The Board of County Commissioners of Brevard County, Florida, met in special session on April 5, 1995, at 5:04 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

Commissioner Ellis led the assembly in the Pledge of Allegiance.

APPROVAL, RE: REVISED 1995 BOARD MEETING SCHEDULE

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve the revised 1995 Board Meeting Schedule. Motion carried and ordered; Commissioner O'Brien voted nay.

Chairman Higgs advised Commissioner O'Brien if he has a problem with the schedule, he can bring it back to the Board.

REPORT, RE: ESCORT FOR CLERKS AND CHAIRMAN

Commissioner Cook recommended the County Manager make sure someone escorts the Board secretaries out of the building this evening. Chairman Higgs inquired what about her; with Commissioner Cook responding and Chairman Higgs.

APPROVAL, RE: BREVARD COUNTY BUSINESS/EDUCATION SUMMIT SPONSOR

Chairman Higgs advised the Brevard County Business/Education Summit is being held on May 12, 1995; the sponsors are the Private Industry Council, Brevard Community College, School Board, the Economic Development Commission, the Department of Education, and the Department of Labor; and the Board has been asked if it wants to be a sponsor. She stated there is no fiscal impact and the goals of the Summit are to have the community leaders working together.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to authorize Brevard County be a sponsor of the Brevard County Business/Education Summit on May 12, 1995, at Brevard Community College Melbourne Campus, with no fiscal commitment. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: VIERA DEVELOPMENT PROPOSAL

Board Discussion of the Viera Project

Chairman Higgs advised she did not anticipate opening the hearing on the Viera DRI to public comment; however, she has five cards from Ed McMahon, Frank Schieber, Marilyn Waters, John Ritner, and Frank Kunze; and inquired if the Board wants to open it to public comment.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to allow public comments at three minutes each. Motion carried and ordered unanimously.

Chairman Higgs advised the Agenda says "Board Discussion on the Viera Project; and inquired if the Board should let the applicant comment on the issues first or is there any procedure the Board needs to follow; with County Attorney Scott Knox responding the Board can do that; it is the normal procedure; but if they want to waive that and hear what the comments are, they can do that also. Chairman Higgs advised she will proceed with public comments then allow the applicant to open with any other comments.

Frank Kunze, 390 Myrtlewood Road, Melbourne, Chairman of the Brevard Veterans Council, advised they are concerned about the reaction in Washington if there is a negative vote tonight on the Viera DRI; there should not be any concern if the VA hospital is okayed and ready for funding, but the way the budget cutting is going, it is logical the people in Washington could construe a negative vote as negative support for the hospital. Mr. Kunze advised the VA hospital is very important to the veterans of Brevard County; and there are approximately 81,000 veterans in the County who control 204,000 votes. He stated it is estimated there will be 1,329 people employed at the hospital which will mean $262,000,000 salary impact in the County; of that, 332 are expected to buy homes so it will be a big boost to the economy of Brevard County; the construction materials, supplies, hotels, restaurants, etc. will benefit from the construction people; and for those reasons, the Board should be careful how it votes on Viera, and not send any signals to Washington that can screw up the VA hospital.

Ed McMahon, 1455 Patriot Drive, Melbourne, advised he lives in Indian River Colony Club in Viera East, and will share with the Board what happened in another county with a similar situation. He stated he moved here from Naples in Collier County; he watched Collier County face the problems this Board is dealing with now; he understands some of the concerns it has; but they made the decision to approve a plan for Pelican Bay community of 10,000 people which was developed by Westinghouse. He stated it was of great benefit to the County residents because the developer put in all the infrastructure, including a sewage treatment plant at no cost to the taxpayers. Mr. McMahon advised a substantial increase in taxes enabled the County to build a new water treatment plan for North Naples so they no longer had to purchase water from the City at a high cost; and although the County Sheriff had policing authority, the residents assessed themselves for their own internal policing which reduced the Sheriff's budget. He stated with the expanded tax base, North Naples Fire District went from mediocre status to excellent; the development worked so well the County authorized two other planned developments at Pineridge and Airport and Golden Gate and Airport Road; and by encouraging this type of development, the County reduced the number of zoning problems and rezoning, requests for changes in land uses, misuse of land which should be preserved, problems with buffer zones between residential and commercial, and problems with collector roads, all of which come with random development. Mr. McMahon advised the City of Naples was concerned with what would happen because there was a large shopping mall going in; so the City reassessed its development, re-developed downtown, and included residential over stores, keeping the people who worked there in the city. He stated he was there a month ago, and 5th and 3rd Streets were packed with people; so it has been a benefit for the City in the long run. He stated any concern with traffic on main adjacent roads will exist no matter how the land is developed, and it will always be a county responsibility; Collier County's positive action has been a benefit to all its citizens; and urged the Board to vote in favor of the Viera DRI.

Frank Schieber, 7370 Cabot Court, Melbourne, advised an article in Monday's newspaper showed Brevard County was found to have the 11th fastest influx of people in the Nation for the last four years; and Chairman Higgs is quoted as saying, "I think we're falling behind in planning for the services we'll need. We will have 145 major roads operating below level of service acceptable by 2020. We have to decide either we need to change the amount of growth we are going to allow or we are going to have to find a way to pay for those things that are necessary." He stated how to pay for the major infrastructure, roads, water, sewer, etc. that is going to happen, is a tough problem, not only for this Board, but also its successors; however, it can solve the problem by extending Viera's vesting as long as it can conceive to allow them to sell as many bonds as they can to outside investors so they can pay their share. He stated the Board has a choice; if it chooses not to approve Viera's plan tonight, it has chosen piecemeal development in which case the taxpayers will pay for all of it; but if the Board extends Viera's vesting to 25 or 30 years, they will pay for their own share and the County will get planned growth.

Marilyn Waters, 2609 Finton Court, Melbourne, advised she has lived here for 21 years; first moved to Port Malabar and saw the results of a lack of planning on the part of the developer and community at large; and the Board has an opportunity tonight to control growth. She stated it has a developer who is willing to put forward a plan that looks to the future and plans and pays for the needs they have; it is a wonderful opportunity for the Board to take charge of that; and she is very much in favor of the passage of the DRI. She stated she hopes the Board extends the vesting so that the project can be a success, because the question before the Board is whether it is going to plan for growth or just let it happen randomly. She urged the Board to support the Viera proposal.

John Ritner, 1431 Patriot Drive, Melbourne, representing Brevard Veterans Council, advised the Council is made up of 62 veteran and patriotic organizations all in Brevard County; he sent a letter to Commissioner Cook outlining his concerns about the relationship between approval of the Viera Project and the VA hospital; and he received a note today supposedly from Commissioner Cook's office, although it was not authenticated, which said Commissioner Cook thoroughly disagreed with that and felt there was no relationship between the Viera project and the VA hospital. He stated he thoroughly disagrees with that because the people in Washington are looking for anything to deny, wherever possible, projects such as the hospital in order to reduce spending. Mr. Ritner advised the VA hospital is a necessary facility in a growing community of veterans; some say the VA hospital is not necessary because veterans are dying off, but there will always be veterans because there will always be wars; and between the wars, the VA hospitals are used as a benefit by veterans who were injured or wounded in combat. He stated they are a national resource to help veterans and allow them to maintain their expertise; most people do not realize or know that; and requested the Board approve the DRI for 21 years to preclude Congress from using disapproval as an excuse to deny funding for the VA hospital.

Ida Blickley, 4475 Swift Avenue, Titusville, advised today they had a call from a couple of doctors at the hospital in Titusville informing them that evidently their tax dollars from the hospital which is a public hospital is going to come to Viera and work with Wuesthoff, taking their money out of their hospital. She stated she assumes the leaders in Titusville are going for this because they want to build a clinic in Viera, so they are going for it in Titusville also.

Tim McWilliams, 492 E. Eau Gallie, Indian Harbor Beach, representing the Home Builders and Contractors Association of Brevard County, advised they are in support of the Viera project and feel the Board should support the project; the certainty in zoning is needed by The Viera Company; and it is a reasonable request. He stated on behalf of the 1,200 members of the Association, he urges the Board to support it.

Attorney Mason Blake, representing The Viera Company, advised at the close of the last meeting, the Board adopted language with respect to Section VI of the Development Order dealing with restrictions on down zoning; they indicated at that time they did not believe they could live with the language that was voted on by the Board; they used the time to get with their consultants and worked on alternative language which may fit the needs of the Board and allow them to move forward with the project as they proposed it; and they would like the Board to consider one change. He stated the second sentence of the two-sentence provision that was added at the last meeting, has been substituted to read, "The presumption shall be rebutted by the applicant if it is shown that the applicant has complied with the applicable mitigation provisions of this Development Order." He noted it is incorporated in the blue sheet; they would prefer not to have a 15-year look back at all; but if the Board feels it needs to impose that on them, they urge the Board to consider the substitute language they have provided. Mr. Blake advised at the last meeting they proposed language that was basically tied to roads and performance of roads in the Development Order; this language opens that up beyond roads and goes to all infrastructure covered by the Development Order, i.e. sewer, water, etc.; and it basically says if the Development Order and development are working, then they are okay, and if not, then in 15 years the presumption kicks in. He stated they reviewed the language with the County Attorney and urged the Board to adopt it. Mr. Blake advised the blue sheet also contains slightly revised language on the mall vesting; the County Attorney added some language; and he thinks they have an agreement on the language regarding the mall vesting. He urged the Board to reconsider its earlier wording of the second sentence and to vote tonight to approve the project.

Commissioner Scarborough advised Mr. Knox indicated some concerns about the language; and inquired if he addressed that with the Board; with Mr. Knox responding no, but he will.

County Attorney Scott Knox advised they looked at the mall language and agree with what the applicant revised and recommended on the vesting provision. He stated when the Board first started this process, they had staff meetings with each Commissioner and tried to encourage the Board not to make changes at the meetings because if they did that and went back and looked at it later, they may regret what they did; fortunately, the meeting was continued, and they had an opportunity to look at the condition they proposed at the last meeting; and they are not satisfied that it does what they wanted to do and may have just the opposite effect. He recommended the language they proposed at the last meeting be deleted in its entirety and the Board go back to the original proposal for the vesting language that was submitted. Mr. Knox advised they tried to convert the burden of proof from the County showing that the applicant had done something that was substantially inaccurate or that there was substantial change in conditions; and in doing that, they removed one condition that allowed the Board to reopen the development order vesting period if there was substantially inaccurate information presented. He stated under the existing law, the Board has the authority to go back and reopen vesting any time it wants to, even next year if it can show substantially inaccurate information was presented to the Board; by changing the language they specifically added the exclusionary language which reflected Board action, i.e. loss of revenue from gas tax, impact fees, etc., and effectively limited itself in a sense that it could not go back and look at those issues as a basis for saying there was substantially inaccurate information presented. Mr. Knox advised the County is now a charter county; if a citizen decided to sponsor an ordinance and got the requisite number of petitions saying to revoke impact fees, the Board could put the ordinance out for referendum or adopt the ordinance itself; in that case, especially if the referendum is approved, there could be an argument that there is a substantial change in conditions and the information originally presented had become inaccurate because of the actions that had taken place beyond the Board's control; and that could cause the Board to revisit the development order some time in the future that would not necessarily be 21 years, but could be five years from now. He stated because of the way the language was worded and the limitations imposed on the Board, it could not have revisited those issues; so from the Board's standpoint, in terms of flexibility, he would prefer to see it the way it was originally written.

Commissioner Scarborough inquired if the burden of proof would be on the Board; with Mr. Knox responding that is correct, but the kinds of things that would require a change in the vesting would be pretty significant. He stated he was on the West Coast over the weekend, and the big story over there right now is that the DRI's in Pasco County and Pinellas County are being subject to a possible moratorium because the water that is being pumped out of Pasco County to Pinellas County is drying up and there is no water; that is a reason the Board would want to go back and look at vesting and densities and cutting back on proposed development; those are the kinds of things it would be looking at; and that is not too hard to prove.

Chairman Higgs inquired if the language in those DRI's are similar to the language in the Viera DRI, and would the Board have the opportunity to change the development order or stop the development; with Mr. Knox responding the language in the current development order basically tracks the language in the statutes and allows the Board to go back and revisit the issue if something major happens. He stated it gives the developer a certain amount of certainty, but it also allows the Board to go back if something catastrophic happens; or if something that is completely unanticipated happens, it can go back and look at it. Chairman Higgs inquired if that can happen at any point during the 21 years; with Mr. Knox responding that is correct, it could even be next year.

Commissioner Cook advised he believes there is no relationship between the Viera project and VA hospital; he had lunch with Congressman Weldon and they can pick any reason if Congress decides not to fund the VA hospital; but there is no relationship to the hospital with regard to funding. He stated everyone on the Board is fully committed to the VA hospital and fully supportive of it; trying to link the hospital to the project is a sad commentary that some people have done and put out that kind of information; it has no relationship any more than widening of 192, a community block grant, or anything the County gets from the federal government that could relate to the Viera DRI with no more validity than does the VA hospital; it is a separate issue; and the Board supports the hospital, but it is sad that those things get intermingled. Commissioner Cook advised he requested from the County Attorney's office and got a response regarding piecemeal development; he is not an attorney but it pretty much says there cannot be piecemeal development no matter what happens tonight, no matter if it is approved or disapproved, or if the applicant walks away or stays; the fact is there will be control over zoning, development, planning, and all sorts of things that every development of this size would have; and that is in a memo he has from the County Attorney's Office. He stated nobody wants unplanned growth; everybody wants growth that they can project for; that is not the issue tonight; there are a number of issues the Board is going to discuss and address; but as far as piecemeal development, that is not going to happen no matter what happens tonight. Commissioner Cook advised District 1 asked for an opinion from Holland and Knight on the bond issue; and requested the County Attorney summarize the opinion or interpret it; with Mr. Knox responding Mr. Stevens memo to him on the limitations of bond issue construction, basically says the tax law is structured in such a way that the incentive is to get the infrastructure into the ground within three to five years after they get the bonds which means most bond issues are going to be phased as opposed to a 21-year bond.

Regional Mall

Chairman Higgs advised the Board has proposed language suggested by the County Attorney and agreed to by the applicant for the regional mall contained in the blue sheet. She inquired if the Planning staff reviewed the language; with Planning and Zoning Director Peggy Busacca responding no, they just received it. Chairman Higgs inquired how long would staff need to review it; with Ms. Busacca responding she will defer to Mr. Knox on the issue.

Mr. Knox advised the language on the blue sheet is basically the same language proposed by Ms. Troner with some minor exceptions on the portion dealing with what happens if DCA does not approve the settlement agreement; Ms. Troner proposed in that event, the County go back to a ten-year divesting; and Viera has taken the 10-year divesting they had agreed to on the regional mall, and made it clear that if that happens, the Board would take appropriate action to put the regional mall site into a retail commercial use of some kind as opposed to leaving it open ended. He stated that is the only difference in the version Ms. Busacca saw.

Chairman Higgs called for a motion on the language suggested for the regional mall vesting.

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to approve the regional mall vesting language as follows: "If the Florida Department of Community Affairs (DCA) has formally objected to and found in non-compliance a proposed comprehensive plan amendment relating to the provision for any other regional mall (a mall of at least 500,000 square feet) in the County located outside of Viera based on the regional mall space within the Viera DRI, then the applicant or any relevant successor in interest agrees to enter into a stipulated settlement agreement with the County, the DCA, and the other regional mall applicant in which it agrees that whichever mall commences physical development and continues in good faith first will be authorized to proceed and the other landowner will be divested of its land use and development rights to provide for the regional mall. If (1) the County has included the same language in this condition related to potential down-zoning of the regional mall in the other mall's DRI development order and required the other mall applicant to enter into the stipulated settlement agreement, and (2) the DCA refused to enter into any such stipulated settlement agreement prior to the entry of a final order of non-compliance under Chapter 163, Florida Statutes, despite the willingness of the applicant (or any relevant successor in interest), the County, and the other mall applicant to do so, then the 850,000 square feet and 109.4 acres of retail service space authorized for a regional mall in Viera may be subject to change after year 2005, from regional mall use to other retail service use by development order amendment and/or any other applicable actions by affirmative vote of the Board of County Commissioners." Motion carried and ordered unanimously.

Restrictions on Down-zoning

Chairman Higgs inquired where is the language recommended for the vesting period; with Mr. Knox responding half way down the page on the blue sheet, there is a sentence that starts, "If as a result of any annual or other. . .", everything from there to the end of the paragraph should be deleted, and it would be back to where it was originally. He stated that is what he would recommend. Chairman Higgs inquired if that is the same language of the March 1, 1995 draft that included language on the regional mall; with Mr. Knox responding the Board just revised that and it is also incorporated into the provision.

Commissioner Cook inquired if it is a 21-year vesting; with Mr. Knox responding yes, with ability to step in if there is substantial change or substantially inaccurate information was presented.

Commissioner Scarborough inquired if there is a way to deal with the burden of proof; with Mr. Knox responding they thought about it, and the more they thought about it the worse it got, so it seemed easier to delete that language. He stated it would be the kinds of things that the County would know when it happens and would be easy to show if it happens.

Commissioner Cook inquired why 21 years; with Mr. Knox responding the original language they had proposed was to change the presumption after year 15, and that did not work out right; so if the Board eliminates that language, it is back to 21 years with the ability to open it up at any point if a substantial change in conditions occur. Commissioner Cook stated he cannot support 21 years but will not bore everyone by going back to that.

The meeting recessed at 5:41 p.m. and reconvened at 5:56 p.m.

Chairman Higgs advised Florida Statutes 380.06, paragraph 3, is basically the language that is in the development order in regard to vesting and the ability of local government to take action.

Commissioner Cook stated he hates to bore the Board, but he can restate his original motion on the subject if the Board wishes. Commissioner Scarborough requested he state his reasons and concerns because some reasons developed into presumptions. Commissioner Cook advised he will read it because some people have not heard it; and he hates to do this to the Board, but he will do it one more time. He read the following: "Vesting should be limited to ten years. Additional years of vesting can be provided annually through the Capital Improvement Programming process. In other words, beginning in the year 2001, the CIP would cover up to the year 2006 or one year pass the vesting period, and in doing so, if Viera related projects were funded, Viera would get an additional year vesting automatically. Limiting the vesting to ten years and using the CIP process is related to the concern as to whether there will be adequate funding to cover all offsite projects that will be necessary to accommodate Viera's impact on roads, solid waste, etc., i.e. the $100,000,000 in projected road improvements. Since the CIP process requires projects to be scheduled and revenue sources identified each year for a five-year period time frame, it is the only financial planning process available that will allow the Board to determine whether there will be sufficient revenues to satisfy the funding requirements associated with such infrastructure needs. Vesting beyond ten years should not be provided unless the Board can be satisfied that the revenues will be actually available; and using the CIP process is the only way that provides the Board with such precise knowledge." Commissioner Cook stated that was his original proposal; and on the presumption, the burden was on the County, and his concern was that the burden was such that the County could never rebut it, therefore making void the language in the development order. He stated his concern was also the huge offsite impacts a development of this size would naturally create; funding sources are projections at best; and he wanted some mechanism where future Boards and taxpayers could revisit the issue if a problem was created.

Commissioner Scarborough advised the language on the blue sheet takes it to 21 years and says "unless it is demonstrated and affirmatively found at a public hearing by the Board. . ."; and inquired if Commissioner Cook intends to insert ten years in place of the 21 years or exchange one set of language for the other; with Commissioner Cook responding initially what he had intended to do was take the ten-year process as outlined in his proposal that gives the Board and future boards the opportunity to look at it; and if funding is available and the project is on track, they would get the additional vesting. Commissioner Scarborough stated while they are vested under the statute, they are subject to divesting at any time; and inquired if he would use the statutory language which would allow the Board to divest the project in two years if it is proven there was inadequate information or health and safety concerns.

Chairman Higgs advised she reviewed the language in the development order, particularly regarding infrastructure modeling and monitoring process; and the language that is in the condition VI regarding down-zoning specifically says they will continue for 21 years unless it is demonstrated and found by the Board that substantial changes in the conditions underlying the approval of the development order had occurred, or that the development order was based on substantially inaccurate information provided by the applicant or the change is clearly established by the Board to be essential to the public health, safety, and welfare of the citizens. She stated that language, with the language regarding the waiver of the right of litigation, is in the development order and allows the Board to stop the development if it is not able to take care of the offsite impacts; so she can support the language that she sees in VI as originally established on the 21 years. She stated she agrees with Commissioner Cook and supports the CIP process; however, at this point that process is not sophisticated or thorough enough to do what he is asking it to do. She stated through the CIP process the Board would be able to demonstrate and find if it is not able to take care of the offsite impacts; so she can support the language that is in condition VI on the 21 years when it is put together with the other language in the development order.

Commissioner Cook inquired about the problem with the 15-year motion the Board passed at the last meeting; with Mr. Knox responding the motion that applied to the 15 years related to the attempt to reverse the presumption burden of proof; and in creating the language that reversed the burden of proof, they eliminated one of the statutory criteria that allows the Board to revisit the development order; that is more restrictive than what the statute allows the Board to do now; so it has more flexibility with the current statute than the language proposed at the last meeting. He stated the only reason 15 years was objectionable was because it was tied into that provision; 15 years is still something the Board can consider if it wants to; and it was not the 15 years that was objectionable, it was the language that was used to work the 15 years in.

Chairman Higgs called for a motion on the restrictions on down-zoning.

Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to approve the following language: "The Viera Development of Regional Impact as prescribed within this Development Order shall not be subject to down-zoning, unit density reduction, or intensity reduction for a period of 21 years from the date of issuance of this development order unless it is demonstrated and affirmatively found by the Brevard County Board of County Commissioners at a public hearing that substantial changes in the conditions underlying the approval of this development order had occurred, or that this development order was based on substantially inaccurate information provided by the applicant, or that the change is clearly established by Brevard County to be essential to the public health, safety or welfare. If the Florida Department of Community Affairs (DCA) has formally objected to and found in non-compliance a proposed comprehensive plan amendment relating to the provision for any other regional mall (a mall of at least 500,000 square feet) in the County located outside of Viera based on the regional mall space within the Viera DRI, then the applicant or any relevant successor in interest agrees to enter into a stipulated settlement agreement with the County, the DCA and the other regional mall applicant in which it agrees that whichever mall commences physical development and continues in good faith first will be authorized to proceed and the other landowner will be divested of its land use and development rights to provide for the regional mall. If (1) the County has included the same language in this condition related to potential down-zoning of the regional mall in the other mall's DRI development order and required the other mall applicant to enter into the stipulated settlement agreement, and (2) the DCA refused to enter into any such stipulated settlement Agreement prior to the entry of a final order of non-compliance under Chapter 163, F.S., despite the willingness of the applicant (or any relevant successor in interest), the County, and the other mall applicant to do so, then the 850,000 square feet and 109.4 acres of retail service space authorized for a regional mall in Viera may be subject to change, after year 2005, from regional mall use to other retail service use by development order amendment and/or any other applicable actions by affirmative vote of the Board of County Commissioners." Motion carried and ordered, Commissioner Cook voted nay.

Brevard County Response to DCA ORC Report on Viera Comprehensive Plan Amendment Motion by Commissioner Ellis, seconded by Commissioner Higgs, to approve Brevard County's response to Department of Community Affairs (DCA)'s Objections, Comments, and Recommendations (ORC) Report with reference to the Viera Comprehensive Plan Amendment, as recommended by the Local Planning Agency. Motion carried and ordered unanimously.

Amendments to Future Land Use Map and Residential Density Guidelines Map

Motion by Commissioner Cook, seconded by Commissioner Ellis, to approve the Viera Comprehensive Plan Amendment Application 94C, amendments to the Future Land Use Map, and amendments to the Residential Density Guidelines Map, as recommended by the Local Planning Agency. Motion carried and ordered unanimously.

New Town Community Overlay Policy 1.9

Motion by Commissioner Ellis, to approve New Town Community Overlay Policy 1.9 as recommended by the Local Planning Agency. Motion died for lack of a second.

Planner II Mike Konefal advised the purpose of the New Town Community Overlay Policy is to require any new town proposal presented in Brevard County in the future be subject to the 10 or 11 criteria, such as being 1,500 acres at a minimum, funding mechanisms including developers' agreements or CDD agreements, be a balanced mixture of all land use categories that exist in the Comprehensive Plan, be controlled by a master developer and master development plan, be distinct geographically and separated from existing urban areas and surrounding land uses, have all the infrastructure services available or planned, and identify the overall residential market share of the County's future growth. He stated the policy would apply any time a new town development comes forward for approval, and the developer will be subject to those criteria.

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to approve New Town Community Overlay Policy No. 1.9 as recommended by the Local Planning Agency. Motion carried and ordered unanimously.

New Town Directives

Motion by Commissioner O'Brien, seconded by Commissioner Ellis, to approve the New Town Directives as recommended by the Local Planning Agency. Motion carried and ordered unanimously.

Other Amendments to Elements of the Comprehensive Plan

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve other amendments to Elements of the Comprehensive Plan as recommended by the Local Planning Agency. Motion carried and ordered unanimously.

Ordinance Adopting Viera Comprehensive Plan Amendments Motion by Commissioner Cook, seconded by Commissioner Ellis, to adopt Ordinance adopting the Viera Comprehensive Plan amendments as recommended by the Local Planning Agency. Motion carried and ordered unanimously.

Viera Rezoning Applications

Motion by Commissioner Cook, seconded by Commissioner Ellis, to approve the Planning and Zoning (P&Z) Board's recommendations on rezoning applications for Viera as follows:

1. A. Duda and Sons' request for change from AU to IU-1 and CUP for mining and smelting operations on 122.29 acres more or less, located on the west side of Stadium Parkway, south of I-95 and Fiske Boulevard interchange, which was approved by the P&Z Board with the stipulation of no smelting.

2. A. Duda and Sons' request for change from AU, RVP, GU, PUD, and BU-1 to PUD on 4422.86 acres more or less, located on the west side of I-95 south of the I-95 and Fiske Boulevard interchange, which was approved by the P&Z Board.

3. A. Duda and Sons' request for change from AU to TU-2 on 49.86 acres more or less, located on the east side of Stadium Parkway, south of I-95 and Fiske Boulevard interchange, which was approved by the P&Z Board.

4. A. Duda and Sons' request for change from AU and GU to BU-1 on 219.86 acres more or less, located on the west side of Stadium Parkway, south of I-95 and Fiske Boulevard interchange; and from AU and GU to BU-1 with CUP for hotel on 9.51 acres more or less, located on the west side of Stadium Parkway, south of I-95 and Fiske Boulevard interchange, which was approved by the P&Z Board.

5. A. Duda and Sons' request for change from AU and GU to PBP on 87.07 acres more or less, located northwest of the western terminus of St. Johns Street and west of Stadium Parkway, which was approved by the P&Z Board.

6. A. Duda and Sons' request for change from GU and BU-1 to PBP on 125.14 acres more or less, located west of the western terminus of St. Johns Street.

7. A. Duda and Sons' request for change from AU and GU to PBP on 289.70 acres more or less, located on the west side of I-95, west side of Stadium Parkway, and north of Wickham Road, which was approved by the P&Z Board.

8. A. Duda and Sons' request for change from GU to BU-1 on 17.86 acres more or less, located on the east side of Stadium Parkway, north of Wickham Road, which was approved by the P&Z Board.

9. A. Duda and Sons' request for change from AU and PUD to BU-1 on 93.83 acres more or less, located on the northeast corner of Lake Andrew Drive and Wickham Road, which was approved by the P&Z Board.

10. A. Duda and Sons' request for change from AU, GU and BU-1 to TU-2 on 20.98 acres more or less, located contiguous to Wickham Road to the north and I-95 to the east, which was approved by the P&Z Board.

11. A. Duda and Sons' request for change from AU to BU-1 on 94.95 acres more or less, located south of Wickham Road and west of I-95, which was approved by the P&Z Board.

12. A. Duda and Sons' request for change from AU to PIP on 72.76 acres more or less, located south of Wickham Road and west of I-95, which was approved by the P&Z Board.

13. Deleted.

14. A. Duda and Sons' request for change from AU and PUD to BU-1 on 33.86 acres more or less, located in the northwest corner of Lake Andrew Drive and Wickham Road, which was approved by the P&Z Board.

15. Deleted.

Motion carried and ordered unanimously.

Assistant County Attorney Lisa Troner recommended staff state on the record that the motion is based on the findings, exhibits, and documents introduced throughout the entire public hearing, all exhibits and documents presented by the applicant, and all minutes of the record and proceedings on this issue. Mr. Konefal advised he intends to read that at the end of all the motions.

Chairman Higgs recommended the Board incorporate Ms. Troner's recommendation as part of the motion.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to include the statement that the motion on the rezoning applications are based on the findings, exhibits, and documents introduced throughout the entire public hearing, all exhibits and documents presented by the applicant, and all minutes of the record and proceedings on the Viera issue. Motion carried and ordered unanimously.

Viera Development of Regional Impact (DRI) Development Order

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to approve the Viera Development of Regional Impact (DRI) Development Order as amended.

Attorney Betsy Bowman with the law firm of Hopping Green Sams and Smith in Tallahassee, representing The Viera Company, advised when they reviewed the development order recently, they noted there were certain deadlines in the development order and transportation methodology agreement that were based on the assumption that the development order would come before the Board for final action in November of December, 1994; the traffic methodology agreement contains deadlines relating to February, March, April, May, and June, 1995; and the earliest the development order could take effect, because it has to be reviewed by DCA, would probably be sometime in June, 1995. She stated the applicant would like to propose an amendment that would, for this year only, delay reporting dates from July 1 to October 1, 1995, making their reporting dates July 1 for every year thereafter, and to provide in the transportation methodology agreement that the deadlines that have already passed would not be applicable this year and would come into effect next year. She stated to the extent that the County and applicant agree those were good procedures for the reports that would be due this year, those procedures would be used; and they have some language they will distribute for consideration.

Commissioner O'Brien inquired if it is essentially a delay date; with Ms. Bowman responding yes, as the action is occurring five months later than originally planned and they are asking for three months to do all the work they thought they had five months to do. Commissioner O'Brien recommended the amendment proposed by Ms. Bowman be included in the motion.

Chairman Higgs inquired if that will take care of the items in the DRI that are affected by dates; with Mr. Knox responding everything is tied to the October 1 deadline, and this is acceptable.

Ms. Bowman advised there is additional amendment to the transportation methodology agreement to conform to this change.

Commissioner Ellis amended the motion to include extending the reporting dates from July 1 to October 1, 1995 only, and that deadlines in the transportation methodology agreement that have already passed would not be applicable this year; and Commissioner Higgs accepted the amendment to the motion.

Chairman Higgs called for a vote on the motion as amended. Motion carried and ordered; Commissioner Cook voted nay.

Transportation Monitoring and Modeling Development Agreement

Motion by Commissioner O'Brien, seconded by Commissioner Ellis, to approve the Transportation Monitoring and Modeling Development Agreement, as amended to add new Section 12.0 to read as follows: "Effectiveness. The procedures and deadlines outlined in this agreement shall be applicable in the first full calendar year occurring after the effective date of the Viera DRI Substantial Deviation #1 D.O. amendments. To the extent mutually agreed by the developer and the County, applicable provisions of this Agreement also shall govern any Monitoring/Modeling Report required to be submitted in 1995 under the Substantial Deviation #1 D.O. amendments." Motion carried and ordered unanimously.

Utility (Sanitary Sewer) Development Agreement

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to approve the Utility Development Agreement (Sanitary Sewer). Motion carried and ordered; Commissioner Cook voted nay.

Final Motion

Mr. Konefal read the final motion.

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to adopt Comprehensive Plan Amendment 1994C as discussed and amended, based upon a thorough review of the supporting data and analysis, careful consideration of the recommendations of staff, citizen resource groups, the Local Planning Agency, and written and oral public comments received; specifically including amendments to the Future Land Use Map, Residential Density Map, and the following Elements: Future Land Use, Recreation/Open Space, Traffic Circulation, Bicycle Sub-element, Potable Water, Sanitary Sewer, Capital Improvements Programs, and provisions that require amendments to maintain internal consistency with the amendments. The 1994C Comprehensive Plan Amendment package includes the Brevard County Response to the DCA ORC Report, Future Land Use and Residential Density Map amendments, New Town Community Overlay Policy 1.9 and locational criteria directives proposed for the Viera New Town, other amendments to various other Comprehensive Plan Elements, and Ordinance adopting the Comprehensive Plan Amendments. The motion also includes approval of the related 13 Viera rezoning items as discussed and amended, and based upon a thorough review of supporting data and analysis, careful consideration of the recommendations of staff, P&Z Board, and written and oral comments received, and finding of consistency with the Brevard County Comprehensive Plan, provided the Comprehensive Plan amendments for which the zoning items are based are found in compliance and compatible and consistent with surrounding land uses. The motion also includes approving the related DRI development order as discussed and amended, based upon a thorough review of supporting data and analysis, careful consideration of the recommendations of staff and the Local Planning Agency, and written and oral public comments received, approving the related sanitary sewer and transportation monitoring and modeling agreements; and that all documents, research, and data relating to the Viera Comprehensive Plan amendments, zoning amendments, DRI amendments, and development agreements, including all County files, shall be considered as public exhibits. Motion carried and ordered; Commissioner Cook voted nay.

Executive Vice President of The Viera Company Perry Reader thanked the Board for its endurance, and stated it is a big project and has been very trying on everyone. He stated when they first started out, he said it is a partnership, and each of them had to look at it from their own relative perspectives; they are pleased to have an approval tonight; and they hope to stand before the Board in years to come with a lot of good things to show, so the Board will be able to say it approved it and has been a part of making the County go forward and creating unity. Mr. Reader advised their Citrus Division got wind of the problems they were having and thought the Board needed relief from stress, so they gave him stress balls to present to the Commissioners. He noted they appreciate all the support they get from internal operations even though sometimes the citrus group does not know what the realty group is trying to do. He again thanked the Board for its approval.

Chairman Higgs advised everyone associated with the project has worked very hard with the Board and County staff; they have gone over it again and again and it probably stretched patience tremendously; but the project is of such nature that it deserved all the attention it got. She stated many good things came out of the discussions they have had over the months, and they will look forward to seeing an excellent project. She commented they will use the stress balls.

Upon motion and vote, the meeting adjourned at 6:27 p.m.

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

ATTEST:
SANDY CRAWFORD, CLERK
(S E A L)