MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

December 17, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 17, 2002, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners Truman Scarborough, Ron Pritchard, Nancy Higgs, and Sue Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Ken Delgado, House of Prayer, Palm Bay.

Commissioner Ron Pritchard led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the Minutes of the October 15, 2002 Regular meeting. Motion carried and ordered unanimously.

ITEM WITHDRAWN FROM CONSENT AGENDA

County Manager Tom Jenkins withdrew Item III.D.1 from the Consent Agenda as it needs to be reworded.

RESOLUTION, RE: COMMENDING REBA FLOYD

Commissioner Higgs stated a wonderful employee is going to be retiring; the Board is very grateful for Reba Floyd’s service to the County; and it is sorry she has decided to spend her days doing something other than keeping the County beautiful.

Commissioner Higgs read aloud the resolution commending Reba Floyd and wishing her well in her retirement.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution commending Reba Floyd for her outstanding performance for Brevard County and its citizens. Motion carried and ordered unanimously.

Reba Floyd stated it has been a privilege to work for the different Commissioners over time; and expressed appreciation to County Manager Tom Jenkins for his support. She described her

transfer from the Agriculture Extension Office to her current position; stated she knew she was in trouble when John Sternagel asked what kind of a bush is bahia; and since then they have come a long way.

Commissioner Higgs presented the Resolution to Ms. Floyd.

REPORT, RE: MYREGION

Commissioner Scarborough stated he has been attending meetings of MyRegion, which is the counterpart of Brevard Tomorrow; there was a presentation at MyRegion by the Urban Land Institute, which is a premiere land planning organization; and there were people from Charlotte, North Carolina, where MyRegion started. He stated it was not so much a report as a critique; and they heard it is critical as they move forward not to let land planning and transportation planning get too far apart. He stated that is one of the major failures; and Commissioner Higgs agrees because she has long advocated that. He stated as the County restructures, it has the capacity under Assistant County Manager Peggy Busacca to assure some greater opportunities to have those types of analyses. He stated he is always humbled when he gets out of Brevard County and realizes there are a lot of wonderful people who have done tremendous things throughout the country; and the County could gain from their knowledge. He suggested calling some of them concerning the activities that have taken place in the Charlotte area would be beneficial.

REPORT, RE: SECRETARY OF STATE

Commissioner Pritchard stated he heard on the news this morning that Glenda Hood has been appointed Secretary of State. Chairperson Colon inquired if that is official. Commissioner Pritchard stated if what he heard is true, he wishes Glenda Hood Godspeed and hopes she does a good job as Secretary of State.

REPORT, RE: CAPIT HEARING

Commissioner Pritchard stated on December 19, 2002 Judge Evander is supposed to hear the Capit issue; he supports Capit and the 3% property cap; and everyone will see the Judge’s ruling on December 19, 2002.

RESOLUTION, RE: SCOUTING FOR FOOD

Commissioner Carlson stated on October 29, 2002, the Board adopted a Resolution regarding scouting for food; but at that time she did not have the Resolution; and she would like to officially present it today. She stated Wes Doyle and Amber Carroll representing the Boy Scouts are in the audience. Commissioner Carlson presented the Resolution to Mr. Doyle and Ms. Carroll.

Wes Doyle stated in Brevard County, the Scouts collected 205,069 pounds of food for the homeless; in Central Florida Council, which is a seven-county area, they collected 454,603 pounds of food; Brevard County, which is one-seventh of the Council, collected 45% of all the goods; and it is a tribute to the citizens of Brevard County that the drive was so successful.

Commissioner Carlson stated the Board has recognized many Eagle Scouts; the Board appreciates the commitment and dedication the Scouts put into the Eagle Scout award and all the things they do for the community; but Mr. Doyle has achieved something a little different in that he has achieved the Distinguished Eagle Scout Award, which is quite prestigious. She advised of the history of the award and the qualifications to achieve the award; and stated others who have received the award include President Gerald Ford, Apollo astronauts Neil Armstrong and James Lovell, Steven Spielberg, H. Ross Perot, J. Willard Marriott, Jr., Donald Rumsfeld, former Secretary of the Army Togo West, William Westmoreland, and former Senators Lloyd Benson, Bill Bradley, Sam Nunn, and Richard Lugar. She offered congratulations to Mr. Doyle for his having this honor.

Commissioner Carlson read aloud a resolution commending C. Wesley Doyle for his achievement of the Distinguished Eagle Scout Award.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution commending C. Wesley Doyle for his achievement of the Distinguished Eagle Scout Award. Motion carried and ordered unanimously.

Mr. Doyle stated he made Eagle Scout in 1958; he is the Council Chairman for the National Eagle Scout Association in Central Florida; and scouting teaches a person values, ethics, and reverence in God. He stated America is returning to the values scouting never left; in working with Scouts and leaders, they have been able to bring a quality program for all scouting; and the Central Florida Council has grown in the past seven years from being the 28th largest council to the 13th largest in traditional membership, so scouting is alive and well in Central Florida. He stated as far as his career, he has been doing the best he can for national defense; and he had a lot of accomplishments along the way because he did not accept things as they are, but was an agent for change. He stated eagles soar above the other birds and have extreme vision, and scouts follow the eagles.

Commissioner Carlson stated Mr. Doyle brings a lot to the community; and the Board greatly appreciates it.

REPORT, RE: FLORIDA ASSOCIATION OF COUNTIES

Commissioner Carlson stated she recently went to the Florida Association of Counties meeting; the Board has already submitted its legislative requests; but it is important to note that the Florida Association of Counties has put, as its highest legislative issue, the Article V funding. She stated a lot of people do not understand what Article V funding is; and read information explaining the obligation of the counties in paying for the State’s justice system and the change requiring the Legislature to fund the court system by the year 2004. She stated the change was authored by the Constitutional Revision Commission, which reviews the State Constitution every 20 years; it sought to address the vague funding language in Article V, which established the current structure of county and circuit court districts in 1972; Article V consolidated Florida’s 18 different types of courts into one unified system, but wording was fuzzy enough that the Legislature could shrug off the increasing costs of administering justice; and as Florida rapidly grew and more demands were placed on county and circuit courts, the counties were forced to make up the difference because the Legislature would not. She stated lawmakers were happy to adopt new criminal justice Statutes that placed more demands on courts; counties financed close to 60% of the court costs; and as a consequence it is estimated the Legislature spends less than half of one percent of the State budget on the justice system while counties pay $600 million a year, which is money that could be used to improve local services. She stated Florida Association of Counties would like the County to have a complete total of what it pays in court costs for use in the lobbying side; counties are keeping a close eye on the Legislature’s progress toward meeting the July 2004 deadline; the Legislature has not moved to act swiftly; many legislators oppose the 1998 revision; but the Legislature did hire a consultant to examine the court structure, study revenue sources, find potential efficiencies in the system, and make recommendations on how the Legislature can meet its mandate. She stated what concerns the counties most is that the Legislature will try to undermine the intent behind the 1998 vote; the Constitutional Revision Commission penned an intent document that specifically designates who will pay for what to operate the courts; it made the State’s larger obligation crystal clear; so the mandate is out there along with all the other things voted into the Constitution in the last election process. She stated the Clerk of Courts sent a letter to Chairperson Colon advising the 2003 session is the last scheduled legislative session prior to Article V funding becoming effective, and recommending the Board discuss the Article V court funding, which is scheduled to take effect in the last quarter of the FY 2004. She requested the Chairperson draft a strong letter of support for Article V funding to go along with the legislative package and the information that the Florida Association of Counties lobbying staff will be using to ensure that all counties are well prepared to support the mandate of the citizens. She stated if the State pays for the court system, that will save the County a lot of money.

UPDATE, RE: HOMELAND SECURITY

Commissioner Carlson stated she asked Bob Lay to give the Board an update on homeland security.

Bob Lay, Emergency Services Director, introduced Danny McKnight, the County’s new Homeland Security Coordinator; and Mr. McKnight’s job will be to coordinate the homeland security activities within the County and perform other emergency management duties as well. He stated the County is fortunate to have Mr. McKnight, as he comes with a lot of experience; he is a 28-year veteran of the U.S. Army; his last job was Chief of Staff of the First United States Army, which is a large command responsible for training throughout the Southeastern United States; and additionally Mr. McKnight has considerable experience with terrorism, planning and operational issues associated with terrorism, and a background in emergency management. He noted Mr. McKnight is from Rockledge, which just won its second State Championship in high school football. He stated the County has been making considerable progress in homeland security; the agencies, departments, and offices throughout the County have shown a positive and supportive attitude toward doing those things necessary for homeland security; and the crisis management, response, and mitigation is progressing well. He stated the Sheriff’s Office is taking the lead on this action with its newly formed intelligence support unit and multiple capable bomb squad; and there has been information sharing between the Fire Rescue, Sheriff’s Department, the hospitals, and the emergency medical system; so there is a completely open network of information that can be shared rapidly. He stated the intended outcome is a proactive stance on terrorism, in which preparedness will help to mitigate crisis actions; and if response is required, it will be exact, measured, and standardized through an incident command system. He stated all first responder agencies had personnel attend Weapons of Mass Destruction or Terrorism Awareness training; starting yesterday at Brevard Community College, Instant Command Training was being taught to all law enforcement agencies throughout the County; and Mr. McKnight is part of that training program. He stated there has been specialized training not only for the members of the Brevard County Fire Rescue Special Response team, but also for the Sheriff’s Bomb Squad and others as part of the domestic preparedness training with live agents as well as bomb and blast training and radiological training; and the hospitals have started training with instant command. He noted several local hospitals have received grants for personal protective equipment as well as to be able to conduct victim decontamination at the hospital; and they have all become part of the first responder plan. He stated Health and Emergency Services are moving forward with several plans for response to biological threats such as smallpox or anthrax; they are waiting to hear from the State, which is waiting to hear about acceptance of its plan by the federal government; and it is anticipated inoculation for hospital first responders and health department responders will begin in January. He stated they will then move into Phase 2, which will be inoculation of first responders; and the last phase will be the inoculation of the public. He stated Emergency Management continues to be a part of the training program; they are moving toward the second stage, which will be to develop the citizen corps and citizens advisory corps board; and they are working with the Sheriff’s office in that area to lay the groundwork. He stated a key function will be to organize all the neighborhood watches and local civic organizations throughout the County that could have an impact on homeland security, as well as the community emergency response team training program. He stated it will be beneficial to have a citizens corps throughout the County; the Sheriff has agreed to provide a person to work at the Emergency Operations Center to help Mr. McKnight in the development of the program so there can be a unified effort in doing this; and he anticipates there will also be an Americorp worker to help, so there will be some federal funding coming to help. He stated he anticipates starting with the citizen corps and getting back to the Board in January to announce the start of the program; the funding to date has been limited; funding from the Board has been outstanding toward the Sheriff’s Office for the intelligence support unit and bomb squad; and it has made a difference as other funding has been very minimal at this point. He stated federal funding to support the cities and the local effort is still an issue; and they are working through the Domestic Security Task Force and looking at the funding strategy for federal funds for the next three to five years.

Chairperson Colon stated it was wonderful to have Mr. Lay at the Town Meeting in Palm Bay in November; and encouraged everyone to contact Mr. Lay’s office to find out how they can help.

Commissioner Carlson inquired if Brevard County is one of the first counties to be prepare to accept smallpox vaccinations; with Mr. Lay responding the State required the County to have its plan together by the first of December. Commissioner Carlson inquired what does that mean in terms of the population at large receiving smallpox vaccinations. Mr. Lay responded that decision is still quite a ways out; the ability to be able to do something rapidly is what they are trying to organize now; and the point is to have first responders inoculated first so there is not a situation that could impair the ability to function properly. Commissioner Carlson stated the Board welcomes Mr. McKnight who is a bit of a celebrity; the movie Blackhawk Down mirrored a mission that Mr. McKnight was a part of; and one of the key characters in the moved depicted his particular role. She requested Mr. McKnight expand on that. Mr. McKnight stated he was privileged to be a part of the Army for 28.5 years; a great part of that time was spent in Special Operations, which, in his case, meant being with the Rangers; and the mission Commissioner Carlson was talking about was in Somalia in 1993, when President Bush sent a humanitarian effort. He stated the United Nations needed some assistance in trying to eliminate the clans that were fighting and causing the civil unrest and killing of people; he was part of the Task Force that was sent over in August 1993; and on October 3, 1993, on their seventh mission, two blackhawks were shot down. He stated the movie was based on a book by Mark Bowden; 17 soldiers were killed that day in battle; but they did complete their mission successfully, accomplishing what they set out to do. He stated he was proud to be there; he was with the finest soldiers; and thanked the Board for acknowledging that piece of his 28.5 years in the Army. He stated he is pleased to be back in Brevard County; he is working two miles from the house he grew up in; his mother still lives there after 43 years; and he is related to City Manager Jim McKnight. He noted he has two daughters in Palm Bay as well as two grandsons; so he has a big stake in Brevard County, and is pleased to be here.

Commissioner Carlson stated the Board appreciates Mr. McKnight’s commitment and interest in coming back to the County, as well as his commitment to the nation.

REPORT, RE: ST. JOHNS RIVER SUMMIT OF 2003

Commissioner Carlson stated the St. Johns River Summit of 2003 is going to take place on January 13 and 14, 2003; and she has been a member of the St. Johns River Steering Committee, which is part of the American Heritage River community, made up of 14 different rivers that have been acknowledged as American Heritage Rivers throughout the nation. She stated the St. Johns River is 310 miles long and has a river community made up of multiple counties; she has been working with all the counties in trying to educate, preserve, and protect the St. Johns River; and in January, they are holding a summit to try to mold the strategic plan for the river. She stated the Steering Committee, which is led by Mayor John Delaney of Duval County, is trying to create a road map or blueprint for the river so that it is protected, people are educated about it, and positive economic development can be promoted along the river. She stated the summit is open to anyone who is interested; and it will be held at the Prime F. Osborn Convention Center in Jacksonville on January 13 and 14, 2003.

ANNOUNCEMENT, RE: TIME CERTAIN ITEMS

Chairperson Colon stated at 10:00 a.m. there is a time certain for Item VI.D.5, Acceptance, Re: Annual Investment Performance Report for Year Ended September 30, 2002; at 11:00 a.m. there are time certains for Items V.A., Staff Report, Re: Residential Buffer Ordinance, and V.B., Wavier of Perimeter Buffer, Re: Staghorn Subdivision; and at 11:30 a.m. there is an Executive Session.

UPDATE, RE: BREVARD CITY-COUNTY SUMMIT

Chairperson Colon stated Mark Ryan is present to give an update on what they have been working on for the last six months; and they have been working closely with County Manager Tom Jenkins and Melbourne City Manager Henry Hill to develop a concept plan to hold a day-long summit with municipalities and County officials to foster a better relationship.

Mark Ryan, City Manager of West Melbourne, stated they have been working for more than six months on what they are calling the Brevard City-County Summit; they propose to hold a day-long summit with municipalities and County officials to foster a better relationship between the governmental agencies and to try to resolve some of the differences that have been there in the past, such as annexation and joint planning agreements; and that summit is now a reality. He stated Dr. Lance Dehaven-Smith, a renowned expert in local government from Florida State University has agreed to participate; and they are working with the Florida Institute of Government and the Florida Conflict Resolution Consortium to participate and perhaps moderate the event. He stated on the dais will be the Board of County Commissioners, and the mayors and managers from each of the 15 municipalities; and the intent is to have some dialogue between the County and the cities to try to resolve problems and map out a plan for the County. He stated Dr. Thomas Gamble and Dr. Brenda Fettrow of Brevard Community College have been working with the Committee to hold the summit at the Cocoa campus of BCC; the summit will be on Friday, February 21, 2003 at 9:00 a.m.; the Space Coast League of Cities, Brevard Tomorrow, Leadership Brevard, and the EDC have all endorsed the summit; and they are bringing in some heavy hitters to make this happen. He stated there is a commitment of $12,500 from various individuals, entities, and organizations to fund the event; they previously proposed a funding formula for each of the cities and the County to pay for it; but now city and County funds are no longer needed. He requested the Commissioners keep their calendars open for Friday, February 21, 2003 for this event; and advised they intend to follow this up in October 2003 with Summit II. He stated at that event, the Board will be replaced on the dais with the School Board so there can be some meaningful dialogue on school capacity and school concurrency.

Chairperson Colon stated all the Commissioners have cleared their calendars for that date.

Commissioner Scarborough stated there are a lot of elected officials; each elected official sees things from his or her own perspective; and inquired if Mr. Ryan is soliciting thoughts from individual City Council members on what their desires for the meeting would be. Mr. Ryan responded yes, although if every elected official in the County was on the dais it would be more than 70 people. Commissioner Scarborough stated he understands the dynamics; but his thought was to get to the underlying themes that may permeate; and he would hate to have this event occur and then have a lot of people say they wishes the group had talked about something else. He requested each Council member be sent a letter asking if there are any particular items they wish to have discussed to see if they fall within certain categories; and although it is a dynamic ongoing process, this will allow everybody to have their opportunity to direct the discussion. Mr. Ryan stated they also plan to invite the elected officials and general citizenry to come to the event; they will be in the audience where there will be microphones to allow an opportunity for participation, so it will be an evolving process in the next three months. He stated they are excited; they want the first summit to be a touchdown and go all the way; and that will lead to future summits. He stated they also plan to have it televised so the information can be shared with the general citizenry.

Chairperson Colon stated even though they will not be a part of the discussion, invitations will be going out to the Brevard Delegation, Congressmen, and School Board members; everyone will not be on the dais; but they will be invited to attend, listen, and give some feedback.

Commissioner Carlson thanked Mr. Ryan and Chairperson Colon for putting this together; stated Brevard Tomorrow, which is now a program of Leadership Brevard, endorses the summit; it is going to be a great step forward; Brevard Tomorrow tried to initiate the whole process of strategic community planning; and they are ahead of the game and have made a lot of progress in terms of communicating. She stated a lot of good things are happening; and she looks forward to the summit.

Commissioner Higgs stated as Commissioner Scarborough pointed out, everyone sees things from their own perspective; and it will be a good chance to share perspectives. She stated 50% of the citizens live in the unincorporated area; 50% live in the incorporated area; so it is a reasonable balance; but the group that Mr. Ryan is talking about sitting at the table will be heavily balanced toward the cities as opposed to the County with 16 cities being represented plus the city managers. She stated only two of the County Commissioners live in the unincorporated area of the County; and inquired if there is some way to get feedback from members of huge communities such as Port St. John, Barefoot Bay, and Merritt Island. She stated there are a number of citizens who represent those areas; although elected by district, only two Commissioners live within the unincorporated area; so the summit is heavily weighted towards the incorporated areas; and recommended Mr. Ryan think of a way to do a little balancing.

Commissioner Carlson stated part of her district is Suntree, Viera, and a portion of Satellite Beach that are all unincorporated; but they have very well organized homeowners associations; and it would be nice to have the same thought process as with the City Council members.

Chairperson Colon requested the Commissioners who represent those areas provide a list of names and phone numbers; and stated they would be more than happy to send them invitations and get some feedback before the summit.

Commissioner Higgs stated to get feedback, it is necessary to have some idea of the topics on the agenda to be discussed; and as soon as the Commissioners know something, they can more adequately talk to the people about those issues.

Chairperson Colon stated one of the things they talked about was not putting too much on the table; by the time they get feedback, there will be 30 subjects; and what they are going to do is find out what is most pressing and what the people of the community feel is a priority so it can be a productive meeting. She stated they also want to show the feedback they have gotten from the community; even though it may not be one of the top subjects that will be discussed, it will give a reflection of what the community said, which is important.

Commissioner Pritchard stated it has been a while since he has seen Lance Dehaven-Smith; he looks forward to seeing him again; the first time he attended a seminar with him was in the early 1980’s when he was an Associate Professor at Florida Atlantic University; and he knows Mr. Dehaven-Smith will control the meeting well. He stated he has already notified the Merritt Island Executive Council; the Cocoa Beach Area Chamber of Commerce is aware of this and represents the business community that is both incorporated and unincorporated; and the session should be well attended. He stated the session reflects on the entire County; and he appreciates Mr. Ryan and Chairperson Colon organizing this. He stated it is important for people to recognize the importance of coming to meetings such as this that set precedents and standards so they will be represented; a lot of people think the Commissioners are all-knowing, but they are not; and the Board needs input to better serve the public.

Chairperson Colon expressed appreciation to County Manager Tom Jenkins for his help; stated she has quarterly meetings with all the city managers from her district; and this is where the idea came from to hold the summit. She stated at first it was going to be just Commissioners from South Brevard; but then they realized this was a subject that needs to be discussed with the entire County, and it took on a life of its own. She stated Mr. Ryan has been working on this very diligently; and thanked him on behalf of the citizens.

ANNOUNCEMENT, RE: HOLIDAY PUPPET SHOW

Chairperson Colon stated this Saturday at 12:00 noon, there will be a holiday puppet show in the Veterans’ Park in Palm Bay; it is something the community is looking forward to; and it is a joint effort between the City of Palm Bay and the Youth Center.

REPORT, RE: JOB LINK

Chairperson Colon stated the United Way received a grant, which has allowed 20 churches in the community to have job links in their churches; the project has only been established in the last month; and there has been a tremendous outpouring from the community. She stated those who would like to have a list of the churches that are a part of the Job Link may call Rita Elkins of the United Way or call her office. She stated this is the holiday season; it is scary for those breadwinners who cannot find jobs; and recommended people pass on the information to those who are looking for a job.

REPORT, RE: STATE CHAMPIONSHIPS IN FOOTBALL

Chairperson Colon stated she is proud that there are champions in Brevard County.

Commissioner Carlson stated this is the second year in a row that Rockledge High School football team won the championship; and this Friday an event will be held at Cocoa Expo to recognize Rockledge and Palm Bay High Schools.

Chairperson Colon stated the Board is looking forward to honoring both teams in January; the Board is proud of Palm Bay and Rockledge High Schools’ football teams; Palm Bay High School, won the championship two times in three years; and there are definitely quality football players in the County.

FAREWELL, RE: CITY MANAGER HENRY HILL

Chairperson Colon stated this is the last month for City Manager Henry Hill of the City of Melbourne; and everyone will miss him.

HOLIDAY GREETINGS

Chairperson Colon stated this is the holiday season; and expressed holiday greetings to people of all faiths.

RESOLUTION, RE: COMMENDING EAGLE SCOUT ADAM MARX

Commissioner Pritchard stated this is the first resolution he will award; he went through the Boy Scout Program, but never achieved the rank of Eagle Scout; and he can appreciate all that Adam has done to achieve the Eagle Scout rank. He read aloud a resolution commending Adam Marx for his achievement of the rank of Eagle Scout.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution commending Adam Marx for his achievement of the rank of Eagle Scout. Motion carried and ordered unanimously.

Commissioner Pritchard requested Mr. Marx tell more about his project. Adam Marx stated he did the project for his church, Faith Fellowship, which needed more playground area; and he built a fence, picnic tables, and a sandbox. Commissioner Pritchard presented the Resolution to Mr. Marx.

RESOLUTION, RE: COMMENDING BRIAN CHASE

Chairperson Colon read aloud a resolution commending Brian Chase for his outstanding public service as Deputy Chief of Staff for Congressional District 15.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to adopt Resolution commending Brian Chase for his outstanding public service. Motion carried and ordered unanimously.

J. B. Kump stated he is pleased to be here to accept this award for Brian Chase; he advised Mr. Chase that he would be accepting this for him this morning; and he sent a brief statement to the Board. He read aloud, “Members of the Commission, Thank you for this recognition. It has been a privilege to be part of the Space Coast community for the last three years, and I’ve enjoyed the opportunity to work with you on behalf of Congressman Dave Weldon. I know you will enjoy again working with J. B. Kump, who also established Congressman Weldon’s office after his first election. As the new Executive Director of the National Space Society, I am committed to promoting the human exploration, development, and settlement of space. With objectives so closely tied to those of the Space Coast and the entire State, it will be a privilege for me to continue to work with the talented and dedicated community leaders who maintain Florida’s leadership in space. Our partnership is vital if we are to become a truly space-faring civilization, and I envision Florida’s commercial, academic, and economic space infrastructure maintaining a crucial role in space exploration for the foreseeable future. I regret not being able to accept this in person, but I look forward to working with each of you in the coming years as we strive to reach the stars.”

Chairperson Colon presented the Resolution to Mr. Kump.

Commissioner Carlson stated Mr. Kump is coming back to take Mr. Chase’s spot; that will be a large void to fill; and she has appreciated Brian Chase and his wife Terry, and will miss them. Mr. Kump stated he cannot replace Mr. Chase, but will sit at his desk.

Chairperson Colon wished Congressman Weldon and his family a Merry Christmas. Mr. Kump wished all a Merry Christmas.

COMMENTS, RE: ITEMS III.B.5 AND III.F.4

Commissioner Pritchard stated Item III.B.5, Approval of Revised Article 13 of Union Contract for Disbursement of Red Card Incentive deals with the firefighters and the $500 they are entitled to for having taken specific training in forest fires; and advised of his experience as a firefighter. He stated $500 is a significant amount of money, and is especially appreciated at Christmas; and encouraged staff to do all it can to make sure the firefighters receive the $500 as soon as possible before Christmas.

Commissioner Pritchard stated Item III.F.4, Approval of Use of Drug Forfeiture Funds for Pathways to a Drug Free Life Program is a request to use State forfeiture drug funds to sponsor the Pathways to a Drug Free Life Program; it is only $3,000; and inquired if this is a separate and distinct program that stands alone. Deborah Barker, Finance Director for the Sheriff’s Office, responded this is a joint venture with Florida TODAY where it will provide a newspaper education program to promote drug free environment and education for the schools in the County. Commissioner Pritchard stated there are a lot of programs that overlap to the point where it is the same program with a new name; and inquired if this is a program that is a little different. Ms. Barker responded the theme is the same in terms of drug prevention, education, peer pressure, and all of that; however, the presentation is somewhat different because it is geared toward introduction and perception of the school students; so, it is presented to them in a format that is easy for them to understand and is agreeable. She stated it is a stand-alone program in the way it is presented in the schools.

APPEAL OF SECTION 62-3206(E)(5), RE: PARKING REQUIREMENTS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to waive Section 62-3206, allowing the site plan for the new Walgreens at the northeast corner of Wickham and Interlachen Roads to be approved without curb stops in the parking lot. Motion carried and ordered unanimously.

AUTHORIZATION TO SIGN LETTER TO THE VIERA COMPANY, RE: DONATION OF PARK
LAND

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize the Chairperson to execute a letter to The Viera Company acknowledging that the donation of land for the Viera Regional Park partially fulfills The Viera Company’s obligations under Development Order Condition 57 and that the provision of at least 97.5 acres of park land on the west side of I-95 will fulfill the remaining obligation to provide parkland on the west side of the Viera DRI. Motion carried and ordered unanimously.

APPROVAL, RE: INCREASE OF PURCHASE ORDER TO SOUTH PATRICK RESIDENTS
ASSOCIATION FOR ROADSIDE MAINTENANCE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve increasing Purchase Order #4500019298 to South Patrick Residents Association for roadside maintenance of County rights-of-way. Motion carried and ordered unanimously.

APPROVAL OF PURCHASE, RE: SURPLUS COUNTY PROPERTY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve purchase of a wood executive desk (PR#080-0598) to present to Henry Minneboo, Public Works Director, as a gift for his retirement. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING INSTALLATION OF NO PARKING ON STREETS
BETWEEN MIDNIGHT AND 7:00 A.M. SIGNS IN SPRINGS OF SUNTREE SUBDIVISION

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution authorizing installation of “No Parking on Streets between 12:00 midnight and 7:00 a.m.” signs at the entrances into the Springs of Suntree Subdivision. Motion carried and ordered unanimously.

CERTIFICATION OF STAFF SERVICES AGREEMENT WITH BREVARD MPO, RE:
BREVARD URBANIZED AREA

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Certification of Staff Services Agreement with the Brevard Metropolitan Planning Organization, extending the Agreement through December 31, 2003. Motion carried and ordered unanimously.

AGREEMENTS WITH TITUSVILLE, COCOA BEACH, MELBOURNE/PALM BAY, AND
PALM BAY AREA CHAMBERS OF COMMERCE, RE: PROMOTION AND ADVERTISING
GRANTS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreements with the Titusville Area, Cocoa Beach Area, Melbourne/Palm Bay, and Palm Bay Chambers of Commerce for 2003 Category A Promotion and Advertising Grant Program, granting $30,000 to each Chamber for a total of $120,000. Motion carried and ordered; Commissioner Higgs voted nay.

AGREEMENTS WITH FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, RE:
HOMELESS HOUSING ASSISTANCE GRANT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreements with Florida Department of Children and Families for Homeless Housing Assistance Grants of $110,250 for the Women’s Center and $634,210 for Hope Properties, Inc.; authorize the Chairperson to execute Agreements with the Women’s Center and Hope Properties Inc. to satisfy grant requirements; and authorize the Chairperson to execute subsequent amendments to the Agreements contingent upon approval of the County Attorney and/or Risk Management. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, RE:
LOW-INCOME HOME ENERGY ASSISTANCE PROGRAM FUNDS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Florida Department of Community Affairs for the Fiscal Year 2003 Low Income Home Energy Assistance Program (LIHEAP) funds in the amount of $290,631; authorize amendment of $156,494 to the current budget to cover expenses from March 2003 to September 2003, and the difference of $134,137 to be budgeted in FY 2003-2004 to cover expenses from October 2003 to March 2004; and authorize the Chairperson to execute any necessary follow-up amendments or additions contingent upon Risk Management and County Attorney approval. Motion carried and ordered unanimously.

AGREEMENTS AND AMENDMENTS WITH SOUTH BREVARD HABITAT FOR HUMANITY
AND SPACE COAST HABITAT FOR HUMANITY, RE: ACQUISITION AND/OR
DEVELOPMENT OF PROPERTIES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with South Brevard Habitat for Humanity for an amount not to exceed $100,000 for land acquisition to develop and/or construct twenty properties in South Brevard; execute Amendment to Agreement with South Brevard Habitat for Humanity for an amount not to exceed $35,000 to complete the development and/or construction of seven properties in South Brevard; execute Agreement with Space Coast Habitat for Humanity for an amount not to exceed $100,000 for land acquisition to develop and/or construct ten properties in North Merritt Island; execute Amendment to Agreement in an amount not to exceed $33,680.82 to complete water/sewer installations for eleven properties in Central and North Brevard; and authorize the Chairperson or County Manager, to execute necessary amendments to the Agreements under $35,000 upon review and approval of the County Attorney and Risk Management. Motion carried and ordered unanimously.

APPROVAL OF WORKSHOPS, RE: RECOMMENDATIONS OF COMMISSION ON MENTAL
HEALTH AND COMMUNITY SOLUTIONS, AND BREVARD COMMISSION ON AGING
PUBLIC GUARDIANSHIP REPORTS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve scheduling a morning workshop on February 20, 2003 to review and discuss the findings and recommendations of the Commission on Mental Health and Community Solutions and an afternoon workshop on February 20, 2003 to review and discuss the Brevard Commission on Aging Public Guardianship Report and Annual Report. Motion carried and ordered unanimously.

APPROVAL OF REVISED ARTICLE 134 OF UNION CONTRACT, RE: DISBURSEMENT OF
RED CARD INCENTIVE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve revised Article 13 in the Union Contract in order to provide the disbursement of Red Card incentives for wildfire fire fighting skills in December of each year in lieu of September of each year as previously indicated in the Union Contract. Motion carried and ordered unanimously.

AGREEMENT WITH KEEP BREVARD BEAUTIFUL, INC., RE: LITTER PREVENTION

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Keep Brevard Beautiful, Inc. for litter prevention and control. Motion carried and ordered unanimously.

APPROVAL OF LETTER OF SUPPORT, RE: ST. JOHNS RIVER WATER MANAGEMENT
DISTRICT’S APPLICATION FOR FEDERAL GRANT TO DEVELOP ALTERNATIVE
WATER SUPPLIES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, authorized the Chairperson to sign a letter of support for the St. Johns River Water Management District’s application for federal funding under the State and Tribal Grants program. Motion carried and ordered unanimously.

APPROVAL OF REVISED POLICY BCC-61, RE: ART IN PUBLIC PLACES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve revised Policy BCC-61, Art in Public Places, specifying Board directives for placement of art in public places. Motion carried and ordered unanimously.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE:
AMENDMENT TO SECTION 2-73, RE: ORGANIZATIONAL STRUCTURE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the legislative intent and grant permission to advertise a public hearing for an amendment to Section 2-73 of the Brevard County Code to revise the County’s organizational chart. Motion carried and ordered unanimously.

APPROVAL, RE: LEGISLATIVE DELEGATION WORKSHOP

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve a workshop on Thursday, January 30, 2003, at 2:30 p.m. with the Brevard County Legislative Delegation. Motion carried and ordered unanimously.

APPROVAL, RE: EXCELLENCE IN ACTION AWARDS PROGRAM

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the updated Excellence in Action Awards Program and Certificate. Motion carried and ordered unanimously.

RESOLUTION AMENDING RESOLUTION 02-075, RE: BOARD MEETING PROCEDURES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution amending Resolution 02-075, Board Meeting Procedures, to add a new Section 2.6 addressing motions to table, to amend Subsection 6.4(g), and to consolidate all previously approved Resolutions relating to the Board’s Rules of Procedure. Motion carried and ordered unanimously.

APPROVAL OF POLICY BCC-03, RE: CONFLICT OF INTEREST

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve revised Policy BCC-03, Conflict of Interest, regarding conflicts of interest for County employees. Motion carried and ordered unanimously.

APPROVAL, RE: EXECUTIVE SESSION FOR BREVARD COUNTY V. AMY, ET AL

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize advertising and scheduling an executive session for January 14, 2003 at 11:30 a.m. or as soon thereafter as possible, to discuss settlement related to litigation regarding Brevard County v. Amy, et al. Motion carried and ordered unanimously.

APPROVAL, RE: USE OF DRUG FORFEITURE FUNDS FOR PATHWAYS TO A DRUG
FREE LIFE PROGRAM

Motion by Commissioner Higgs, seconded by Commissioner Carlson, approved use of $3,000 in State drug forfeiture funds, in accordance with Chapter 932.7055(4)(a)(b), Florida Statutes, to sponsor the Pathways to a Drug Free Life Program. Motion carried and ordered unanimously.

APPROVAL, RE: USE OF DRUG FORFEITURE FUNDS FOR SENIOR FEST CRIME
PREVENTION PROGRAM

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve use of $3,808.00 in State drug forfeiture funds, in accordance with Chapter 932.7055(4)(a)(b), Florida Statutes, to pay for the Senior Fest Crime Prevention Program held in October 2002. Motion carried and ordered unanimously.

APPROVAL, RE: TRANSFER OF BUDGET FUNDS TO SHERIFF’S DEPARTMENT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize payment of one-sixth of the total amount budgeted for the Sheriff’s Office for FY 2002-2003. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZENS ADVISORY BOARDS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to appoint/reappoint: Linda Madyda, D.V.M. to the Animal Enforcement Dangerous Dog Hearing Council, with term expiring December 31, 2003; Sandy Sevigny, Bob Gabriel, David Bunker, and Josiah Snodgrass to the Art in Public Places Advisory Committee, with terms expiring December 31, 2003; Pam Adevedo to the Beach Erosion Control Advisory Committee, with term expiring December 31, 2003; Jeanne Osborne, Dr. John O. Potomoski, Jr., Joan Madden, Christine Schnitzer, Carol Waters, and Joseph Steckler to the Brevard Commission on Aging, with terms expiring December 31, 2003; Rosemary Munzenmayer, Beverly Jones, Barbara Barnett, Peggy Moore, Maria Apolinaris, Enid Naranjo, Mary Bonhomme, Bettye Murray, and Catherine Stanton, with terms expiring December 31, 2003; Fran Wales, Jim Messer, and Ed Fleis to the Building and Construction Advisory Committee, with terms expiring December 31, 2003; Reverend Canon Kite-Powell, Elizabeth Armistead, and Patsy Shearer to the Central Brevard Library & Reference Center Advisory Board; Kim Zarillo, Robert A. Klaus, and Dale Young to the Citizen Budget Review Committee, with terms expiring December 31, 2003; Harry Hemlich to the Committee to Review Special Master Procedures, with term expiring December 31, 2003; Wayne Butler, Fannye Faye Johnson, David Paterno, and Gertrude Montgomery to the Community Action Agency Advisory Committee, with terms expiring December 31, 2003; Clara Smith and Juanita Barton to the Community Based Organization Funding Advisory Board, with terms expiring December 31, 2003; Juanita Barton and Phyllis McCullers to the Community Development Block Grant Advisory Board, with terms expiring December 31, 2003; Pete Cario, Charles Budreaux, Todd Eric Turner, Jerry Phillips, Ann Nicol, John Radencic, John Nast, Michael Wiedmann, Nick Witek, and Leon Tucker to the Contractors Licensing Board, with terms expiring December 31, 2003; Kim Roberts, Sid LaDow, Ruth Santomassino, Dr. Ronald R. Bobay, Liz Lackovich, and Cheryl Lawson-Young to the Country Acres Advisory Board, with terms expiring December 31, 2003; Ron Cobb to the Economic Development Commission of the Space Coast, with term expiring December 31, 2003; Yvette Torres, Liz Alward, M. Rene Davis, and Mary Redmond to the Employee Benefits Advisory Committee, with terms expiring December 31, 2003; Diane Stees, Rich Gramling, Tom Stevenson, Sharon Savastio, Kim Zarillo, Rebecca James, and Bill Koehne to the Environmentally Endangered Lands Procedure Committee, with terms expiring December 31, 2003; Cameron Donaldson, Mary Beth Hinshaw, Brooks Humphrys, and Gerald Lafferty to the Extension Advisory Council, with terms expiring December 31, 2003; David E. White, David Paterno, Yvonne Shingler, Jim Culberson, Ada Parrish, Bob Gross, Elaine Liston, Ed Bradford, Roz Foster, Karen Raley, Susan Sheppard, and Jim Ball, with terms expiring December 31, 2003; Priscilla Griffith and Kim Zarillo to the Land Development Regulations and Procedures Evaluation Committee, with terms expiring December 31, 2003; Shelly Kinner and Fritz Kawohl to the Library Board, with terms expiring December 31, 2003; Gary Hanlin, Tom McGill, Mike Cunningham, Ken Black, Heie Simonsen, Wayne Mozo, and Troy Rice, to the Marine Advisory Council, with terms expiring December 31, 2003; Marilyn Washburn, Dr. Chris Fenton, Dr. Samuel Del Rio, and Roger Probst to the Medical Services Review Committee, with terms expiring December 31, 2003; Ann Sepri, Lynn Normile, and Karen Greer to the Melbourne Beach Public Library Advisory Board, with terms expiring December 31, 2003; Michael Davis to the Melbourne-Tillman Water Control District, with term expiring December 31, 2003; Clarence Mills, Ayn Samuelson, Tibby Parker, Sharon Savastio, Bonnie Decaro, Eddie Carr, Jr., and Robert Preikschat to the Metropolitan Planning Organization Citizens Advisory Committee, with terms expiring December 31, 2003; Susan Loftis and Tom Kreuzinger to the Mims/Scottsmoor Public Library Advisory Board, with terms expiring December 31, 2003; Howard Wolf to the Onsite Sewage Disposal Variance Board, with term expiring December 31, 2003; Clifford Barber, Jr., Eduardo Torres, Janet LaMont, and Dudley Anderson to the Palm Bay Regional Park Advisory Committee, with terms expiring December 31, 2003; Mike Stieber, Robin Tibbitts, Brian Hurley, Mary Geoltz, and Ted Whitlock to the Parks and Recreation South Service Sector Area Advisory Board, with terms expiring December 31, 2003; Oscar Gamboa, Sheila Hutcheson, and Cleave Frink to the Personnel Council, with terms expiring December 31, 2003; Beverly Pinyerd, Kim Zarillo, Jerry Jagrowski, Grodon Prentice, Eddie Carr, Edwina Davis, Matt Sokoloski, Ed Coburn, Suzanne Valencia, Kathryn Kowalksi, and Dan Faden to the Planning and Zoning Board, with terms expiring December 31, 2003; Constantine Daniel, Helen Dezendorf, Maureen Rupe, and Pamela Ferraro to the Port St. John Public Library Advisory Board, with terms expiring December 31, 2003; Clarence Mills, Steve Worthington, Marty Brown, Steve Fleming, Frank Duncan, Ginny Mack, and Joe Littlefield to the Public Golf Course Advisory Board, with terms expiring December 31, 2003; Eugene Gwinn, Scott McCullers, Flo Canham, Bruce McMann, Phyllis McCullers, Jeanne Osborne, and Ken Black to the South Mainland Community Center Citizens Advisory Board, with terms expiring December 31, 2003; Frances Salerno, Joan Lewis, Mike Cunningham, Laurie Chase, Loretta Surface, Marie Bergamini, and Joyce Bent to the South Mainland Library Advisory Board, with terms expiring December 31, 2003; Frank Kinney to Spaceport Commerce Park Authority, with term expiring December 31, 2003; Bob Toppe, Richard Wallace, Tom Stevenson, and Dan Overstreet to the Surface Water Improvement Advisory Board, with terms expiring December 31, 2003; Dan Faden, Robert Doucette, Raymond B. Cook, Janis Walters, Del Yonts, and Jim Ray to the Valkaria Airport Advisory Board, with terms expiring December 31, 2003; Frank Kunze, Garrett Pomichter, and Carlos Colon to the Veterans Memorial Park Advisory Board, with terms expiring December 31, 2003; Marian Hughes, Barbara Schwam, Hal Rose, Elizabeth George, Stephanie Elley, and Nelle Ayres to the West Melbourne Public Library Board, with terms expiring December 31, 2003; and Ed Dean, Sondra Ball, Jan Erickson, Malcolm Mansfield, Marie Bergamini, Howard Wolf, Dale Young, and Gordon Prentice to the Zoning Board of Adjustment, with terms expiring December 31, 2003. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the bills and budget changes, as submitted. Motion carried and ordered unanimously.

INQUIRY, RE: WITHDRAWN ITEM

Commissioner Carlson stated Item III.D.1, Approval of Revised Policy BCC-59, Re: Smoking in Public Buildings was withdrawn; and inquired what was wrong with it. County Manager Tom Jenkins stated staff needs to clarify language based on Statutes. Commissioner Carlson inquired if the item will be coming back on the next Agenda; with Mr. Jenkins responding yes.

ACCEPTANCE, RE: ANNUAL INVESTMENT PERFORMANCE REPORT FOR YEAR
ENDED SEPTEMBER 30, 2002

Assistant County Manager Stockton Whitten stated last year the Board revised its investment policy to create the Investment Committee and to outsource the day-to-day management of the long-term investment portfolio of the County; as required by the Policy, the Committee is here to present the annual investment report; and every member of the Committee is present except Amy Elliott who is the Assistant City Manager of the City of Melbourne. He stated in the audience are Brent Dalrymple who is a Professor of Finance at the University of Central Florida, Steven Alexander who is the County’s Financial Advisor, Mark Peterson who is the Financial Accounting Supervisor in County Finance, Greg Lugar who is the Director of Economic and Financial Programs, and Greg Pelham who is the Finance Manager in the Public Works Department. He stated Mr. Alexander will present the report.

Steven Alexander, Public Financial Management, stated he wants to focus on where they have been and where they plan to go over the next year or so; a year ago they presented their recommendations for the new investment approach; and those recommendations have all been implemented. He stated a number of changes have taken place including the new investment policy, the procedures manual, the various reports in place, and the establishment of the Investment Committee. He advised the Committee has met four or five times already to review the performance of the portfolio as well as the new procedures manual; a number of structural items that were discussed a year ago are now in place and will be beneficial to the County; and approximately $71 million worth of transactions have taken place to restructure the portfolio and align the position to appropriately match up to the benchmark. He stated in those trades approximately $315,000 worth of capital gains were produced that are an addition to the portfolio’s interest earnings; and they have taken a lot of measures to make sure the structure of the portfolio now reflects the new investment policy, which required different types of investments with certain types of percentage limitations. He stated the investments that were in the portfolio in the previous year that were not on the new permitted investment list have been sold off; and the portfolio now contains all the appropriate securities. He stated the portfolio is now in position to properly match up to the investment policies and procedures; going forward they will continue to manage the portfolio so it is in line with the benchmark; from a strategy standpoint, the overall maturity of the portfolio has been kept shorter than the benchmark maturity because rates are about as low as they are going to be, and the only way interest rates are going to go is up; and going forward with shorter maturities will protect the value of the portfolio. He stated one of the key strategies is to not only try to produce a good rate of return but to also protect the value of the portfolio as it goes forward. He advised it has been a pleasure working with Mark Peterson, who has been very helpful in making sure all procedures and policy recommendations were put in place; and they have worked closely with Mr. Peterson over the past nine months. He stated the members of the Committee were also very helpful; they had a number of meetings and will continue to meet on a quarterly basis; and if there is any information the Board desires, they will make sure it is available. He advised of the website, which is updated daily as a means to stay well informed.

Commissioner Scarborough stated there is an inverse relationship between values and interest rates; as interest rates have declined, the County has been able to stay in the securities until they matured; but now at the bottom, the problem occurs; and the reason they are going to the shorter maturities, even though they have a lower rate, is because as they move upward, the County wants to have the mobility to have the higher rates and at the same time less degradation of portfolio values. He stated this is a problematic point in investments; and it is not necessarily going to be good for anyone in the County’s position with substantial investments in interest-bearing securities.

Commissioner Pritchard stated Section C-1 says the book value in 2001 was $303 million and the interest earned was $17 million; in 2002 the book value is $313 million and the interest earned was $14 million; and the market value of the portfolio is $318 million. Mr. Alexander advised there are some additional new bond proceeds that were issued last year that were probably not in 2001, so there are new funds that are added; and as far as interest earnings, there was a dramatic change in the short-term interest rates, which went from as high as 6% to as low as 1.7%. Commissioner Pritchard stated in Section C-2, total average yield is given as 3.2% total; and inquired how that compares with other portfolios of similar distribution. Mr. Alexander responded the short-term portfolio is being handled by Mark Peterson, so C-2 does not represent what they will be doing long-term; but across the State, the portfolio fares pretty well as far as short-term securities because most local governments, instead of having investments in home loans or Fanny Maes, have kept most of the money in the State Board of Administration’s money market fund, and as rates have dropped dramatically, instead of earning 6%, they are now earning 1.5%; so by having some investments placed out, the County was able to hold onto some of those interest rates.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to accept the Annual Investment Performance Report for the year ended September 30, 2002, as presented by Public Financial Management. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENT (HARTFORD ROAD) IN PORT ST. JOHN, UNIT 8 - THOMAS AND
MARIANNE RIGOLINI

Chairperson Colon called for the public hearing to consider a resolution vacating public utility and drainage easement (Hartford Road) in Port St. John, Unit 8, as petitioned by Thomas and Marianne Rigolini.

There being no comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution vacating public utility and drainage easement (Hartford Road) in Port St. John, Unit 8 as petitioned by Thomas and Marianne Rigolini. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY (FAN PALM AVENUE)
IN CANAVERAL GROVES SUBDIVISION - DOUG AND CHRISTAL BROADBENT AND
DANIEL AND LYNN FOSS

Chairperson Colon called for the public hearing to consider a resolution vacating right-of-way (Fan Palm Avenue) in Canaveral Groves Subdivision as petitioned by Doug and Christal Broadbent and Daniel and Lynn Foss. She inquired if the applicant’s attorney wishes to speak; with Attorney Doug Baker responding not unless there are problems.

There being no comments or objections, motion was made by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution vacating right-of-way (Fan Palm Avenue) in Canaveral Groves Subdivision as petitioned by Doug and Christal Broadbent and Daniel and Lynn Foss. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENTS (PALM LAKE DRIVE) IN THE LAKES OF RIDGE MANOR SUBDIVISION,
PHASE 2 - JOHN EMMICK

Chairperson Colon called for the public hearing to consider a resolution vacating public utility and drainage easements (Palm Lake Drive) in the Lakes of Ridge Manor Subdivision, Phase 2 as petitioned by John Emmick.

There being no comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution vacating public utility and drainage easements (Palm Lake Drive) in the Lakes of Ridge Manor Subdivision, Phase 2 as petitioned by John Emmick. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENTS IN CENTER PLACE WICKHAM ROAD BUSINESS CENTER SOUTH -
MIRAMAR INVESTMENT AND JAMES BAKER

Chairperson Colon called for the public hearing to consider a resolution vacating public utility and drainage easements in Center Place Wickham Road Business Center South as petitioned by Miramar Investment and James Baker.

Commissioner Carlson stated the application says they will be constructing a military equipment warehouse; and requested the applicant explain further. Suzanne Doane, RK Engineering, advised there is already an existing building that General Services Administration rents from Miramar Investments where they store aviation parts; and they are going to build another building to do the same.

There being no further comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Scarborough, to adopt Resolution vacating public utility and drainage easements in Center Place Wickham Road Business Center South as petitioned by Miramar Investment and James Baker. Motion carried and ordered unanimously.


PUBLIC HEARING, RE: ORDINANCE AMENDING SECTION 62-1102 TO ALLOW
NON-SUPPORTING WALLS CONSTRUCTED AS FENCES TO BE EXEMPT
FROM SETBACKS

Chairperson Colon called for the public hearing to consider an ordinance amending Section 62-1102 to allow non-supporting walls constructed as fences to be exempt from setbacks.

There being no comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Higgs, to adopt an Ordinance amending Chapter 62, “Land Development Regulations”, Code of Ordinances of Brevard County, Florida; amending Section 62-1102 by clarifying that a non-supporting wall acting as a fence is exempt from setback requirements; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING SECTION 62-1906, CONDITIONAL USE
PERMITS FOR ON-PREMISES CONSUMPTION OF ALCOHOLIC BEVERAGES

Chairperson Colon called for the public hearing to consider an ordinance amending Section 62-1906, Conditional Use Permits for On-premises Consumption of Alcoholic Beverages.

Commissioner Higgs stated items 1, 2, and 3 seem to be reasonable inclusions in the ordinance and would be improvements; but 4, 5, and 6 do not seem to be things that would be necessary; and she does not know why the Board would want to tie something to an occupational license. She stated number 5 talks about the CUP expiring in six months on an existing structure; that does not seem to be sufficient time if someone buys a building and has to do major renovation; and so, that provision is not appropriate. She stated she does not know why there is a different standard under six for the amount of time to reapply when Planning and Zoning has a six-month time period.

Commissioner Scarborough stated that is what he heard from several members of staff; and it would be acceptable to move it forward with items 1, 2, and 3.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 62, “Land Development Regulations,” Code of Ordinances of Brevard County, Florida; amending Article VI, Section 62-1906 relating to conditional use permits for on-premises consumption of alcoholic beverages; providing for submittal of a certified survey to demonstrate compliance with spacing requirements from churches and schools; providing for operational requirements and other limitations that may be imposed; requiring new conditional use permit approval for expansion of premises; providing for conflicting provisions; providing for severability; providing for inclusion in the Brevard County Code; and providing an effective date.

Commissioner Pritchard stated he was going to make the same comment that 1, 2, and 3 are reasonable, but 4, 5, and 6 create not only an administrative burden, but an additional burden upon the permit holder.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING ZONING CODE TO MODIFY MINIMUM
LOT DEPTH FOR RR-1 ZONING CLASSIFICATION

Chairperson Colon called for the public hearing to consider an ordinance amending Zoning Code to modify minimum lot depth for RR-1 zoning classification.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 62, “Land Development Regulations”, Code of Ordinances of Brevard County, Florida; amending Section 62-1336(4) by reducing the minimum lot depth requirement in the RR-1 zoning classification; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances.

Commissioner Pritchard stated it says, “Minimum Lot Size, an area of not less than one acre is required, having a width of not less than 125 feet and a depth of not less than 125 feet.” He noted if it is 125 feet by 125 feet, it is not an acre. Planning and Zoning Director Mel Scott stated it gives the choice of which lot depth or width the individual likes. Commissioner Pritchard stated it is a smorgasbord; with Mr. Scott agreeing. Commissioner Pritchard stated it does not specify it is a choice; but the option is good.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE DESIGNATING CONSUMER PRICE INDEX AND
ESTABLISHING METHOD FOR ADJUSTING CHARTER DEBT CEILING

Chairperson Colon called for the public hearing to consider an ordinance designating Consumer Price Index and establishing method for adjusting Charter debt ceiling.

County Manager Tom Jenkins stated this is a requirement of the Charter, but has not been done previously. Commissioner Carlson requested Mr. Jenkins provide an explanation. Economic and Financial Programs Director Greg Lugar advised the Charter that was adopted by voter referendum in November 1994 has a provision in Section 5.3 that establishes a debt ceiling of $15 million for financing instruments such as bonds; bonds that are supported or paid back by non-ad valorem taxes may not exceed that ceiling; but in the same section, the writers of the Charter were conscious of the fact that the price of construction increases or decreases over time; and they wrote into the Charter a requirement that the ceiling will be increased or decreased based on an accepted consumer price index. He stated the proposed ordinance establishes the CPI that is utilized nationally, which is the unadjusted All Urban Consumer Price Index that uses the 1984 base period; and it provides for a method of increasing the ceiling from time to time by resolution utilizing the designated CPI.

Commissioner Pritchard stated this allows for adjustments because if the Board does not make an adjustment for inflation, its ability to purchase is decreased every year there is an increase in other costs. He stated this provides a methodology for the County to track the CPI and keep pace with inflation so it is able to use its dollars appropriately and not be excluded from having to come up with additional money or not purchase an item or perform a service that is necessary in order to fulfill the will of the public.

There being no further comments heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt an Ordinance of the Board of County Commissioners of Brevard County, Florida; amending the maximum fixed amount for the issuance of non-ad valorem tax revenue bonds; providing for periodic review and adjustment in a manner required by the Brevard County Charter; authorizing the adjustments to increase or decrease the maximum based on a generally accepted consumer price index; designating generally accepted consumer price index; providing for severability; providing for repeal; and providing for an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 30,
CABLE COMMUNICATIONS

Chairperson Colon called for the public hearing to consider an ordinance amending Chapter 390, Cable Communications.

There being no comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 30 “Cable Communications” of the Code of Ordinances of Brevard County, Florida, specifically amending Section 30-2, providing for the definition of communications services and communications services tax, and providing for the removal of franchise fees, gross revenues, and quarter, and providing for correction of grammatical error; specifically amending Section 30-5, providing for removal of references to franchise fees; specifically amending Section 30-13, providing for the removal of references to franchise fees; specifically amending Section 30-22, providing for the removal of references to franchise fees; specifically amending Section 30-24, providing for correction of grammatical error; specifically amending Section 30-28 , providing for the removal of reference to franchise fees and addition of communications services tax; providing for conflicting provisions; providing for severability; providing for area encompassed; providing for inclusion in the Code; and providing for an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE CREATING WEST MYRTICE AVENUE
WASTEWATER PUMP STATION SYSTEM CAPITAL RECOVERY CHARGE

Chairperson Colon called for the public hearing to consider an ordinance creating West Myrtice Avenue Wastewater Pump Station System Capital Recovery Charge.

Water Resources Director Dick Martens requested Exhibit B that designates the method for calculating the amount of the recovery charge be amended to include administrative and legal fees as well as the other items that have been listed; and stated he has prepared an alternative Exhibit B that he will provide to the Clerk. He stated the third paragraph originally said the total cost of the system construction shall include all engineering and testing services, permitting fees, property acquisition, and construction costs; and he proposes to amend that to include administrative and legal costs as well.

Commissioner Higgs stated she appreciates Mr. Martens adding that language as it seems to reflect realistic costs.

Motion by Commissioner Higgs, to adopt an Ordinance establishing capital recovery charges for connection to wastewater collection and transmission facilities, to be known as the West Myrtice Avenue Wastewater Pump Station System, prescribing the boundaries of said system to consist of certain property contained within Township 24 South, Range 36 East, Section 35; authorizing the construction of said system; authorizing the collection of charges in substantially the same manner as provided in Chapter 67-1145, Laws of Florida (1967); prescribing the procedure for the fixing of an initial schedule of capital recovery charges for the use of the facilities to be furnished by said system; and providing an effective date., with corrected Exhibit B.

Commissioner Pritchard inquired if it is typical to include legal and administrative costs as part of the package; with Mr. Martens responding yes, the County would typically try to recover all costs that are expended on a project; it was just an oversight that it was not included; and the next two items will have the same addition.

Commissioner Pritchard seconded the motion. Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE CREATING PALM SHORES REGIONAL
WASTEWATER SYSTEM CAPITAL RECOVERY CHARGE

Chairperson Colon called for the public hearing to consider an ordinance creating Palm Shores Regional Wastewater System Capital Recovery Charge.

Motion by Commissioner Higgs, seconded for discussion by Commissioner Carlson, to adopt an Ordinance establishing capital recovery charges for connection to wastewater collection and transmission facilities, to be known as the Palm Shores Regional Wastewater System, prescribing the boundaries of said system to consist of certain property contained within Township 26 South, Range 37 East, Sections 29, 30, 31 & 32; authorizing the construction of said system; authorizing the collection of charges in substantially the same manner as provided in Chapter 62-1145, Laws of Florida (1967); prescribing the procedure for the fixing of an initial schedule of rates, fees or other charges for the use of the services and facilities to be furnished by said system; providing for procedures for revisions to said schedule of rates, fees, and charges; and providing an effective date, with corrected Exhibit B.

Commissioner Carlson requested Mr. Martens explain what is being done. Water Resources Director Dick Martens stated the Town of Palm Shores came to the County several months ago requesting the County provide some sort of sewer service to the Town coordinated with the US 1 widening construction; the project was put together to provide basic infrastructure that will allow properties in the future that desire wastewater service to acquire it through this project; and the project will recover its costs through the capital recovery charge at the time of the individual connections.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE CREATING NORTH PALM SHORES WASTEWATER
SYSTEM CAPITAL RECOVERY CHARGE

Chairperson Colon called for the public hearing to consider an ordinance creating North Palm Shores Wastewater System Capital Recovery Charge.

There being no comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to adopt an Ordinance establishing capital recovery charges for connection to wastewater collection and transmission facilities, to be known as the North Palm Shores Wastewater System, prescribing the boundaries of said system to consist of certain property contained within Township 26 South, Range 37 East, Sections 19 & 30; authorizing the construction of said system; authorizing the collection of charges in substantially the same manner as provided in Chapter 67-1145, Laws of Florida (1967); prescribing the procedure for the fixing of an initial schedule of capital recovery charges for the use of the facilities to be furnished by said system; and providing an effective date, with corrected Exhibit B. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FOR VESTED RIGHTS DETERMINATION FOR ISLAND
POINTE

Chairperson Colon called for the public hearing to consider a request for vested rights determination for Island Pointe.

Attorney Richard Amari, representing Towne Realty of Island Pointe and Indian Cove Marina, Inc., stated he is here this morning for the claim for abrogation of vested rights; vested rights is an equitable principle created through the court system and codified into the Brevard County Code; and its essence means fair play. He stated it requires three things to have occurred in order for it to apply; there must be an act or omission by County government; the developers must have, in good faith, relied upon that act or omission; and there must be some substantial change in position that would give rise to the claim for vested rights. He stated he would like to review the testimony heard at the last Board meeting from Project Engineer Joyce Gumpher; she stated on March 9, 2001 the Project Engineer filed an application with the Planning and Zoning office consisting of 18 sets of the preliminary development plan; on March 30, 2001 the Planning and Zoning office forwarded comments from the reviewing agencies to the Project Engineer; and included in those comments was the Code provision that notifies that impervious areas would need to meet a 25-foot setback from the mean high water line. He stated while completing her due diligence, Ms. Gumpher talked to Chris Hebert at the Office of Natural Resources Management about the 25-foot setbacks, specifically attempting to identify the portions of the development plan that did not meet that requirement; Ms. Hebert pointed out the pool deck and a building must be pulled out of the north shoreline area setback; but not once did Ms. Hebert mention the asphalt pedestrian and vehicular system and parking on the southern boundary of the property violating the setback. He stated the Project Engineer read County Code and believed, as did Planning and Zoning, that the setback prohibition did not apply to the internal part of the marina because she thought it was a canal; the Board advised at the last meeting that it was not; they understand that now; but they did not understand it previously and staff did not point it out. He stated relying on the April 6 phone conversation, the Project Engineering re-submitted 18 sets of revised plans, acknowledging many of the comments brought up by staff; and among the revisions Ms. Gumpher addressed the 25-foot setback, pulling the pool deck and building back as was suggested. He stated what happened next was that staff made a very serious error; but he does not blame staff because they made the same error. He stated Planning and Zoning reviewed the revised plans, which moved the structures away from the shoreline that covers the northwestern boundary of the site, but was not aware that the Office of Natural Resources Management would view the marina as an area that would also be required to respect the 25-foot shoreline protection buffer; Planning and Zoning did not send the plans back to Natural Resources Management; and more revisions were made, but no one said anything about the asphalt. He stated the plans went to the Merritt Island Redevelopment Board, which recommended approval; they went to the Planning and Zoning Board, which recommended approval; and they came before the County Commission, and on a 4-1 vote, the PUD zoning and preliminary development plan were approved. He stated the Board heard the testimony at the last meeting from John Grandlich, who is executive level management with the developer; Mr. Grandlich advised that after May 24, 2002, they still did not know anything about the asphalt; and they acquired real property under contracts that were contingent upon the Board’s approval of the development plan. He stated they spent money to buy property; they bulldozed income producing trailers, cleaning the slum and blighted community; and they spent money on architectural plans, engineering plans, and permitting. He stated they have spent $2.3 million to get to this point; they are almost two years later from when they started; they are ready to get their final permits; and they are now told that the asphalt road cannot be there because it violates the 25-foot setbacks. He stated without the road, there is no project; they would lose at least 50 buildings as Mr. Grandlich testified; and they would not have bought the property or paid what they did for the property if they had known this. He stated they have heard the argument that this is just zoning and one cannot get vested rights on just zoning; but that is not the case. He stated it shows the Board’s misunderstanding of what the PUD is all about; no other zoning in the Code has a simultaneous review of site considerations with a preliminary development plan and zoning at the same time; Section 62-1442 says this is the purpose and intent of the PUD Ordinance; it is a simplification of the procedure for obtaining approval of proposed developments through simultaneous review by the County of proposed land use site considerations; and now they are being told the reason they had the pages and pages of exceptions to setbacks, height restrictions, density requirements, breezeway calculations, etc. was because they voluntarily came forward and put all the details on the plan. He stated that is not the case; the March 30 letter from Planning and Zoning to the Project Engineer said what the preliminary development plan must include; and it goes on for more than thirteen items. He stated it required the site plan to specify requested waivers from building height requirements, breezeway requirements, 25-foot perimeter setback requirements, and requests for additional density; the site plan needs to show height of all structures on contiguous properties; it has to identify and document the height of the tallest residential building within 1,000 feet of the property; they have to furnish full elevation plans for all residential structures, and clarify parking, common open space, and all setback dimensions; and they are required to put this on the plan before the Planning and Zoning Office will allow them to move forward in the process. He stated Section 62-1448 lists 15 exhibits that the preliminary development plan must have as a part of it; one requirement is to show vehicular systems, parking, and driveways; and the asphalt in question is just that, streets, driveways, and parking. He stated the exhibits had to be in the preliminary development plan as required by Code. He stated case law does not support the law that one cannot get vested rights based on just zoning; and cited the case of Andover Development Corporation v. City of New Smyrna Beach, where the First District Court of Appeals in March 1976 held that a developer had vested rights in a PUD because they had PUD zoning and preliminary development plan approval. He noted the developer in that case did not have site plan approval; they were going for site plan approval and building permits when the County tried to take the zoning away, but the court said the City could not do that, and the City was estopped from denying the building permits based on the PUD zoning. He stated in the case of Hollywood Beach Hotel Company v. City of Hollywood, the Seminole Florida Supreme Court in 1976 held that in view of the plaintiff’s good faith reliance on zoning for multiple family use and the expenditure of considerable funds on preliminary planning, the plaintiffs had acquired a vested right in continuation of the multiple use zoning. He stated the Supreme Court specifically said it agreed with the Fourth District Court of Appeals without actual or constructive knowledge of any impending zoning change; the plaintiff spent almost $200,000 on a site plan; after the zoning, they spent money on a site plan, models of the community, architects’ plans, specifications, and building permits; and the local government tried to take the zoning away, but the Supreme Court did not allow that as it is not fair play. He stated it comes down to a simple concept; 62-1448 required their plan to show the streets and parking; 62-1448 (4) required staff to determine whether the plan was consistent with the County’s policies and regulations and to advise if the plan was inconsistent; and a regurgitation of Code provisions that it is necessary to meet the 25-foot setback is not saying the plan is not consistent. He stated even Planning and Zoning missed it; they agreed that the internal area of the marina did not have to comply with the setback; staff needed to advise them they could not put the road there; without the road, they cannot have buildings and without a plan, they do not have a project; and that was the omission. He stated they clearly relied on it in good faith; they spent $2.3 million; and now, two years later, they are ready to turn the shovel and make the deal happen. He stated they changed their position $2.3 million worth; that is what vested rights are all about; clearly they are entitled to it; and it does not have anything to do any more with whether they are within the setback or whether there is a canal or whether the property will or will not drain. He stated their engineer has said their drainage system will improve the drainage, although the Board does not have to believe that if it chooses. He stated this is about fair play; and requested the Board not invite them onto the mat and then pull it out from under them when they are ready to go. He stated they are entitled to vested rights; and implored the Board to grant it to them.

Robert McCoy stated his house is approximately 150 yards from the Indian River; and he is a business representative for Carpenters Local 1756. He stated he is here to speak against granting Towne Realty any permits to build the building the way it is now; Towne Realty is registered in the State of Florida, but is based out of Milwaukee, Wisconsin; so this is not a local contractor or company; it is a company that has been building condominiums in Florida for over 20 years up and down the coastline; they built Oleander Point in Cocoa; they are currently building Whitley Bay in Cocoa; and they are building condominiums on the beach in Cape Canaveral. He stated this is a company that knows all about zoning; they know when they build in environmentally sensitive areas, they have to abide by environmental regulations; and yet, the initial plans did not take that into consideration. He stated this is typical of the way corporations get what they want; they take as much as they can ask for and get what they can; the Indian River is a national treasure that should be preserved and protected; and requested the Board deny the vested rights and think about the citizens of Brevard County, rather than worrying about the wealthy investors from Wisconsin.

John Grandlich, representing Towne Realty and Towne Development of Island Pointe, stated they have been in business for a long time; they have well over 100 employees in the Florida area; and they provide many jobs and opportunities to this area. He stated it is not just a bunch of investors from Milwaukee; and they have chosen to be a reputable developer.

Commissioner Higgs noted in the statement in which they got the approval for the PUD, it stated that the granting of the zoning does not guarantee the physical development of the property, and at the time of development, it must be in accordance with the criteria of the County’s Comprehensive Plan and applicable laws and Ordinances; and inquired if Mr. Grandlich read that; with Mr. Grandlich responding yes. Commissioner Higgs inquired if Mr. Grandlich recognizes that there are Ordinances that must be complied with; with Mr. Grandlich responding absolutely. Commissioner Higgs stated there were a number of waivers that were dealt with by the Board, but none dealt with the Surface Water Protection Ordinance; with Mr. Grandlich agreeing that is correct.

Joyce Gumpher, representing Allen Engineering, stated she is present to answer any questions related to engineering, stormwater, or site planning.

Commissioner Higgs stated Ms. Gumpher submitted 18 copies of a preliminary development plan and indicated in her letter that the plans address the preliminary design of drainage, water, and sewer; and inquired if she understood this was a preliminary development plan when it came before the Board as a zoning issue; with Ms. Gumpher responding yes. Commissioner Higgs inquired if Ms. Gumpher expected to go to a pre-application meeting; with Ms. Gumpher responding she is very familiar with the procedure. Commissioner Higgs inquired if Ms. Gumpher understood the project went to zoning, then through the normal procedure to the pre-application meeting, and then filing of the formal site plan; with Ms. Gumpher responding that is correct, after the rezoning of the property. Commissioner Higgs stated Ms. Gumpher as a professional has worked in this field for a number of years and recognizes there are laws and ordinances that have to be complied with at the site plan stage. Ms. Gumpher stated that is correct; in the Ordinance, there is a list of items required for the PUD that have to be on the site plan even to go in for rezoning; Mr. Amari listed those explicitly; and one of the requirements at that time was to address the stormwater, which was submitted as part of the rezoning. Commissioner Higgs inquired when going to the actual site planning stage, past the zoning and preliminary development plan, does Ms. Gumpher always get all of it correct so it is not necessary to make changes. Mr. Gumpher responded no; when they go into final engineering that is when they really go into the detail of engineering of the project; that means providing details of stormwater structures, how they will be constructed, and even as far as landscaping; they had to show a preliminary landscape plan; and then they go into the detail of actually putting in a number of trees. Commissioner Higgs inquired if the actual site plan is much more detailed; with Ms. Gumpher responding affirmatively. Commissioner Higgs inquired if the details mean conforming to the laws and Ordinances of the County, and many times amending the original plans to comply with staff’s request; with Ms. Gumpher responding that is correct. Commissioner Higgs inquired if the pre-application meeting was the point at which concerns were raised about the 25 feet; with Ms. Gumpher responding it was not discussed that the driveway or parking encroached into the 25 feet. Ms. Gumpher advised she submitted a total set of engineering plans to the County; they went through every department; she got comments back which consisted of approximately 19 pages; she responded to those comments and re-submitted the plans, addressing each of the items. She stated it was during the second review process that Natural Resources Management specifically indicated it was violating the 25-foot buffer on the driveway and parking. Commissioner Higgs inquired if Ms. Gumpher had ever done a major development project that required a site plan in the County; with Ms. Gumpher responding many. Commissioner Higgs inquired if she has ever dealt with the Surface Water Protection Ordinance or the buffer before; with Ms. Gumpher responding she has on many occasions, but the intent of the Stormwater Ordinance is to protect the shoreline, and as the area in question was bulkheaded and in a private marina, it did not enter her mind that the plan was violating the setback, and staff never pointed out that this particular area was encroaching. Commissioner Higgs stated it was pointed out during the PUD stage that it was necessary to comply with the Surface Water Protection Ordinance; with Ms. Gumpher responding that is correct, and she moved the buildings and swimming pool out of the 25-foot buffer.

Chairperson Colon inquired if anything was mentioned during the first submittal; with Ms. Gumpher responding no, it was not mentioned during the preliminary development plan about the driveway and parking; and what was mentioned was on the river where they moved the building and swimming pool. Chairperson Colon inquired at that point how long had Ms. Gumpher been working closely with staff; with Ms. Gumpher responding Allen Engineering, along with Mr. Grandlich and Mr. Amari had many meetings with Zoning staff prior to submitting the preliminary development plan for response; and there were many meetings for fine tuning, what the requirements were, and what was required on the site plan, which was a lot of detail.

Commissioner Pritchard requested clarification on the Shoreline Protection Ordinance; and inquired if it is Ms. Gumpher’s understanding that it is designed to “protect the vegetated shoreline”; with Ms. Gumpher responding that is correct, and her interpretation is a manmade bulkheaded canal is not vegetated shoreline. Commissioner Pritchard inquired how deep is the water at the bulkhead; with Ms. Gumpher responding probably six to eight feet. Commissioner Pritchard inquired is there any vegetation that would grow in six to eight feet of water; with Ms. Gumpher responding no, because they are all strictly boat docks and there will be no vegetation. Commissioner Pritchard stated there is a bulkheaded seawall with no vegetation and a depth of six to eight feet; and he is assuming it is Ms. Gumpher’s interpretation of the Shoreline Protection Ordinance for vegetated shoreline that this shoreline was a manmade dredged area that is bulkheaded; with Ms. Gumpher responding that is correct.

Commissioner Carlson inquired if it was during the second submittal that staff brought up the issue on the Shoreline Protection buffer and the 25 feet; with Ms. Gumpher responding no, staff brought up the driveway and parking. Commissioner Carlson inquired if that was brought up in the first review; with Ms. Gumpher responding in the second one staff advised they had to comply with the Shoreline Protection buffer; that has always been understood; but it was not until the second submittal that they actually pointed out the driveways and parking along the bulkhead were within the 25-foot buffer. Commissioner Carlson inquired if that was during the first submittal; with Ms. Gumpher responding that was during the second submittal. Commissioner Carlson inquired in the second submittal where the applicant actually made changes based on the first submittal review, what was on staff’s mind when it decided not to send it through all the Departments, particularly Natural Resources Management for the second review. Planning and Zoning Director Mel Scott responded at that point one of the considerations was time; and he is not making an excuse for not sending it; but the lack of re-submitting it is the basis of part of the claim. He stated one of the considerations was time; they are expected to perform in an expedient manner when they get an application and then get on with the public hearing process; and there was a desire to begin that public hearing process, which included MIRA, the P&Z Board, and ultimately the Board of County Commissioners. He stated this process illustrates the misconceptions on both sides of the meaning behind and the effect of the preliminary development plan; one of the considerations by staff was that preliminarily it appeared as if some major issues had been addressed and there would be further bites of the apple to continue to refine it; so it appeared it would be appropriate to begin the public hearing process. Commissioner Carlson inquired at what point was it actually determined they were not in compliance; with Mr. Scott responding it first came out most pointedly after the public hearing process had concluded; staff’s review of the preliminary development plan ended once the document began the public hearing process; and then the focus was on the public discourse around it. Mr. Scott stated it came out during the pre-application conference on May 3, which was after the rezoning was approved; they have reviewed the tapes and would like to clarify the phrases that were used; the applicant was informed that all impervious surfaces need to respect the 25-foot buffer; even at the pre-application stage, the words “asphalt driveway” were not used; but by mentioning all impervious surfaces, it became known at that point that there was a problem with the asphalt driveway. Commissioner Carlson stated when it came in front of the Board and received zoning approval, there was not more input from staff during the process; so if anything would have occurred, it would have had to occur during the public hearing; with Mr. Scott responding that is the point the applicant is agreeing with, that the public hearing process did not pull out the asphalt driveway, but focused on the other waivers that were being sought and the project in general. Commissioner Carlson inquired if there were any questions from any of the Commissioners about the asphalt driveway or the issue of stormwater application or anything of that sort; with Mr. Scott responding there were discussions about stormwater because the applicant was proud to be using a lot of advanced technology in the stormwater treatment facility. Commissioner Carlson stated reviewing the preliminary development plan along with the PUD and moving it through the system simultaneously is more expeditious; and inquired was that the mindset of staff as far as bringing it to the public hearing believing staff had enough information and the rest could be fleshed out during the hearing; with Mr. Scott responding that is a fair representation.

Commissioner Higgs inquired what is the shoreline protection buffer Ordinance that talks about bulkheaded canals and other things; with Sherry Williams, Natural Resources Management, responding it is the Surface Water Protection Ordinance. Commissioner Higgs inquired what is the purpose of the Ordinance; with Ms. Williams responding to protect the water quality and habitat associated with the Indian River Lagoon system. Commissioner Higgs inquired if it is not necessarily about vegetation, but about protecting the water body; with Ms. Williams responding vegetation and habitat are one aspect; but it also includes water quality and quantity. Commissioner Higgs stated the Ordinance is divided into various parts with different criteria for different types of water bodies and different types of shoreline; and requested Ms. Williams speak to the structure of the Ordinance and how it is divided. Ms. Williams stated first there is a section of general provisions that provide protection to all water bodies or classes of the water body; then the Ordinance further defines Class 1, 2, and 3 water bodies with different levels of protection; and Class 1 is the most protected with Class 3 being primarily recreational waters. Commissioner Higgs inquired if there are different requirements depending on the water; with Ms. Williams concurring. Commissioner Higgs stated private bulkheaded canals are one type; and inquired if they have a different set of rules than Class 2 waters, which are of a different category; with Ms. Williams responding that is correct. Commissioner Higgs inquired did Natural Resources Management or anyone in that Department tell Ms. Gumpher or any representative of the applicant that it was a private bulkheaded canal; with Ms. Williams responding not to her knowledge. Commissioner Higgs stated the applicants made some assumptions based on their reading of it that they were a private bulkheaded canal; at the last hearing the Board decided this was not private water or a private bulkheaded canal; and inquired under what category would this be reviewed and what would be allowed. Ms. Williams responded it is Class 3 waters and they would have to provide a 25-foot shoreline protection buffer. Commissioner Higgs inquired if the purpose is to protect the receiving water, and not necessarily the vegetation; with Ms. Williams responding the purpose of the buffer is to protect the shoreline of the Indian River Lagoon system. Commissioner Higgs inquired if it is the shoreline or the water; with Ms. Williams responding they are integral parts of each other, so it protects the shoreline and the receiving waters. Commissioner Higgs inquired if there is a space between structures or asphalt, would the water going into the Indian River Lagoon have a chance to be cleaned some other way; with Ms. Williams responding that is correct.

Commissioner Pritchard inquired if it is Class 2 or Class 3 water; with Ms. Williams responding Class 3. Commissioner Pritchard inquired if that is the least restrictive; with Ms. Williams responding that is correct. Commissioner Pritchard stated he thought the Board approved that it was not a canal or channel; but he does not recall the Board approving that it was private water; the applicant has a State lease for the marina; it is a private marina; and the issue was if anyone wanted to tie up over night, they could find out how long they could stay. Commissioner Higgs stated it was a discussion of what is meant by a Submerged Land Lease; the question was the water; there is no question that the applicant has a Submerged Land Lease; but the question is what rights they have in the water. Ms. Williams stated staff asked for copies of the Submerged Land Leases and provided copies to the County Attorney’s office; staff is not aware of any language in the lease that prohibits public usage of the waters; and as part of their maintenance dredging, that the Board approved as a public interest at the last meeting, the specific comments in the DEP permits were that the dredging permits and leases do not prohibit public use of those waters. Commissioner Pritchard inquired if the public can enter the waters, but not tie up at the facility and can they drop an anchor; with Ms. Williams responding it would appear so. Commissioner Pritchard inquired if that is the case even though the submerged land is leased to the applicant; with Ms. Williams responding the legal descriptions, especially with the leases, apply to the dock area and not the entire cove.

Mr. Amari stated it does not apply just to the dock; it takes up the entire marina basin; under the Submerged Land Lease, they have the right to control what goes on in the marina; and the concept that they do not is ludicrous. He inquired how would they have the ability to rent boat slips out if anyone could come and use the boat slips; stated it is ludicrous to think someone could come into the marina, put out an anchor, and let their sailboat sit there. He stated they have absolute right to control; it is their lease just like a lease of property; it is not like a clam lease that allows boats to traverse freely over the water column; they have the right to build structures and docks, maintain those docks, and restrict who gets to use the water; and the whole issue is being obscured because this has nothing to do with the vested rights question.

Commissioner Pritchard stated one of the issues that was brought up was water quality; the inference was that the water that would be coming off the development would be flowing freely into the dock area; but the developer has said, and it was acknowledged by staff, that he has developed a state-of-the-art water retention system that is going to treat this water appropriately and prevent it from running into the dock area.

Mr. Amari stated Ms. Gumpher can address that issue; but he would like the Board to understand that contrary to the article in the newspaper that they cannot even handle the water they are producing from the development, they will be putting in an exfiltration system, which is approximately 65% more expensive than the typical drainage system using swales and retention ponds. He stated it is a high-tech system; it is designed to filter out impurities; and it drains the water away from the bulkhead into a percolated filtered system. He stated right now the water runs right off into the river; and when they are done, it will not run into the river but into a filtered system. He requested Ms. Gumpher address that not only are they to catch the runoff that they produce through development but also the existing runoff. Ms. Gumpher stated that is correct; they have to match pre-development and post-development runoff; they design for the site as it exists with nothing on it; and they design for any new impervious area they add to the site. She stated the site currently drains directly to the river; the underground exfiltration system, which is a perforated pipe, will filter our sediments, impediments, etc. prior to it reaching the aquifer recharge area; the stormwater system is designed above the seasonal high ground water table, which allows this filtration prior to going into the aquifer, just like any dry retention area works; but this is accommodated by underground stormwater exfiltration systems. Commissioner Pritchard inquired if this is a proven system; with Ms. Gumpher responding Allen Engineering has been using it for approximately 35 years. Commissioner Pritchard inquired how effective is it; with Ms. Gumpher responding it is very effective; and in 35 years they have never had any complaints or failures. Commissioner Pritchard inquired if there will be a stormwater system that will not allow runoff into the dock area and there is no vegetation in the dock area; with Ms. Gumpher advising that is correct.

Commissioner Higgs inquired if the County Attorney has reviewed the Submerged Land Lease; with Mr. Knox responding he reviewed in the context of the appeal that was filed. Mr. Knox stated Mr. Amari is correct about the rights of the applicant; but it also says in the Lease that the holder cannot claim that the leasehold is a private property; and that means they cannot claim that it is private. Commissioner Higgs stated boat access would be a public use that would be allowed; and the Lease holder would have a right to control his improvements such as the docks. Mr. Knox stated it could be read that way; but the issue of whether the docks are privately held and can be sublet was clearly contemplated by the Lease; but the water is the issue being discussed as being private as the area is owned by the State.

Commissioner Pritchard stated Mr. Knox said it could be read that way; that is Mr. Knox’s interpretation; and it would be up to a judge whether it is as Mr. Amari says or as Mr. Knox says. Mr. Knox stated that is an issue that would come up in the context of a judge reviewing the appeal that the Board approved a couple of weeks ago, but he is not sure it has a bearing on today’s proceedings. Commissioner Pritchard stated the Board needs to move on. Commissioner Higgs stated the point the applicant is making as well as comments that were made by Commissioner Pritchard need to be clarified; there are some points that do not need to be belabored; but if they are going to be made, every word needs to be challenged that is of relevance in a review. Commissioner Pritchard stated he is not disagreeing with that; but the Board needs to hear the rest of the speakers; and then the Board can come back and discuss any of the issues.

Doug Robertson, representing the Merritt Island Redevelopment Agency, stated this project is located within the Redevelopment area; it was reviewed and recommended for approval by MIRA unanimously; it has public benefits in the provision of a stormwater management system, elimination of slum and blight conditions, and the installation of a sanitary sewer system; and encouraged the Board’s approval.

Commissioner Higgs stated Mr. Robertson frequently appears before the Board for a variety of developers; and inquired in reviewing the preliminary development plan, did MIRA think it was reviewing a site plan for all the specifics of a site plan; with Mr. Robertson responding typically the Agency reviews based on the goals and objectives of the Redevelopment Plan to make sure it is consistent with that; they found it to be consistent; and that is the level of their review. Commissioner Higgs stated they reviewed it in terms of economic and better quality, and no one is challenging the value of the property; but they did not review it as a site plan; with Mr. Robertson advising no, that is not MIRA’s job.

Maureen Rupe stated she looked at the Agenda item last night; it looked simple that the County only received and approved the preliminary development plan; more than one copy of a design plan is only requested if an office is viewing certain criteria on a review; and giving approval of a preliminary design plan should not be considered approval unless the preliminary plan is to replace the final development plan and building design plan. She stated her concern is the Indian River Lagoon; the County has a responsibility to protect its surface water; requiring the 25-foot setback to help prevent runoff is justified and essential; and if there is such a system as the applicant was talking of earlier, the Board should review it and be absolutely sure about it. She requested the Board consider the environmental aspect of the system; stated having multiple development plans to insure proper stage reviews is justified; and each one of the vested rights coming up today can be looked at, if not by the Board, by the Land Development Committee that is looking at the policies and procedures because she sees possible solutions to each of them. She requested the Board not approve the vested rights request.

Commissioner Pritchard inquired if Ms. Rupe knows the difference between a PUD and a site plan submittal, and could she explain it; with Ms. Rupe responding a PUD is a planned unit development and a site plan submittal is where one submits the site plan at the beginning of the procedure. Commissioner Pritchard inquired if there are distinct differences between the two; with Ms. Rupe responding she is not sure. Commissioner Pritchard requested Mr. Scott explain the difference between a PUD submittal and a site plan submittal. Mr. Scott inquired if Commissioner Pritchard is talking about a final site plan submittal; with Commissioner Pritchard responding no, he is talking about having a planned unit development and submitting plans for it, and whether the process is the same or whether there are more requirements in a PUD submittal than there is in the site plan. Mr. Scott stated they are completely different processes; a Planned Unit Development is a zoning classification; it is something the applicant is seeking through a rezoning public hearing; and as part of the PUD zoning application, they are required to submit a preliminary development plan that requires the type of detail one would not typically get from a traditional rezoning request. He stated it approaches in certain regards the kind of detail one would see in a site plan but pulls back slightly in that staff is looking at the circulation patterns being proposed, the density being proposed, and the open space being provided; and in the PUD rezoning there is also clear direction given to the applicant that it will be followed by a final development plan. He stated the site plan is something that will be initiated and received by the Development Department; it assumes that what is being proposed is consistent with the classification; so the issues of land use and requesting the maps be changed are not an issue. He stated what is at issue is the detail that will be necessary to insure the health, safety, and welfare concerns of body of the Building code; the site plan is something that is being done to get the building permit ultimately or design a subdivision; and it assumes the zoning is in place, where a PUD is something that is being sought.

Commissioner Higgs stated a number of waivers were brought to the Board at the time the preliminary development plan was considered such as height and breezeways; but there was no waiver requested for the setback to the Lagoon; and inquired why it was not requested and how it would properly come to the Board. Ms. Scott responded he would rather not speculate on why it was not requested. Commissioner Higgs inquired how such a waiver to the setback would be considered by the Board and under what format would it come; with Ms. Williams responding for the Surface Water Protection Ordinance only there are no waiver provisions. Commissioner Higgs inquired what would one do; with Ms. Williams responding they would have to comply with the Ordinance or change the Ordinance to insert waiver provisions. Commissioner Higgs stated if the applicant wanted the waiver to be considered, he would need the proper format; and since the law has no way to waive, that would be for him to suggest amendment to the Code; with Ms. Williams advising that is correct.

Commissioner Carlson reminded the Board that the criteria for consideration of vested rights is whether there was an act or omission of the County, not the applicant; and the second criteria is the property owner must have acted in good faith reliance on the County’s act or omission. She stated it goes on to talk about substantially changed position; and the Board should clarify that when it talks about an omission, it would be on the part of the County. She stated prior to the zoning meeting, staff does walk-throughs on preliminary site plans and preliminary development plans; there is an opportunity for Natural Resources Management to comment; and inquired was there any review prior to the zoning meeting by Natural Resources Management. Mr. Scott stated the Planning and Zoning office quarterbacks this process for PUD application; staff received 18 sets of plans; and it is staff’s job to circulate those to the reviewing agencies. He stated in this particular case, no one is contesting whether the Office of Natural Resources saw this the first time; as part of the Board’s package, one can see the comments; but the comments received were very generic in nature as far as the Office of Natural Resources review and the comments they transferred to the applicant; and that became part of the public hearing package. He stated it said to watch out for the 25-foot buffer; but it is the lack of detail that is the essence of this claim that the process did not flesh out the issue until the pre-application interview. Commissioner Carlson stated she does not have a problem with staff trying to expedite it because that is the whole nature of the PUD; it was expected it when it got to the Board or through discussion that it would be fleshed out; but she did not see it fleshed out at all. She stated Natural Resources did not flesh it out during the conversation; no one did; and that is the act or omission. She stated the Board was not looking out for the applicant; the applicant was making some assumptions because of the omission; but by not focusing on the omission or that issue would lead a reasonable person to go forward and make the assumptions they made and expend the dollars they expended. She stated although she appreciates everything Commissioner Higgs has brought up in terms of the resource and what needs to be protected, the Board should be looking at an act or an omission and good faith. She stated she has struggled with this issue; she has looked at it inside and out; it still comes back to the basic point that the County did not catch the oversight; and therefore the County was wrong and led the applicant down a path of expending funds and assuming there was no problem.

Carole Pope requested the Board deny the developer vested rights to build in a setback zone adjacent to the Indian River Lagoon; stated her home is on the Indian River in close proximity to this location; and she has seen a continuing degradation of water quality as a result of development in the area. She stated continuing development impacts the whole lagoon system; the only chance to regain the health of this vital community asset is to ardently protect and enforce regulations pertaining to impacts; and the highest property values in the County are in areas where land regulations and zoning have been defended against circumvention by developers. She stated this developer is very experienced in this area; he has been building for years, and has a history of building lot line to lot line in this particular area; and recommended looking at the other two projects, Whitley Bay and Oleander Point, where they used special exceptions and variances. She stated she understands there is not a variance of special exception to the shoreline setback; and inquired were they acting in good faith or did they simply slide something through. She stated she thinks the developer knew the setbacks and regulations from the beginning; the staff report of March 30, 2001 says that all impervious areas, concrete, and structures would need to meet a 25-foot setback from the mean high water line; and inquired what did the developer not understand. She reiterated the developer has known from the beginning that there was a 25-foot setback; and commented on the size of the setback in relation to the size of the structures and the impact to the lagoon. She stated denying the developer the right to build in the setback area is showing intent to help protect the Indian River Lagoon. She stated Jonnie Swann could not stay, but wrote out a statement to be read as follows:

“While I do not want any more traffic on our already very congested Merritt Island, I was personally thrilled to have improvement to the slum conditions that were at the Island Pointe site. As a member of the MIRA Beautification Committee, I was shown the landscape plans for Island Pointe. They impressed me with the use of natives. We did not see the lack of 25-foot setback. The County should have red-flagged it in bold letters. Between 520 and Pineda Causeway there are many homes being built with zero setback and mangroves in the river. The County must be consistent and diligent in their rules and enforcement. Our river cannot enforce anything else. I think the point is if there was a problem in the way this development started out and there’s confusion maybe the County needs to address those facts as well, but I don’t think that allowing something else into the Indian River Lagoon, setting another precedent to not enforce your 25-foot setback is good for the Lagoon or development in general.”

Commissioner Pritchard stated Ms. Pope mentioned she lived in the 700 block of Rockledge Drive; and inquired how far south of 520 is that; with Ms. Pope responding approximately a half mile, and it is in the same impacted area. Commissioner Pritchard inquired if it is north of 520; with Ms. Pope responding it is south. Commissioner Pritchard estimated Ms. Pope’s property is probably a mile away.

Mr. Amari stated someone once said not to confuse them with facts because they like their own opinion; and it is interesting to see how such an easy issue can become so muddy. He stated if someone is losing their argument, they can take it somewhere else and talk about something that reasonable minds can differ about so they do not focus on the true issue. He stated this is not really about stormwater; staff has not had the first complaint about the stormwater system, nor has staff ever contested the facts they are telling the Board about what the stormwater system is going to do; and inquired why the County would not want a project that is going to improve stormwater drainage. He noted that is all beside the fact; and the Board should focus on the plain and simple issue. He stated the court cases say one can have vested rights on just zoning; but the County has misread his position; he is not saying they are now entitled to the site plan and anything they want in the Code; they understood they had to come back with a final development plan; and they knew there were plenty of Code provisions they had to comply with. He stated as part of the preliminary plan, they had to show where the roads and parking would be; the roads and parking are critical to the buildings; without the placement, the buildings will not be there; there are certain things that have to be fleshed out at the preliminary process; and inquired if they cannot rely on them at that stage, what is the process for. He stated the Code said the roads had to be shown on the plan; the Code also says the County has to tell the applicant if the road cannot be there; but the County did not tell them. He stated it is not difficult or any bigger than that. He stated they knew asphalt was impervious surface; they knew there was a 25-foot setback area; but they thought everything was okay because they interpreted the Code to say it could be there in the bulkhead; and Zoning staff interpreted it the same way. He stated this is about staff’s omission; the road is on the plan; and the County has to say whether it could be there or not. He stated that is what the Code says; this is not a little setback thing where they can pull a building back; without the road, the project fails; and it is that simple. He reiterated the Code says they have to show the road there; the road was on the plan; and it is staff’s obligation to tell the applicant it does not comply. He commented on it being ridiculous to think they would base a multi-million construction on the hope that they could slide something through without the County catching the interpretation of the Code; and inquired what kind of responsible developer who intends to stay in business would do business in that fashion. He stated they try to develop in accordance with the County’s rules; the question is vested rights and the concept of fair play; that is what this is about; they were clearly invited onto the mat to play; staff made the same mistake the applicant did by misreading the rule; it was a good faith error; but it was a County error. He stated the County had the responsibility; the County missed it; the applicant relied upon the County; and requested the Board ask the County Attorney if there is any question that the applicant will be given this if it goes to court. He inquired why the Board would want to put them to that test, with the associated costs to the applicant and the County; and noted if they miss a market, there could be the potential of millions of dollars in damages at stake. He stated the County has a vested rights provision; and he bets the Board has never seen a better vested rights case before it. He requested the Board grant the vested rights application.

Commissioner Scarborough stated Mr. Amari has referenced the amount of money expended; and requested Mr. Amari detail what was expended and for what purpose because of the PUD. Mr. Amari stated every bit of money he referenced was spent after the Board approved the plan and location of the road; and it is included in an affidavit that was filed in support of the petition. He stated there is a list; every bit of it was spent after the public hearing; and it includes $1.669 million in acquiring land and easements and closing costs; $85,000 interest on acquisition debt; $99,806 in development personnel costs; architectural fees of $52,299, engineering fees of $121,997; marina consulting fees of $45,369; environmental and geotechnical consulting fees of $12,637; fees and permits to the government of $15,264; site improvement costs including getting rid of income producing property $102,680; other carrying costs of $36,083; real estate taxes of $40,000; and advertising and marketing costs of almost $27,000, for a total of $2,300,000, all of it spent once they thought they could put the road there.

Commissioner Scarborough stated the Board is not trying to amend the Ordinance or determine whether or not the Ordinance should be enforced because it will be enforced; the only issue is whether the County did something that led the applicant to spend money in good faith based on the County’s act that they would not have spent otherwise; and therefore the County would become obligated to carry through. He stated sometimes the Board approves binding development plans and sometimes it approves binding site plans; if the Board approves a binding site plan, the developer is compelled and bound by that plan; and inquired if the Board is likewise compelled to limit at subsequent reviews to what is included. County Attorney Scott Knox responded yes, unless the Board changes the binding development plan; and the only way it can do that is to go through the whole rezoning process again. He stated if the Board approved the binding development plan and the developer spent money based on what the Board approved, and the Board changed its mind about the binding development plan, it would come back to do an amendment to the rezoning, and there would be a vested rights claim. Commissioner Scarborough stated at times the Board has done very cursory binding site plans, which were not all-inclusive, but were exceptions to and variances from. Mr. Knox stated whatever the Board approved on the plan would be carried forward to whatever further defined development plan were submitted later unless the Board changed it again by rezoning. Commissioner Scarborough stated the Board would be bound to the same measure that the applicant is bound to by what the Board approved. Mr. Knox stated the only circumstance where the Board would not be bound would be if it approved a binding development plan, and it sat there for a year or two and something changed; and if the Board wanted to go back and change it, it could. Commissioner Scarborough inquired if Mr. Scott wishes to draw any distinctions. He stated they have something that was approved; the contention of staff was it was not a final binding development plan; the County Attorney is to some extent saying that to the extent it was shown, the Board is bound by it and is unable to amend it; and something that was not shown is when subsequent plans come in, the Board can address those. Mr. Scott stated in general terms, the PUD classification identified instances where the preliminary development plan can be modified, and it also attempts to identify which types of changes would rise to the level of requiring a rezoning process. He stated they commonly see revisions to a preliminary development plan come forward that, per the Code, they are able to administratively allow to be shifted around; there are certain tests that must be applied to every administrative change that is approved; so they are not rigid and the zoning classification spells that out. He stated what is on point is that it is the degree of change that would be required to adhere to the provision that has necessitated the applicant to go forward with the vested rights claim as opposed to something that could be negotiated administratively; and if this was just about two or three feet, they would not be here. Commissioner Scarborough stated the issue becomes that there are requirements that roads be shown; it was not voluntary, but was required; and inquired having been shown within the setback, does the County have a right to come back after the zoning action and say no. Assistant County Manager Peggy Busacca advised staff typically reviews; in a preliminary development plan, if the road was shown and did not meet engineering requirements according to the Traffic Engineer because if was not wide enough or have the proper sloping or meet requirements for health and safety reasons, it has been staff’s practice to require that the road meet the safety standards; so there are times when the Board specifically addresses an issue in public hearing and staff is under clear direction that was the Board’s intent. She stated there are other times when there is no mention of the discussion; and it has been staff’s practice if it does not meet the Code for staff to interpret the Ordinance as it stands and require them to meet the Code. She stated staff looks at what direction it can glean from the meeting and the minutes. Commissioner Scarborough stated he knows there are health and safety issues that override a lot of things; however, in this particular case, there are provisions that the roads and setbacks are supposed to be part of the review process; roads were shown as part of the setback; and inquired is it something that is still within the Board’s discretion to say even though it was there, it is okay or is it something that is such that it was shown, and having been shown and approved, the County’s omission starts a vested rights discussion. Ms. Busacca stated in this instance staff reviewed this issue and did not feel the Board had specifically discussed the setback on that side, and had not waived it as there is no waiver provision so staff did not feel it could move forward to review the plan further; and that is why it is here today as a vested right request. She stated staff has been very upfront about the fact that if it was doing things again, things would be different and there would be an additional level of review. Commissioner Scarborough stated what should have been does not matter; and what matters is what is. He stated the owner has substantially changed position based on reliance on an act of omission; staff has not approved a project; land acquisition and legal costs are not included at all as an act of reliance within the purview of a setback; there are elements that would have proceeded forward regardless of the setback; and inquired if staff has analyzed that, and how much of the $2.3 million is in reliance on the setback issue. Mr. Scott stated staff has taken a cursory look; this is a constrained site and the developer is seeking to develop at a fairly dense rate; so by pushing the roadway back, there are buildings with lots of units that must be shifted back or lost. He stated there are investment backed expectations that are shown in the preliminary development plan that need to have the roadway where it is; it cannot go any place else; by shifting the road away from the shoreline, buildings will be lost; and parking along the bulkheaded shoreline is another issue. Commissioner Scarborough stated the potential loss in the design of the project is not an act of reliance; and it is exclusively the expenditure of money excluding legal fees, closing fees, and purchase price as to the variations in designs that were presented.

Chairperson Colon stated the Commissioners pretty much know which way they want to go on this; and recommended not focusing on the same issues.

Commissioner Pritchard stated he does not think anyone has said it more eloquently than Commissioner Carlson did previously; this is an issue of fair play; elements have been met; the developer relied on the staff review; the staff review missed one of the cues; a significant amount of money was spent; and the developer has been impacted severely.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the request for vested rights determination to allow the Island Pointe Planned Unit Development to place the asphalt drive and parking area within the 25-foot shoreline protection buffer as depicted in the preliminary development plan, which was adopted as part of the Board’s PUD approval on May 24, 2001.

Commissioner Higgs stated in a recent case, Martin County encountered a situation in which a developer proceeded to develop an apartment complex in violation of the Martin County Code and the Comprehensive Plan; they are being forced to remove that multi-million dollar apartment complex because it conflicts with the law; and if the Board were to approve vested rights and the applicant were to go forward on this, there is nothing to stop someone from filing suit against the County for violating its own law, and subsequently even filing suit against the development. Mr. Knox stated anybody can file suit for most anything; but he does not think this is necessarily a Martin County situation. He advised the Martin County case involved allowing a density to be built that was not allowed under the current Comprehensive Plan; and there is a big difference between that case and this one. Commissioner Higgs stated the Comprehensive Plan is the law; the Surface Water Protection Ordinance is the law; and she cannot understand how the Board can knowingly say this law is not in effect. Mr. Knox stated the Martin County case did not involve estoppel or vested rights either. Commissioner Higgs stated the Board is going to knowingly say it is not going to apply the Surface Water Protection Ordinance; the Board has said that Ordinance is relevant to this project; and inquired what consequences are there if this proceeds. Mr. Knox stated someone could sue and say the Board was required to follow the Ordinances; and then there would be the same argument heard today presented before a judge about the vested rights claim; and if the Board grants the vested rights, the County would be defending a vested rights claim at that point. Commissioner Higgs stated the preliminary development plan did not vest something that is against the law in the County.

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

Chairperson Colon stated there is going to be an executive session upstairs, that will be followed by lunch; and they will return at 1:00 p.m. She advised V.A. which was a time certain for 11:00 a.m. will be heard at 1:00 p.m. and after that will be V.B.

The meeting recessed at 11:57 a.m. and reconvened at 1:02 p.m.

STAFF REPORT, RE: RESIDENTIAL BUFFER ORDINANCE

Carl Signorelli, Vice President of Citizens for Constitutional Property Rights, stated the Residential Buffer Ordinance is a direct violation of the Fifth Amendment; and they intend to have a class action suit against the County seeking relief through the Harris Act. He stated Commissioner Higgs asked the County Attorney if the County would be liable for such action; and Mr. Knox responded under police action the County could enforce the Ordinance. He stated police action is used when health, safety, and welfare of the public are involved. He stated the reason for the Ordinance was the County’s desire to adopt standards to require buffering between developments so as to promote the health, safety, and welfare of the residents, which is the exact definition of police action; but none of the reasons reflect the actual situation. He stated in terms of health, since the property is in the County and septic systems are involved, the Health Department requires the house floor elevations to be at least two to four feet above ground level; and this results in a water runoff to the undisturbed group area producing wetlands, which result in mosquitoes and all sorts of insects that will cause a health hazard. He stated according to the engineering survey regulations, one cannot allow runoff from one’s property to flow to a neighbor’s property; but leaving an undisturbed area at the rear of one’s property makes it impossible to control the runoff to other properties unless a berm is established. He stated in terms of safety, he and his neighbor both left a rear strip of undisturbed wooded land in its natural state for aesthetic reasons; in time the area became a wetland that became a habitat for alligators; and three years ago Fish and Wildlife removed 13 baby alligators and one mother alligator from the rear of his property. He stated he and his wife and son do not walk in that area for fear of being attacked; and this area could act as an area of concealment for vandals and other undesirable intruders. He stated in terms of public welfare, the Ordinance will create untold problems and hardships for all property owners and the Board; there will be untold requests for variances that will arise due certain circumstances, such as the property bordering waterfront property, property bordering a public road, and if the property is void of trees like the Viera area. He stated according to the Landscape Ordinance, one cannot get a certificate of occupancy until the undesirable trees are removed; and inquired who will remove the trees, and how will they be removed without disturbing the adjacent trees; and since the buffer will be platted separately, who will pay the taxes and maintain the buffer. He stated a home ownership organization could be set up, but that would increase the complexity of ownership; and in order to alleviate the problems, he would suggest the Ordinance be canceled.

Dick Thompson stated he has a project that will be affected by the Ordinance as do others; and approximately 1,680 single-family properties between 3 and 15 acres will be affected. He stated he has quizzed the Commissioners on the reason for the Ordinance, and is still trying to understand the answers; there was one instance in Suntree where a subdivision was against another subdivision, and the people who were already established did not like the new subdivision moving in without some buffer between them; and based on this instance, the Board enacted a new law that affects every property in the County. He stated it is a rather stringent law in that it requires leaving 15 feet of the property in a natural state and not using it for any purpose; and it would actually be deeded so that the owner would have the privilege of paying taxes on the property but it would not be theirs any more. He inquired who is going to maintain the property and in what state; and stated the Ordinance is flawed and needs to be eliminated. He stated if the Board has full justification for an ordinance that is applicable to all subdivisions, it should enact it and be sure it has covered all its bases because he does not believe it did so with the current Ordinance. He requested the Board take a look at the Ordinance and see if it can correct what is wrong. He stated with the Ordinance in effect, putting in drainage systems and the like that are necessary for the design of subdivisions will be nearly impossible to do right.

Ralph Maccarone stated the 15-foot perimeter buffer Ordinance was established at the December 4, 2001 Board meeting to serve as a barrier between subdivisions; these buffers between subdivisions serve to decrease noise and visually enhance the area; and they can also serve as wildlife corridors. He stated at the December 4, 2001 meeting Commissioner Scarborough said he thought the 15-foot perimeter buffer could develop with even a greater distance than the 15 feet based on some of the incompatibilities of properties; part of the Board’s job is to protect people’s investments in their homes and properties; and by altering the Ordinance, the Board will be doing a disservice to the property owners the Ordinance was to protect. He stated he supports the Ordinance and hopes the Board leaves it as it was written.

Dolores Kane stated she is a real estate broker; she has a listing in Melbourne next to Shady Dell Condominiums where a man had to clear his property because there is an Ordinance in Melbourne that requires a fire buffer, which is the opposite of the Board’s requirement; and the man was cited by the City of Melbourne and had to clear his vacant property. She stated when properties are cleared in a subdivision, the snakes go to uncleared property; and she does not know a lot of people who like to have snakes in their backyard. She stated she also wants to know who will maintain the buffer area; there is a Land Clearing Ordinance so the nice trees cannot be taken out; and if trees of a certain size are taken out, the individual is fined.

Commissioner Carlson stated if someone has a piece of property with oak trees, she would think they would try to put their design around that; and inquired if the County is saying they cannot. Permitting and Enforcement Director Ed Washburn stated it is necessary to have a clearing permit; and Natural Resources Management works with the individuals on the development of the site. Commissioner Carlson stated the County does not say people cannot clear a tree, but that they have to plant certain trees.

Ms. Kane stated a man was fined $12,000 for taking out his palm trees a while back; and in estate use there is a 20-foot setback and with the Land Clearing Ordinance, people are going to probably keep big oak trees anyway. She stated this is a taking of property, and is not right; it is another headache for the developers who already have to jump through so many hoops to build houses; and this will add to the cost of housing. She stated there are already buffer zones between residential and business; and she is against the Residential Buffer Ordinance, which should be repealed.

Al Elebash stated the 15-foot perimeter buffer around small developments in particular is overkill; for subdivisions in a four or ten-acre range, it could be 20% of the property; and it is overkill. He stated this is over and above the requirements that are established between each platted lot; there are already setbacks and the Landscaping Ordinance that apply; and the Perimeter Ordinance is excessive, particularly for a small subdivision. He recommended the Board reconsider the Ordinance.

Dick Thompson advised James Hanskutt had to leave but left a written statement; and submitted the statement to the Board.

Ed Fleis, Chairman of the Building and Construction Advisory Committee, stated even when the Ordinance was being discussed last year, there were a lot of concerns; it can impose tremendous hardships on small parcels; but even on a large parcel, it is a taking of a lot of land. He stated if 15 feet is set aside all along the boundary of a property, it adds up to a lot of acreage that the builder/developer is paying for; so the Ordinance can create a hardship, and he is not sure the benefit is equal to that hardship. He stated a lot of things are ignored by just saying a 15-foot buffer; many of those have to do with engineering issues; a number of properties that he has worked on personally have adjoining properties that are lower at the boundaries than what he was planning on developing, or he may have had to meet the road elevation requirements or drainage requirements; and a person cannot block the neighbor’s drainage, so it has to be accepted. He inquired how that would happen with the 15-foot buffer; stated there are a number of factors that have to be considered when looking at the size of the lot and what can be done on a particular piece of property; and requested the Ordinance be revisited. He stated the Landscaping Code requires removal of all exotics; if those exotics fall within the buffered area, it would be necessary to remove those and replant, which would require irrigation; and that is not considered by the Ordinance. He stated if the buffer is going to be required, there should be some offsetting benefits to the developer such as an increase in density; there may be something that would offset the requirement of the land that would be given up for the buffer area; maintenance is another issue that has been discussed; and there are a lot of issues that were not looked at before.

Chairperson Colon inquired if the Ordinance went before the Building and Construction Advisory Committee to scrutinize; with Mr. Fleis responding it did come before the Advisory Board, but was not an agenda item, so the Committee did not look at it that much ahead of time, although at the meeting a number of concerns were expressed. He stated in retrospect, he wishes the Advisory Board had spent more time on it. Chairperson Colon inquired if Mr. Fleis needs more time to bring it back to the Advisory Board; with Mr. Fleis responding they would like to have it come back.

Commissioner Pritchard read the statement of James Hanskutt into the record as follows:

“Ladies and Gentleman of the Commission. I’m here to voice opposition to proposed Ordinance 01-077. First a little about myself, I have lived in Brevard County all my life. I grew up on Merritt Island and went to the local public schools. After receiving my engineering degree at UCF, I chose this County to work and raise my family. My parents and my family (wife and child) have invested in the land in this County. When we did so (invested), it was according to the rules of the County government. Now the rules are changing and in fact law is being enacted which is against the welfare of the investors in this County. This is not what you were hired to do. Actually, you were hired to do the opposite. I hired you so as not to affect my rights and maintain an environment where my investment will benefit all. This is a win-win situation. This Ordinance was proposed with little thought. The reasoning is baseless. For example, the Ordinance says it will promote health, safety, and welfare of County residents. Health, more than 1,600 residents are potentially adversely affected because a haven for ticks, yellow jackets, wasps, fire ants, mosquitoes, rats, and mice will be created in every proposed subdivision. I can say this because it occurred on my family’s property. Therefore, I am speaking from experience. Safety, are you kidding? Refer to my previous remarks. Welfare, let’s see, usable land is reduced. I have to pay taxes on it, and the property value is reduced. Why is value reduced? Because value of location is affected and the usable area is smaller. The purpose of a 15-foot buffer zone established by proposed subdivisions is baseless.”

Commissioner Pritchard stated he does not know how this came about; and after reviewing it and talking to a lot of people who have come to him regarding this, he does not see what purpose it is going to serve other than to promote more arguments and more reasons for doming up with creative ways to circumvent the 15 foot buffer. He stated in Viera there are no trees; and inquired what is the purpose of having a 30-foot buffer, if there is nothing there. He stated people who buy a substantial sized lot such as a half acre leave all the trees and shrubs they possibly can; but on smaller residential lots that are part of a subdivision, there is really not enough room to even have the house one chooses let alone a back yard where children can have a swing set or climbing tower; and what happens is a fence is put up at the elevation that is required and looks down on the existing land. He stated if one’s neighbor behind is affected with the same buffer, there is a 30-foot width with perhaps a three to four-foot drop; and it is going to become a swamp with all kinds of problems caused because the Board, with the best of intentions, thought that it was doing something good. He stated it is his understanding the Board has waived many of the requests regarding the 15-foot buffer; and he does not think it is serving the purpose intended. He stated what the Ordinance has done is become not only an administrative nightmare but a real concern in the community. He stated the subdivisions that currently exist that have not been affected by the Ordinance impose it on a subdivision that may be planned next to them; there is no retroactive effect based on the Ordinance; and the Ordinance should be rescinded.

Commissioner Scarborough stated any time additional setbacks or buffers are required it diminishes the development potential of a parcel; but the thought was if something comes in with something that is less than compatible, even if it is residential, there can be a diminishing effect on those property values; and the Board is not taking away rights, but balancing them. He stated the issue has come up a number of times where the Board said it was not applicable; and the one time it would be applicable would be when there is an audience full of the adjoining homeowners saying if the Board allows a subdivision next to the existing subdivision, it will in some way adversely affect what they bought and diminish their original expectations. He stated while undeveloped land has value, once someone develops property and puts some money into it, the commitment has substantially increased; and recommended the Board do what everyone is encouraging it to do, which is to ask why and move from that point.

Chairperson Colon stated the Board has been asked by the Chairman of the Advisory Board to allow an opportunity to look at this; and inquired if that is something the Board would consider. Commissioner Scarborough stated that would probably be good.

Commissioner Carlson stated the Ordinance evolved out of District 4; it had to do with the Suntree Estates Subdivision near Sawgrass; and it was necessary because those that were vested had property rights and their subdivision felt it was going to possibly have values of their properties reduced. She stated obviously that can go either way in terms of property rights and the value of the properties; when the issue came to the Board, the Board became more and more creative with it; and then it became an Ordinance. She stated there have been a lot of waivers to it; and she does not have any problem discussing it further or sending it back to the Advisory Board for more input. She stated it is interesting under staff comments, under dual use of buffers and buffer issues where it talks about planned unit development and open space subdivisions, that those are concerns that she has as far as not having to apply a buffer and the specific issues in terms of setbacks and all the other things the Open Space Subdivision Ordinance rules and criteria allow. She inquired if Mr. Thompson has talked to staff about the open space subdivision; and stated she does not have a problem not requiring a buffer of any sort because the usable land, uplands, wetlands, and everything else are usually accommodated; with Mr. Thompson responding he has not. Commissioner Carlson stated there are some very creative folks in the Planning and Zoning Department; and since Mr. Thompson is looking at putting in a $250,000 home on the lots, it might give an even better value to the property because there are less than five acres and he is trying to put a lot of properties on there. She stated to build a really good project Mr. Thompson may have to look at something like that; an open space subdivision has a lot of leeway to the setbacks and everything else; and she does not think it is necessary to put a 15-foot buffer in something like that, because the design criteria makes it a lot more flexible than the traditional layout. She stated the same is true with the planned unit development; various conditions are applied to the PUD; and there is no reason to have the 15-foot buffer because there are already various rules and regulations. She stated in those two cases she would support not using the buffer; and if the Board wishes to table it to have more discussion by the Advisory Board, she does not have any problem with that.

Commissioner Pritchard stated he agrees with what Commissioner Scarborough says; the Board should not adversely affect the neighborhood; and that is an issue the Board should address, but not in this fashion. He stated it is more of a planning and zoning issue that would perhaps require fewer houses per acre instead of setting up the 15-foot area in back; and that is one of his concerns. He stated most people are in the “not in my back yard” category; they move into an area where another property may abut, and they tend to feel that property is going to stay as it is, which is largely undeveloped; but the person who owns the property and has been paying taxes on it may have other plans. He stated he understands both sides of the issue; the concern is to do something that is proper and correct that will not adversely affect the neighborhood; but the 15-foot buffer is not the way to go.

Commissioner Carlson stated the Board recently supported the significant environmental areas ordinance; 11 Ordinances will be put together into one cohesive ordinance that is easy to read and execute; she thought the 15-foot buffer Ordinance was going to meld into that because in that the Board can define the landscape before what is going to be built on the property is determined; and inquired if there is any thought of doing that sort of thing and how far along is it. Assistant County Manager Peggy Busacca stated the Board directed that the ordinance, after it was created, go out to the municipalities and interested parties; staff is still developing the ordinance; it will take some time to distribute it to the municipalities; and she does not anticipate the Board will see if for at least six months. She stated it is unlikely the 15-foot buffer would be considered significant from an environmental perspective, so the Board may see an ordinance that looks at development in a holistic manner; but ultimately it may not see this kind of standardized buffer around each and every parcel. She stated she would expect it to be less uniform and more determined by the environmental resources on the site. Commissioner Carlson stated the Board could possibly see the buffer in itself when it applies the significant environmental areas ordinance. Ms. Busacca stated staff would come forward with that recommendation after the Board sees how it fits inside the ordinance when it is developed.

Chairperson Colon stated that would also be good to bring to the Advisory Board. Ms. Busacca stated she cannot speak for Natural Resources Management, but it is her understanding it would go through all the Advisory Boards after the Board has a chance to grant permission to advertise. Chairperson Colon stated she would like a motion for it to go to the Advisory Board and also take into account some of the issues that Commissioner Carlson brought forward.

Motion by Commissioner Scarborough, seconded Commissioner Carlson, to direct staff to forward the Residential Buffer Ordinance to the Building and Construction Advisory Committee, the Local Planning Agency, and the Environmental and Land Use Citizen Resource Groups. Motion carried and ordered unanimously.

Commissioner Pritchard stated this is not going to prevent denial of permit while the Board is going through the review process and waiting for the cities and advisory boards to get back to it. Ms. Busacca stated the Board is thinking about a motion that has to do with the 15-foot buffer; it would be staff’s intent during that time that all waivers would come forward to the Board as has been occurring and that otherwise it will be business as usual. She stated staff is still developing the environmental areas ordinance so the current Ordinances will remain in place.

Motion by Commissioner Pritchard, to withdraw the Residential Buffer Ordinance until staff comes back with the comments from the municipalities. Motion died for lack of a second.

Commissioner Carlson stated there is already a motion on the floor; with Commissioner Pritchard advising the Board already voted on the prior motion.

County Manager Tom Jenkins requested the County Attorney comment; and stated this is an Ordinance that is already in place, there is discussion of an amendment, and there would have to be a public hearing to rescind the Ordinance. Mr. Knox stated he understands the motion is to go back and prepare what has to be prepared. Mr. Jenkins stated the Board already adopted this Ordinance; the Board is discussing an amendment to the existing Ordinance; they have to take action on an existing Ordinance; and that is not this item.

Chairperson Colon advised the Board can not take a motion today. Mr. Knox advised the Board could entertain a motion to direct staff to do that. Ms. Busacca stated the Board could make a motion to abate enforcement of the Ordinance; with Mr. Knox advising the Board has done that before.

Motion by Commissioner Pritchard, to abate enforcement of the 15-foot residential buffer until the Board hears from the Advisory Boards and municipalities. Motion died for lack of a second.

WAIVER OF PERIMETER BUFFER, RE: STAGHORN SUBDIVISION

John Miller stated he is in opposition to Staghorn Estates; he talked to people in South Merritt Estates about this; and their general contention is there are too many homes going in there and three or four should be the maximum. He stated there are water problems; people living on Carambola and Coconut say when it rains their back yards are flooded; and putting in houses will increase the flooding. He stated he and his neighbors get flooded by runoff from where Staghorn Estates will be located; and that is a problem. He stated people from the County have been out to look at it; the land that will be used for ingress/egress to the property is private property and cannot be used; and Mr. Thompson will have to buy property from another property owner, and go over water lines and mailboxes, which he does not think Mr. Thompson can do. He stated this is not part of South Merritt Estates; ex-Commissioner Randy O’Brien said there would have to be a buffer between South Merritt Estates and Staghorn Estates; and they want the 15-foot buffer there. He state he understands there are many waivers; but he does not think it is legal to have that many waivers; and he would appreciate it if the Board limited the housing there and watched the runoff and the amount of fill to prevent flooding. He stated there has to be a better drainage situation or fewer houses; and the contention in the neighborhood is three to four houses maximum.

Roger Vizioli stated he has lived in South Merritt Estates for 17 years; and requested the Board deny the waiver of the 15-foot buffer or any portion thereof in the proposed Staghorn Subdivision. He stated his request is in keeping with the County’s objectives; the mission of the Board is to contribute to insuring and enhancing the County’s quality of life; and the Commissioners are committed to the highest quality of customer service and using tax dollars wisely. He stated the proposed subdivision is not a subdivision adjacent to a subdivision; it is a piece of property totally surrounded by existing homes and subdivisions; and commented on the establishment of the Ordinance requiring the 15-foot perimeter buffer for proposed residential subdivisions. He noted Commissioner Scarborough inquired why the buffer was 15 feet and not 20 or 25 feet; but there were no discussions regarding eliminating the proposed buffer ordinance, which infers there was agreement with the proposed ordinance. He stated the discussion also included the question of use of greater distances where different size homes and lots were involved or where something substantially different was requested; and noted the homes and property sizes facing the southern boundary of the proposed subdivision are in excess of one acre and all homes are 3,000 square feet or greater. He stated part of the Board’s job is to protect citizens’ investments in their homes and properties; and the compatibility issue is suppose to protect the people. He stated the incompatibility of home and property sizes is one reason for the Buffer Ordinance; the Board Minutes acknowledge that additional discussion may be undertaken in regard to different levels of incompatibility requiring different levels of separation and buffering; but there is nothing said about eliminating the buffers. He stated he objects to the waiver request; the issue must concurrently address the drainage problems in the area; and the buffer waiver should be constrained by an item that satisfactorily resolves the drainage problem. He stated the current natural drainage and the County-maintained drainage in the area is marginal at best; there is standing water there now, which was there before the rains last week; and this area will be further impacted by the Staghorn Subdivision with the proposal as shown. He stated waiving the buffer and the concurrent elevation increase that will be required to conform to other County Ordinances will cause the water that is currently collected and retained on this property to be diverted to the overtaxed drainage system; and it will further exacerbate the flooding problems. He commented on health threats from West Nile virus; and requested the Board continue to notify surrounding property owners when additional waivers and more detailed plans for Staghorn Subdivision are submitted to the County, prior to approval.

Ralph Maccarone stated he has lived in Hidden Hollow Subdivision for four years; his property abuts the north side of the proposed Staghorn Subdivision; and this is the third time he is
requesting the Board deny the request by Mr. Thompson for waiver of the 15-foot perimeter buffer for the Staghorn Subdivision. He stated the proposed lot sizes appear to be 1/3 acre in size; South Merritt Estates, which abuts the property, has lots of over one acre; and this raises the incompatibility issue. He stated by allowing this waiver, the Board is undermining what it has already put into effect; and the waiver will directly impact 18 different homeowners. He stated there is currently a vegetative buffer, which will be clear cut to put in a 30 foot drainage easement, and there can be no vegetation in the easement; and at least with the 15-foot perimeter buffer there would be some natural screening between subdivisions. He stated this is one of the last remaining infill tracts; and inquired if it is necessary to develop everything. He requested, if the property is to be developed, that the developer comply with the regulations of the County, and the developer should not be afforded more development potential than the current law allows. He stated if the Board grants this waiver, it will be a disservice to the 18 property owners; it will disturb not only the natural vegetative buffer between subdivisions, but also destroy the privacy afforded by the wooded boundary; and recommended the waiver be denied. He stated after the October Board meeting, a representative from Commissioner Scarborough’s office and Ed Washburn came out to look at the property; and presented photographs of the property to the Board showing some of the existing drainage problems. He stated the runoff is going to go somewhere, either to South Merritt Estates or into Hidden Hollow; and at the October 2002 meeting, he presented letters and documentation from the St. Johns River Water Management District showing the water that was on that property was not affected by the Hidden Hollow Subdivision.

Chairperson Colon inquired where was Mr. Maccarone standing when the pictures were taken; with Mr. Maccarone pointing out the area on the map. Mr. Maccarone stated he has a couple of other photographs that show the current driveway of the property and retention area; and there are definitely some drainage issues. Chairperson Colon inquired if Mr. Maccarone was standing on his property; with Mr. Maccarone responding no, he was standing on the proposed Staghorn Subdivision property.

Commissioner Pritchard commented on the melaleuca trees on the property, which is an invasive species; and stated there is a letter from Janice Unger with St. Johns River Water Management District advising a letter was received from Mr. Thompson saying the stormwater was discharging from the Hidden Hollow project onto undeveloped property he owned and adversely affecting it. He stated apparently the water has been an issue and concern; and it may be a matter of where it is really coming from. Mr. Maccarone stated at the October Board meeting, he presented a report from the St. Johns River Water Management District showing that one of its engineers came out in 1989; and submitted a copy of the report showing that Hidden Hollow Subdivision was not the cause of the flooding. Commissioner Pritchard stated the letter from Ms. Unger goes further to summarize that the stormwater system is not constructed in accordance with the permitted plans; and inquired if the Hidden Hollow system is not in accordance with the plans. Mr. Maccarone responded that is right; and that was one of the contentions of Mr. Thompson in the 1980’s. Commissioner Pritchard inquired has the system been changed; with Mr. Maccarone responding it has not; but when Mr. Washburn viewed the property, he felt it was possible a berm was established, but that over time that area had gotten more shallow. Commissioner Pritchard stated the report says there is no harm to the resources; and inquired if they are talking about Mr. Thompson’s property; with Mr. Maccarone responding that is correct. Commissioner Pritchard stated Mr. Thompson’s property is lower than Hidden Hollow, but since there was nothing going on at that point, there was no real damage being incurred by his property.

Commissioner Scarborough returned Mr. Maccarone’s photos to him.

Dick Thompson stated his request for waiver is in its third session now with the Board; some Commissioners have heard it all and some have not; and he is probably going to duplicate a little of what he said in past sessions. He requested waiver to Ordinance 01-77 for the Staghorn Subdivision; stated the project has been before County staff for at least ten years as he worked through the various problems and changes in rules and regulations; and the first was the illegal discharge of stormwater from Hidden Hollow onto his property. He stated the plans for Hidden Hollow called for and were approved by the St. Johns River Water Management District and the County requiring a swale along the back of their lots to collect their water and take it to their retention system; but it was never put in. He stated he complained to both agencies but received no positive response; and he should have taken them to court, but chose not to, although he was advised by the County Engineer to get a good lawyer. He stated he had this before the County on at least three occasions and worked through various staff levels; he cannot understand why the project is not considered to be grandfathered as far as the Ordinance, which was only approved a year ago; he has worked on this for a long time; and two years ago Mr. Washburn came to the site three times as he was working on a solution to get rid of the drainage. He pointed out the subdivision, entrance road that he owns, and area where he will put eight lots and a retention system on a map; and stated the retention system requires both wet and dry retention along the edge and a 30-foot wide drainage easement. He stated the proposed subdivision is next to Hidden Hollow, which has nine lots that would not be there today if the Ordinance had been in effect because the lots would have been two small to construct on; and that is the situation he is faced with because his lots will be too small to construct on considering the road, setbacks, and drainage. He stated the drainage plan has been reviewed and approved, and a permit has been issued by the St. Johns River Water Management District, which has primary responsibility; taking the depth of the property and subtracting 30 feet from both sides for the buffer, 30 feet for the drainage easement, and footage for the road and setbacks only leaves approximately 55 feet for everything; and it will not work. He stated if he tried to do that, he would not have people wanting to buy the property to put their houses that would be compatible or better than the neighbors; and that would downgrade the quality of life in the area. He stated this is an infill project; it is EU estate zoning just like the surrounding property; and it will have homes that are more valuable than those of the surrounding area. He requested the Board consider giving him a grandfather waiver. He stated the four houses located on the south side of the proposed subdivision use his property for road access to their houses; he has given them an ingress/egress easement; but they are complaining about his development and he cannot figure out why. He stated if a 15-foot buffer is put along the front of their property, it would take away the road that is their access and put it in a natural state, not to be disturbed; and he does not know why they would want to do away with their only access. He stated on the north side, next to the Hidden Hollow homesites, he has proposed to put in a swale that will conduct their drainage water down to where it can get into their retention system; and if a 15-foot buffer is put there that cannot be disturbed, it cannot collect their water. He stated it does not make sense for this project; and requested a waiver of the Ordinance so he can do his project in the right way so it ends up being something everyone will like.

Chairperson Colon inquired is that the only land that Mr. Thompson owns and did he own other land in the past; with Mr. Thompson pointing out where he lives and his ability to look straight from his front door to his property. Chairperson Colon inquired whether Mr. Thompson sold land to the subdivision; with Mr. Thompson responding no. Chairperson Colon stated the subdivision is basically inside Mr. Thompson’s land. Mr. Thompson stated the land is his investment and his retirement; he hocked his house to get it; and he intends to get it back. Chairperson Colon inquired was there any discussion between the developers of the subdivision and Mr. Thompson regarding the land and the position he would be put into and was it part of the agreement about allowing them to use his property as access to their homes. Mr. Thompson stated it was before he bought the property that the lots were sold and the access/egress route, which is a dirt road, was arranged. Chairperson Colon inquired who was the agreement with; with Mr. Thompson responding the only subdivision that existed at the time was South Merritt Estates. Chairperson Colon inquired if there was an agreement with the properties on the other side and was it Mr. Thompson' property at one time; with Mr. Thompson responding no, but there is an access/egress agreement. Chairperson Colon stated the agreement was not with Mr. Thompson; and inquired if it was with the person from whom Mr. Thompson bought the land; with Mr. Thompson responding that is correct. Chairperson Colon stated it was not Mr. Thompson who granted the access, but whoever owned the property previously.

Commissioner Carlson stated zoning does not guarantee buildability or density; and inquired if Mr. Thompson understands that; with Mr. Thompson responding that is probably true. Commissioner Carlson stated it is not true this is not buildable if there is no waiver of the 15-foot buffer because the number of lots could be reduced by half and it would be possible to get what Mr. Thompson wants out of it. Mr. Thompson stated it would not be financially feasible to do less than what he has shown; he has worked out the finances; and advised the drainage takes approximately 20% of this land, and the 15-foot buffer would take another 20 to 25%. Commissioner Carlson stated there is a road at the bottom which would not allow for the 15-foot buffer; and inquired has St. Johns River Water Management District given a permit; with Mr. Thompson responding yes. Commissioner Carlson inquired is there any mitigation required; with Mr. Thompson responding no. Mr. Thompson stated people have been out and looked at the wetland area; every bit of wetland has been identified; and it is not enough to be of concern. He stated a farmer approximately 50 years ago did digging on the property to make a road; the swales are still there, but are full of muck; so now they are called wetlands. Commissioner Carlson inquired if Mr. Thompson has the ability to fill that property and put houses on it; with Mr. Thompson responding that is the plan. Commissioner Carlson stated she heard various people say Hidden Hollow was supposed to have put in a swale behind the homes; and inquired if they were supposed to do so and did not, has there been any follow-up. She stated other people are saying Hidden Hollow has not been draining onto this property; and inquired what is the truth. Mr. Washburn responded they were supposed to put in a swale and berm system at the time of development; in cases where the swale and berm are small, if it was installed, over the years it gets beaten down by lawn maintenance or people taking them out; he and the St. Johns River Water Management District have determined for the most part there is no swale and berm system there; and he does not know how much water is draining onto Mr. Thompson’s property from Hidden Hollow. He noted the St. Johns River Water Management District looked at it in terms of water quality; and there are letters in the file as well as the letter to Mr. Thompson stating the District did not believe it was a problem. Commissioner Carlson inquired has staff looked at the hydrology of the property to see where the water flows since it is an enclave and surrounded by subdivisions; with Mr. Washburn responding they have a stormwater system for Hidden Hollow, but probably some percentage of the water goes off the Hidden Hollow lots to the rear and onto Mr. Thompson’s property. Commissioner Carlson inquired about water from Merritt Estates; with Mr. Washburn responding he does not think it is from Merritt Estates because it is on the other side of the roadway. Commissioner Carlson stated Mr. Thompson said he has been in the system for a year and a half prior to the 15-foot buffer Ordinance; and inquired if he is considered grandfathered and does he have a site plan in place. Mr. Washburn stated Mr. Thompson had a pre-application conference with staff in 2002; but that does not vest him. Mr. Thompson stated there was a pre-application conference in 2002; there was one at least four or five years ago with basically the same plan; and he made some improvements in the interim period, but he has been with County staff at least three times. Commissioner Carlson inquired if Mr. Thompson actually submitted a site plan three or four years ago; with Mr. Thompson responding yes, to the St. Johns River Water Management District and the County. Mr. Washburn stated the vesting Ordinance reads that someone has to submit the site plan for review; and that step comes after the pre-application conference. Commissioner Carlson stated Mr. Thompson said he submitted a site plan on this property; with Mr. Washburn responding staff does not have one; if he did submit one, it probably has expired; and staff has no record other than the pre-application conference in 2002. Commissioner Carlson inquired how long does it take for a site plan to expire; with Mr. Washburn responding there is a pre-application conference to determine what problems there may be, and then the site plan is submitted after that conference; and Mr. Thompson has not done that. Commissioner Carlson inquired what is the timeframe before it expires; with Mr. Washburn responding there is no timeframe after the pre-application conference. Assistant County Manager Peggy Busacca stated once a subdivision has its pre-application conference, it comes to the Board for final engineering and preliminary plat approval; and once there is a final plat approved, the subdivision does not expire because it has become platted; however a pre-application conference does not grandfather. Commissioner Carlson reiterated Mr. Thompson said he submitted a subdivision plan; and inquired if it was submitted and did it go through the process. Mr. Thompson stated it did not go through a complete process; it was submitted and discussed three times, starting with Mr. Mahmood; and Mr. Mahmood did go out to look at the site. Commissioner Carlson stated she is trying to clarify that Mr. Thompson does not have the grandfathering he thinks he has. Mr. Thompson stated there are always reasons why it would not meet all the grandfathering provisions; but because it has been before the County so many times, he is requesting it be considered a grandfathered case.

Chairperson Colon stated on top of the buffer issue, there are other issues with this site plan and other hurdles that the applicant has to overcome; with Mr. Washburn concurring that is correct; and the biggest one is access to the subdivision from Carambola. Mr. Washburn stated Mr. Thompson needs a 50-foot access point, which can be reduced to 40 feet in width with some easements; but Mr. Thompson only has 25 feet. Chairperson Colon inquired if there are other issues as well as the buffer; with Commissioner Higgs responding Mr. Thompson could develop the property on four lots with the 25 feet of driveway. Mr. Washburn stated the Board could give a waiver for the additional lots to be developed off an easement; and right now he can have two lots off the easement. Commissioner Higgs inquired if the Board could waive it and he could get four; with Mr. Washburn responding yes. Commissioner Higgs stated Mr. Thompson wants eight lots in his subdivisions; but if he did it that way some of the other requirements would not kick in; with Mr. Washburn advising that is correct.

Commissioner Pritchard inquired regarding the 25-foot access, would Lots 6, 7, and 8 have to have 15 feet taken off them to meet the 40-foot width; with Mr. Washburn responded where there is a problem is not at Lots 6, 7, and 8 but at the entrance point. Commissioner Pritchard stated it would be the south side of the entrance point; so it would be a question of purchasing property from Lots 267 and 268, which is where the road is currently going through; with Mr. Washburn concurring. Commissioner Pritchard inquired if there has been any discussion about purchasing some of the property on Lots 267 and 268; with Mr. Thompson responding he has discussed that with the owner, but he is unwilling to sell. Commissioner Pritchard noted the owner is willing to use Mr. Thompson’s road to access his property.

Dolores Kane stated Mr. Thompson should be able to develop his property as it was zoned when it was acquired according to the engineering specifications; some of the flooding problems may be solved if he put in the retention areas; and there is a lot of flooding right now. She stated the 15-foot buffer is after the fact; it was not there when Mr. Thompson acquired the property so it is after the fact; there is the Harris Act; and the property should be grandfathered in exclusive of the 15-foot buffer because that came after he purchased the property. She stated anyone buying a piece of property with vacant property behind it should find out how it is zoned to see how many houses may be built there because usually someone is going to do something with the property sooner or later. She stated someone can always plant trees on their own property if they do not want to see the property behind them; and she hopes the use of Mr. Thompson’s property is not going to be taken without due process.

Albert Elebash stated he developed the subdivision on the south side and established the road right-of-way that Mr. Thompson was discussing. He stated this is a four-acre subdivision; the 15-foot buffer Ordinance is excessive; and the Board is talking about 20% of Mr. Thompson’s land for a buffer Ordinance the Board has agreed may not even have any real value, and has sent back for review. He stated this should not apply to this small development.

Chairperson Colon inquired which is the property Mr. Elebash used to own; with Mr. Elebash responding he does not own anything any more in that area; and pointed out on the map the area he owned and developed. He stated he sold two pieces with their own access; the Tract A access was retained by him as developer; and it was written into the subdivision that there was right to use the access to additional land. He stated he did not own the additional property at the time, but knew it was there and the potential for development was there; and that is why the rights were retained with Tract A to get access to additional land. Chairperson Colon inquired if Mr. Elebash sold the parcels to the people who live there now; with Mr. Elebash responding he does not know if they have been resold; but he sold them originally. Chairperson Colon inquired if Mr. Elebash is not sure if the people were aware that in the future there would be homes going up. Mr. Elebash responded it depends on whether they were the original buyers or not; the original buyers knew what the subdivision was; anybody going in there should have looked at what they were buying; and the plat shows that Tract A ownership was retained by the developer with the right to use it for additional access to the properties at any point in the future. Chairperson Colon inquired how long ago did Mr. Elebash sell the property to Mr. Thompson; with Mr. Elebash responding Mr. Thompson bought the property from someone else; and all he did was sell him Tract A because that was the only access to the property.

Commissioner Pritchard inquired when did he sell Tract A to Mr. Thompson; with Mr. Thompson responding 1988 or 1989. Commissioner Pritchard noted the easement was created in the early 1980’s; with Mr. Elebash advising that is correct. Commissioner Pritchard inquired why was it 25 feet wide; with Mr. Elebash responding that was the requirement at the time under the County’s Subdivision Ordinances; and one could subdivide up to six lots on an unpaved 25-foot road. Commissioner Pritchard stated that is why it was cocked the way it is off the access road; and stated he is talking about where the subdivision begins on the other side. Mr. Elebash advised he sold off half the property with its own 25-foot access, which left a 25-foot access to the property he later subdivided; and that is why the 50-foot roadway is split between two 25-foot accesses. Commissioner Pritchard stated the alternative is to develop two lots on a 25-foot access, and the Board has the ability to waive to build two more; with Ms. Busacca advising that is correct.

Ed Fleis stated this is a situation where there is a hardship created by the buffer Ordinance; the site is 180 feet wide, of which 30 or 16% of the width would be the buffer, plus on the other two sides, it would be another 15 feet; so it takes up a tremendous amount of the property. He stated this is what happens when there is a small parcel of land; it is a small infill site, which is expected to correct all the problems that have been created around it; and as the smaller properties are difficult to develop in the first place, the additional buffer places an undue hardship on it. He noted he is not all that familiar with the property; but one of the serious issues is drainage; and it is drainage that has been created by the developed properties that perhaps did not have their total drainage systems installed properly. He stated it is creating an additional drainage problem on the site, which the developer is expected to correct; he has to have flexibility; and leaving the buffer area natural does not allow that to be corrected.

William Ferrell stated it is a hardship; Mr. Thompson is very good at planning; and he is caught in a situation where he has a narrow piece of property and is doing the best he can, but there are pre-existing conditions caused by Hidden Hollow and the other subdivisions that have gone in. He stated no one call tell them the water is going into their retention systems as planned; it looks like Mr. Thompson is getting this water; and he sees melaleuca trees, but does not know the other plants in the area. He stated the Ordinance is another restriction; this is where it gets into hardships when someone has a very small piece of property; and the property may not even been usable if all the buffers and rules are exercised. He stated it will be scaled back so far that it will not be economically feasible; Mr. Thompson is trying to help the neighborhood, putting in drainage and trying to build a road that the people can utilize; and he is bringing some benefit to the table. He stated the people will use the road for access; the drainage will help get rid of the mosquitoes and the problems; and it could be a win-win situation. He stated he hates to see Mr. Thompson be put in a position where he cannot use his property; he has a great reputation and has been a fine member of the community for many years; and he wishes the Board could try to come up with some way to help him.

Randall Scott stated he lives in Hidden Hollow on the north side of the proposed Staghorn Subdivision; when he bought his house a year and a half ago, one of his concerns was about the land in back in terms of collection of water; and it was his understanding that it was probably a wetlands area and development should not be a concern. He stated now the potential is there; commented on the elevations; and advised his only real concern is the water. He stated he wants to be sure the water is adequately addressed so he is not dealing with runoff water coming back into his yard.

Commissioner Carlson requested Mr. Knox explain hardship and the situation where property rights are potentially impacted. County Attorney Scott Knox stated the Bert Harris Act says if the Board has passed a new regulation, which inordinately burdens a piece of property and causes it to loss value, then the property owner has claim that he can make against the County Commission for loss of value; the question here is whether this would be an inordinate burden; and the applicant could make a case that it would be, which the County would be forced to defend or resolve with the applicant by some sort of agreement. Commissioner Carlson inquired does it deal with zoning in terms of the language of hardship; and stated the Board does not guarantee density on zoned property. She inquired if hardship is based on one’s ability to build out the property to the maximum extent; with Mr. Knox responding the hardship is based on what he could do with it at the time he bought the property versus what he can do with it when the Board changes the Ordinance to make it more difficult. Commissioner Carlson inquired if Mr. Thompson could prove that the property surrounding his property was draining onto his property, how would that apply to the hardship issue; with Mr. Knox responding it would go to the value, which would mean it could go to whether or not it is inordinately burdened by the new regulation, and it could be. Commissioner Carlson stated that is not based on the new regulation; with Mr. Knox responding it could be that the new regulation has not impacted it at all; and if that is the case and for example he could not develop the property because it was all wetlands, passing a regulation on buffers would not make any difference.

Commissioner Pritchard stated the situation from what he observes is that Hidden Hollow is on the north side; there is obviously a concern with what is going on in their back yard; and there is probably an issue with water runoff onto the Thompson property. He stated Mr. Thompson has a drainage plan that has been approved by the St. Johns River Water Management District, which would benefit both subdivisions, and most likely even the subdivision on the south side. He stated the idea is to move the water, treat it, and have it percolate and revitalize the area instead of just letting it sit. He stated the picture taken by the resident in Hidden Hollow showed an individual thigh-deep in a large amount of water; he would imagine that was after the massive rainfall, and that water is not normally that high; and the question is what is best for the neighborhoods. He stated it is unrealistic for people to think when they move into a neighborhood that the property behind them will remain as it is at the cost of the person that owns the property; most people realize that sooner or later something is going to happen; and he has been in the position himself when woods were knocked down many years ago and he was not happy, but these things do happen. He stated the question is how to make it right for the property owner, the abutting property owner, the neighborhoods, Merritt Island, and Brevard County; and if there is no grandfather issue, there are many other issues that are going to affect the development of the subdivision, such as access, having 25 feet and needing more, the Board’s ability to grant two lots and waive for two more lots, and Mr. Thompson’s statement that it would not be profitable. He stated the consensus appears to be that the 15-foot buffer Ordinance is not going to benefit in most cases, which is why the Board is granting so many waivers; the vote taken earlier was to take the Ordinance to the Committees to have them massage it; and when someone comes in and wants to talk about a 15-foot buffer, the Board is going to have to address it again. He stated the 15-foot buffer should not be a consideration of Mr. Thompson’s case; it should be removed in this situation from all the way around the subdivision; and the Board should be able to work something out. He stated he is not guaranteeing there will be eight lots; it may be one lot less; but the Board needs to work with Mr. Thompson, Hidden Hollow, and other people in the other subdivisions that have been given access through the property to make this a win-win situation on all sides. He stated treating the water that is currently being deposited onto Mr. Thompson’s property is of primary importance; there is no telling what can be festering there like West Nile virus and mosquitoes; and he is not sure how often Mosquito Control treats that area, but he is sure it is not as often as the people in abutting neighborhoods would like to see happen. He recommended he would like to see the 15-foot buffer requirement be removed from the Staghorn Subdivision; and stated the Board can deal with the other issues as they come up.

Motion by Commissioner Pritchard, to waive the requirement for the 15-foot perimeter buffer from all four sides of Staghorn Subdivision.

Commissioner Scarborough stated earlier it was stated that the 15-foot residential perimeter buffer, residential to residential, was a compatibility issue; but in this particular case there need to be properties between the two for a different purpose. He stated the water is going to be an issue for that subdivision; what seems to frustrate the process is that the residential buffer was supposed to be left in the natural state; but being left in the natural state hampers the utilization of it for the water purposes; and the water really needs to be collected and moved. He stated the motion is acceptable; but he was heading in a little different thought process, which would be to waive the requirement where the 15-foot buffer was supposed to remain in its natural state since it frustrated the water issue. He stated when he talked to Mr. Thompson the water seemed to be the primary issue, rather than the incompatibility of the residential structures; and having it left in its natural state does not lend itself to solving the water problem. He stated it is an element the Board does not control; and it may or not be beneficial in solving a water problem for residential homes. Mr. Washburn advised the Ordinance also says that the 15-foot buffer has to be in a separate tract, so that is a hindrance to meeting the lot size requirements for EU; and Mr. Thompson has said with the 30-foot swale area on the rear of the property, that he would try to save as many trees as he could, but would still have to take some of the trees down in order to have the drainage system in there. Commissioner Scarborough stated it would have to be a total of 45 feet; and inquired does the normal setback occur at 45 feet for a home; with staff indicating it does not. Commissioner Scarborough stated the 30-foot drainage easement is not a setback easement; with Ms. Busacca advising staff would not permit a structure to be in the drainage easement, but it is not a setback easement. Commissioner Scarborough stated for setback purposes the lot line is moved in for the 15-foot buffer, but not for the 30-foot easement; and suggested the 15 feet could be merged into the 30 feet for the additional setback from the lot line and the easement. Ms. Busacca inquired if what Commissioner Scarborough is suggesting is a minimum 45-foot setback for the homes; with Commissioner Scarborough responding no. Commissioner Higgs inquired if Commissioner Scarborough is saying he would allow a dual use of the buffer and the drainage; with Commissioner Scarborough responding affirmatively. Commissioner Scarborough stated if the Board takes Commissioner Pritchard’s motion, it will allow the house to be closer to the rear line; but if the 15-foot buffer was kept within it, the house would have to be moved further in. Ms. Busacca stated the 15 feet would not be a separate tract. Commissioner Scarborough stated it would not be a separate tract; and within the 15 feet, the Board could remove the requirement that it remain in its natural state to allow it to be utilized for drainage, which the adjoining property owners are concerned about. Ms. Busacca stated right now Mr. Thompson is showing a 30-foot drainage easement so there would be a minimum setback of all structures of 45 feet; with Commissioner Scarborough disagreeing. Ms. Busacca advised a structure cannot be put in the 30-foot easement or the 15-foot buffer, and those would be beside each other. Commissioner Scarborough stated he understands for the 30-foot easement, there is no additional setback for the dwelling; so it does not create additional setback; with Ms. Busacca reiterating a structure is not permitted in a drainage easement. Commissioner Scarborough stated nothing can be put in the drainage easement, but it is not an additional setback; however, the 15 feet basically moves the development forward on the lot. Ms. Busacca inquired if Commissioner Scarborough is suggesting a larger setback by 15 feet; with Commissioner Scarborough responding not really, but just applying the additional 15-foot setback for the dwelling, but not applying it in the sense that it cannot be utilized for the drainage. Ms. Busacca stated then there would be 45 feet for drainage; Mr. Thompson is requesting 30 feet because he needs 30 feet to engineer it; and if the Board limits it to 15 feet, his engineering will not work.

Motion by Commissioner Scarborough, to table consideration of waiver of 15-foot perimeter buffer as requested by Dick Thompson. Motion died for lack of a second.

Commissioner Scarborough stated the issue seems simple, but it is getting complex. Commissioner Higgs stated what she hears Commissioner Scarborough saying is he wants a dual use of the buffer. Commissioner Scarborough stated rather than adding, the effect of the 15-foot buffer is to move the dwelling units further into the lot; the Board is going to do away with the natural concept because everyone said they do not view that as the primary issue because of the compatibility of dwellings; and Mr. Thompson is saying he needs the 30 feet for drainage, but when the lot line setback is figured in, it adds on an additional 15 feet.

Motion by Commissioner Scarborough, to amend Commissioner Pritchard’s motion to do away with the natural concept to allow dual use of the buffer. Motion died for lack of a second.

Commissioner Higgs stated there is already a drainage buffer on one side, so that establishes a conveyance system on one side; and there is no need to waive the buffer on that side. She stated on the side that abuts the south development, Mr. Thompson said he would be willing to have an additional five feet of buffer. Commissioner Scarborough stated he did not address that as he was really focusing on the Hidden Hollow issue. Commissioner Higgs stated if there is 30 feet on the Hidden Hollow side, 15 feet would be dual use buffer, which takes care of it; and the agreement would be to maintain the maximum amount of native vegetation. She stated Mr. Thompson has agreed to keep the trees back there; there is one side with the drainage already where Mr. Thompson is willing to save five feet; and that only leaves the west side, which abuts another single-family home without a buffer. She stated the Board has not addressed that one side unless it is taking Commissioner Pritchard’s motion. Commissioner Scarborough stated as to the portion to the south along the roadway, it is a separate issue; that was not supposed to be used for drainage; and he was not addressing that. Commissioner Higgs inquired if a five-foot buffer is put in as has been volunteered, does that get it; with Commissioner Scarborough responding it is for the Board to discuss.

Chairperson Colon inquired if Commissioner Pritchard has anything to add; stated it sounds like the Board is trying to work something out; but she needs to hear from Mr. Thompson that he understands what the Board is trying to do. She stated Commissioner Scarborough is trying to have a dual use so there will be something that can protect the residents and accommodate Mr. Thompson’s request. Mr. Thompson stated there is a small design problem in that the first seven and a half feet of his property was given to the cause of providing a swale to pick up their drainage and take it to their retention system.

Commissioner Pritchard inquired is that included in the 30 feet; with Mr. Thompson responding it would be part of his 30 foot use of the dry retention pond. Commissioner Pritchard stated he understands Mr. Thompson would like a 15-foot buffer included in the 30-foot drainage easement; with Mr. Thompson responding yes, if it will not deny him the use of the land for the purposes he designed it for. Commissioner Pritchard stated Mr. Thompson is talking about the rear of the property, which is approximately 180 feet deep; he would give up 30 feet for a drainage easement; and then there is the question of setback for the house from the edge of the 30 feet. Ms. Busacca stated the additional 15 feet would give Mr. Thompson 55 feet depth for the house pad and swimming pool. Commissioner Pritchard requested Commissioner Scarborough repeat his suggestion.

Commissioner Higgs stated Commissioner Scarborough’s idea to table this was best as it does not seem to be going any place; but the Board is willing to try and get it to work out.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to table waiver of 15-foot perimeter buffer as requested by Dick Thompson to January 14, 2003.

Chairperson Colon stated she agrees; and commented on submittal of cards after discussion has begun. She called for a vote on the motion to table. Motion carried and ordered; Commissioner Pritchard voted nay.

Commissioner Pritchard stated the Board has a tendency to listen with the best intentions to what people bring forward, and then table it and to the next meeting; and the Board should be more decisive and move on instead of creating additional work for staff.

Commissioner Carlson stated she appreciates Commissioner Pritchard’s comments because that is what the Board does on a lot of occasions; but sometimes tabling is for the benefit of both parties.

The meeting recessed at 2:58 p.m. and reconvened at 3:17 p.m.

PUBLIC HEARING, RE: REQUEST FOR VESTED RIGHTS DETERMINATION FOR
TIMOTHY AND KAREN NIELSEN

Chairperson Colon called for the public hearing to consider request for vested rights determination for Timothy and Karen Nielsen.

Attorney Richard Torpy, representing Mr. and Mrs. Nielsen, submitted a book to the Board and the Clerk. Mr. Torpy stated speaker cards were submitted by Karen Nielsen and Noel Droor, who are with him; they will not be speaking unless necessary; and Dr. Nielsen could not be present due to his business schedule. He stated this is the third time he has been before the Board on this issue; they came to the Board in October; and the question then was whether Section 62-1102 (c) of the Brevard County Code applied to a single-family residence; that section of the Code defines building height, saying that when defining building height, one starts counting from the first habitable floor; and that is why they are appealing vested rights today. He stated in October, there was Board discussion with significant comments by Commissioner Higgs, stating that she was involved with the process in 1986 when the Code was passed, and that it was her opinion that it was never the intention of the County to pass an Ordinance that applied to a residence. He stated as a result of that meeting, the Board directed staff to come back with an amendment to the Ordinance expressing the will of the current Board and making it clear the section was not to be applied to a single-family residence; and the Board further directed him, on behalf of his clients, to seek a vested rights decision. He stated he came to the Board on December 3, 2002 on an appeal of the denial of the building permit, challenging the interpretation that Section 62-1102 did not apply to single-family residences; on that appeal by a 3 to 2 vote, the Board upheld the determination not to allow his clients’ project to go forward; and he is wrestling with that decision because at that point Planning and Zoning Director Mel Scott specifically testified that it had been staff’s opinion and continues to be staff’s opinion that Section 62-1102 does apply to single-family residences, which is why staff had applied it to his clients’ site plan and application process to go forward. He stated it was not until the review by the Board in October that the issue got confused; and that is why they are present for vested rights today. He stated unlike some of the other vested rights heard earlier today where there may have been a clear Code that was somehow missed in the review process, this Code was not missed; and advised tab 1 in the book he submitted is a letter from Mr. Scott dated October 30, 2002 where he says, “On October 15, 2002, the Board of County Commissioners directed staff to prepare an amendment to the definition of building height to clarify the intent of this Code provision. Additionally during this meeting, the Board recognized that your client may have a vested right claims associated with this denial. If you choose to pursue such a claim, the fee and application must be submitted to this office within 30 days.” He stated what created the confusion on what the Code means was the October 15 meeting of the Board; they filed for vested rights; and that application is under tab 2. He stated the act they are appealing from and claiming a vested rights is that at the time his client sought a building permit and designed a home, they had been advised by staff that they could build a home, even though there is a 35-foot building height requirement, and that they did not have to count the first non-habitable floor. He stated that is the act that the County staff agreed to and advised his clients they could do; it is what the Code says, specifically that you start counting from the first habitable floor; and his clients acted in good faith. He advised under tab 3 is an affidavit from Mr. Droor, who was hired by the Nielsens to design and seek a building permit and DEP permits for their home in the South Melbourne Beach area. He stated Mr. Droor met as early as April 2002 with Planners George Ritchie and Ryan Rusnak to discuss the plans for construction; during that meeting one of the issues discussed was height and the application of Section 62-1102 (3); and staff advised Mr. Droor that it applied, and that he could start counting from the first habitable floor. He stated at that point Mr. Droor began to create a site plan and design for the property, which he submitted in June 2002 to staff, requesting comments; the issue of height was raised by staff in September when building permits were about to be issued; in September 2002, Mr. Droor met with Mr. Rusnak again, and Mr. Rusnak reiterated his position that the section of Code did apply and it was not necessary to count a first-floor garage as part of the height calculation; and it was then put on the Agenda for the Board’s review. He stated had it not been for the discussions with staff, the interpretations of staff, and the plain meaning of Section 62-1102, the Nielsens would have never designed their home for the current height nor spent considerable funds to do that; and under tab 4 is an affidavit from Timothy Nielsen saying that he hired Mr. Droor, Mr. Droor met with staff, and that he relied on the representations of the County in authorizing the design of his home, using Section 62-1102 (3) of the Code in determining what the height of the structure could be. He stated the copies of the affidavit of Karen Nielsen, which he gave to the court reporter and the Clerk, are fully-executed, although the copies in the packages for the Board were not signed. He stated Ms. Nielsen’s affidavit concerns the amount of money expended in the design and permitting of the project, which is $33,442; there is no debate that his clients moved forward in good faith reliance on information and advice given by staff specifically telling them they could apply Section 62-1102 (3) to their home, and that the home did not have to count the first non-habitable floor when determining height; there is nothing in the records of the December 3 or October 15 meetings or the County’s records that would support anything otherwise; and Mr. Scott has publicly said several times that is what the Nielsens were told. He stated the issue first came up when it was brought before the Board to determine what was intended by the Ordinance; that addresses the issue of vested rights by the Board; and his clients acted in good faith reliance on an action of the County and its staff to their detriment by putting over $33,000 into the design of the single-family residence. He stated the most active one in the process has been Commissioner Higgs to date with her interpretation and why she believes the Code should not apply to the Nielsens; he does not agree with the Board’s December 3 interpretation that Section 62-1103 does not apply; but it is a moot point as the Board made its decision on that, and he assumes it will approve an Ordinance later today. He stated on October 15 when he met with the Board, Commissioner Higgs said she was involved in the process in the mid-1980’s and that she did not believe it was the intention of the Board to apply this section to single-family residences; he has done exhaustive research in response to that comment and comments made at the December 3 meeting; and he will be moving to tab 8. He noted under tab 6, there are comments made by Commissioner Higgs as to what was intended by the Board in 1986; under tab 8 there are minutes of the Planning and Zoning Board and the County Commission between October 1985 and February 1986; and the reason that is important is the Ordinance was discussed by the Board in December 1985 and enacted in February 1986. He stated he went back two months prior and under a public records request said he wanted to see everything; under tab 8 are all the minutes, and there is nothing; so if there was discussion among the P&Z Board or the Commission during that period, it was not a heavily debated issue. He stated tab 9 has the minutes where the item was considered; on December 10, 1985 there were a couple of comments; but there was nothing to indicate the Board was attempting to exclude single-family residences from the definition of height, which is significant because if it was intended, it would be in some of the minutes. He stated what was discussed was the general overall issue of height on the beaches; that was the prevalent concern in 1985 and 1986; and single-family residential structures was not prevalent. He stated he is not saying the Board at that time said it was included; he is saying the Board did not discuss it; and whether it was oversight or intention does not matter for the purpose of the Nielsens because the Code provision is clear. He stated Commissioner Higgs wrote a letter in which a couple of points were made, which she found to be significant; and the letter is included under tab 7. He stated Commissioner Higgs says, “the revisions in 1986, and I was a citizen activist involved at that time, were intended to enhance compatibility in neighborhoods, not create four-story or more homes next to one-story homes in neighborhoods throughout the County. This conclusion is backed by common sense, reading the minutes, and the Ordinance, with particular attention to the whereas clauses and reviewing charts which were a part of the Code discussion.” He stated he has looked at the minutes; he found no charts or references to charts; he looked at the whereas clauses, which refer to development of residentially zoned property, and this is residentially zoned property; and it does not say single-family is excluded. He stated there was talk about the intention to enact an ordinance that would impact the height of structures on residentially zoned property; and it does not say single-family is excluded. He stated there was talk throughout about the intention to enact an ordinance that would limit the height of structures on residentially zoned property to 35 feet for a single-family residence or 45 feet for multi-family; and the Ordinance did that. He stated Commissioner Higgs talks about paying particular attention to the Ordinance itself; at the December 3 meeting Commissioner Higgs made a big issue of the use of the term levels of parking; Commissioner Scarborough asked Mr. Scott if typically that phrase, “levels of parking” is used when talking about single-family structures; and Mr. Scott responded no. Mr. Torpy requested additional time to speak.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to allow an additional five minutes for the speaker for presentation and another two minutes for rebuttal. The Board reached consensus to allow additional time.

Mr. Torpy stated if the Code used the term “levels of parking,” it would raise some credibility to Commissioner Higgs’ concerns; but it does not say that. He noted he did a computer search for the term “levels of parking” in the Code; specifically in Section 62-1102 (3) it says “one level of parking,” which is different than “levels of parking”; and the only other place it is referred to is if one is going to put multi-family structures on residential property, it requires one level of parking under the structure. He stated there was a bit of misuse of the language, because it never uses the term “levels of parking”; so the confusion that would have been created by that term does not exist; it is simply a consistent Ordinance; and that is important. He stated he made a request on December 3, asking the Board to interpret Section 62-1102 (3) to apply to single-family residential structures; if he was on the Board and did not like that idea, he would have some reservations about that; if the Board had agreed with him on December 3, the impact would have been anyone having an existing application using this provision and having a single-family structure over 35 feet counting from the first habitable floor would be okay; and he understands the Board’s reservation, but that is not the issue today. He stated this is an equitable process; it is vested rights; it is the Board’s opportunity to do the right thing for the Nielsens; the Board has already directed staff to correct this issue; and an ordinance is going to come back, which the Board will pass or not pass. He stated the Nielsens acquired property and came to staff in April, asking if they could build this house under this section of the Code; staff said yes; they again presented their plans in the summer of 2002 using this section of the Code; and when questioned in September, staff again said yes, the Nielsens could use this section of the Code. He stated pursuant to the Board’s February administrative order, a committee was called; and the committee met and said it applies to single-family residential structures. Mr. Torpy stated the Nielsens have spent more than $33,000 to design a home; the Ordinance applies; the Board should have approved this on December 3; and it can correct that wrong today by approving the vested rights request and allowing the Nielsens to move forward with their project. He stated this will have no impact on anyone else who is sitting before the Board today who might be similarly postured; they will have to come in on their own vested rights and make their own case; so if the Board wants to do the right thing, today is the opportunity to do so. He noted this is the last administrative option; after this his only option is a court of law; and he does not think anyone wants to go down the road of an appeal of the December 3 opinion to see if the courts agree with him or the Board. He stated although there will be residents who do not like it and will speak in opposition, the win/win is clearly to grant the vested rights, fix the Ordinance in the future so it does not happen again; and make the intention clear. He stated the duty is on the Board, when it passes a law, to make it clear; he has been pleased with some of the things he has seen today with the Board taking time to discuss equity; he knows the Board has been wrestling with the Ordinances it inherited; but in fairness today, he asks the Board to grant the vested rights to the Nielsens.

Commissioner Higgs stated Tom McMullen was here all day, but had to leave; and in the Board package is a letter from Mr. McMullen on behalf of the Aquarina residents Association. She stated Mr. McMullen who is President of the Association, requested keeping the building height of a single-family dwelling to less than 35 feet; and advised he has spoken to representatives of Floridana, St. Andrews, Turtle Bay, and other residents of the South Beaches, who all agree if one person is allowed to exceed this height, they do not know where it will stop. She stated Mr. McMullen advises at the December 3 meeting it was pointed out that not one single-family dwelling in the County exceeded the height limitation of 35 feet; and presented a drawing showing Mr. McMullens proposed single-family structure with the first floor consisting of an auto ramp leading to the second floor parking garage with partially covered swimming pool, and the remaining three stories living area with a widow’s walk on top, which would result in a structure of 60 feet in height that would closely resemble a lighthouse or smokestack, but would allow a view of both the ocean and river. She stated Mr. McMullen advises even though the concept is ludicrous, it would be possible if the Zoning Board were to approve any single-family dwelling in excess of 35 feet, and requesting the Board continue to protect the environmental resources of the area and the visual impact that will result if people are allowed to exceed the restriction.

Robert Toppe, Past President of the Sunnyland Beach Property Owners Association, stated their property is opposite the property under discussion; he has been there 12 or 13 years; and it is a wonderful place to live. He stated they have appeared before the Board on a number of items trying to make sure the community stays the kind of community they like; and they are opposed to this particular variance of more than 35 feet. He read aloud a letter from Janet Adams, Vice President of the Sunnyland Beach Property Owners Association, concerning interpretation of the height restriction, everyone abiding by the Code, current zoning affording adequate building and development of the property; variance for missile-like structure not conforming with the character of the surrounding community, setting unfavorable precedent, opposition to the request, and paying for costs incurred rather than granting vested rights. He expressed opposition to the building in excess of 35 feet.

Mr. Torpy stated the laundry room has been removed; but there is a bathroom because every other multi-family residential structure on the beach that has been applied using the non-habitable floor definition has been allowed to put a bathroom on the first level for access to the pool. He stated the Code does not attempt to define non-habitable or habitable space; the laundry room was taken off so as not to be an issue; it is not part of the application even though they would like to leave it there; and the Code needs definitional help. He stated granting vested rights will not change the Code, which says 35 feet is the height; Section 62-1102 is part of the definition section; and the Board has interpreted Ordinances for years, with every Code having to define terms when there may be a question. He stated the question of where to start measuring is a big issue, so the Board did define that as not including a non-habitable floor; and the Board is not changing anything by granting a vested right to the Nielsens. He stated someone must still have a first floor that is non-habitable to go above 35 feet to be consistent with the Code; the Code never attempted to pull out single-family when it was drafted; and there is nothing that has been said that would deny a vested rights. He requested the Board do the right thing for the Nielsens. He stated a letter was just read from Rene Paradis, President of the Wingate Reserve Homeowners Association; he was given a copy by Mr. Scott; it seems to be an objection; and inquired if that is in the record as well; with Mr. Scott responding affirmatively. Mr. Torpy stated the letter says they received a mailing from Commissioner Higgs’ office; that is what they are responding to; and he would like to know if that mailing is in the record. Commissioner Higgs stated she sent a copy of the agenda item as she does with many agenda items that affect people. Mr. Torpy stated if that has not been added to the record, he would like it to be added. Commissioner Higgs stated it is not in the record, but is a public document; and she would be happy to provide it. Mr. Torpy inquired if it was the agenda item; with Commissioner Higgs responding it was the agenda item with no backup. Commissioner Higgs stated it is her practice to advise people who will be affected so they know what is going to hit them. Mr. Torpy stated he has no problem with that; but he wanted to make sure he had a complete record.

Commissioner Pritchard inquired what is next door to the Nielsen property; with Mr. Torpy responding there is an empty lot on one side that is zoned multi-family as is the Nielsen’s property. Mr. Scott stated on page 4 there is an aerial photo of the property in question; and there is a single-family residence to the north and a vacant lot to the south of the Nielsen’s property. Commissioner Pritchard stated it was also described as being within the Archie Carr Sanctuary; with Mr. Scott responding that is incorrect, the property is not within the Archie Carr Preserve. Commissioner Higgs advised the property is within the boundaries of the Archie Carr National Wildlife Refuge, but it has not been acquired. Commissioner Pritchard inquired how far do the boundaries go; with Commissioner Higgs responding from the Melbourne Beach town limits to just north of Wabasso. Commissioner Pritchard stated it includes many houses; with Commissioner Higgs advising that is correct. Commissioner Pritchard inquired if the property to the north is a single-family home and how high is it; with Mr. Scott responding yes, it is 35 feet. Commissioner Pritchard inquired if the vacant lot to the south is zoned multi-family; with Mr. Scott responding it is zoned multi-family, but is a nonconforming lot of record that would only allow for one single-family residence. Commissioner Pritchard inquired about the house south of that; with Mr. Scott responding the three further south are all single-family residences. Commissioner Pritchard inquired if they are all under 35 feet; with Mr. Scott responding they are all at or under 35 feet.

Commissioner Carlson stated she knows Mr. Torpy took Commissioner Higgs’ letter and looked at each individual thing she commented on; and inquired if there were minutes that Mr. Torpy did not gather that Commissioner Higgs was referring to. Commissioner Higgs stated there were charts attached and discussed at the Board meeting; all of this evolved out of a lot of discussions; and she does not have all the minutes with her. She stated in her reading of the minutes as well as her recollections, there were long discussions with the Board about height and compatibility; in the Ordinance filed with the Secretary of State on March 7, 1986, there is a whereas clause that says oceanfront properties have been exempted from the 35-foot base height provisions; prior to the Ordinance there was no height restriction on the beach; and it evolved from that discussion. She advised the rest of the County had a 35-foot height restriction, but there was no restriction on the beach; so when the Ordinance was adopted, it took away the exemption of the beach to the 35-foot height limit. Mr. Scott noted there were no single-family zonings on the beach at that time; and it was all multi-family or more. Commissioner Higgs stated that caused some of the confusion because so much was multi-family; for the County’s residential and tourist buildings and structures where people reside permanently or temporarily, 35 feet was either the maximum height or base height maximum; and it then goes on to talk about the exemption. She stated the discussion was about 35 feet; it was not about putting parking under the buildings; and the exemption to that height of 35 feet was removed. Commissioner Carlson inquired did Commissioner Higgs do any research in terms of any Comprehensive Plan references that might clarify the intent of the Ordinance language. Mr. Scott stated he does not recall that there are direct references to height in the Comprehensive Plan. Commissioner Higgs stated the Small Area Plan came to the Board on May 27, 1992; and at that time the Growth Management Directives established breezeway and height requirements; but she does not have the following pages with her today, and cannot remember.

Chairperson Colon stated at the last meeting it was determined that County staff had interpreted the Ordinance literally; the controversy was in terms of what the intent was; and she wants to put it in focus in terms of what was discussed at the last meeting.

Commissioner Scarborough stated at the last meeting he voted the way he did because there is language that says one level of parking shall be required; and he would never put that kind of language if he was referring to a single-family home. He stated when nothing else is said, one has to determine if that sounds rational and reasonable when describing a single-family home; however, Mr. Torpy has already said that is irrelevant and in the past; so the only issue is if the vested rights have been met; and inquired if they have been met. Mr. Scott responded that is what the Board is discussing now. Commissioner Scarborough stated he is asking about the act that was relied on. Mr. Scott stated it is a matter of record that over the summer of 2002, it would have been and was staff’s advice that would be dispensed if asked about a principal building, single-family, multi-family, or condominium that had first level parking, that it would begin calculating height above that. Commissioner Scarborough stated the applicant has alleged there was an act; with Mr. Scott responding staff recalls the meetings with the Nielsens’ representative. Commissioner Scarborough inquired if there were acts that could be relied on; and in staff’s review of the what the applicant presented, has he reasonably relied on those representations. Mr. Scott responded he would like to leave the reasonable part to the Board; but the Nielsens did present site plans that showed a first level of parking with a building height starting from the first habitable floor.

Commissioner Higgs inquired what was the total height of the building they first showed. Mr. Scott responded they first requested staff’s sign-off, which is a matter of course; DEP requires buyoff on the use from the County; and the County makes sure the applicant has DEP buyoff; so typically the County gives the Department of Environmental Protection a general letter stating the use is consistent. She stated at that time, the County sends a letter back to DEP based on the drawing shown; there was an error on the applicant’s part because the structure shown had a one-foot tall third floor; and that is the drawing that staff made its first representation to DEP from. He stated that structure was shown as 35 feet tall; so it is the act of reliance that the applicant is claiming occurred after getting DEP approval when they submitted full site plans based on staff’s verbal interpretation that they could; and it is those expenses that are highlighted in the application.

Commissioner Scarborough inquired if in between the two, was there anything that would have given them second thoughts as to how it should be interpreted; with Mr. Scott responding no. Commissioner Scarborough stated even though there was an error the first time, the suggestion has been made that the Board might want to consider, since there is a profound difference between staff’s opinion and the Board’s opinion as to the applicability of the provision to residential; and it would be his inclination to go in that direction because even at the last hearing, Mr. Scott was still of the conviction that the applicant’s interpretation was the one he favored. He stated if there is a motion for vested rights, he will support it, and if there is a motion to buy off the vested rights by compensating as suggested by the Homeowners Association, he would also support that.

Chairperson Colon inquired if Commissioner Scarborough is making a motion; with Commissioner Scarborough responding no.

Mr. Scott stated there was a representation that Mr. Torpy made that it remains staff’s interpretation, which he would like to clarify; in light of the Board’s interpretation of the Code that overturns staff’s interpretation, it is staff’s opinion today that it excludes single-family residences. He noted the letter was an email yesterday morning, which is why it was provided today.

Commissioner Higgs stated she is not going to answer Mr. Torpy’s allegations and information, some of which is incorrect; they will just disagree; Richard Amari said this morning that one of the first things they learn in law school was if you cannot get all the facts right, just try to divert people over to something else; and she is not going to be diverted, but will get to the issue at hand, which is whether there is a vested right. She stated the Board has a separate opinion from staff; in this case the applicant was given some information, but gave staff information that was incorrect and could have led staff to believe the structure met the 35 feet restriction. She stated in dealing with the issues of Olson Tires and the Laniado site plan, the Board recognized that harm would come to abutting property owners from proceeding down the direction the Board would have gone if it had upheld staff’s decision; in both cases the impact to the abutting property owners would have been significant; and in this case, the abutting property owner in the existing home will be affected as well as the abutting property owner of the vacant piece of land. She noted the person who owns the vacant piece of land can allege damages by not being allowed to build to the 60-foot height; and he or she can allege damages either way, as can the neighborhood. Commissioner Higgs stated the proper motion would be to move to deny the vested rights but agree to work with the applicant in regard to the cost that may have been incurred. County Attorney Scott Knox advised that is what the Board has done in the past.

Motion by Commissioner Higgs, to deny the request for vested rights by the Nielsens; and agree to work with Nielsens in regard to the cost that may have been incurred.

Commissioner Pritchard inquired if the motion is to deny the vested rights but work with the applicant to reimburse them the fees and costs expended during the fabrication of the project. Mr. Knox advised that is what he understood the motion to be; and in the past the Board has authorized entry into an agreement with the applicant to settle the matter by paying the expenses that were incurred. Commissioner Pritchard inquired if they could then move forward to design another type of structure; with Mr. Knox responding that is correct.

Mr. Torpy stated the motion as stated really does not say anything; he has not heard a motion to pay the applicant $33,340; and he might have something more to comment on, but he does not have anything to say on that. Chairperson Colon stated that was the motion; with Mr. Torpy advising no, it was to work with the applicant. Chairperson Colon stated in the examples that were given, the Board has been able to compensate the folks that were affected; that is how she understood it; and if that is not the case, it needs to be restated so it can be better understood.

Commissioner Higgs stated there are $33,442 in costs; she does not know the date of those costs; she has no receipts or documentation; and it would be improper to do that. She stated the Board needs to know the amount of the costs that can be documented after the date the County gave the erroneous information as it has done in the past. She stated in past cases, the Board has asked the County Attorney to review the bills and then bring the Board a settlement agreement.

Mr. Torpy stated there are two separate issues; one is the appeal of the December 3 decision; and the other is the vested rights. He stated he is not in a position to comment; he would like to hear the Board’s motions and what it approves; and then he will make comments. Commissioner Higgs advised she does not know that the Board needs Mr. Torpy’s comments at this point; and he is not forced to comment.

Chairperson Colon stated she asked Mr. Torpy to come up because this is going to affect the future of the Nielsens; in order to be fair to the community and the applicants, the applicants need to be compensated; and the amount is where there is a discrepancy. She stated the Board needs to see receipts; these are taxpayer dollars for which the Board is accountable; and therefore, it needs to see the receipts and documentation. She stated the exact amount is not going to be determined today; but the applicants do probably need to be compensated.

Mr. Torpy inquired if one of the conditions will be to waive their right to appeal the December 3 decision of the Board, which is unrelated to the issue of vested rights. He stated he does not agree that he even has to be here; his position is that the Code applied, and his clients did the right thing; and they are entitled to the building permit; but he is present at the Board’s request.

Chairperson Colon inquired what exactly would that accomplish; with Mr. Torpy responding if he prevails in court, the court would agree that Section 62-1102 does apply to single-family residences, and the house would get a building permit. He stated he is not sure his client would accept those terms or not; he is asking for clarification; strings may be attached to the motion to buy off a vested right; and if it is waiving all appeal, his clients need to know that.

County Attorney Scott Knox stated the last time this came up, the Board tabled the matter to go back and work out an agreement with the applicant, paying them whatever is reasonable based on the bills presented; and that would be a good way to go in this case too. He stated he also needs to talk to Mr. Torpy about where the appeal is going to go; and recommended if the Board is going to go this route, it needs to resolve the whole thing.

Commissioner Higgs stated it would be counter-productive for the Board to try to settle this issue in a fair manner only to find itself in court on the other issue.

Mr. Torpy stated that is the problem; that is why he wants to get the cards on the table today; and he does not want this to be tabled and come back to do this again next month. He stated he would prefer to get the cards on the table now so his client can say he will take the buyout or that he would rather go to court on all the issues; and he cannot present that to his client unless he knows the specific intention and what the Board is offering.

Chairperson Colon inquired is Mr. Torpy clear that the Board is trying to compensate his clients; with Mr. Torpy responding affirmatively. He noted he advised his clients prior to the meeting that might be one of the option the Board pursues, although they do not like that option. Chairperson Colon inquired if Mr. Torpy would like a short recess to speak to his clients. Mr. Torpy responded yes, but unfortunately Mr. Nielsen is not here, so the answer may be they cannot decide.

The meeting recessed at 4:09 p.m. and reconvened at 4:24 p.m.

Mr. Torpy stated he was on the phone with Mr. Nielsen, but this is too important a decision; and he understands the Board is going to offer to compensate what the Nielsens have paid, but that would end all potential litigation versus potentially taking a risk of saying no and going to court. He stated if the Board is not prepared to grant vested rights and let the Nielsens build their house, he would like time to discuss it and bring it back on the next agenda. He stated in the meantime he will talk to Mr. Knox and provide documentation of costs, so it can be determined one way or the other at the next meeting. Chairperson Colon advised the next meeting is January 14, 2003. Mr. Torpy agreed to tabling the issue to allow time for discussion; and inquired if the motion is going to be to resolve this by offering compensation based on what the applicant can document. He stated he would like to have that in the form of a motion; they would still need to enter into a settlement agreement; it is a long way to go before it is final; and he would like to be working with something solid over the next 30 days. He stated if they do not have an agreement, the motion means nothing; and the Board can move to deny or whatever it wants; but if they come to an agreement, they will be done and not have to tie up the Board’s time. Chairperson Colon stated no matter what the Board is going to do, Mr. Torpy is going to be part of it. Mr. Torpy stated he appreciates what the Board has done today in working with constituents; but he would like to see a motion whether it is approving the vested right or not or for the Nielsens to receive compensation for documented expenses and then direct the applicants to work with the County Attorney on an agreement.

Commissioner Pritchard stated the motion would be to table the item; and he does not see why the Board has to include anything else. Commissioner Higgs stated the Board has used a motion in the past; and requested the County Attorney state it again so it is clear to everyone. Mr. Scott stated the Board needs to authorize the County Attorney’s office to draft and negotiate an agreement with the applicant to try to resolve all matters for a compensation that is reasonable.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to continue the public hearing to consider vested rights determination for the Nielsens to January 14, 2003; and authorize the County Attorney to draft an agreement and negotiate with the Nielsens to resolve all matters for reasonable compensation.

Commissioner Carlson inquired would that dispense of the vested rights issue or leave it out there; with Mr. Knox responding it would leave it there until January 14, 2003; but if they negotiate an agreement by January 14, they will be back to the Board with that agreement. Commissioner Carlson stated it leaves the vested rights issue open in case that is not satisfactory. Commissioner Higgs stated the final action would resolve all the issues, which would be her motion.

Commissioner Scarborough stated when the Board dealt with Attorney Leonard Spielvogel, it included attorney’s fees; and inquired if there is anticipation to go beyond the $33,000 to include attorney’s fees; with Commissioner Higgs responding she would not do that; and the Board should deal with it in the same manner it has dealt with the others. Commissioner Scarborough stated he just wanted to make sure.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE; REQUEST FOR VESTED RIGHTS DETERMINATION FOR
ROBERT AND LYNDA J. BRILL

Chairperson Colon called for the public hearing to consider a request for vested rights determination for Robert and Lynda J. Brill.

Planning and Zoning Director Mel Scott stated this request seeks relief for a seven-foot setback for a pool and seven-foot setback for a screened enclosure; the pool was constructed; but the building permit has not been issued for the screened enclosure. He stated it is necessary to apply side setbacks that abut a key lot to this property.

Commissioner Pritchard stated the pool was built to the specifications of the permit; and it is a question now of just putting a screened enclosure; with Mr. Scott responding that is correct. Mr. Scott advised the neighborhood has been notified of the request, but staff has received no correspondence for or against.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve request for vested rights determination for Lynda J. Brill to allow permits to be issued for a pool and screened enclosure within the front setback of the property.

Commissioner Carlson inquired if the actual permit for the pool was in error; with Mr. Scott responding that is correct. Mr. Scott stated this cures that for the pool and allows the pool enclosure to be constructed around it.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FOR CONDITIONAL USE PERMIT FOR ON-PREMISES
CONSUMPTION OF ALCOHOLIC BEVERAGES IN CONNECTION WITH RESTAURANT
FOR LEWIS BERMAN AND NICHOLAS ZERVOS

Chairperson Colon called for the public hearing to consider a request for conditional use permit for on-premises consumption of alcoholic beverages in connection with restaurant for Lewis Berman and Nicholas Zervos.

Craig Green stated RJ Gators, Orlando Restaurant Group, is looking to take over the old Quincy’s; and he is asking for a permit to sell on premises alcohol.

There being no objections heard, motion was made by Commissioner Pritchard. seconded by Commissioner Carlson, to approve request for a Conditional Use Permit (CUP) for on-premises consumption of alcoholic beverages in connection with a restaurant in a BU-2 zone classification for Lewis Berman and Nicholas Zervos. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: APPEAL OF STAFF DECISION ON DENIAL OF POOL PERMIT

Chairperson Colon called for the public hearing to consider an appeal of staff decision on denial of pool permit by Bill and Jackie Ledward.

Assistant County Manager Stephen Peffer advised the item has been withdrawn, and is only on the Agenda because it was advertised.

DISCUSSION, RE: LICENSING FOR PLASTIC BOAT DOCKS

Bea Polk stated she is present to answer questions; her son was unable to come today as he is in a meeting about a military contract; and he sends his apologies.

Permitting and Enforcement Director Ed Washburn advised Mr. Polk applied for a Marine Contractor II license that requires a certain level of experience; but he did not have the requisite experience. He stated Mr. Polk appealed that decision to the Contractors Licensing Board, which gave him two years of the four years required experience based on his education, but said he needed to have two years of experience as a marine contractor. He stated he then met with Commissioner Scarborough, County Attorney Scott Knox, Mr. Massey, and himself to discuss the matter; and Ms. Polk appeared before the Board. He stated the County Attorney has provided some options.

County Attorney Scott Knox stated one option is to determine the Code is sufficient and that Mr. Polk requires a license for Marine II testing; number 2 is to create an exemption from the experience and testing requirements for any new technology, which would require creating new standards for the new technology; number 3 is to determine that the work performed by Mr. Polk falls outside the Marine II licensing requirements, so he would not be required to have a license at all; and number 4 is to determine the work performed by Mr. Polk falls outside the Marine II and redefine the scope of work to include that activity while considering Mr. Polk to be grandfathered.

Commissioner Carlson inquired if Mr. Polk has a patent on the plastic that he is using; with Mr. Knox responding the patent is pending. Commissioner Carlson inquired if there is a specific process to get the patent in terms of application and qualification; with Mr. Knox responding they have to submit the application to the patent office, which looks to see if it is an invention and whether it is something new; and if they determine it is, they register it as a patent. Commissioner Carlson inquired if there are no specific requirements about background of the individual; and in terms of the current process the Board has in place, whether experience should be considered on the heavy side because of the protection it affords the individual that might apply for the services that Mr. Polk would have for putting up a dock. Mr. Knox stated that is something the Board will have to weigh into the equation; but the issue presented is that this is new technology and nobody has experience to install that kind of dock; and he does not know how to weigh experience if there is no one who has done it. Commissioner Carlson inquired about the County’s liability if a dock installed at someone’s home is faulty or not constructed properly and the installer did not have the experience; with Mr. Knox responding he does not think that would leave the County exposed to liability or that it falls into the category of things the County might be sued for.

Commissioner Pritchard stated he does not know what the methodology is for plastic boat docks; he initially thought this was a composition material typical of what is used to replace boardwalks; but this appears to be a totally different concept to anything he is familiar with. He stated he would like to know more about it; if it is something for which there is no methodology for licensing because it has never been used before, the Board needs to create something; and that may be the same, lesser, or even a greater standard. He stated the requirement is four years as an experienced installer; they are giving Mr. Polk a two-year waiver for life experience; but if the technology is far different, he would like to know a lot more about it before he discusses it further. He stated in his experience in building docks, piers, and seawalls, he has never run across this before, so he is unfamiliar with it.

Commissioner Carlson inquired if what is in question is the experience in installing docks, and not necessarily applying the technology; with Licensing Regulation and Enforcement Director Onnie Massey responding it is not applying the technology, but the installation of it; and the installation is the same as other docks. Commissioner Carlson inquired if any installer could learn the new technology, and it is just a matter of having the experience to install it properly; with Mr. Massey responding affirmatively.

Chairperson Colon inquired if the problem is the lack of experience; with Mr. Massey responding yes. Mr. Washburn stated concrete, wood, or plastic as pilings go down into the floor of the water body; then they put decking of some type on top of that; the Contractor Licensing Board’s position is that the person needs Marine Contractor II experience; and it was not the plastic as opposed to the wood or concrete, but the installation of the material.

Commissioner Pritchard stated if someone is jetting in a piling, it does not matter what it is made of; how it is put together is dependent on the materials, whether it is concrete, wood, or plastic; and the plastic application is simply another way to lay the foundation and build the structure. He stated he does not see where there should be a waiver from the four-year requirement unless this type of construction differs such that four years experience is not needed to put it together. He stated this is a material Mr. Polk developed; since he developed it, he would have to assume he has the skills to do the installation; and that is what he is wrestling with. He stated the County should not take a four-year program and cut it down to two years because it feels good; he does not know if the two years of life experience Mr. Polk has is sufficient to cover what he would normally consider a four-year journeyman position; and he is having a problem in waiving the other two years. He stated he has not seen the application and does not know Mr. Polk; he may have all the skills in the world and be a gifted craftsman; but until he gets a chance to meet him and see the application, it is difficult to waive the two years. He stated Mr. Polk has designed a product so he apparently has a lot of knowledge; and he can probably jet a piling and put it back together.

Commissioner Higgs inquired if on all trades there is four years of experience required or is that unique to the Marine Contractor; with Mr. Massey responding not all trades require four years; some only require three; but Florida Statute along with the local Ordinance allows use of education for up to two years experience. Commissioner Higgs stated four years is a lot of experience; and inquired if four years is a reasonable number of years and is it consistent with the other trades; with Mr. Massey responding the four years comes from the Contractor Licensing Board, Building Official, BCAC Board, and several surrounding counties that issue licenses for Marine Contractors. Commissioner Higgs inquired if four years is consistent with them; with Mr. Massey responding yes. Commissioner Higgs recommended going back to the Advisory Board to contemplate the requirement for number of years for the trade, and also to set some new standards for new technologies. She stated she is not just looking at Mr. Polk, but wants to know if there is some way to deal with the process and not the person.

Chairperson Colon stated that is the main thing the Board needs to focus on; it is not the person, but the many more who may come with new technology.

Commissioner Carlson stated Mr. Polk was denied the ability to take the Marine Contractor II exam; and inquired if someone takes the written exam with two years of experience is that person qualified. Commissioner Carlson inquired if the exam would show the educational background and the two years experience as part of the four-year requirement; with Mr. Massey responding yes. Commissioner Carlson inquired if someone cannot take the exam until they have two years experience; with Mr. Massey responding that is correct. Commissioner Carlson stated based on that she would tend to leave it as is and making sure Mr. Polk has the proper experience so he can take the exam.

Commissioner Pritchard stated that is the part he is wrestling with; the person who cannot get licensed as a Marine Contractor is the person who understands the application and could be testing himself to see whether he applies it properly; it does not appear that anyone in the marine construction community has ever used this product; and if no one knows it except him, it would seem that he could be licensed as a plastic dock installer. He stated it would be a limited license, which probably is not offered under Marine Contractor; and commented on the concept of getting four years experience building wooden and concrete piers so one can build plastic piers. Mr. Washburn stated that was Mr. Polk’s position when he met with staff; and the issue the Board has to consider is whether the installation or jetting of plastic pilings and the principle and technology of putting docks in is the same for a plastic dock as it is for concrete or wood.

Commissioner Scarborough stated the reason to license is to protect the public; but the Board does not want to go overboard; because pretty soon it becomes an adverse affect, creates a monopoly for certain people, and allows for higher prices and less good to the public, so rather than protecting the public from shoddy workmanship, it will have the public subject to higher prices. He stated he sat in on meetings with Mr. Polk; the question becomes to what extent someone needs to have knowledge of putting in pilings; when it comes to the superstructure, it may be important to understand one is not dealing with wood but with a different product; and there may be a need to have separate knowledge. He stated these are the parameters the Board is dealing with; and inquired what is reasonable to bring to the people a product that will not damage their property or themselves, but will be done in a prudent and proper manner. He stated there has to be a recognition of the uniqueness of docks; and advised of his experience with floating docks, which is a different type technology, when he was Mayor of Titusville. He stated there are certain common elements; how it all comes together is beyond him; and if Commissioner Pritchard has more knowledge of what the end product should be within those parameters, he does not mind tabling the issue to let him get more involved and meet with Mr. Polk. He stated he has yet to figure out the comfortable point; sometimes one can go with a new technology and imply old requirements and end up with a worse product for the public; more education in the wrong field would not serve the public well either; but there are some fundamentals set out in Mr. Washburn’s memorandum. He stated there is essentially no significant difference in installation of a wooden dock as opposed to a plastic dock; in both instances the pilings need to be sunk into the bottom of the water body; and that is where the Advisory Board keeps coming back, because there are fundamental likenesses.

Ms. Polk invited Commissioner Pritchard to come to the factory to watch what is being made and talk to her son; stated it is a new technology; they have a pending license on it; her son
has worked in plastics for 25 years and was with Phillips 66; and this is not new to him. She stated this is a monopoly; most of the people on the Contractor Licensing Board are contractors; and people are wondering why. She stated her son was willing to give some time but not the technology; they have been offered quite a bit for the technology; this is going to be a new business in the County; and the business will be bonded if the County wants it, so if something happens, they will pay for it. She stated when they put up their dock, the State went through the whole process with her son; her husband and son attended a State meeting in Orlando; and they have a letter indicating how much the State appreciated their attendance. She commented on the barnacles that are already on the dock, the creosote coming from the old wooden dock, interest of other contractors, and intent to form a new business. She stated they can get a State license to build docks up and down the river, but not in the County canals; they are not going to give up this technology; and she is not asking for taxpayer money. She noted her son has his doctorate in chemistry; he has experience in plastics; and she would like Commissioner Pritchard to talk to him. She stated the County should be proud to have a business coming in that will stay and not ask for tax exemption; and what the County wants is for her son to teach them, which is not fair.

Commissioner Pritchard stated he would like to take Ms. Polk up on her offer. Ms. Polk stated the reason her son could not be present today is that he is meeting with the military, which is going to build shelters. She stated she can go across the line to Volusia County, which would like for the factory to be there; but Brevard County is her home. She inquired if the Board is going to deny it in Brevard County when people are needing it, especially in North Brevard where a lot of people have been laid off. She reiterated they are not asking for tax breaks; they are just asking for her son to be allowed to take the test; if he cannot pass the test, he would not get the license anyway. She inquired how many counties require a license; and advised some counties do not require the license, and people just go to the State and take the test. Mr. Washburn advised the State does not issue a Marine Contractor’s test. Ms. Polk stated a contractor can come in and build; she has been told as long as someone is a contractor they can come to their business; but they do not want that. She reiterated her invitation for Commissioner Pritchard to visit the factory. Commissioner Pritchard stated he would like to do that and come back to report to the Board; that way everyone will be better informed; and inquired when is the meeting; with Chairperson Colon responding January 14, 2003. Commissioner Pritchard stated he will call Ms. Polk to arrange a time to visit the factory; and stated he has done enough of that type work that he will have a pretty good idea of how it is all going together.

Chairperson Colon stated this is not just about Mr. Polk; the Board is trying to do the right thing for the people who may come in the future; and the Board wants to be able to do it right.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to table consideration of licensing for plastic boat docks to January 14, 2003. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE AMENDING
SECTION 62-182 FOR APPOINTMENT OF SCHOOL DISTRICT REPRESENTATIVE
TO LOCAL PLANNING AGENCY

Assistant County Manager Peggy Busacca advised this permission to advertise an ordinance revising the Local Planning Agency membership to allow for a School District representative.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance amending Section 62-182 of the Land Development Regulations to allow for the appointment of a School District representative on the Local Planning Agency/Planning and Zoning Board. Motion carried and ordered unanimously.

LETTER OF UNDERSTANDING WITH CONGRESSMAN-ELECT TOM FEENEY,
RE: OFFICE SPACE AT GOVERNMENT COMPLEX NORTH

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize the County Manager to execute the Letter of Understanding with Congressman-elect Tom Feeney to utilize approximately 500 square feet of office space at the Brevard County Government Complex North. Motion carried and ordered unanimously.

RESOLUTION, RE: FINDINGS OF FACT FOR TIMOTHY AND KAREN NIELSEN’S
ADMINISTRATIVE APPEAL

Commissioner Higgs stated this is regarding the action on the administrative appeal; and it outlines what the Board did.

County Attorney Scott Knox stated this is the final order the Board directed him to prepare.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt Resolution setting forth findings of fact for the denial of Timothy and Karen Nielsen’s administrative appeal. Motion carried and ordered unanimously.

ACCEPTANCE OF DEEDS FROM SHERRY HAWK AND KIRK KNOEPFEL, ET UX,
RE: DRAINAGE RIGHT-OF-WAY

Kathy Knoepfel stated she is present to answer questions.

Susan Booth stated she is also present to respond to questions.

Road and Bridge Director Billy Osborne stated the County has been maintaining a ditch for 30 years; the County found out in 1991 that it is on private property; Mr. Knoepfel and Ms. Booth are the owners of the property; and they are willing to convey the property to the County in exchange for installation of a driveway culvert that is deteriorating. He advised the property owners would be responsible for maintenance of the culvert.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept Right-of-way Deeds from Sherry Hawk and Kirk M. Knoepfel, et ux, in exchange for the installation of a driveway culvert by the County in Section 31, Township 24 South, Range 36 East in District 2. Motion carried and ordered unanimously.

REQUEST BY JAMES AND DONNA HONIG, RE: WAIVER OF SECTION 62-2887,
LOT ACCESS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to waive the provisions of Section 62-2887 to allow a driveway permit to be issued outside the plat boundary onto Crooked Mile Road for Donna and James Honig, with all costs for the project to be borne by the developer. Motion carried and ordered unanimously.

APPROVAL TO ADVERTISE, RE: SAVANNAHS FOOD AND BEVERAGE CONCESSION

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to authorize advertisement for and acceptance of proposals from qualified vendors for the operation of food and beverage concession services at The Savannahs Golf Course; appoint Selection and Negotiating Committee consisting of Cathie Schanz, Greg Sanders, and a Golf Advisory Board member representing The Savannahs Golf Course; and authorize negotiations by the Committee. Motion carried and ordered unanimously.

DISCUSSION, RE: FORMATION OF BREVARD RECYCLING CITIZEN ADVISORY
COMMITTEE

Bette Danse stated she was given an email copy from Chairperson Colon from Mr. Knox; she put in a request for a Recycling Citizens Advisory Committee; and she is now confused regarding the emails she received and what she could do to help other people in the County who have expressed concern about the lack of better recycling. She inquired what is the difference between a citizen advisory board and a citizen advisory committee.

Commissioner Higgs stated there was some desire to talk about whether it would an advisory board or a separate committee that Ms. Danse would form; Ms. Danse said she wanted to have a committee of citizens; and she suggested that Ms. Danse bring that request to the Board to form some sort of advisory group to learn about what the County does about recycling and to make recommendations to the Board. She stated the form probably is not as important as the substance; and recommended Ms. Danse go straight to the substance.

Ms. Danse requested the Board approve a citizen advisory committee based on the fact that there is a lot of recycling that needs to be done that is not being done; the County is growing; she has been here a few years; and she sees more and more garbage being disposed of rather than being recycled. She stated people are not participating as well as they should; it is something that could be done in businesses, schools, and hospitals; and commented on educating people about recycling to achieve a better result. She stated this is a serious concern; more people are trying to do things that will help; and curbside recycling needs to be improved. She advised of the Volusia County program where there is recycling at the curb including mixed office paper, phone books, junk mail, magazines, corrugated cardboard, cereal boxes, snack boxes, soda cartons, and gift boxes; stated steel cans, aerosol cans, and #3 plastic bottles can also be recycled; and if other counties around Florida can do it, it would behoove the County to do some research to find ways to improve things, such as adding things when contracts are renegotiated and finding out what is the most cost effective and profit making means for recycling. She stated there are technological things that will help in recycling such as the shredder at the landfill, which is not being used much; and commented on the Miami-Dade MRF facility that puts all garbage in and automatically separates everything. She stated it costs money, but in the long run, it pays off; and the reduction of landfill waste will allow for the use of valuable recyclable waste. She commented on concerns about disposal of computers; stated Dian Hardison advises hazardous materials from computers can be recovered and often reused; and there are corporations already in place with those capabilities. She stated Libby Helseth, who has been a teacher in the Brevard County school system for 26 years, advises she has been thwarted at every turn in trying to improve recycling; it is not being done in the school system; people go into the schools to teach recycling; however, when the children go to the cafeteria to eat their lunch, they put the cans and bottles in the garbage.

Commissioner Carlson advised the schools tried a styrofoam recycling program, but it did not work as it was too costly.

Ms. Danse stated that is what the County needs to look into; Publix does a good job recycling styrofoam and other things; and the County may be able to get people together to get some connection there. She stated her concern when she spoke to Commissioner Higgs was that it is possible to improve; 30% is required by the State, but that is not very good; and the County can do more. She stated she submitted a list of over 30 people who have indicated a desire to serve on a committee as a member or alternate; and she has a contact list beyond that of people who have called or emailed to voice their frustration. She stated people come to Florida from other states to retire; they are used to recycling; and she hates throwing her steel cans into the garbage. She stated the community as a whole can improve by making recycling convenient for people; bins can be put in front of the libraries or schools; and awareness is very strong in other places, but she does not find that here. She stated people throw their recyclable items into the garbage; and advised of a new program at the Melbourne Wal-Mart where cans and bottles can be turned in for one cent per can or bottle. She stated it is helping with the recycling; in the long run it makes money; and she hopes the information she has for the Board will help it understand what the frustration is. She commented on the County’s website and compared it unfavorably to Volusia County. She stated public awareness is the number one thing; it is not easy, but can be done; and it means getting out there to the people and having a contact person following up. She stated that is the main goal; and inquired if there are questions.

Commissioner Pritchard stated he wondered where the volunteers from District 2 came from since he did not know any of them; he can see the benefit of having a recycling committee; but he is concerned with how far something can go. He stated the submittal says taxpayers could be fined for the use of more than one garbage bin per pickup; he has relatives in Toronto who have trash police who go through the garbage cans and fine people if they find a bottle; and he is not an advocate of that kind of system. Ms. Danse stated the idea was from Seattle where taxpayers are fined for use of more than one garbage bin per pickup; there was also a suggestion that a taxpayer could receive a discount for more than one filled recycling bin; and these are just proposals of what other people do. Commissioner Pritchard stated his concern is how much enforcement the County wants to have; it wants people to participate in the program that is for the betterment of the County; so he does not have a problem with it except for the enforcement angle. He stated the best way to get something done is to make it convenient, but not necessarily hammer them if they choose not to participate; there are people who do not participate; and until there are trash police all over, that is not going to be solved. He stated he is not advocating that type of enforcement; he does not like the idea of being fined for use of more than one can; he does not like the idea of having someone go through his trash can to see if there is a bottle or can there; and he would not want to see this advisory council start taking off in that direction. He stated strict enforcement is not needed to see that people participate; the need is for a different type of participation based on convenience; so if that is the motivation that is going into this project, he does not see why there could not be a citizen advisory committee; but he would suggest there not be 30 people on the committee. Ms. Danse stated some of them are alternates and some people are not available all the time. Commissioner Pritchard stated he would like to talk to the people that are listed as being potential candidates under his District rather than giving blanket approval; with Ms. Danse responding that would be fine. Ms. Danse stated her understanding was that each Commissioner was supposed to approve the people on the list or add people; and it may be that nobody on the list is what the Commissioners are looking for. She stated as far as the trash police, it is not that at all; it was her understanding the citizens advisory committee was simply a committee that makes recommendations based on whatever it might find or whatever information it gleans from everything it does; the Board acts or does not act on the recommendations; and the advisory board would have no legal power. Commissioner Pritchard stated he agrees the advisory board does not have legal power, but its influence might be such that it could sway; and his concern would be that if Ms. Danse has people who are interested in becoming trash police, then what they would present would be that the County needs to have forces to go into neighborhoods. He stated his concern is the makeup of the board; he would like to see a balanced board; but he does not want to ever see the County get into having someone going through his trash can to see what he has thrown out to make sure he is complying with whatever program the County has, as he has a belief in privacy. Ms. Danse stated she thinks everyone would agree; it would be the Board, not the CAC, that would decide to do something like that; and if the Board did not like that proposal about fining the way Seattle does it, then it would be stricken.

Commissioner Carlson stated she has been concerned since the inception of the Solid Waste Management Act; it is all voluntary; the only way to make things happen is to make them mandatory because otherwise people will just ignore them; and if they are not educated well enough, they will certainly ignore them. She stated the State has upped the ante to 50% trying to challenge everyone; but the State also dried up all the recycling dollars; she has been very supportive of the recycling program; every dollar they try to match; they go out and provide education; and the County has been educating since 1988. She stated if an advisory board is going to be put together, it can educate a lot of people the County has not had access to; bringing a board together is a good idea; but the big question is about the end user. She stated recycled products have not worked because the market is not there; it costs so much to recycle products that people cannot make a profit, which is a real problem; and she does not know the solution to make it work. She stated it would behoove the County to talk to its waste management contractor, which has dealt with this in other municipalities, other counties, and other states; they are the real experts; and Assistant County Manager Stephen Peffer is also very astute about these things. She stated those are some of the mountains the committee would need to get over when it deals with these things; she would welcome any research that an advisory board could provide to move things forward; and she is always looking for places to recycle magazines, cereal boxes, and those types of things. She stated it would be convenient to have curbside service, but that would cost a lot with the current contractor; so it is a huge challenge; and the Board welcomes putting an advisory group together to see what can be done. She stated she would like to see Volusia County’s numbers, costs, and things like that, because she assumes based on the recycling dollars available from the State, that Volusia County is footing the entire bill; but she has no clue what that would be. Ms. Danse advised on inconsistency in Brevard County with one company picking up north of the Pineda Causeway and another south of the Causeway; and stated there are people in Melbourne who do not even have glass picked up at the curbside the way they are supposed to. She stated she goes to Progressive herself to turn in things that are not picked up curbside, and they will take it; but many people do not want to do that; so convenience is the key. She recommended reaching out to the community and talking to people in commercial enterprises; and stated Libby Helseth advised 60% of the school system waste is paper, which should be easily recycled, but is all going in the garbage. Commissioner Carlson stated the School Board tried the styrofoam recycling, which proved to be too expensive; and suggested a partnership between the County and the schools. Ms. Danse advised a lot of the recycling is being trucked out to Georgia and the Carolinas because there is nothing here; there is a calendar on the web listing various events in the State; and suggested recycling coordinators may want to go to events involving new technology. Commissioner Carlson inquired if the County has a recycling coordinator; with Mr. Peffer responding yes, Pam Shoemaker. Ms. Danse advised she spoke with Ms. Shoemaker and Euri Rodriguez; they think the committee would be a good addition; and they have done a wonderful job with what they have, but could do more.

Commissioner Higgs stated if the Board wants to do this, the best way would be to get staff to develop a resolution to establish a citizens advisory committee, with the membership to be two or three per Commissioner and the task to be to develop recommendations for the Board and issue a final report to the Board. She stated the committee would sunset by July so there would be a beginning and end; and if the committee decided at the end to do more, it would be part of its recommendations. She stated it is worthwhile to give an opportunity for citizens who are interested, either through the list that has been generated or through the Commissioners; and recommended appointing a committee to work with staff and then come back to the Board with a report.

Motion by Commissioner Higgs, to direct staff to develop a resolution setting forth the mission and makeup of the proposed Brevard Recycling Citizens Advisory Committee, and bring it to the Board at the January 28, 2003 meeting.

Chairperson Colon stated it could be either a community action committee or a citizens advisory committee; the group is entitled to establish its own bylaws and procedures and appear before the Board in accordance with the Board’s rules and regulations governing public meetings; and Ms. Danse mentioned wanting a committee with teeth, with support from the Board. Ms. Danse stated they would appreciate that; some of the potential candidates have indicated a desire to get into the schools to ask if there could be recycling bins in the cafeteria; but they cannot just come off the street and speak to the School Board. Chairperson Colon stated the group could do that; anyone is able to do that as a citizen; it is important to realize that each Commissioner will be appointing someone he or she is comfortable with; and these are things she discussed with Ms. Danse before so she was not surprised by anything that came up. She stated they also discussed that the newspaper article said advisory board, but that was a misprint. Ms. Danse advised the newspaper did change it later to a CAC; it is not the first time Florida TODAY made a mistake; and advised of misinformation in the newspaper concerning drop-off sites and recycling publications.

Commissioner Carlson inquired if the article was based on Florida TODAY’s research on old documentation or is it something they pulled off the website; with Ms. Danse responding she has no idea.

Chairperson Colon stated it would be a committee that would be put together; it would have a sunset in July of next year; and Pam Shoemaker would be a liaison on behalf of the Board.

Commissioner Higgs stated the resolution would come back to the Board in January, if the Board passes the motion; then it would go forward; it would be a County-appointed board under the Sunshine Law; the members would not be able to talk with other members of the advisory committee outside the public forum; and there are both blessings and curses in being a citizen advisory board. Ms. Danse inquired if Commissioner Higgs means now; with Commissioner Higgs responding if the Board establishes an advisory board, the members are under the Sunshine Law, which is Florida State law and says people in an official position can only talk about the business of the group in the public forum where the public can hear what goes on. Ms. Danse inquired how is that done; with Commissioner Higgs responding the members could not talk outside the public forum. Ms. Danse inquired how would they do their research and investigate; with Chairperson Colon responding that is what she was trying to explain to Ms. Danse, but she does not think she understood how it is a double-edged sword. Ms. Danse stated that is for a board, and she thought a CAC was different. Chairperson Colon stated it is the same thing; she was trying to explain to Ms. Danse that once it goes under the Board, the members would probably be under the Sunshine Law, which would make it more difficult than a committee that the group put together on its own, which would not be bound by the Sunshine Law. Ms. Danse inquired if this is what Commissioner Higgs was thinking of originally as far as a citizen advisory committee. Commissioner Higgs advised Ms. Danse came asking the Board to do something; and this is what they have to do as it is the law. She stated they cannot form a group that is going to advise the Board that would meet outside the Sunshine Law; if the Board is willing, staff will bring back the resolution in January; and if the group decides there is a better way to do this, Ms. Danse can come back at that time. Ms. Danse stated she is trying to figure out how to meet; with Commissioner Higgs responding the group will meet as a committee; that is the only way it can meet; and it will be with public notice in a public building with access from the public, and minutes and tape recorders. Ms. Danse inquired if it will have to be at the Government Center; with Commissioner Higgs responding not necessarily.

Commissioner Carlson stated the meeting cannot be out of the sunshine, which means it must be at a public place with notice, etc.; different duties will be assigned to different committee members who will come back and report; the committee will get input from the public; and it will all be done in the sunshine. Ms. Danse inquired if they can talk to each other on the phone; with Commissioner Higgs responding no. Commissioner Pritchard suggested Ms. Danse may want to take her husband off the list; with Ms. Danse inquiring why. Commissioner Pritchard advised if Mr. and Mrs. Danse are in the same house, the opportunity could exist for discussion outside the sunshine; there is a lot to operating in the sunshine; and inquired if minutes would be provided by a staff person. Assistant County Manager Stephen Peffer responded yes, if this is a formal board; usually they do abbreviated minutes to show the actions taken; and one of the first things they do with any committee is advise of the regulations of the Sunshine Law to make sure they are fully informed and do not mistakenly violate any of the provisions. He stated he would be happy to speak with Ms. Danse after the meeting and advise of some of the ramifications of being a committee and some options if they decide to go another way. Commissioner Carlson stated there are alternatives to doing something like this all in the sunshine; and advised of the option of forming a political action committee. Commissioner Higgs stated it can just be a committee, and does not have to be a political action committee.

Ms. Danse stated she is not clear on the difference. Commissioner Colon stated Ms. Danse’s group should decide if it wants to form its own committee; there is a choice; and they should see what an advisory board under the County and the Sunshine Law involves. She stated she would be happy to support the motion of putting an advisory board together to provide feedback and sunset in June. Ms. Danse stated they need to be sanctioned in order to get leadership in the areas she just talked about; and it would need Board approval to be a separate entity.

Commissioner Pritchard seconded the motion. Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

Commissioner Pritchard stated he would like to have the members who have volunteered to be the District 2 representatives contact him to set up a time to meet.

PUBLIC INTEREST DETERMINATION, RE: POW/MIA PARK

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to determine the proposed facilities for the POW/MIA Park, formerly known as Pineda Landing Park, are in the best public interest.

Commissioner Higgs inquired about encroachment into the setbacks. Parks and Recreation Director Charles Nelson pointed out areas on a drawing of the park. Commissioner Higgs stated the drawing shows impervious walkways and buildings in the setback from the river; it is important for the Board to conform to the Ordinance; and she cannot support the motion today.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioners Scarborough and Higgs voted nay.

TASK ORDER 00-09 WITH S2LI, RE: LANDFILL GAS MANAGEMENT SYSTEM
EXPANSION FOR CENTRAL DISPOSAL FACILITY

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to execute Task Order 00-09 with S2Li to design an expansion of the landfill gas management system at the Central Disposal Facility in order to comply with the new Title V Permit. Motion carried and ordered unanimously.

LEASE AGREEMENT WITH EIC-MERRITT ISLAND, LIMITED PARTNERSHIP,
RE: TAX COLLECTOR’S OFFICE

Steven Franco advised he is present to respond to any questions of the Board.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution and execute Lease Agreement with EIC-Merritt Island, Limited Partnership for the Tax Collector’s Office in Merritt Island; and grant permission to bid, award bid, and execute a Contract with the lowest qualified responsive bidder for demolition and renovation of the leased space. Motion carried and ordered unanimously.

REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIEN,
RE: 145 PARNELL STREET

County Manager Tom Jenkins advised the attorney for this item and the next two items is in court today and not available; and suggested continuing the items.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table consideration of request for reduction of fine and release of Code Enforcement lien at 145 Parnell Street, Merritt Island to allow the representing attorney to be present. Motion carried and ordered unanimously.

REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIEN,
RE: 5309 YARBER AVENUE, COCOA

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table consideration of request for reduction of fine and release of Code Enforcement lien at 5309 Yarber Avenue, Cocoa to allow the representing attorney to be present. Motion carried and ordered unanimously.

REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIEN,
RE: 115 DARWIN AVENUE, MERRITT ISLAND

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table consideration of request for reduction of fine and release of Code Enforcement lien at 115 Darwin Avenue, Merritt Island to allow the representing attorney to be present. Motion carried and ordered unanimously.

ACCEPTANCE, RE: REVENUE MONITORING REPORT FOR YEAR ENDED
SEPTEMBER 30, 2002

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to accept the Revenue Monitoring Report for year ended September 30, 2002. Motion carried and ordered unanimously.

AUTHORIZATION TO APPLY AND ACCEPT GRANT FROM FLORIDA DEPARTMENT OF
COMMUNITY AFFAIRS, RE: PROCUREMENT OF PORTABLE RADIOS FOR SHERIFF’S
DEPARTMENT

Commissioner Higgs stated she understands the need to procure radios; but the Contingency Fund would be exhausted if the Board moved forward on this. She stated she asked Mr. Whitten if there was some way to fund this through a contribution from Contingency, contribution from the Sheriff, and perhaps some commercial paper since this is a capital acquisition; and inquired if any progress has been made. Assistant County Manager Stockton Whitten responded he can talk about the commercial paper; and Ms. Barker is prepared to talk about what the Sheriff can do.

Deborah Barker Finance Director for the Sheriff’s Department, stated there was some interest from one of the Commissioners with regard to partial funding from the Sheriff’s Office, possibly from the MSTU for matching funds; and inquired if the question is whether it is a legitimate expense to fund these types of radios from the MSTU. She stated at this point they are looking at a 50% match because it is very competitive; but they do not have high hopes they will be successful in getting approval on the grant. She stated Sgt. Butler is exceptional at grant writing; however, the Sheriff has applied for this grant on a couple of other occasions; it is very competitive and a very small pot of money; and they are hopeful, but do not feel as strongly as they have with other grants that they will get this grant funding. She stated while they have to apply now, the award date is not until July 2003; at this time she does not know if they would have available MSTU monies because they are so new into the fiscal year; she does not know if they will have a quarter of the match to apply to this; but the Sheriff’s Office is willing to work in partnership with the Board to see where they are later in this year in terms of available MSTU monies or other monies that could be used to match the grant. She stated any available MSTU money would have to come from salary and wages; they have filled all the deputy positions starting in January; and at this time she cannot commit it; but they can look at it a little later in the year and revisit the position.

Commissioner Higgs inquired if the Sheriff can apply, and not accept if he does not have the cash available; with Ms. Barker responding it is not looked upon favorably. Sgt. Butler advised there is less than a 5% chance of funding on this; they have $90 million last year in applications and had $3.3 million in terms of funding; and it is done on a point system, which is why the match is required, because the higher the match, the higher the points in that particular area. He stated it is a very technical grant and is very competitive; it is primarily used for emergency management; and it is an opportunity to try to get radios, although it is a shot in the dark.

Chairperson Colon inquired about the amount of the match; with Sgt. Butler responding the match is $245,000. Commissioner Higgs advised it is $247,000. Ms. Barker advised the total project is $495,000; a 50% match is the only thing that will even make this competitive; and they are looking at a total match of $247,500. Chairperson Colon stated she wants to help, but cannot, given the kind of budget the Board went through and how it has to watch its dollars; and she is not saying this is not a good cause, but she will not support it.

Commissioner Carlson stated since she has been on the Board, every year the Sheriff comes to the Board asking for various amounts for grant matching; it is never a lump sum; and inquired what is the total of the Sheriff’s budget. Ms. Barker stated inclusive of the General Fund and MSTU, it is $62 million. Commissioner Carlson inquired what percentage of that does the Sheriff set aside for reserve for grant matching dollars; with Ms. Barker responding there is no contingency set aside; and as each grant opportunity comes forward, they bring it forward to the Board and work in partnership to see if there are available dollars, drug dollars, or money that can be reallocated. Commissioner Carlson inquired if the Sheriff does not have a feel for what will come up in terms of grant availability from year to year; with Ms. Barker responding pretty much. Commissioner Carlson inquired about budgeting something like a contingency fund for matching dollars; with Ms. Barker responding she does not believe they can do that. Ms. Barker advised they used to do that a few years ago, but as dollars got tighter, it was decided it would be handled on a one-on-one basis. Commissioner Carlson stated there have been budget increases in the last two years; the Sheriff deals with a huge budget, but is not on the County’s system; he comes forward to advise how the funds are used, and the Board has no reason not to believe him; but expressed concern that knowing there are going to be grant dollars, he has not set up a contingency. She stated there is no reason the Sheriff cannot put $400,000 to $500,000 aside so he does not have to come back to the Board; that shows good planning and financial sense; and inquired if there is a way to set aside some dollars so the sheriff does not have to come back to the Board, but can apply for things that are a priority because he has funds set aside. She stated a lot of things are a priority; the Sheriff has come forward in the strategic planning process to indicate the priorities; she knows radios are at the top of the list; it is a capital investment; but the Sheriff should have a contingency fund so he does not have to come to the Board. She commented on the impact of the Legislature, commitments, and mandates; and stated it is going to be a squeak to get by without getting thrown a lot of curve balls this year in terms of what kind of dollars the Board is going to have to absorb in addition to what it normally absorbs. She stated the Board has supported the Sheriff in all the different things he has done through the years; but it needs to look seriously at how it is planning its dollars. Ms. Barker stated this is an opportunity to offset 50% of the cost of the radios, which is a serious need; it is an opportunity to save some money; and they would be glad to work with the Budget Office, but as dollars got leaner over the last few years, they stopped setting aside these types of dollars in escrow. She stated she will work with staff in the upcoming budget process; they will be glad to look again at their financial posture when the award date comes due to see it they can offer any money from the General Fund or MSTU; and she understands the Board’s position.

Commissioner Higgs suggested submitting the grant with funding from commercial paper over a six-year payback; stated $247,000 would be $41,000 a year for six years; and that would be coming out of the Sheriff’s budget for six years. Ms. Barker stated they would have to match the grant in accordance with the grant requirements and pay the match upfront next year. Commissioner Higgs stated the Sheriff could pay back the commercial paper over six years; he has gotten a huge number of years out of the existing radios; the radios are needed and are important to the safety of the people; and inquired if the Sheriff can commit to doing it out of his budget for the subsequent six years. Ms. Barker stated it is a funding option; she does not know what the obligation would be on the commercial paper for the grant match; and any time that comes through, it is something the Budget Office offers. Commissioner Higgs stated the Sheriff would be committing to the matching dollars and it would be funded over six years.

Ms. Barker stated she does not know what those figures would be as repayment with interest. Assistant County Manager Stockton Whitten advised if it is financed over six years, it would probably be $50,000 or so a year. Ms. Barker stated at this time she cannot commit $50,000; and inquired if Commissioner Higgs is talking about existing allocated dollars within the Sheriff’s current budget; with Commissioner Higgs advising it does not have to be paid until July, so it would not be the full amount. Commissioner Higgs advised it could be budgeted each year. Ms. Barker stated they can do that in the budget process; and she would be glad to work with the Budget Office to include that payment in next year’s budget. Commissioner Carlson stated that is an incentive to keep the contingency; and then it would not be necessary to go into commercial paper.

Chairperson Colon stated the Board has to budget and stay within that budget; the Board has demanded that from all Departments; and she is not in favor of increasing any taxes.

Commissioner Pritchard stated when he was Vice Chairman of the Citizens Budget Review Committee, one of the issues was the lack of replacement reserve; everything has a design life of five, ten, or fifteen years; but the Board was not budgeting annually to replace that unit when its life cycle ran out; and this is another capital issue. Ms. Barker stated it is not that it has not been budgeted; the radios have been in the budget process every year; but they have not been successful in getting funding because there are so many other needs. Commissioner Pritchard stated his point is the radios have been in the budget; they are looking for a matching grant of $247,000; it is a capital item; they could put a replacement reserve aside of $50,000 into an interest bearing account, so at the time when they have a need in 2007, they will be able to buy radios; and that is good budgeting. He stated the idea is to create replacement reserve account for everything that is going to be capital so they can be paid for with those dollars based on a little bit set aside every year. He stated the deadline for the application is December 20; and inquired if this just came out in the last week. Sgt. Butler responded that is an error; it is the deadline for the technical review for the grant; and the actual deadline is January 23, 2003. He stated he did not get an opportunity to speak or present the program or he would have pointed that out to the Board; there is a small window of opportunity, and the RFP’s have only been out a month and a half, so some of these are very tight windows; and they bring them to the Board as soon as they possibly can. Commissioner Pritchard stated he does not like the sense of urgency that comes with something like this; it says the deadline is December 20, so the Board needs to make a decision now; and if the deadline is in January, that should have been indicated so he would have an accurate reporting. He stated if the Sheriff had the information for six weeks, he would like to know when the grant process was initiated so he has a better understanding of when and how this came to fruition and what the time constraints are; and the sense of urgency can make the Board make the wrong decision because it has to hurry. Ms. Barker stated she does not understand the comments about the sense of urgency; she works closely with the Budget staff; when the issues come forward, a lot of times they do not have that long to work on them; and she usually talks to Mr. Rogero or Mr. Whitten to let them know what she is working on. She stated if Commissioner Pritchard is asking to be informed as soon as they become aware of something, they can do that. Commissioner Pritchard stated he was asking that the documentation on the agenda item include when they became aware of the grant and decided to go forward to write the grant.

Commissioner Higgs stated she is willing to support the Sheriff’s office submitting the proposal with the matching funds to come from their budget, but the upfront cost would come from commercial paper.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to authorize application for and acceptance of a grant from Florida Department of Community Affairs, Division of Emergency Management for procurement of 150 portable 800 MHz radios, with funding to come from the Sheriff’s budget and upfront costs to come from commercial paper.

Commissioner Pritchard inquired who is going to pay the cost of the paper; with Commissioner Higgs responding the Sheriff is going to assume all of the costs. Ms. Barker inquired if they will be worked in the budget process; with Commissioner Higgs responding yes.

Commissioner Scarborough stated what the Sheriff gets is what the Board gives him; so if the Board wants to say the Sheriff will not get one thing, but will get radios, that is fine; if the Board wants to give more money from the General Fund because there is more new construction, that is fine; but basically all the Board is saying it would like to see if it can get some other money to buy the radios so people can be safer. He stated they can sooner or later buy the radios totally from taxpayers’ money or take a shot at the grant; and suggested seeing if the County can get the money; and then figure out all the particulars as it works with the Sheriff.

Chairperson Colon stated the motion needs to be made clear so that everyone understands. County Manager Tom Jenkins inquired if it is new or existing dollars. Commissioner Higgs stated she would not look for new dollars; the Sheriff is going to shift some money around; and it will come from his budget. Commissioner Scarborough stated he is not going to commit to a budget decision today because under the law, the Board is not supposed to discuss budgets outside the budget cycle; those are strictly controlled under Florida Statutes as to when and how the Board discusses those matters; and it is highly inappropriate for the Board to commit itself today in any way. Ms. Barker stated she can appreciate the fact that they will work with the Board and staff during the budget process; but she cannot commit to the $50,000 annual repayment with existing dollars without additional funding to the Sheriff’s budget.

Chairperson Colon stated they are looking at that $50,000 coming from the Board; she is not willing to support that; and the motion was that it would come from the Sheriff’s budget.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioners Pritchard and Colon voted nay.

CONSIDERATION OF OPTIONS, RE: CONSTRUCTION AND MAINTENANCE OF
UNPAVED ROADS AND EASEMENTS ON OSPREY AVENUE, SPIRE LANE, AND
BRICKELL LANE IN CANAVERAL GROVES

Maria Watts requested a permit to build a single-family home in Canaveral Groves on Lots 5 and 27, on Spire Lane; stated she and her husband purchased land with the hope of building a home; at that time there were two homes on either end of Spire Lane; and after clearing trees and placing fill on the land, they were informed they could not use the land for residential purposes. She stated they contacted Gwen Heller and Bobby Cameron of Land Development, who informed them they had two options; the first option was to obtain right-of-way easements from neighboring property owners on Lots 1, 2, and 3 on Brickell and Spire Lane; but they refused to sign the easements. She stated after meeting with Mr. Cameron and Commissioner Scarborough in 1999, she and her husband were given the option of obtaining quitclaim deeds from all property owners on Brickell and Spire Lanes leading to their property; and over three years, they have obtained 12 of the 15 deeds. She stated Ms. Palmer who owns Lot 11 on Brickell Lane refused to sign because most of her land is under water, and by signing the quitclaim deed, she would not have much dry land left; the owner of Lot 14 on Brickell Lane is unreachable; and Mr. Jewell who owns Lot 3 on Spire Lane has never responded to their letters, but Mr. Washburn advises Mr. Jewell has no desire to do anything with the quitclaim deed. She stated she was led to believe by Commissioner Scarborough and Mr. Cameron in 1999, that if she got the majority of the easements she could come to the Board to get permission to build; over the past two weeks, she had discussions with Board members regarding the building of her home; and this week she was told that if all of the deeds are not signed and turned over, they may not build their home. She inquired if they can build a road with 12 easements, making the road narrow on the lots where the owners have not signed; and stated she and her husband do not have the resources to hire an attorney to take the three property owners to court to get them to sign their property over to the County. She requested the Board’s help to obtain the permits to build; stated when they started the process, their first son was three and is now close to six years old while her second son is eight months old; and they are still renting. She stated they chose Brevard County to be their home to raise their children; and requested help to build their home.

Centi Thomson stated she found a deed made out by the Canaveral Groves Development Company; most of the Commissioners have a copy of it; and based on this, they were told the right-of-way between the lots was dedicated for ingress/egress and road building purposes, although everyone would have been better served if they had been turned over to the County. She stated in 1976 no one thought that 30 years later someone might say no; but she is here now. She stated she does not want anyone building behind her; but this is what she has run into. She stated after they purchased property, she and her son came back to have it rezoned for agricultural purposes because they wanted a greenhouse and some horses; they talked to everyone on Osprey Avenue; and commented on what she was told by the people on the street. She stated they went to the County and explained the situation; most of the neighbors had nothing against them, but could not afford to build the street; and she explained to them that the gas money, which used to fund the pavement of streets in Canaveral Groves has become less and less and they were not interested in having paved roads, but simply wanted access to the lots to build a home. She stated they continued to do everything the County asked including getting the quitclaim deeds; but some people assure her they had nothing against her, but refused to turn over the deeds. She stated they were told if they want to build, they will have to build the street; they had the property surveyed and engineered at great cost; but they are not getting anywhere. She stated they do not want to sue those who are not turning over the deeds; they have turned deeds over to the County; and requested the Board’s help in making it possible for them to enjoy their property.

Daniel Jewell stated he has been on Osprey Avenue for 12 years; the County did not want to have anything to do with the roads to begin with; it took him over three years to get to build; and he lived 172 feet from a maintained road. He stated he will not sign over his easements to the County; he was told it is a contract with the County; and whenever improvements are done on the road, he would have to pay for them; and that is the reason he will not sign. He stated he brought the road up to County maintenance standards; he brought in loads of fill, marl, rock, etc. because the County did not want to do anything with the road; but now it does. He stated he has no problem with the Thomsons building; they have plenty of access; everybody has ingress/egress; and he has not stopped them or anyone else from going back.

Chairperson Colon requested Mr. Jewell elaborate on the access issue; and inquired if they have access now; with Mr. Jewell responding yes. Chairperson Colon stated it is not legal; with Mr. Jewell advising they can drive across the property with no problem; and they have ingress/egress. He stated he signed over his rights to the electric and water companies; they have the easements for water; he told the Thomson’s he would sign the easements in front of his property for the water company to come in, but would not sign it over to the County. He stated half the roads in Canaveral Groves are not even maintained well enough; they wash out during bad rains, but his does not; and commented on the condition of his road. Chairperson Colon stated Mr. Jewell said they have access, but legally they do not. Mr. Jewell inquired why cannot the County allow them to build if the road is maintained up to standards. County Attorney Scott Knox stated there is an access; a certain number of building permits were issued for private easements; and there is a private easement to get to their property; but there are already enough building permits issued that they cannot get another, which is the problem. Mr. Jewell inquired about road maintenance agreements; with Mr. Knox responding they do not fall within that category. Mr. Jewell advised the people across the street from his were building under road maintenance agreement prior to his getting his building permit; the County still made him fight to get his building permit even though he was closer to the maintained road; and inquired where does it stop. Mr. Knox advised the problem is it is a limited number of permits that can be issued for a private easement. Assistant County Manager Peggy Busacca stated the County does not approve no maintenance agreements any more; that regulation ended about eleven years ago; and it was replaced by the Unpaved Road Ordinance.

Commissioner Higgs stated if Mr. Jewell were to give the right-of way to the County, and the Thomsons built a dirt road to County standards, then when enough people built, which is 50%, they would come in under an MSBU to pave the road; with Mr. Washburn agreeing that is correct. Commissioner Higgs stated Mr. Jewell’s point is he does not ever want to pay for a paved road.

Commissioner Scarborough advised of concern on the part of the County as the issuer of building permits about not being able to get back into the area with fire trucks or emergency vehicles; many of the roads were not being maintained; and because of that, the County limited the number of dwellings on the easement concept. He stated if someone wants to go to the next level, the County has to have the ability to go in and work on the road; and therein lies some of the logic that occurred 11 years ago. He stated the speakers have gotten themselves into a situation where it is almost there, but for a few deeds; and that is why they have come to the Board. He stated after the speakers finish, the Board needs to address the options; when they met, they discussed options; and the Board needs to know the benefit of each option. He stated the Agenda lists the options; it could require applicants to obtain the necessary quitclaim deeds, which is not a change from the status quo. He stated yesterday they did find another address; with Ms. Watts advising she called information and there is no listing in Lakeland, Florida; so she wrote a letter. Ms. Watts stated the roads are already there; there is a gentleman who travels on the road daily; there is nothing about the emergency vehicles reaching him; and Mr. Jewell’s road is well maintained. She stated they are not interested in ever paving the road; and the property owners who turned over quitclaim deeds do not want to pave the road, but want to be able to build. Commissioner Scarborough stated there is a rule and the question is how to deal with it; they pulled the file of the gentleman who is being referred to as driving over the roads and discovered he was granted vested rights on September 20, 1994; so he has an exception. He stated the second option is that the Board could accept the cost of construction from the applicants along Osprey Avenue and Spire and Brickell Lanes, and the County could assist in the construction and maintenance of those roads; the Board discussed it in more detail than the rest; and it would essentially not only be a cost of the construction but Assistant County Attorney Eden Bentley cautioned the County would be doing things on people’s private property that could lead to inverse condemnation and damages. He stated some residents seemed interested, but the cost is not known; Ms. Bentley advised it would probably be approximately three times the cost of the property to bond the County against the potential liability of legal action; therefore when they do the road, the County would not only have the cost of the road, but also the potential liability. He stated option three would be in violation of the policy, and would require readdressing of the Unpaved Road Ordinance. Mr. Washburn stated Mr. Jewell and the Maas family got their building permits with access over an easement so there were two building permits over the same easement; and that is why the Board on option three would have to grant an additional permit to Ms. Thomson for access over that non-exclusive easement. Commissioner Scarborough inquired if it does not violate the Ordinance; with Mr. Washburn responding it does not violate the Ordinance and it has been done in the past, although not this area. Commissioner Scarborough inquired if it is codified in the Ordinance or is it a matter of policy; with Mr. Washburn responding it is in the Ordinance. Commissioner Scarborough stated then it violates the Ordinance; with Mr. Washburn responding no, the Board can grant more than two building permits over the same easement. Commissioner Scarborough inquired if that ability is in the Ordinance; with Mr. Washburn responding that will solve the entrance problem, but there may be another problem when someone else on the same roadway wants a building permit; however, it will give the Board the necessary time to address the problem in the future, if it wishes.

Commissioner Higgs stated if the Board were to allow additional easements in this case, it would have to be ready to allow it everywhere; and inquired if there is a way that people can get access to landlocked property by going through a statutory way of necessity; and would that not be the proper legal mechanism for these people to use. Mr. Knox advised they are not landlocked, and have access to their properties. Commissioner Carlson noted they just cannot use them for building. Commissioner Scarborough stated Ms. Bentley felt they could be expanded in this manner because while they have access, they do not have full usage under the County Code and could utilize the statutory way of necessity; with Mr. Knox advising he will talk to Ms. Bentley about that, but the only way those things work is if someone is landlocked and does not have access; but clearly the speakers have easements that go by their property, and it is dedicated to everyone who owns the property. Commissioner Higgs stated it does not allow them to use their property; with Mr. Knox clarifying the access provides access to property; they can drive to their property, get out, and have a picnic; however, they cannot build a house. Commissioner Carlson stated the only reason they can drive to it is because the other landowner has put in a road to it; with Mr. Knox advising it is still a legal access. Commissioner Higgs inquired if Mr. Knox is making a distinction between access and use; with Mr. Knox responding yes, and the Ordinance is what stops the use. Commissioner Scarborough recommended Mr. Knox look at the Statute of Necessity before the Board talks about it.

Commissioner Pritchard stated he took a tour of the property with Mr. Osborne; and commended the landowners for the pioneering experience. He stated it is quite a way out; and after Mr. Jewell’s road, it is wagon ruts the rest of the way. He stated the Board is trying to find a way for the property owners to do something with their properties; and commented on the opportunity cost of doing something with the properties, which will increase the tax base to offset the maintenance of the road. He stated he understands the Thomsons and Watts would be willing to pay for the construction of the road, which he assumes would have a shell base; and inquired if option two would violate Mr. Jewell’s property. Commissioner Scarborough stated Ms. Bentley advised the County would be subject to liability; the Statute of limitation would be four years; and the County would need to get bonding or some other type of security from those persons who would benefit so the taxpayers would not be subject to liability in case an action was taken. Commissioner Pritchard inquired what can be done for Mr. Jewell to make him agreeable; with Commissioner Higgs advising he is not the only one, there are four. Ms. Thomson stated on Osprey Avenue, there are only Mr. Jewell and the Maas family; and Ms. Watts has to go around Brickell Lane to Spire Lane.

Commissioner Higgs stated if someone built an $85,000 house, taking off homestead exemption, there would be $60,000 taxable; and inquired what is the Road MSTU out there; with Commissioner Scarborough responding he has no idea. Budget Director Dennis Rogero advised he does not know. Commissioner Higgs stated it may be helpful for Commissioner Pritchard to see the memo on dirt roads and how much it costs per year to maintain those as well as how much is generated through the District 1 MSTU, because the cost benefit ratio is different than what was just talked out.

Richard Thomson stated they are not trying to get the County to spend money to build this road; they have done everything the County requested and have been going through the necessary procedures; they met with various representatives of Land Development; and they hired an engineer who did all the engineering for the road design and addressed emergency vehicles. He stated option one does not solve anything; and option two involves working on other people’s property and liabilities. He stated Mr. Jewell’s road is probably the best unpaved road in Canaveral Groves; and it stops at the very end of Mr. Jewell’s property where his property begins. He stated they have looked into the cost of building the road; he is in the construction business; for an outside contractor to come in and do Osprey would be a potential cost of $27,000 to $30,000; but since he is in the construction business, he is prepared to undertake this. He stated he is not asking the County to expend funds; he would be happy with option three; he does not impact other property owners; he will not take their land; and requested the Board look at option three, and then look at addressing a long-term solution.

Commissioner Pritchard stated option three is to grant two applicants building permits over the unexclusive easement and work on a long-term policy to address future requests; and inquired if that puts the County at risk with the liability issue.

Commissioner Scarborough stated the risk is as things are extended out, it does not stop there; pretty soon there is a fragmented road, maintained by various parts; and if one party leaves the country or becomes ill, there is no longer anyone maintaining the sections, so there is no uniform maintenance of the road. He stated there is the potential liability of having to get an emergency vehicle out there; and therein lies the problem. He stated number two is where there was interference with someone’s property rights; it is as if he went to Commissioner Pritchard’s house and put a grill in the back yard; and Mr. Knox needs to address the issue of waiver as well. He stated the waiver exists in the Ordinance; and the Board can go that route; but it needs to ask if this is the last application on this road or in the County, and where will the Board be if it begins walking down this road.

Mr. Knox stated there is a provision in the Ordinance that provides for waivers and appeals to the specific section that is stopping the people from being able to build because of the easement limitations; there is a limit of two building permits allowed to be issued for any particular easement; and the waiver provision allows going beyond that. He stated the question is whether or not the Board wants to do that as a policy matter.

Commissioner Higgs stated if the Board initiates and uses the waiver, it might as well be ready for hundreds of waivers; and then the County is back to having no acceptable roads. She stated they know what it costs just to maintain Satellite Boulevard and what is being generated; and the Board has seen those numbers. Commissioner Scarborough suggested getting a report on that. Commissioner Higgs reiterated the Board knows what it is costing to maintain Satellite Boulevard and knows what is being generated; and to allow the waivers will open up the entire area out there on waivers.

Mr. Knox stated there are five specific criteria that have to be met; one of them is unique hardship to the particular piece of property that differs from everybody else; so that is one thing the Board will be looking at, and it will be a Board policy call.

Commissioner Carlson inquired how is hardship described. Mr. Knox responded it says the conditions upon which a request for waiver are based are peculiar to the property for which the waiver is sought, and are not general applicable to other properties and do not result from the actions of the applicant.

Commissioner Scarborough stated the County Manager or his designee have the authority to grant the waiver, and it is not the Board. Mr. Knox noted that is subject to appeal to the Board. Commissioner Scarborough stated if the Board wants to follow the Ordinance, it should go in a systematic manner before staff, then come to the Board if it is turned down; and staff is probably wondering if that is something the Board is going to encourage the applicant to do.

Chairperson Colon stated if the Board is going that way, she does not want to lead them to go through proper procedures and then do nothing.

Mr. Jewell stated he is wondering who pays for all of this; the Board is talking about upgrading roads; but they are dirt roads that look like wagon trails; and the speakers said they are going to pay for theirs, and it is going to occur on their property.

Chairperson Colon stated the only reason why Mr. Jewell would not deed to the County was because he was afraid he was going to have to build the road; and inquired if that is correct. Mr. Jewell responded yes; and the final bid was $38,000 just for three lots on Osprey. Chairperson Colon stated that is the dilemma; with Mr. Jewell advising that is a lot of money.

Commissioner Carlson stated she does not know if this is in the Code, but the Board could partner with these people who are willing to pay their part. Mr. Jewell noted he already built his road; and it is one of the best ones out there. Commissioner Carlson stated the others could pay to build the rest of the road so they can get access to their property. Mr. Jewell stated Mr. Thomson just said he is going to do the same as he did, which is as little as possible up to the standards of the County; he takes care of his ditches; he has sodded the edge of the road; he brought in stabilization rock; and inquired who is going to pay for Brickell and Spire Lanes where the roads look like wagon trails. He stated if the Board is going to bring these up, it can design them and make the road a County road; and inquired who is going to pay all that cost.

Chairperson Colon inquired if it could be given to the County and there be a contract to not do anything to the road, with the maintenance to be done by the people here; and is it feasible for the people to build, but yet the maintenance would be by the people. Mr. Knox stated that can be done legally; the question is whether the Board wants to set that kind of precedent as it would probably entail getting title to the property into the County and then turning around and doing some kind of agreement with the property owner abutting the road to take care of it.

Chairperson Colon stated the concern would be to make sure the Board does not set a precedent; the two neighbors are willing to work together; and all it takes is for the County to put it in the contract. She inquired if that is something Commissioner Scarborough would be willing to consider. She commented on allowing people to build, but not having County responsibility for building the road. Commissioner Scarborough stated it is part of society that no one is compelled to agree with anyone at any given time; people may agree at one moment, but not be compelled to agree in the future; there can be extreme differences in the way people look at how things should be maintained; and anytime the Board goes to a community type involvement, it is subjecting itself to a continual agreement as to the level of care, who should pay for it, and when it should be done. He stated it can work, but many times under the most legally perfect documents, the parties end up suing each other and it gets to be very difficult. He stated it is just the nature of the beast; all individuals have the right to do what they please with access to the courts to defend their rights; and it may be agreed today; but if the property is sold, sooner or later there will be problems, and they will come to the County for help. He stated then the County is lost because it never got into the front end, and it will be almost impossible to rectify the situation.

Chairperson Colon inquired if the Board feels it cannot help these people, what happens then, and is the Board responsible for compensation to the people for their land because now they cannot build. Mr. Knox advised the cases are generally if someone buys land that does not have access to it in terms of a built road; as regulations come along, that is a police power regulation rather than a taking; at some time or other the road may be there; and just because someone bought property out in the middle of nowhere does not mean the County is taking it by saying that the property cannot be used for a house until a road is built. Chairperson Colon stated it has been going on over a decade. Commissioner Scarborough stated he can show hundreds or thousands in Brevard County that are similarly situated; they cannot currently get a building permit; most of West Canaveral Groves is that type of environment; and the Board can look at this as an exception, but they can go through the hardship process and the Board can look at it as an individual case. He cautioned it could end up being much worse, rather than better. Chairperson Colon inquired if Commissioner Scarborough is saying he is willing for them to go through the process; with Commissioner Scarborough responding they have a legal right to apply. Chairperson Colon stated to be fair, she wants to know if the Board is willing to consider that once it comes before it; she personally would be willing to consider something of that kind; but she would hate to give those expectations if the majority of the Board knows it would not consider it. Commissioner Scarborough stated it still has to go to the County Manager first; the Board has to follow Code; and commented on vested rights. He stated getting the deeds would be the easiest and best option, but they have been unable to get the deeds; and suggested option 3, and looking at the hardship. He stated if staff considers it and finds that it is not appropriate, they have the right of appeal; earlier today the Board disagreed with staff; the Commissioners disagree with each other; and he would not be surprised to find that staff disagrees among themselves sometimes.

Mr. Jenkins stated the only waivers that have been approved up to this point have been when there has been an existing structure and that structure was being improved to bring it up to Code. Ms. Busacca advised that is correct, except for Grant Farm Island because of the physical limitation for roads. Mr. Jenkins stated in the case of West Canaveral Groves, the only ones waived are those making efforts to bring existing structures up to Code; and to do anything else other than that would have been a violation of the Board’s intent. Ms. Busacca stated that is the policy that has been established.

Chairperson Colon stated she does not think there would be any other evidence presented when these people come forward next time after going through the whole process; the Board needs to be fair to these people; there is a neighbor who is willing to work with them who has already built a road; and she is happy to go down that road only if she knows there is a commitment from the Board. She stated if the Board is not ready to make that commitment, she cannot figure out what would be different at that meeting that has not been presented now; and inquired is the rest of the Board ready to send it on.

Commissioner Higgs inquired if Citrus Boulevard, which is the closest County-maintained road, is paved and if it runs into Canaveral Groves Boulevard; with Mr. Thomson responding it goes to Lee and Lee goes to Canaveral Groves Boulevard; Citrus Boulevard is a major paved road; and it is approximately 200 feet away from his property. Commissioner Higgs stated in District 1 a house on the tax rolls for $85,000 would pay $44.35 to the MSTU; so just to pave a road would take a lot of houses to generate sufficient funds.

Commissioner Scarborough stated he does not think they are asking for the roads to be paved; they looked for places where people have purchased on dirt roads, and as development occurred the nature of the road changed moving from a homeowner’s road to a collector type arterial; the residents were living on a road in transition; and that has been the discussion as to which roads should be moved into the paved status. He stated there have been people who did not want their road paved because more people would drive down it once it was paved; there are people who really do not want paved roads because of horses, farm equipment, etc; and everybody assumes the idea is to have the County pave the road, but that is not so.

Commissioner Higgs stated they ran into that problem in Valkaria; but they found that there were people down the road who were impacted by the fact that there was not a paved road and they could not use their property rights; so it is not an easy solution. She stated even if it gets paved, if it is a County road, it will have to be repaved; so that needs to be considered in how this is all going to come out.

Chairperson Colon stated the Board is not talking about paving roads. Commissioner Higgs stated eventually it will though.

Mr. Thomson advised both roads are dead-ends.

Commissioner Carlson stated the residents are not interested in paving them ever. Commissioner Higgs stated that is counter to every policy the County has everywhere else; and the Board should start talking about that as well.

Commissioner Pritchard stated he was not just talking about MSTU, but total tax base; a house such as was described would probably generate a tax in excess of $2,000, which would be distributed; and the houses he saw in that area have more than an $85,000 assessed value.

Commissioner Higgs stated the $85,000 house would be taxed $480 a year. Commissioner Pritchard stated it is not just to pay for the road; it is to expand the tax, with some going to schools and some going to the County.

Commissioner Scarborough stated there are two viable options, options one and three; option one has not worked out to be successful, although they can continue to work on that; and suggested they may want to look at the concept of right to get the building permits as an exception to the policy showing hardship; and if staff turns it down, it will come to the Board with a staff recommendation. He stated it is not appropriate for the Board to start bumping around the Ordinance; there would be so many things on the agenda that it would be necessary to have special meetings; and recommended the Board not underestimate the potential for this to open up Pandora’s box.

Chairperson Colon stated she is fully aware of the Canaveral Groves issues; she has been out there; she respects the people who choose to live like that; and when there are citizens saying they do not want to pave the road because they are taking care of the road, it seems awkward not to be able to do that. She requested if the Board is leaning to option three, that a motion be made. Commissioner Scarborough advised that is the right of the people; and the Board does not have to make a motion to give a right that already exists.

Commissioner Higgs stated the Board is not saying anything that gives the people a vested right down the road; it is saying that is already in the Code; they have a right to apply; and nobody is saying to do it or that the Board will give it to them. She stated she does not want any confusion or anyone coming back later saying the Board said to do it.

Chairperson Colon stated in other words, the Board did not take action today. Commissioner Carlson stated there is a provision in the Code that says they can apply for the waiver with the County Manager’s office.

Mr. Jewell requested an explanation of the waiver. Mr. Knox advised it is a provision of the Code that says under five specific conditions, there can be a waiver to the provision that provides the limitation of two building permits on a private easement. Mr. Thomson requested Mr. Knox advise of the conditions. Mr. Knox stated one is, the particular physical condition, shape, or topography of the specific property involved causes an undue hardship to the applicant if the strict letter of the Code is carried out; the second one is the granting of the waiver will not be injurious to other adjacent property; the third is the conditions upon which the request for waiver are based are peculiar to the property for which the waiver is sought, not generally applicable to other property, and did not result from the actions of the applicant; the fourth is the waiver is consistent with the intent and purposes of the County Zoning Regulations, the County Land Use Plan, and the requirements of this Section; and fifth is the County Development, Engineering, and affected agencies concur that undue hardship was placed on the applicant. Chairperson Colon requested this be provided in writing for Mr. Jewell and Mr. Thomson.

APPROVAL FOR FUNDING, RE: HANGAR FACILITY AT MERRITT ISLAND AIRPORT

Deborah Barker, Finance Director for Sheriff, stated Lt. John Cappola, Manager of the Sheriff’s Aviation Unit, is present this evening; the Aviation Unit is located at the Merritt Island Airport through a rental agreement with the Tico Airport; they have been in a multi-year lease with Tico for the rental of the aviation hangar facility; they have been negotiating; the lease has expired; and they have been on a month-to-month lease. She stated they came to the Board approximately two years ago when the lease was up; the price of the monthly rental went from $16,000 to $28,000 a year for the aviation facility rental; currently they have $28,000 a year approved in the Sheriff’s budget, which is allocated for the annual lease payment for the rental of the Merritt Island unit through Tico; and they have been negotiating with Tico for the last couple of years. She stated the hangar facility is in very poor shape; Lt. Cappola has pictures for the Board; and there are safety issues for the aircraft and personnel there as well as flooding and soffit issues. She stated Tico did obtain a grant through FDOT; it is looking at an opportunity to build a new hangar facility for $450,000; the grant requires a 50% match, which is $225,000; and they are looking at a partnership this evening, offering some of the existing dollars within the Sheriff’s office budget to pay part of the lease payment. She stated the Budget office has offered the commercial paper funding option to pay the full amount of the grant match, and then look at paying the annual lease payments back through the Sheriff’s office budget. She stated they could absorb part of that; the remainder is what they are here to talk about; and Lt. Cappola can respond to specific questions about the facility and she will respond to questions about the financial issues.

Chairperson Colon inquired if the property in question is Tico property; with Ms. Barker responding it is the Merritt Island Airport. Lt. Cappola advised the Tico Airport Authority is the overseer of that airport. Ms. Barker inquired if it is County property; with Lt. Cappola responding no, it is on the airport. Ms. Barker stated they need to be housed somewhere; they have explored other options; currently they are in a month-by-month lease; and one of the options that has been offered was a lease with a 23% increase. She stated they have been working for two years with the Airport Authority; and this seems to be the most prudent financial decision. She stated they understand it is matching the Airport Authority’s grant; but something has to be done to provide an adequate hangar facility; and this has been an issue that has been in the budget for the last several years, so it is not a new issue. She stated they are either going to be looking at higher lease payments or they can try to match the grant; and that is the least expensive financial decision.

County Manager Tom Jenkins inquired if it would be possible for the Sheriff’s office to charge Tico for security; with Lt. Cappola responding they have been back and forth with Tico over that; Tico has reduced the cost of the rental of the property and given the $225,000 grant to them instead of putting it out for a return from a private vendor; and that is the best he can do with them. He stated they are willing to do that; in the agreement with Tico, the Sheriff is willing to do as much security as he can on the field; and they are also willing to monitor cameras on other fields from one central location. He stated they have done everything they could; it is up to Tico if they want to go lower; but Tico has already bent over backwards trying to give as much as it can; and if they were to rent another facility at another airport, they would have to pay $4,000 to $5,000 a month just in rent. He stated one option they explored was to get a third-party vendor to come in to match the $225,000; after five years they were going to be seeing rentals per year of $40,000 to $50,000; and it just got worse from there; so this is the cheapest way. He noted he is not a budget person, but has been doing this for two and one-half years with two different airport directors; the facility is falling down; there are 42 years of wear on it; there are a few million dollars worth of assets in the hangar; and he has a slim budget to run the Aviation unit. He presented pictures; and invited anyone who wishes to come to look at the facility.

Chairperson Colon inquired if from now on Tico is not going to charge for the leasing; with Lt. Cappola responding Tico will charge for ground rent; they are going to replace the ramps and improve the field for another $450,000 because the building floods, which they would probably have to do anyway; they have approximately $650,000 in the project; and they will still be paying ground rent of approximately $1,000 a month. Chairperson Colon stated they would have to fix it regardless and they would not be coming to someone else; there are other customers at the airport; but the Sheriff’s Department is looking to the County to be able to match those dollars. She stated she is trying to put things into perspective, but they are not adding up. Lt. Cappola stated if the airport got another customer in there, they could get $5,000 a month to improve the facility; and they are trying to take it for half that by doing it themselves. He stated it comes out a lot cheaper for the taxpayer this way instead of having them build the building and lease it to the Sheriff; they will do it with a third-party vendor; and recommended looking at the numbers.

Commissioner Pritchard stated if they brought in a third party, the Sheriff’s rent would go up substantially; and the Sheriff’s rent is the County’s rent. He stated the Board has the choice of paying now or paying more later; and inquired if Tico Airport Authority would own the building. Lt. Cappola stated the way it traditionally works with hangars is the Sheriff would own the building for 25 years; and at the end of the 25 years, it would go back to Tico Airport Authority. He commented on the condition of the buildings after 25 years, having the building as a County facility for 25 years, and comparing rent to doing it with the grant. Commissioner Pritchard inquired if the Board could sublease the facility if it decided to distribute helicopters in other parts of the County; with Lt. Cappola responding they could ask for it to be put in the lease. Lt. Cappola advised currently there are leases that allow subleasing with approval by the Tico Airport Authority; so if the helicopters were moved to other areas of the County, they could sublease the facility. Commissioner Pritchard commented on distributing the helicopters as the County matures; and stated his concerns were: (a) distribution of the County’s assets; (b) if the Board is going to spend money and construct a facility; and (c) the need for renovation or replacement of the existing facility. He stated he is sure it would be cheaper to knock down the current building and build something new, especially since there is an opportunity to get involved; and inquired if the $225,000 in commercial paper is something that would be paid back by the Sheriff’s budget or the Board’s budget. Ms. Barker advised the Budget office has looked at commercial paper as a funding option; what they have offered is ten years with payments of $30,000 a year; so there is an overall liability of $130,000 over ten years. She stated the Sheriff has offered up a portion of that out of his existing budget; they are looking at offering $16,000 a year, which is a total of $160,000 out of the $300,000 liability; so the Board would be looking at the difference of $14,000 a year or $140,000 over a ten-year period. She stated they would be sharing the cost; some would come from the Sheriff’s existing budget; but it would require additional dollars on behalf of the County.

Chairperson Colon inquired if Ms. Barker found that money; with Ms. Barker responding $28,000 is already in the budget for the annual lease payment now; and they have an option of either trying to do this type of partnership or the rent will go up.

Lt. Cappola again offered to submit pictures. Commissioner Pritchard stated he has seen the facility and it needs improvement.

Commissioner Carlson inquired if Tico can hold the commercial paper so it would be responsible for the $14,000; with Budget Director Dennis Rogero responding he does not believe so. Assistant County Manager Stockton Whitten stated the County would actually have to acquire the commercial paper loan. Commissioner Carlson inquired if Tico could be responsible for paying the $14,000 each year through its budget; with Mr. Whitten responding the County can take payment from anybody.

Commissioner Higgs stated the Agenda item says the Sheriff will continue to pay land rent and insurance of $12,000; and inquired if that is correct; with Lt. Cappola responding out of the $28,000, the Airport Authority wants $12,000 in land rent, leaving $16,000 toward the loan. Commissioner Higgs inquired if that can escalate depending on property value; with Lt. Cappola responding affirmatively. Ms. Barker advised there is not a signed contract in place; it is still in negotiations; the Airport Authority is looking for some consumer price index; but she would not be interested in putting anything in except $12,000 flat. Commissioner Higgs stated they have to rent it at fair market value; and inquired if the Authority would sell the land to the Sheriff; with Ms. Barker responding she does not know. Lt. Cappola stated they have been through the fair market value issue; there has been some talk about the Sheriff’s value being on the airport in addition to what the airport gets as far as law enforcement; the Airport Authority does not pay taxes; so they are looking at fair market value as being in exchange for services on the field as well as through the County. Commissioner Higgs inquired if they are saying the Sheriff is giving $16,000 worth; with Lt. Cappola responding they are not putting a number on it, just that they are able to charge the Sheriff less rent; and it overcomes the FAA fair market value restriction by saying the Sheriff’s office’s services are worth something. Commissioner Higgs stated they still have to value each year that they are getting fair market value, and then deduct the value of the Sheriff’s services. Lt. Cappola advised that is what they are doing, but they are not doing it with the Sheriff in numbers, just that they are justifying it to the FAA. Discussion ensued on justifying to the FAA, charge to the Sheriff’s Department, grant match amount, and ability of Tico to pay the $14,000 a year.

Commissioner Pritchard stated the cost and adjustment in inflation for cost of the land rental would be offset by the cost of the Sheriff providing service, which would also increase. He stated in the next budget cycle, he would like some discussion about the acceptance of the Sheriff’s office of some of these outlays and the way to pay them back, so it does not become just a County issue, but part of the Sheriff’s budget. He stated in other words the $225,000 in commercial paper for grant match would become part of the Sheriff’s budget at some point. Ms. Barker stated all items are open for negotiation in the budget process; and they all work together during that process.

Lt. Cappola advised he needs a hangar; the present one is 42 years old; and last week a note was posted saying everyone should wear their helmets to move the door as chunks of metal are coming down.

Commissioner Carlson inquired about the process being discussed versus having it privately done and whether it would save quite a bit; with Ms. Barker responding that is how she understands it. Commissioner Carlson stated if that were the case, the Sheriff would still be saving something and might be able to negotiate an agreement with Tico so that he is not charged $1,100 a month, which would be the increase of $14,000 over each month. Ms. Barker noted Commissioner Carlson is talking about ground rent. Lt. Cappola stated he has been talking to Tico for two and one-half years; he got them to the lowest they were willing to go; and that is the best he can do as they were not willing to go lower than the $1,000. Commissioner Carlson inquired how much does the Sheriff pay per month; with Ms. Barker responding there is $28,000 in the budget and they pay a little over $2,000 per month.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve $225,000 in commercial paper for grant match funding for the construction of a new hangar/office facility for the Sheriff’s Aviation Unit at the Merritt Island Airport. Motion carried and ordered; Commissioner Colon voted nay.

Chairperson Colon wished everyone a happy holiday.

WARRANT LISTS

Upon motion and vote, the meeting was adjourned at 7:02 p.m.

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JACKIE COLON, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK

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