they do not want to excavate, penetrate, or otherwise disturb because that sand is providing support to the building. He stated if they were to put in a vertical wall and not penetrate the five-to-one slope, it would be way out on the beach, which no one wants to see; so putting a slope structure further back and just above the five-to-one slope is the design.

Commissioner Higgs inquired if Dr. Harris would dispute Mr. Campbell's representation that if seawalls or rock revetments became the norm, public access on the beach would be disturbed; with Dr. Harris responding if they are in constant contact with the water that causes wave reflections and affects waves, yes, it would counter access along the beach; however, if they are buried below the sand, not affecting the beach system, and not exposed except perhaps during severe storm events, generally there is a lot of natural recovery after a storm event. He stated the beach condition shown by Mr. Campbell in his photographs was taken a couple of months after erosion events and the beach had already come back vertically about six feet; so the vertical escarpments are severe, but in October and November, they were twice as severe. Commissioner Higgs inquired if Dr. Harris had experience in getting permits for his clients from U.S. Fish and Wildlife Service for those kinds of hardening in the area; with Dr. Harris responding other agencies comment and participate in the permit activities. Commissioner Higgs inquired if Dr. Harris had experience with permit activities; with Dr. Harris responding yes. Commissioner Higgs inquired if Dr. Harris believes the project will secure a U.S. Fish and Wildlife Service permit; with Dr. Harris responding the fact that there is a beach nourishment project planned that is going to provide the sand needed for nesting sea turtles, and they are going to keep the rock revetment buried beneath the dune, means they could get a permit from U.S. Fish and Wildlife Service. Commissioner Higgs advised when she was on the beach looking at where it appeared the water had been, it seemed to be ten or fifteen feet from the toe of the escarp; and inquired how can the rocks not impede public access if that is a true fact; with Dr. Harris responding the rocks are going to be further landward and in the dune rather than the escarpment. He stated in the profile Mr. Campbell showed, they actually have the rock revetment buried within the existing dune; during storm events, the reason there are escarpment and erosion is the waves were lapping right at the toe of the dune; but they will be landward of that and providing protection for a greater level of storm. Commissioner Higgs inquired if they plan to take out the existing dune, and how far back will the rocks go; with Dr. Harris responding the rocks will go as close to the building as they can without disturbing the soils supporting the footing. Commissioner Higgs inquired how far back in the toe of the dune will the rocks begin to be buried; with Dr. Harris responding he could show that on the drawing; and explained the drawing with the blue showing the existing dune with escarpment in the front, and the red showing the proposed revetment section set back behind and within the dune system. He stated the blue is the existing dune, which will be replaced over the rock revetment; that has to be excavated for installation of the rock revetment and would be put back and revegetated for a better dune. He stated the dune in the photographs show sea grapes and dune vegetation that were undercut and falling down the steep bank; and that will be replaced with a more gentle slope, which will be vegetated.

Commissioner Carlson inquired, when she asked about the vertical wooden wall, did Dr. Harris say any disturbance on the existing dune could be injurious to the building, and is now talking about undermining that; with Dr. Harris responding the revetment is sitting just above the five-to-one slope from under the foundation; the five-to-one slope is the sole support that runs out underneath the rock revetment; so it is going to be important during excavation and installation that it is not done below that level; and that is the limit. He stated they want to move it landward as far as physically possible; but disruption of the underlying soils is the limiting factor. Commissioner Carlson inquired if there is bedrock under the facility; with Dr. Harris responding they had extensive soil tests done and their geo-technical person can best answer that question.

Brad Faucett advised he works for Universal Engineering Sciences as a regional engineer, is a professional engineer with the State of Florida, and has been practicing in Brevard County for about 20 years. He stated they did soil borings not only at the site, but on several sites to the north and south for new construction; there is a layer of fine sand, which are the dune sands, then sand and shell formation, which were formed in the high impact wave action many years ago, then partially crystallized formations where calcium in the shell has been partially dissolved and re-deposited, so there is a thin and broken layer of what is locally called coquina rock. He stated coquina rock is very thin, broken, and discontinuous; actual bed rock would be at a depth of 120 feet; they would have had to cut out some of the thin coquina rock for the footings, which was probably an impediment to workmen swinging a pick; but the building is not supported on bed rock. Mr. Faucett advised the coquina rock causes problems in trying to drive wooden pilings; if they hit that rock, it is going to shatter; there is no way to get a wooden wall in place by driving; and they would have to excavate with a large backhoe, put the planks in, and backfill around it, all while hoping the building does not come down.

Commissioner Carlson inquired if Mr. Faucett's perspective of the type of structure they are suggesting if done properly will not undermine the building; with Mr. Faucett responding there should not be any problems.

Commissioner Higgs inquired if perpetual maintenance of the dune and slope of the beach is part of the project proposal; with Attorney Spielvogel responding it is not part of the program; they are looking to the beach renourishment project, which is subsidized by all taxpayers, to maintain whatever is being lost through erosion over the years; so it is not part of their anticipated program. He stated they anticipate the project will cost approximately half a million dollars; but it is their responsibility, so they will pay for that. Commissioner Higgs inquired if they are not agreeing to perpetual maintenance of the dune in natural vegetation; with Mr. Spielvogel responding that has not been part of the proposal, but they will maintain the vegetation.

John Smith, President of the Villager Homeowners Association, advised they had many meetings over the last three months, and a lot of expertise has gone into trying to comply with things that have been discussed so far; perpetual dune maintenance was brought up at one of their meetings; and while the Condominium existed long before the Comprehensive Plan, and they want to stay there long after, it seemed only fair, since they are absorbing all the cost for the structure, that if there is significant damage, it will not be just their 400 feet, but thousands of feet in either direction. He stated they do not want to be the only ones required to put sand down; but if everyone else is required to do it in perpetuity, they will be happy to comply.

The meeting recessed at 2:47 p.m., and reconvened at 3:04 p.m.

Terri Wilson advised she is an owner at the Villager Condominium; she and her husband first came to Brevard County in 1980 and fell in love with it, so they bought a time-share in Satellite Beach; and for 12 years they spent all their family vacations here. She stated their children are now grown and have also purchased time-shares in Brevard County; so it is a place they really love. She stated in 1994, they knew they wanted to spend their retirement years in Brevard County, so they purchased their condominium; and today she comes to the Board with a heavy heart because the reports they received from their engineers and other professionals indicate their beloved condominium stands in harms way. She stated those individuals have advised them their building is in jeopardy; they and their friends and neighbors are living under constant worry about what will happen to their homes; and that has caused unnecessary stress and hard feelings among their once congenial neighbors. Ms. Wilson pleaded with the Board to allow them to put up a revetment with the cost underwritten by the Villager residents; and stated they realize the enormous cost of the project, but are willing to fund it. She noted some of them will be required to make more sacrifices than others, but today they come together with one voice and request the Board give them approval for the project.

Jim Schilling stated most of his thunder has been stolen, and all he can say is what others have already said. He stated the Board realizes something needs to be done of a permanent nature to save the building; and what he started out with as a shore protection assignment quickly became a save the building project. He noted he will answer any questions the Board may have.

Commissioner Higgs stated there is some confusion about the consistency of the drawing the Board has and the drawing it is seeing now.

Mr. Schilling advised he is a structural engineer in private practice with 34 years experience, an MS and BS in engineering from Mississippi State and University of Alabama, and has been practicing in Brevard County since 1979. He stated while in the local area, he has received the Engineer of the Year award twice; he is active in most of the professional organizations in the County; has been a member of the Society of American Civil Engineers since 1968, and he has been a member of the American Institute of Steel Construction and American Institute of Concrete Construction since 1971, a professional engineer in three states, and a licensed special threshold inspector in Florida. He stated there have been a lot of rumors about the building, which they have tried to reduce to facts; the most recent is about the foundation construction; they have very detailed drawings of the construction; and the most important ones were submitted to the County showing the plan of the foundations, which is very similar to this drawing he is presenting. Mr. Schilling stated the blue shows the foundations on the water side of the building; another drawing submitted to the County was S-1 that gave actual details of each foundation; the plan has a number versus the other one, and tells how wide, how long, how thick, and how deep they were constructed; but they heard many rumors lately about the foundation going to bed rock and being on pilings, which is different than what is depicted on the drawings. He advised he found the actual developer who is still in business in the County and had a lengthy conversation with him; he could not remember exactly how it was constructed, but did say he told them to make it much better than the Code required; he did not have pictures or records and could not clearly remember; and it is the same situation with the Contractor who is still in business in Indialantic, both Cochran, Sr. and Jr. He stated he received different answers from time to time; so Wednesday night they dug one of the foundations up under the main sheer wall that is further out toward the ocean; they found almost every dimension exactly like the drawings indicated, except the top of the foundation had been built approximately three feet lower, which means they had the good sense during construction to build them slightly lower. He stated there is no bedrock; they were not built 16 feet deeper than was drawn; however, they were built three feet deeper. Mr. Schilling stated to reinforce that, he asked them to dig up another foundation this morning in the northeast corner of the building; and he just received the results of that. He stated it is basically the same; the foundation thickness and width and position are within an inch of the drawing; and it was last night when he started working on the drawing he will show the Board. Commissioner Higgs inquired which drawing is it; with Mr. Schilling responding last night they were able to do the drawing he is presenting because the foundation is lower, and they can get the revetment further back to the west without endangering the foundation. He stated if the foundation were up higher like the drawing indicated, they would be digging under the foundation to construct the revetment, which they could not do; so the difference is what they found Wednesday night and reinforced this morning. He stated when they dig up the other four foundations they expect to find the same thing; it is a little better condition, but it does not change anything; and the building is still in jeopardy, vulnerable, and needs to be protected. He noted three additional feet will not give a lot of protection. Commissioner Higgs inquired if they are planning to go three feet closer to the building; with Mr. Schilling responding no, about 20 feet closer.

Chairman Scarborough requested Mr. Schilling put the drawings side by side because they look substantially different to him, as one starts at the height of the dune and comes out at the toe. Mr. Schilling stated with the foundation lower by three feet, he can bring everything over to the west approximately 20 feet more than they anticipated; and the dimension from the building out is about 40 feet. Commissioner Higgs inquired if the farthest they would go beyond the building is 40 feet to the east; with Mr. Schilling responding that is correct, from the east exterior wall of the building. Commissioner Higgs inquired if it was significantly farther; with Mr. Schilling responding it was 64 feet farther east and now it is 40 feet. Commissioner Higgs inquired if that is their submittal for consideration or is it the other one because she is confused about what the Board is considering. Conrad White stated the Board would be considering the new plan. Commissioner Higgs stated they do not have official drawings of the new plan; and inquired if Mr. Schilling is specifying to the Board that is the plan; with Mr. Schilling responding as of last night, that is what they want to build. He stated it gets the structure as far west as possible; they are going to have to fight the same battle with the State, which wants them to put it as far westward as they can; and they want to do that and bury it in the beach so no one would see it. He stated they want it so deep even the leatherback turtle, which he heard could burrow down six feet, cannot get to the rocks. He stated when they put the sand back on top of it, they are not going to put it sharp like it is now; and they are going to put a slope that will be stable, and vegetate it. He advised they are trying to build a system the turtles will never find, no one will ever see, as far westward as possible, will do less damage to the neighbors than anything the Board can conceive, and will be permanent so they do not have to revisit it. Commissioner Higgs stated what was presented to the Board is not the drawing that is there, so it makes a different impact on the way people evaluate things; and it is hard, in the middle of a hearing, to react to something that is very different than what was proposed. Mr. Schilling stated he did not get the data until right before the meeting; they could have stuck with the old plan, but they want to make it better and want the Board to know they are trying to make it better.

Chairman Scarborough stated going to the far east side in the new drawing, the depth is five to six feet; with Mr. Schilling responding the rocks will be six feet below the existing dune. Chairman Scarborough inquired if that is what the turtles need; with Mr. Schilling responding what he heard today is they need 30 inches, and they are giving them six feet. Chairman Scarborough inquired if Mr. Schilling can commit to the Board that at no time will there be less than so many feet between where the rock revetment is and where the sand is and they will constantly maintain a certain depth; with Mr. Schilling responding when they construct the revetment, it will be more than six feet. Chairman Scarborough stated can Mr. Schilling commit to the Board and agree today that if a storm event occurs, they will come back and bring it back to that point, because the issue is if it is not seen no one knows it is there. He stated he does not know if it is a hardening project because hardening defines what is on the surface. Mr. Schilling stated if anyone can see the rocks, there will not be much left to come back to the County for because it would have to be a very severe storm to take all the sand off and expose the rocks where the bottom elevation is a minus one foot and the top elevation is six and a half feet. He stated it will be six to eight feet below the sand when they are done; and if all the rock is exposed, the erosion would be so severe up and down Brevard County's beaches, this would be the least of the Board's concerns because there would not be many buildings left. Mr. Spielvogel stated he wants to respond because he does not think the question was answered. Commissioner Higgs inquired if Mr. Spielvogel is going to answer the question about the rocks staying covered; with Mr. Spielvogel responding he touched on that earlier; if they have a storm of that severity, it is not going to be just that section of the beach, but is going to be devastation throughout Brevard County or a substantial part of it; and that is the reason they are going to do all of the work at their expense. He stated it is going to be a burden on those folks; it is not Trump Towers; they are middle-class units; it is going to cost a considerable amount of money; and if they have that much devastation, the County, State, or federal government is going to look at replacing the beach overall and writing it off as devastation. He stated they are going to do an excellent job now; they are going to do everything they say they are going to do; they are going to overdo it because they want it to benefit the people who own condo units; but he cannot commit that if there is a storm event, and the sand is washed way, they are going to replenish it because he does not think they can possibly afford to do that. He stated if they did their section of the beach, unless everybody else addressed it north and south of the project, it would be a waste of money; and if there is another storm, there will be a pile of sand in front of their 400 feet then it will drop off to nothing.

Chairman Scarborough inquired if it is going to be 40 feet; with Mr. Schilling responding from the east exterior wall of the building it will be 40 feet to the end of the rocks. Mr. Schilling stated the top of the existing dune is 33 feet from the same east exterior wall; and those coordinates are on the drawing the Board has.

Commissioner Higgs asked staff if that is the proposal the Board reviewed from the start, and does it classify as a beach armoring under the Comprehensive Plan; with Ms. Coles responding it definitely will require alteration or construction past the coastal construction control line, but there are no specifics, so she cannot legally answer that question. Commissioner Higgs stated what the Board is seeing now is not what it saw before; and inquired if Ms. Barker had another opinion; with Virginia Barker responding she believes the State tries to require that any armoring be covered with sand and vegetated dune either built on top of or seaward of the armoring. Mr. Campbell stated the State will consider it armoring; but the Board has to consider how it would look at it in this case because it would be less exposed.

Chairman Scarborough inquired if a new footer or piling was put in straight down next to the building, would that be hardening; with Mr. Campbell responding no. Chairman Scarborough inquired if it was pointed out at an angle to the east at what point does the angle become armoring; with Mr. Campbell responding if continuous piling was put in one next to the other with no gap, that would be considered armoring; but if one pile is put in then a space before another pile, that would not be considered armoring. Mr. Campbell stated it has nothing to do with the angle, but it is whether it is a continuous hard face. Chairman Scarborough inquired if it is hard face on the surface or beneath the surface 90 feet, would that be hardening; with Mr. Campbell responding it would be silent hardening.

Commissioner Higgs stated it is different than what was originally submitted. Ms. Barker stated the criteria say they have to minimize impact on the beach; and that is a tremendous step forward in their application in terms of consistency with the Comprehensive Plan.

Andy Wilson, resident of the Villager, advised he will be 71 years old in a few months, and would like the Board to meet a few of the residents; Jack is 99 and Sally is 92, June Cooke is 92, Phil and Dot recently moved in and are in their 70's; and he wanted to introduce them because it is important to put faces on a building. He stated they keep talking about the buildings, but there are 97 families who live in those buildings; it is not an old folks home; the average age is 62; there are active people employed; but most of them are retired educators, architects, lawyers, and military personnel, as well as a retired priest. He stated they were the keepers of the dream and made the decisions that affected other people's lives; now they find themselves in an unfamiliar role coming before the Board and asking permission to do something they know needs to be done; and it reminds him of the words of John F. Kennedy in his inaugural speech when he said, "the torch is passed to a new generation." Mr. Wilson stated the Board is the new generation and keeper of the dream; they want to know that the Board will make the right decisions for them; they heard so much about the legal aspects and engineering; but they tried to approach it with a clear view that they want the building to be there for them into the future. He requested the Board put aside pride of authorship, step outside the box of legalities, and do what is right, because when that torch was passed to it, they hoped it would burn brightly with common sense and compassion because that is what they need. He stated he hopes the Board will see it their way because they want to do the project at their cost; it will not cost the County or taxpayers a cent; and because it will cost them a lot of money, approximately $500,000, they only want to do it once.

Mary Warshowsky advised the Villager has been her only home where she lives year round; her vested interest is to save her home; but she also cares about the environment, turtles, beach, shore birds, dunes and vegetation. She stated none of those things belong to her; they are gifts for everyone to enjoy for generations to come; and she is also concerned about her neighbors' properties to the north and south of the Villager. She stated every morning during turtle season she checks for turtle tracks and is particularly thrilled when they nest in front of their building; and she chased away a blue heron that was eating baby turtles once. She stated the dunes look the same as she stands on land and looks seaward; but on the beach it looks like the sand was scooped out by the waves, and the dune vegetation is dead or dying; the beach seems to be lower than it has ever been; and although sand washes in and out, the waves seem to be sweeping up to and sometimes under the dunes as never before. Ms. Warshowsky stated they must temporarily disrupt the beach environment to protect the underpinnings of their building; the proposed work will be down deep, then the beach and dunes will be restored at least to their present condition if not to an improved condition; and little or no damage to the beaches north or south is expected. She pleaded with the Board to let them do the project.

June Cooke advised she is 92 and has lived at the Villager for 20 years; she worked hard to come here, retire, and spend her senior years here; but it is so frightening to watch the ocean waves take away the dunes and not know where they are going to go if the Board does not help them. She pleaded with the Board to let them do what they must to take care of their homes; and inquired what is going to happen when this year's storms are over and their homes are no longer safe, and where is an old lady going to go. She requested the Board's help; stated they need its help now; and it is very urgent because later on it will be worse. She begged the Board to allow them to do what is necessary to protect their homes; and stated she prays to God that the Board will do what God wants it to do and help them.

John Smith stated as the Board heard, there is a lot of emotion in the room; they attempted to keep objectivity and clarity in their purpose, which is to live in the community; they want to be a part of and work within the community; and they hope the Board will work with them.

Mark Shantzis advised he lives in the South Beaches on the ocean and is opposed to the revetment on the basis of law, science, and economics. He stated County staff has given the Board dictation of law quoting the Comprehensive Plan and explaining Policy 4.1; North Carolina has passed laws along the same lines as the Comprehensive Plan, which have been upheld in court as recently as April 2000, when the seawall issue came up for the same reason this issue is coming up; and there is a complete State ban on seawalls in North Carolina. He stated Florida State rules and procedures for coastal construction, Chapter 662(d).2233 says, "A seawall only be approved if no other technical, viable alternative is possible." He stated the Board hired an engineer who said that alternative would be sandbags, but did not cover pilings driven underneath the building at an angle to sustain it; he said sandbags have not been tried, so he does not know if it will work; but it has been proven to work in an example he showed the Board in North Carolina where they could not put up a seawall and put in sandbags instead. Mr. Shantzis stated Virginia Barker told the Board it would affect sea turtle nesting; it is obvious that it will no matter how deep they bury a concrete revetment; the sand is going to wash away; and he will get into that when he gets into the science. He stated Ms. Barker talked about the Breakers; he has an entire package on the Breakers, which went for the same type of permit from Department of Environmental Protection approximately a year and a half ago; and over 200 people signed a petition against it and Department of Environmental Protection turned it down for the same legal reasons that he is standing before the Board. He stated the Board is hurting the people by giving them the impression they can take this project and spend more money and get things that Department of Environmental Protection will not let them have because they violate State law; the rules and procedures, .0051(1)(b) says, "No permit will be allowed if renourishment is funded and is scheduled within nine months"; there is no interpretation; it says "shall not be permitted"; and what has not been discussed here is the littoral drift in Florida, which is from north to south that will scour out properties to the south of the Villager in the event of a storm occurrence. He stated when the sand is washed away, they will end up with a big permanent revetment that cannot be impeded; the water will go around it and scour out the property next door; and the Board will cause harm to the people next door and the taxpayers because six properties to the south is a public park. He stated the Board will see those people in court under the Florida State Private Property Rights Protection Act, 70.001, which allows people to recoup their investments for actions taken by the Board that hurt their properties. Mr. Shantzis stated as far as science is concerned, he has 13 books out of his personal library explaining why it is contrary to scientific data to put up seawalls; and the U.S. Department of Agriculture, Soil Conservation Service, Agriculture Information Bulletin No. 460, U.S. Army Corps of Engineers, Building Inspection Department, Mammoth Beach, New Jersey, Skidaway Institute, Savannah, Georgia, and many more have made it very clear that revetments and seawalls do not work and in fact cause more erosion and harm to the properties to the north or south, depending on the littoral drift. He stated the rising seas are an issue; the people who live on the ocean, such as himself, must understand that the sea level is rising and is becoming more acute; and in fact, it is rising at six times the rate it did 100 years ago, because they are in the tail-end of a warming stage, which started approximately 7,000 years ago.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to extend the time for Mr. Shantzis by one minute. Motion carried and ordered unanimously.

Mr. Shantzis stated a scientific chart shows what happens as the sea level rises; the dune will move westward; the entire barrier island is going to move westward in the next 300 to 700 years; and Brevard County will have a sea level rise within the next 30 years somewhere between three and four feet, so anything that is put there will not work. He stated what the Board needs to talk to the people about is possible relocation in the near future and possible help with financing the relocation, which has been done in other parts of the country. He stated he has photographs of the Breakwater, if the Board wants to look at it; it shows that property is even closer to the ocean; and he has a photo of what happens when a wall or revetment is put in, indicating there will be damage to properties next door. Mr. Shantzis stated in terms of economics, the property had a 30-year life when it was built; it is approximately 30 years old; so it has reached its lifetime. He stated it was inferior construction, not a technical problem; the technology was there; 98% of the buildings that were built in Miami Beach from 1965 on have deep pilings under them; and the West Coast of Florida, and all the way up the east coast to New York and many other places have pilings under buildings. He stated it was an economic issue; they were trying to save money and knew no one would know and they would get away with it; but there is a way to financially take care of it now. He stated they could sink pilings at an angle; he has seen it done; and requested the Board be compassionate to the people and do not lead them on by telling them they can put in a rock revetment, which is going to be a permanent thing. He stated 30-ton rocks are moved in big wave surges, so the sand will disappear; whatever is put down there will be a gigantic thing floating around and ending up seaward; and it will be a hazard and will not be able to be removed. He stated there is going to be sand put on the beaches anyway; so his suggestion is to do something temporary that can help the people out, and in nine months there will be a huge renourishment program. He stated it is not true, if a big storm comes, every property on the beach will be destroyed; but even if it is true, that is the risk the people who live on the ocean take; that is the economic risk and the tradeoff they make for the lifestyle they choose; and that is the risk they should incur individually.

Commissioner Colon inquired if Mr. Shantzis was before the Board recently; with Mr. Shantzis responding yes, in reference to a rezoning issue. Commissioner Colon stated Mr. Shantzis mentioned compassion; when he was before the Board, he talked about protecting his investment, home, and quality of life; and inquired how is that any different from the people trying to protect their investments and quality of life. She stated he talked about relocation of the people as if it was no big deal; there are about 100 families who live there; so to make that statement to relocate them as if it is no big deal does not exhibit compassion. She stated they saved all their lives to be there and be able to enjoy the ocean; they and Mr. Shantzis have something in common, protecting their investments; inquired how is that any different. Mr. Shantzis stated that is a good question; and the key issue is what Commissioner Colon said, which is her job is to protect the public in general; but it should not be at the expense of anyone else. He stated what came before the Board two weeks ago was a man who requested rezoning of his property in a residential area to basically use it for commercial purposes; he thought he owned the property and wished to make it as valuable as he could; but it should not be at the detriment of the surrounding neighbors; and this is a similar situation, with the people asking for rocks on the beach to hold their sand to the detriment of those from whom the sand is being held. He stated it is at the expense of somebody in the southern part of the property who is not going to get that sand anymore; and that is what he is talking about. He stated if the people could do that and make it happen without there being some kind of wall there, such that when the ocean rises and the big blow comes along and scours out the beach, it would not scour out the property next to them or all the other properties along the beach, that would be okay. He stated he does not know who the people in the Villager are, but the Board would set a precedent with this project; Virginia Barker said there are dozen of properties in a similar situation; and the Board will end up with people coming to it in a line asking to give them a wall to the detriment of the persons to the south of them. He stated that will trigger the property rights issue because those people's properties are going to be harmed; and it is the same situation that happened two weeks ago when he addressed the Board and asked the Board not harm them to the benefit of one individual. Mr. Shantzis stated they live in a residential neighborhood; the property owner was doing a lot of stuff on his property; they said he could do it because he is grandfathered in and bought the property knowing he could do that; and this is the same situation about at whose expense does somebody get the right to do something. He stated if they can do it at nobody's expense, he would say give them the power to do it; but if somebody else is going to be hurt, then the Board has a hard decision to make; it has to decide if the general public is going to be hurt, is access to the beach going to be affected, and are the people's properties to the south going to be affected; and the answer is yes, it is going to happen. He stated the Board can help the people as much as possible in another way; it has the power to do that; ultimately they will have to move because the sea is going to rise; and no matter what they put there, it is going to pull away the bottom of that building. He stated he saw it happen to hundreds of buildings in Miami Beach; and all have been knocked down and built further back because those buildings reached their useful life.

Attorney Leonard Spielvogel advised the question of precedent they would be setting was brought up; the building was built in 1973 and according to County specifications; his clients did not build it, and it did not occur to them to check to see what kind of foundation it had; most people who buy homes do not question the foundation, and assume the government looked out for them; and the government said the building was okay. He stated now the building is no longer okay; the building could not be built any more; they require all kinds of pilings for that type of construction; and he received a copy of a letter one owner wrote where he questioned what kind of foundation the building had. He stated he took the building plans to the Building Department to get an independent judgment; Carol Smith, the County's Building Official, introduced him to Vern Wells; and Mr. Wells looked at the plans and confirmed there were no pilings under the building. He stated the County is not going to have this kind of situation arise in the future; there may be other buildings on the beach that may be in jeopardy now, but they are going to have to address that; and the Board's responsibility is to do the right thing. Mr. Spielvogel advised as far as the turtles are concerned, he spoke to a representative of Geomar, which is the monitoring firm that is handling the monitoring for the restoration that is going on now; they check for turtle nesting every morning; and if they find nesting has occurred where they are at risk, they relocate those turtles under the supervision of U.S. Fish and Wildlife Service; so they are not going to jeopardize the turtles while construction is going on nor thereafter. He stated the idea of relocating the people and the building has outlived its life expectancy has no basis; and the Board heard from some of the homeowners, but they limited the number so the Board would not have too much redundancy.

Chairman Scarborough stated the conversation started with Mr. Knox leading the Board into a certain dialogue; somehow they have to be mindful of what is said; shoreline hardening means something occurred at the shoreline that is hardened; but something underneath the sand is not actually shoreline hardening; and if it is not, perhaps it is strengthening of the foundation. He stated while the Board can look at walls and hear that walls have a tendency to dig the sand out and make the problem worse; in this case, it would be something under the sand that could become exposed at a certain particular point; and inquired if it could be considered part of the building as a structure of support. Chairman Scarborough stated Virginia Barker mentioned there is pressure on the sand that moves out; if there is something below the coquina that would tend to hold the foundation, he would be willing to look at the idea that it is not a shoreline hardening project, but actually a means of structurally supporting the building; and he thinks the Board could live with that. He stated if there are others who come in within those parameters, the Board would not have opened the floodgates; but if it walks away from this, it could usher in a disaster because if the building collapses, it would be a tragedy, not just for the residents, but many people because there would be a huge mess on the beach. He stated it would adversely affect properties to have a collapsed building sitting on the beach; so if the Board can work around the law and make some sense of it, that would be advantageous to all. He stated the Board has to deal with staff, the rules, and the laws somehow. Commissioner Colon stated she agrees if there is something to give some kind of direction, she would support it. Chairman Scarborough inquired how would the Board do that; with Mr. Knox responding it hits on a legal point of does the definition of hardening include armoring because they are two different things. He stated what he heard is permitting for armoring; there are some provisions in the Florida Statutes providing for armoring; it may not fit with the County's definition of hardening or what the County determines hardening means; and that is the word used in the Comprehensive Plan. He stated it is not armoring or anything else; so if the Board feels this project does not meet the requirement, that is its call.

Commissioner Carlson inquired if the Board has to fall back on how the State defines hardening and armoring because ultimately it falls on the State whether it is going to allow this project or deny it; with Mr. Knox responding not necessarily because if the Board defines hardening differently and say it is consistent with its Comprehensive Plan, the homeowners still have to go to the State and get the permit; and if the State does not agree, it will not give them a permit. He noted that does not change the fact that it may be consistent with the County's Comprehensive Plan.

Commissioner Higgs inquired if there are additional reflections on whether this project, under the Comprehensive Plan, is a shoreline hardening structure. She stated it is very unfair to tremendously change the proposal at this meeting; the Board looked at one structure and now it has another; so it is unfair to staff and the Board to be entertaining a different proposal at this point; but given that the Board can, she would like additional reflections on whether it is a shoreline hardening structure. Conrad White stated there is a definition in the Coastal Setback and Control Line that deals with revetments; they are called rigid coastal and shore protection structures, but are not called hardening; however, it is ambiguous to say it is not armoring; and staff has difficulty with that. Virginia Barker stated unless sand and vegetation are maintained on top of that structure, the Board could anticipate erosion would eventually expose the structure, at which time it would have shoreline hardening.

Commissioner Higgs stated the applicant will make no promise that they will maintain it, so she has to fall back to where she came into the discussion, which was in regard to the Comprehensive Plan. She stated Mr. Wilson alluded to the author; she claims ownership, but that is not why she would want the Board to follow the law; this is a nation of laws; and if she is given the torch, she will follow the law. She stated the law is clear; it is there to protect everybody; if they follow the law, it is the only way they can live in a civilized society; however, the Board can change the law. She stated the Comprehensive Plan says no new shoreline hardening structures shall be permitted in unincorporated Brevard, and talks about emergency provision in the Comprehensive Plan section on amendments to the Comprehensive Plan. She stated Florida Statutes say the Board can declare an emergency and can amend its Plan; so that provision is in the Comprehensive Plan based on Florida Statutes to go forward and amend it if that is what the Board wants to do; however, the Board does not have the opportunity today to approve a shoreline hardening structure unless it asks for an emergency amendment to the Comprehensive Plan. Commissioner Higgs stated sufficient evidence has been presented that there is available to the owners of the property a method by which to protect their property; it is a reasonable engineering solution; it complies with the Comprehensive Plan; it is consistent with the laws; and it is permittable as she understands it. She stated it has been demonstrated by the County's consultant that the sandbag solution would work; and rather than wait for a Comprehensive Plan amendment or a challenge to the law or anything else, there is an ability to solve the problem today and they can go forward. She stated the County is working and continues to work vigorously to have a good beach renourishment program; it is continuing to do that; thousands of cubic feet of sand had been placed on the beach in a very successful project; and they will continue to do that. She stated what the Board can offer today is the ability to get a permit from staff for an acceptable engineering solution to be done; it is perhaps not the first pick, but is a viable and sound solution; and the Board will continue to work for erosion control and beach renourishment that protect the homeowners, the neighbors' properties, and everyone who wants to use the beach. She stated her position, based on what was presented and what she knows at this moment, is that the Board needs to stand by its Comprehensive Plan.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to support the endorsement of staff that the project before the Board is not permittable under the Comprehensive Plan. Motion did not carry; Commissioners Higgs and Carlson voted aye; and Commissioners O'Brien, Colon and Scarborough voted nay.

Commissioner Colon inquired what kind of motion would the Board be able to make to ensure it goes along the lines of what the Chairman said regarding the foundation; with Mr. Knox responding the Board would have to interpret Policy 4.1(c) to mean that there is an emergency exception; and that would be the first motion.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to determine that Policy 4.1(c) provides for emergency exceptions. Motion carried and ordered; Commissioners O'Brien, Colon and Scarborough voted aye; and Commissioner Carlson voted nay. (Commissioner Higgs voted nay later in the discussion.)

Commissioner Higgs inquired what does emergency exception mean; she thinks there is an emergency, but that is not the question. Mr. Knox stated if the first motion passes, the second motion would clarify that. Commissioner Higgs stated she would have to vote no because she does not understand the motion; there is an emergency; and there is a way to solve it by an emergency amendment to the Comprehensive Plan.

Chairman Scarborough stated Commissioner Higgs has a point because with the emergency exception, the question is what relief is afforded once the emergency is declared; the Board is not arguing the emergency; but the question is what action it should take under that scenario.

Mr. Knox stated the supplemental motion is to look at Policy 4.1(e) to determine whether the emergency meets the criteria set forth in that Policy. Chairman Scarborough stated Policy 4.1(c) says "no new shoreline hardening structures"; and inquired what if the Board determines this is not a shoreline hardening structure; with Mr. Knox responding then they do not have to worry about it. Chairman Scarborough inquired if they could make a motion to that effect; with Mr. Knox responding if the Board determines it is not a hardening structure, the answer is yes. Chairman Scarborough stated to do that the Board needs some factual data and to make factual determinations that this is not going to become a shoreline hardening structure after the first strong wind. Commissioner Higgs stated the Board would have to take testimony from the experts here, because it already had testimony from staff that they can define it only as hardening based on what they know at this time. She stated she would like to ask the consultant to come forward and define shoreline hardening if the Board is going to take that route. Chairman Scarborough stated he does not have a problem with that. Commissioner O'Brien inquired why would the Board have to go that route if the motion is that it is not a shoreline hardening. He stated the expert testimony is not required because the Board is saying it is not hardening. Commissioner Higgs stated the testimony by staff, who are experts in this area, said they believe it is a hardening project; with Commissioner O'Brien responding yes, but there were other engineers and testimony that contradicted that statement. Commissioner Higgs stated no, Mr. Schilling and other experts are here in regard to shoreline hardening, and the project being submitted assumes that it is a hardening project; so the Board need to better define by some experts that it is not. Chairman Scarborough stated they need to define what it is because they had one thing before today and something else now.

Mr. Knox advised he will try to shed some light on the issue and maybe the Board would still want to hear from the experts. He stated Florida Statutes 161.085 basically says if there is some kind of emergency caused by nature or some storm condition, and the Department of Environmental Protection does not issue a permit that allows any kind of structure to be built to protect the property, the County Commission is authorized to do that on a temporary basis; the term used in referring to the ability to build a structure to protect property is "rigid coastal armoring structures"; and that is not the term used in the Comprehensive Plan. He stated the Comprehensive Plan uses the term "hardening"; the permits pertain to rigid coastal armoring constructions; so the question is whether or not the Board is talking about the same thing. He stated the experts may be able to provide some input on what hardening is; but the term the County uses is not the same term that the State uses, so the Board has the ability to interpret it. He stated the State may trump the Board saying it considers the project to be whatever and requires a permit; it may or may not deny the permit; but if the Board says it is consistent with its Comprehensive Plan, it goes to the State and the State grants the permit, then they are off to the races. Commissioner Higgs stated the definition of beach armoring includes any rigid structure; and inquired if the proposed project is a rigid structure; with Mr. White responding yes. Mr. Knox stated he understands that; but inquired when is a rigid structure a hardening and how deep do they have to bury it before it becomes something else.

Chairman Scarborough stated maybe everybody has a real handle on what is meant by shoreline hardening, but he does not; he asked about planting of sea oats, putting up a wall, and if it is 90 feet deep is it still hardening; there has to be a point when they move from what is considered repugnant under the concept; and his thought is that prohibiting shoreline hardening was to not adversely affect property downstream, or the nesting of turtles and the plant life. He stated hardening is a word repugnant to naturalists; going to intent, someone has to demonstrate to him that shoreline hardening structures are abnormal and adverse to nature; and that is not written anywhere, but that is where he voted legislative intent-wise. Chairman Scarborough stated if the structure floats to the surface, he would have a problem with that; it is not just the law that bothers him, it is the definition; and inquired if the Board is clearly defining something that is a structure. Mr. Knox advised the engineers would have to advise the Board on that if that is the Board's concern.

Commissioner O'Brien stated if the structural emergency repair is not done, then the base of the building would be exposed; and that would be hardening; when it falls on the beach, that would be real hardening; and inquired at what point does the Board want to say the concept brought forth today implies it is really there for the structural integrity of the building. He stated he would define the structure as non-hardening because it is not exposed to the elements. He stated a comment was made that it would affect the sea turtle nesting, but actually if there is a sheer cliff and flat beach, the turtles cannot lay their eggs because they will be under water most of the time; so this project would help the problem with the endangered sea turtles and at the same time strengthen the building without being exposed to the public or taking up beach space. Commissioner O'Brien stated the Board has a job to do; "shall" should become "should" to allow the government flexibility in its planning to take care of problems that come along; it is a good solution because the sand will cover the whole thing and the rocks will hold the building in place; and if there is a huge storm that wipes out all the sand, other buildings may fall in, but it will not be this building. He stated when renourishment comes, it will really be buried; so he likes the plan and will vote for it if the Commissioner of the District wants to make a motion for it.

Commissioner Colon stated the Board has interpreted that hardening is okay in an emergency; therefore, she would like to make a motion to direct staff to prepare a letter to Department of Environmental Protection stating the County finds the proposed Villager project in compliance with its Comprehensive Plan and everything it found today.

Motion by Commissioner Colon, to direct staff to prepare a letter to Department of Environmental Protection stating the County finds the proposed Villager project in compliance with its Comprehensive Plan and everything else it found out today.

Commissioner O'Brien inquired if Mr. Knox has further wording for the motion; with Mr. Knox responding he would add that it meets the criteria of Policy 4.1(e)(1) through (4). Commissioner O'Brien inquired if that could be included in the motion. Commissioner Colon inquired if the Chairman had anything he felt uncomfortable about; with Chairman Scarborough responding he wants to make sure the Board references the specific plan it is looking at and has clear definitions on it, because he does not want to see this type of project come back again and again. He stated the Board understands the problem, but it does not want everybody coming to the Board and requesting to do this type of structure. Commissioner O'Brien suggested including revised revetment in the motion. Commissioner Colon inquired if that is possible; with Mr. Knox responding affirmatively. Ms. Busacca requested clarification for the record.

Commissioner Higgs inquired on what basis is the Board going to permit it; with Mr. Knox responding the motion is to say that the planned project would be consistent with the Comprehensive Plan. Commissioner Higgs inquired if the Board is going to the recent dimensions. Mr. White advised under the Coastal Setback and Control Line, Section 62-4112, all excavations, including removal or alteration of soil, sand, or vegetation by digging, dredging, filling, cutting, shall be prohibited seaward of the Coastal Setback Line. He stated if the Board is going to move forward with this project in its present state, the applicant will have to come back for a variance before the Board, so it will see the engineering drawings again. Commissioner Scarborough stated that will ensure what the Board is getting with the project. Commissioner O'Brien inquired if there is verbiage in the Codes for emergency hearings. Commissioner Higgs stated they cannot go forward with that letter because it is not consistent with County Code. Mr. Knox stated the only letter they asked for is consistency with the Comprehensive Plan. Commissioner Higgs stated the Coastal Construction Line is also in the Comprehensive Plan. Ms. Coles stated the verbiage on the State permit also refers to local regulations, but staff could craft a memo stating intent, pending the outcome of the variance. Commissioner Higgs stated it would be inaccurate to craft it other than to say it is scheduled for another hearing on the Coastal Construction Control Line. Ms. Busacca stated the permitting will take much longer than the Coastal Construction Control Line variance, so the Board could direct staff to craft a letter that would allow this project to move forward to the permitting stage. Commissioner O'Brien recommended that be placed in the motion.

Commissioner O'Brien stated the Board has declared that it is an emergency; the Coastal Construction Control Line is a separate subsection of the Comprehensive Plan; and inquired if the Board can declare an emergency on that as it did with the structure, as the interpretation is to grant permission for the project to go forward as an emergency. Commissioner Higgs stated it requires a notice of public hearing or it would deny the public the ability to speak to that issue. Chairman Scarborough stated the answer is no, it has to have a public hearing.

Commissioner Colon inquired if that is covered in the motion or does she have to add any more; with Mr. Knox responding his recollection is that the motion is only about consistency with the Comprehensive Plan; and inquired if Commissioner Colon is looking for a letter saying it is consistent with the Comprehensive Plan, or does she want one that says it is consistent with everything. Mr. Spielvogel stated as a general statement of consistency, it goes beyond the Comprehensive Plan. Mr. Knox advised the motion would not take care of the Coastal Construction Control Line variance; they will need that variance; so if this motion is approved, the next motion should be to authorize staff to advertise the public hearing on a variance application required to be filed with the Planning Department showing what they are going to do; but staff could forward the Board's actions today so Department of Environmental Protection will at least know where it stands as of today. Chairman Scarborough stated the application should have a higher level of detail. Commissioner Colon inquired if the second motion would be to advertise a public hearing for the variance

Chairman Scarborough requested a second to the motion. Commissioner O'Brien seconded the motion.

Commissioner Higgs stated she wants to put on the record that there are other ways to solve the structural problems presented by the Villager and to comply with the Comprehensive Plan; Policy 4.1(c) of the Comprehensive Plan and Policy 4.1(e)(3) states the County may require dune restoration/revegetation as a component to hardening approval both landward and seaward; and the Board has failed to do that. She stated it is also failing to look at the Chapter in the Code, which says only under an emergency provision. Chairman Scarborough requested the issues be talked about one at a time; with Commissioner Higgs responding she knows where it is going and thinks it needs to be on the record. Chairman Scarborough stated he understands where it is going; Commissioner Higgs mentioned dune restoration; he wants to see that there is restoration; and inquired should that be addressed now or later. He suggested going through each item and asking the question if they are being adequately addressed in the motion. Commissioner Higgs stated the emergency provision of 163.3187.1(a) says the Board is not going to do that; but in order to comply with the Comprehensive Plan, you would have to have complied with 3187.1(a) which reads, "In case of an emergency, Comprehensive Plan amendments may be made more often than twice during the calendar year if the additional plan amendment receives the approval of all members of the governing body. Emergency means any occurrence or threat thereof, whether accidental or natural, caused by humankind." Chairman Scarborough inquired if Commissioner Higgs wants to change the Comprehensive Plan; with Commissioner Higgs responding she does not want to see shoreline hardening; there is a way to do that; but the Board does not seem to want to entertain it. Chairman Scarborough stated he does not want to change the Comprehensive Plan; with Commissioner Higgs responding then he has to read the Comprehensive Plan and adhere to it if he does not want to change it. Chairman Scarborough stated that is what he is trying to do. Commissioner Colon stated she is going by the advice of Mr. Knox. Mr. Knox stated the original premises for this hearing was to decide whether Commissioner Higgs' interpretation is correct, which she gave the Board, or whether the Comprehensive Plan provision, subparagraph (c) can be read to allow an emergency exception, which would drive the Board back to subparagraph (e); and that is what the Board has decided the Comprehensive Plan means. Commissioner Higgs stated that is not true, the Board said it is not a shoreline hardening structure. Mr. Knox stated that is what the motion was as he understands it; the Board had two choices; and if it did not go with Commissioner Higgs' interpretation, then it had to go with the other interpretation. Commissioner Higgs stated she did not hear that; there are several interpretations; but she does not think she heard anyone say it is not a shoreline hardening structure; and if they want to go that way, she suggested the Board hear expert testimony. Mr. Knox stated whether it is a hardening structure or not is a different issue than whether or not there is an exception for emergency.

Chairman Scarborough stated he has a problem, when something is far enough underground that only in an extreme storm event would it become exposed, does it become a shoreline structure because it is not a hardening of the shoreline. He stated it needs to be defined; the Board needs to know it is not going to be floating to the surface like Ms. Barker described; and the Board needs to talk about if it is under sand is it hardening. He stated they talked about renourishment; Mr. White is bringing back the variance; and maybe when the Board talks about the Coastal Construction Control Line issue it can talk about this issue. He stated if he walked out there for the next ten years and not see anything but sea oats and birds, and not know there is something under the sand, he would at least know those people who live in that condominium would sleep better at night.

Mr. Knox advised if the Board wants to go to the hardening issue, that is a separate issue than what the motion was as he understood it; and it would require a Board decision to say it is not hardening, in which case, they would not have to worry about the first motion. He stated if the Board is concerned about the impact of the project, it has a variance application coming before it; they are going to show the Board the plans; and the Board's experts could tell it whether it will be one that floats up or has the potential of floating up and what that potential would be. He stated the Board can attach conditions to variances saying they have to build it a certain way, have to get permits from Fish and Wildlife Service, do not go into turtle nesting grounds, etc.

Commissioner O'Brien called a question on the motion. Chairman Scarborough stated when a question is called, the Board does not go directly to the question, but takes a second and vote of the Board because one person cannot call a question.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to call a question on the motion. Motion carried and ordered; Commissioners Higgs and Scarborough voted nay.

Chairman Scarborough requested the motion be repeated. Commissioner Colon advised after all the discussion, the motion is to interpret that hardening would basically happen below the ground where it is not going to be seen; and therefore, would be okay; and direct staff to prepare a letter to Department of Environmental Protection stating the County plans to propose the Villager project is in compliance with the Brevard County Comprehensive Plan.

Commissioner Higgs stated the Board has to find that it is in compliance with all the Codes and Ordinances, and it has not done that because it is still having a hearing on the Coastal Construction Control Line variance. Commissioner Colon stated that is a separate issue and something the Board will come back to. Commissioner Higgs stated the letter has to find it in compliance, not only with the Comprehensive Plan but all local Codes and Ordinances; and the Board is not able to do that today. Commissioner Colon requested an explanation from the County Attorney. Mr. Knox advised as he understands it, the motion is to find that this proposal complies with the Comprehensive Plan, which includes Policies 4.1(c) and (e); that staff's letter to Department of Environmental Protection reflect the Board's action today; and that is as far a the Board can go with that. He stated he understood the prior motion to require staff to entertain the application for a public hearing on the variance application, which would be submitted, and move that forward.

Commissioner Colon inquired if there is anything else the Chairman wants; with Chairman Scarborough responding it is opening up the Board more if it goes with the idea that it is not a shoreline activity, but it will make it much harder on anyone else coming in. Commissioner Colon inquired which way would be more comfortable; with Chairman Scarborough responding he would prefer to say this is not a shoreline structure as depicted and demonstrated in the subsequent hearing. Commissioner Colon inquired if that is something she should do; with Mr. Knox responding if she chooses to go that way, she has the option to do that. He stated it is a Comprehensive Plan interpretation of what that term means; and if the Board says it is not hardening, then that eliminates all the need for the other stuff and emergency, and the Comprehensive Plan provision on emergency still stays the way it is.

Motion by Commissioner Colon to determine the Villager Condominium project is not shoreline hardening, and leave everything else out.

Mr. Knox stated if that is the motion, then it disposes of the issues as far as today's proceedings. Commissioner Higgs stated there is still the hearing on the Coastal Construction Control Line; and as she understands it, the letter has to be in compliance with local Ordinances and the Comprehensive Plan, and the Board cannot say that.

Commissioner Carlson stated Department of Environmental Protection's letter dated January 24, 2002, states, "This public comment notice is being distributed in order to assist Department of Environmental Protection in developing facts on which to base a decision on the permit application. For accuracy and completeness, all comments should be submitted in writing with supporting data, evidence, or rationale to furnish a clear understanding of the basis for the comments. The decision as to whether a permit will be issued will be based on an evaluation if (1) the design adequacy of the proposed construction; (2) the expected impact of the proposed construction to the beach dune system; (3) the expected impact of the proposed construction to adjacent properties; (4) the expected impact of the proposed construction on lateral public beach access; (5) appropriate siting of the proposed construction with respect to local setback, zoning restrictions, and maximum usage of upland portions of the property; and (6) the expected impact of the proposed construction on nesting sea turtles and hatchlings and their habitat." She stated it also says they have 14 calendar days to provide that information; Ms. Busacca gave her a letter from Nanette Church dated February 1, 2002 that indicated denial; and suggested staff explain it because she is not sure it covered all the requirements to make this a factual hearing and to provide it to Department of Environmental Protection so it can make an educated decision on whether or not it believes that all the facts are in place.

Ms. Coles stated the comment letter Commissioner Carlson referred to is something that staff does on a regular basis in comment to requests for additional information from the State; and the comment letter specifically talks about staff's consideration and the Board's pending consideration of the criteria in Policy 4.1(c).

Commissioner Carlson stated Department of Environmental Protection is asking specifically and is giving staff 14 calendar days from January 24, 2002 , but the response letter of February 1, 2002 does not answer all six of the points; with Ms. Coles responding no, it does not. Commissioner Carlson inquired if that means staff missed the date; with Ms. Coles responding that is not the case because she does not believe, absent of the letter, that the official time clock has specifically started. Ms. Coles stated they did negotiate with the State to get it to consider the applicant's request, absent of that letter, and pending the outcome of this evaluation. Commissioner Carlson inquired if all six points have been answered in this hearing; with Ms. Coles responding a number of them have. Commissioner Carlson stated that is an important point because if not, then the folks who are sitting out there and endured what the Board is doing need to know it might be moot, based on the Board not giving the Department of Environmental Protection answers to all the questions for it to make a factual decision. Ms. Coles stated it is not up to the County alone to provide all that information; it goes out to a number of agencies, including Fish and Wildlife Conservation Commission, U. S. Fish and Wildlife Service, and others that are involved with regulation of threatened and endangered species and other things. Ms. Coles stated it is a form letter that goes to many different agencies; and Brevard County is one of the commenting agencies to the permit. Ms. Busacca stated staff could put together information, as they understand it, relating to the six items for the coastal setback variance when that comes back to the Board, and provide a report to the Board. Commissioner Carlson stated that would be in the best interest of everyone.

Commissioner Colon inquired if it would be better to make a motion that, after evaluating the testimonies presented to the Board, it is not a shoreline hardening, then give staff direction to advertise a public hearing regarding the variance and go through that process, because sending the letter is giving some concern and is almost like getting ahead of the issues. Mr. Knox stated he would recommend that; and if the Board needs to tell staff to send anything, they could send a letter saying that is what the Board did; and if that is not enough for Department of Environmental Protection, it can wait until the variance procedure is completed. Commissioner Colon suggested not sending a letter out until they do everything that needs to be done.

Chairman Scarborough inquired if Commissioner Colon wishes to withdraw her motion, does the seconder accept that, and does Commissioner Colon want to restate the motion. He requested Commissioner Colon remove the motion and restate what she said.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to withdraw the previous motion, and determine the Villager Condominium project is a non-shoreline hardening structure, based on the testimony given today.

Chairman Scarborough requested Mr. Knox and Ms. Busacca comment where the Board needs to be and where it is with this motion. Mr. Knox advised if the Board determines there is no new shoreline hardening structure involved because of what it heard today, that would be its interpretation of the Comprehensive Plan and a legitimate action on its part. Ms. Busacca stated Department of Environmental Protection would want additional language that it is consistent with the Brevard County Comprehensive Plan, with no discussion about land development regulations, but simply that it is consistent with the Comprehensive Plan. Chairman Scarborough stated there are two parts to this item; while the Board may make this statement, it will get a lot more details when it does the Coastal Construction Control Line variance hearing; and as part of that, he wants to get into how deep is it going to be, where are turtles nesting, how storm events will affect it, etc. He stated while the Board heard certain comments today, it will get so much deeper into it later; he thought Mr. Knox suggested deferring this and incorporated it and the action at the public hearing at the same time; and inquired if that was his suggestion; with Mr. Knox responding no, he suggested the Board make a decision whether it is hardening or not today. Chairman Scarborough stated the question of whether it is or not would be more definitive at the later hearing because it will have more data. Commissioner O'Brien stated that will not be part of the discussion of going beyond the Coastal Construction Control Line; and the Board seldom defines what it is that is going there, whether it is someone's porch, house, or backyard. He stated people present their concepts of what will be done and how it is going to be better after it is done, but they do not get into what kind of structure it is by definition.

Commissioner Carlson stated the Board has gotten a structural engineering perspective, but no environmental engineering perspective; and there has not been enough science proposed to really vote on the motion that changes the definition. Chairman Scarborough stated he is basing his decision today upon one diagram and getting a lot more information later. Commissioner O'Brien stated what it is was defined today so the coastal setback is not part of that. Commissioner Higgs stated under the rules and procedures for coastal construction excavation, the State of Florida, which is Chapter 62(b)33 under definitions, says, "Armoring is a manmade structure designed to either prevent erosion of the upland property or protect upland structures from the effects of coastal waves and current action. Armoring includes certain rigid coastal structures, such as geotextile bags or tubes, seawalls, revetments, bulkheads, retaining walls, or similar structures."

Commissioner Colon inquired if the Board should continue; and Commissioner Carlson inquired based on what. Commissioner Colon inquired if Commissioners Higgs and Carlson are going to vote nay, why is the Board still going at it. She noted at the next hearing the Board will discuss it further, perhaps on March 19, 2002. Commissioner Higgs stated if Commissioner Colon has the votes to do it, she should do it as a Comprehensive Plan amendment; if it is not done as an amendment, it will send something to the State that is easily challenged by all parties; and all it is going to do is prolong the process. She stated there are going to be lawyers and engineers and costs; they can go forward today and do sandbags or do a Comprehensive Plan amendment; but going forward this way is the worst way to do it because it will be open to challenge. Chairman Scarborough stated he does not want to change the Comprehensive Plan and open it up because he heard there are other places that may want to do similar projects.

Commissioner Higgs stated there is language that could be crafted because the language for north of Patrick Air Force Base is different than that south of Patrick Air Force Base; and the Board has some flexibility in terms of "shoulds" and things north of the Base. She stated because it says north of Patrick Air Force Base there are no new shoreline hardening structures permitted; but it also says, "pursuant to c and d of Policy above, if a shoreline hardening structure is deemed necessary, then the following shall apply"; then there are all the alternatives they must meet before they can put in a wall.

Commissioner O'Brien stated the Board could go to the motion today and make another motion to begin the process of the Comprehensive Plan change because it has already said this is not shoreline hardening. Commissioner Colon stated Chairman Scarborough said he does not want to change the Comprehensive Plan, so there is no need to go there. Chairman Scarborough stated he does not mind talking about the Comprehensive Plan, but if Commissioner Higgs wants to go there, he would be willing to look at it. Commissioner Colon stated even if she did a Comprehensive Plan amendment, Commissioner Higgs would not support the project anyway; with Commissioner Higgs responding that is right. Commissioner Colon inquired why is it being discussed then; with Commissioner Higgs responding it is prolonging the process by the way it is being done today. Commissioner Colon stated she prefers not to amend the Comprehensive Plan, and prefers this route.

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

Motion by Commissioner Colon, to authorize staff to advertise a public hearing to consider a variance to the Coastal Construction Control Line.

Attorney Spielvogel stated they will be filing for a variance, but he wants to put things into the record and will recite them. He presented an application dated December 26, 2001 to Florida Department of Environmental Protection for construction of erosion control revetment system and an email from Scott Knox, Esquire, Brevard County Attorney's Office to Deborah S. Coles, Permitting Supervisor with Brevard County Office of Natural Resources Management. Chairman Scarborough advised there has been a request for review; and the item can be tabled until it has been reviewed by the Commissioners. He stated having something shown as part of the record without the Board having considered it as part of its discussion is inappropriate. Mr. Spielvogel stated they have all been presented. Chairman Scarborough stated if it proceeds on to litigation, there is a presumption that the Board read the documents, but it has not seen them until the end of this discussion, so it would be an incorrect presumption. Mr. Spielvogel stated he does not want to participate in anything that would delay a decision; they have turtle season approaching; and they would like to bring this issue to a conclusion.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to authorize staff to advertise a public hearing for March 19, 2002, to consider an application for variance from the Coastal Construction Control Line for the Villager Condominium. Motion carried and ordered; Commissioners O'Brien, Colon, and Scarborough voted aye; and Commissioners Higgs and Carlson voted nay.

Commissioner Colon inquired of the County Attorney if anything has been left out; with Mr. Knox responding at this point no; and the next step is to consider the variance application and see what happens from there.

Commissioner O'Brien stated he would like to see a change in the Comprehensive Plan of "shall" to "should" to allow elasticity for government to make decisions without having to do a dance around the Maypole every time something comes up. He stated it is the kind of thing which boxes in the Board and it cannot service the public it is supposed to serve; "should" gives an option to do that; and where the Board wants to do it or not is a different story, but at least it will grant an opportunity to be fair to the public. He noted "shall" removes that fairness. Chairman Scarborough stated it needs to be considered on a case-by-case basis; with Commissioner O'Brien responding the word "should" allows that to occur, but "shall" does not.

Commissioner Carlson stated it is an interesting point that the Board should look at all the things that are going to be occurring after this point; all the other condos and structures that are going to be under siege at some point in the future whenever that might occur; so it should ask staff to do a little research on how the Board can deal with all those structures and if it has to go through the same thing with each unit. She stated the Board wants to have a high standard; and inquired if everything gets blown off the beach tomorrow by a hurricane, is the Board going to tell them to go back and rebuild.

Commissioner O'Brien stated the design brought to the Board today is one of the best he has seen; and "should" allows the Board to look at different technology and ideas and say that is a good idea. Chairman Scarborough stated the Comprehensive Plan touches many things in many different ways; and before it puts a blanket "should", it needs to do some research. Commissioner O'Brien stated he is talking about this particular issue. Chairman Scarborough stated he wants to look at every sentence he changes.

Commissioner Higgs stated the only thing the Board was brought today is the red and blue thing it just approved. Commissioner O'Brien stated that is all he needs. Commissioner Higgs stated the Board has no commitment to vegetation or to anything. Commissioner O'Brien stated they are coming back for the variance hearing, then the Board can talk about the vegetation; however, the Code says if they dig it up, they have to revegetate.

Mr. White inquired if the Board wants the consultant to return at the time of the variance hearing; with Chairman Scarborough responding yes, it could be relevant and it is prudent. Commissioner Carlson inquired if there is a possibility of bringing in an environmental engineer who can talk about the issues of hardening versus non-hardening. Commissioner O'Brien stated he would not support it because the Board has already determined it is not hardening. Commissioner Carlson stated based on the State's definition, and it is the one that rules, the Board needs to get someone who can substantiate the motion. Commissioner O'Brien stated that has been substantiated by the engineers today.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to authorize getting and environmental engineer to determine hardening and non-hardening structures. Motion carried and ordered; Commissioner O'Brien voted nay.

Upon motion and vote, the meeting adjourned at 4:51 p.m.

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

(S E A L)