November 30, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on November 30, 2004 at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Ron Pritchard, Commissioners Truman Scarborough, Helen Voltz, Susan Carlson, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Roger Hackenberg, Hope Community Fellowship, Titusville, Florida.

Commissioner Helen Voltz led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve the August 10, and September 28, 2004 Regular Meeting Minutes. Motion carried and ordered unanimously.

REPORT, RE: WITHDRAWN ITEM

County Manager Tom Jenkins requested Item III.A.5. be withdrawn from the agenda as the contractor did not submit the necessary documents.

The Board withdrew Item III.A.5., Contract with The Millenium Group, Re: Walkabout Way and Pod 9 from the agenda.

REPORT, RE: TABLED ITEM

County Manager Tom Jenkins requested Item V.C. be tabled to the December 7, 2004 meeting as staff does not have the Board meeting schedule yet.

The Board tabled Item V.C., Approval, Re: 2005 Board of County Commissioners Meeting Schedule, to the December 7, 2004 meeting.

REPORT, RE: SNUG HARBOR WATER FEES

Commissioner Voltz stated she received a letter yesterday from Snug Harbor regarding the fee for water; the fee is $1,675; and some people are upset that they have to pay it all at once. She stated they do not mind paying it and know they need to; but perhaps the County can work out something regarding a schedule of payments. She noted the residents indicated they could pay the fees by March 1, 2005, but she would recommend the time be longer; and there are about 20 people who may not be able to afford the fee in one lump sum.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to allow Snug Harbor residents to use a payment schedule for the $1,675 fee rather than paying the total fee at one time. Motion carried and ordered unanimously.

REPORT, RE: LEASES AT VALKARIA AIRPORT

Commissioner Voltz stated the Valkaria Airport lease says, “Should the lease premises be destroyed or damaged by fire, act of God, public enemy, acts of vandalism or casualty as to be untenable, this lease will be terminated from the date of such occurrence”; there were a couple of T-hangars that were destroyed; and she hopes the tenants do not want to leave and do not want the County to make them leave because of what the language says.

Assistant County Manager Peggy Busacca stated the tenants are still occupying the T-hangars; next week the VAAB will be meeting; Mr. Shimkus will be asking it to recommend a reduction of the lease fee because they are still habitable; and the County has no intention of asking the tenants to leave.

REPORT, RE: LETTER OF SUPPORT FOR RECOVERY FUNDING

Virginia Barker, Natural Resources Management Office, stated this evening the Governor will be presenting to the Speaker of the House and the President of the Senate a 2004 draft recovery plan for the State of Florida; and the plan should include approximately $10 million for recovery efforts in Brevard County, several million dollars for the Mid Reach and South Reach for construction of interim dunes that would connect and enhance the FEMA emergency berms that the federal government should be funding the majority of. She stated it will also include the State cost share for restoration of the North and South Reaches that are part of the federal project; and Commissioner Colon felt it would be in the best interest of the County if the Board sent a letter to the Delegation, Speaker of the House, and Majority Senate Leader supporting the proposed plan. She noted it should be taken up in the Legislature at its next session beginning December 13, 2004.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to authorize the Chairman to send a letter of support of the recovery plan to the Legislative Delegation, House Speaker, and Senate President. Motion carried and ordered unanimously.

REPORT, RE: HOLIDAY ACTIVITIES

Commissioner Colon reminded everyone that this weekend there will be a lot of Christmas parades; Palm Bay will have a tree lighting on Friday and a Christmas Eve parade on Saturday; Melbourne’s parade is next Saturday; stated there are a lot of festivities in the community; and she hopes everyone will come out and enjoy them.

Chairman Pritchard stated this weekend is the Merritt Island parade; the following weekend are the Cocoa and Cocoa Beach parades; there are also boat parades coming up; so land or water, people will be given an opportunity to begin the festivities of this holiday season.

REPORT, RE: DEBRIS ON VIP ISLAND

Chairman Pritchard stated he and his Chief Assistant Rose Lyons went to VIP Island on an exploratory tour; VIP Island is in Commissioner Voltz’s District, but some of the residents contacted his office for assistance a little over a month ago; the Island has been devastated by the hurricanes and debris is everywhere; and the debris cannot be transferred as Waste Management does not have a floating barge. He noted the residents are stuck with a very small barge that they are able to use to transfer the debris from the Island, but so many of the residents are only part-timers; they are only there on the weekend or on occasion as many of the folks live up north and only come down once or twice a year; and the amount of debris is a problem, which ties into Code Enforcement. He stated Code Enforcement has been called to the Island because of not only hurricane debris, but other debris and accumulation of stock piles of material; and it would be in the interest of the residents if the Board were to abate Code Enforcement action for perhaps 180 days so they are given an opportunity to clean up the messes that have been bestowed upon them.

Commissioner Voltz inquired how are the residents going to get rid of the debris; with Chairman Pritchard responding they will have to do it by barge.

Commissioner Carlson stated the County needs to make sure the debris is disposed of properly; abating Code Enforcement action for a little while is appropriate, but there needs to be coordination with the Solid Waste Department.

Chairman Pritchard stated he agrees and it would be appropriate for Commissioner Voltz to take the point on this issue; and his office will be happy to provide her with the information it has. Commissioner Voltz noted she will do what she can.

Commissioner Scarborough stated there are all kinds of Code Enforcement; Chairman Pritchard is talking about Code Enforcement incidental to the hurricanes and dealing with the debris; he could imagine people violating any provision of the Code in multiple ways that could be totally irrelevant to the hurricanes; and it is not the intent of Chairman Pritchard’s thought.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to abate Code Enforcement action for anything relating to damages and debris caused by the hurricanes. Motion carried and ordered unanimously.

REPORT, RE: LETTER TO LEGISLATIVE DELEGATION OPPOSING PASSING OF COSTS
TO COUNTIES FOR PRE-DETENTION OF YOUTHS

Chairman Pritchard stated he has a letter written to Delegation Chairman Bob Allen; distributed copies of the letter to the Board for approval prior to signage; and read the letter, as follows: “Dear Chairman Allen. As you are aware, Brevard County has joined the Florida Association of Counties along with 14 Florida Counties concerning the unconstitutionality of your 2004 Legislative Session vote passing on the cost of Department of Justice’s pre-detention of youths to County governments. The lawsuit argues that the Legislation is unconstitutional, unfunded, and is an unfunded mandate under Article 7, Section 18. It’s our understanding the subject may be discussed and voted on again at the special session scheduled for December 2004. If you have this session, we urge you to protect the taxpayers of Brevard from additional tax burdens of millions of dollars by not discussing the matter in December, or if you do, please vote no.” He inquired if the County Attorney has an opinion on the letter.

County Attorney Scott Knox responded the Circuit Court ruled last week that the Act is unconstitutional; it is going to be appealed in the First District Court of Appeals; he is not sure what the Legislature is going to be doing to discuss it, but typically the Legislature does not do much when the case is still pending in the courts; so the Board may want to take that into account.

Chairman Pritchard inquired would Attorney Knox suggest the Board hold off on the letter or send it regardless. Attorney Knox responded there could be a change in the wording about the argument of the lawsuit to say the court has ruled that the Legislation is unconstitutional and suggest the Legislature defer any discussion about it until the court makes its ruling.

Commissioner Carlson suggested Attorney Knox redraft the letter slightly and bring it back to the Board later in the meeting.

Commissioner Colon suggested leaving the part out of who voted for or against the issue as the letter is going to the entire Delegation. Chairman Pritchard stated that is fine.

Commissioner Scarborough noted Representatives Thad Altman and Mitch Needelman were mentioned, and inquired what about Representative Ralph Poppell. Commissioner Carlson responded they all voted yes except for Representatives Altman and Needelman; the County appreciates their no votes; the letter was well drafted; and she understands Commissioner Colon’s point. Commissioner Scarborough inquired who did Representative Poppell vote with; with County Manager Tom Jenkins responding the Leadership. Commissioner Carlson stated the County received a summary of the votes.

Chairman Pritchard stated Attorney Knox will review the letter, rewrite it, and bring it back to the Board before the close of the meeting.

REPORT, RE: CARTER GOBLE DRAFT STUDY ON CORRECTIONAL FACILITY

Chairman Pritchard stated there was a meeting of the Public Safety Coordinating Council; and the Carter Goble group has presented a draft study on the Correctional Facility, incarceration, how the County is going to be doing it in the future, and what it will be looking at in terms of population growth in the County, as well as the jail. He noted the Council will review it at a meeting on December 13, 2004; and it may result in another draft or a final study. He stated if it is a draft, there will be another Council meeting in January 2005; and if it is a final study, it will come to the Board at its workshop on January 27, 2005. He advised the study is in the works; it has good material and is a good format from which to make comment at this point; and the results will be something that the Board will be able to act upon. He stated Sheriff-elect, who attends the meetings, will be able to implement it in a variety of ways.

Commissioner Voltz stated the Commissioners have not received a copy of the draft study yet. Chairman Pritchard noted that is correct and only the Council has received it.

PRESENTATION, RE: EMPLOYEE LONGEVITY RECOGNITION

County Manager Tom Jenkins stated this is an opportunity to recognize some of the County’s long-term senior employees who have dedicated their adult life to serving the citizens of Brevard County.

Mr. Jenkins advised David J. Rocque began his career with Brevard County in 1974; he was assigned to District 4 Fire Control in West Cocoa, where early on his talents and hard work were recognized; he became a Lieutenant Medic in 1985 and as a Company Officer, Lieutenant Rocque demonstrated a high degree of leadership ability; and because of his exemplary performance, he was promoted to District Chief in November 1986. He stated Chief Rocque’s contributions to Brevard County Fire Rescue are numerous and include being the leader of the Department’s Special Operations Team and chairing the Fire Apparatus Committee whose responsibility is to insure that the fire engines the firefighters use are the best possible. He noted Chief Rocque is an avid fisherman and unlike many other fisherman, will not exaggerate when informing people the size of his catch; and congratulated Chief Rocque on 30 years of service to the County. Chairman Pritchard presented a plaque to Chief Rocque.

Mr. Jenkins stated Nancy Bennett and Willia Gooding are SCAT Vehicle Operator II’s and have worked in their positions for 30 years; both of them started with Consolidated Agencies Transportation on the first day of County bus service, October 1, 1974; together with Ruth Kolodgie, they are the three remaining original Transit employees in the County’s bus system; back in those days, many of the routes they drove on were dirt roads; and driving a stick shift was a requirement. He noted there were no two-way radios or cell phones; when the bus broke down, keeping tools such as a screwdriver, pliers, and crescent wrench in one’s purse was much more important than carrying lipstick; walking to the nearest pay phone usually took longer than doing the repair themselves; and Ms. Bennett and Ms. Gooding had to pump their own gas and had to wash their own buses. He noted in 1985 CAT’s merged with the Brevard Transportation Authority to form SCAT; both Ms. Bennett and Ms. Gooding said helping people has helped them to enjoy their job for 30 years; and in their careers, these two ladies have each driven over 1 million miles for the County and have safely transported many thousands of citizens wherever life takes them each and every day. He congratulated Ms. Bennett and Ms. Gooding for 30 years of service. Chairman Pritchard presented plaques to Ms. Bennett and Ms. Gooding.

Mr. Jenkins stated Frank Harris began his career with Brevard County in October 1979 as a Library Director of the Bookmobile, coming from Broward County where he worked for the library system there; and he was promoted to Director II at the Melbourne Library in 1983, where he worked until 1994 when he was again promoted to Special Projects Coordinator III in charge of the Library Construction Program, which was about 13 libraries built at one time. He stated Mr. Harris was quickly recognized by the directors of the Library System for his success in completing those projects on schedule and within budget; and his skill at writing State library construction grants helped the County to receive much needed additional funding to finish the libraries. He noted in 1998 with only a few projects left, Mr. Harris went back to the library position at West Melbourne, all while continuing construction duties; he currently serves as the Director of the new Melbourne Beach Library, a library where his imprint is very visible; he is a hard-working and dedicated employee who puts the customers first; and Mr. Harris likes to surf, so Melbourne Beach is a great location for him. He congratulated Mr. Harris on 25 years of service. Chairman Pritchard presented a plaque to Mr. Harris.

Mr. Jenkins stated Susan Nigh is the head of the Circulation Department at Melbourne Beach Library; she sees that things run smoothly at the primary public service point of the Library; her efforts have had a great deal to do with the success of the new facility and with the tremendous community support the Library has received; and her positive, friendly, and genuinely helpful attitude is a great asset to the Library and a shining example to her, staff, and co-workers. He noted Ms. Nigh has held her current position since July 2002, when she transferred from the Melbourne Library; she first came to work in the libraries in 1979 as a part-time clerk, working her way up to the Assistant Head of Circulation from 1994 to 2002; before coming to Brevard, Ms. Nigh had served as a library worker and church secretary in Ohio; and congratulated Ms. Nigh on 25 years of service. Chairman Pritchard presented a plaque to Ms. Nigh.

Mr. Jenkins stated Barry Portnowitz began his tenure as a part-time recreation leader at Hoover Middle School, supervising softball and volleyball leagues; within one year he was hired as a full-time Recreation Supervisor for persons with disabilities, serving in this capacity for almost 10 years; his promotion to Senior Recreation Supervisor in 1989 and to Recreation Superintendent in 1990 allowed him to broaden his recreational activities provided to citizens; and he personally ran and supervised special events such as the Egg Extravaganza for Easter, the Moonlight Stroll with live music under the stars, and the Fun Seeker Program and nature camps for children. He noted Mr. Portnowitz is also known within the Parks and Recreation Department for his expertise with computers, computer programs, and computer systems; he generously assists whenever asked; he is married to Patty, who works at the Palm Bay Library; and they have two sons who attend the University of Florida. He congratulated Mr. Portnowitz for 25 years of service. Chairman Pritchard presented a plaque to Mr. Portnowitz.

RESOLUTION, RE: PROCLAIMING CHILDREN’S MEDICAL SERVICES DAY

Chairman Pritchard read aloud a resolution proclaiming November 30, 2004, as Children’s Medical Services Day in Brevard County.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution proclaiming November 30, 2004, as Children’s Medical Services Day in Brevard County, to recognize and honor the Florida Department of Health’s Children’s Medical Services and CATCH staff for their service, commitment, and dedication to Brevard’s children with special health care needs. Motion carried and ordered unanimously.

Dr. William Knappenberger stated it is an honor to be able to serve needy children in this way; he has been the Director for Brevard for over 10 years; Julie Byczek is the Nursing Director and sees to it that all of this happens smoothly and needy children receive their medical care and their complex problems are handled both in primary, secondary, and tertiary referrals for all of their needs; and the nurses do a super job. He noted it is difficult work, but very rewarding.

Chairman Pritchard presented the Resolution to Dr. William Knappenberger and Nursing Director Julie Byczek.

RESOLUTION, RE: CONGRATULATING THE PRISON BOOK PROJECT

Ray Hall, founder of The Prison Book Project, stated he began The Prison Book Project in August 1994 with a goal of trying to place 1,000 books in the Brevard County jail; there was a concept if there was fiction material that was constructive it would have an impact on people’s lives who were behind bars; the original concept was refined down to clean westerns; and that is where it started. He noted he and the volunteers went around to Port St. John garage sales and bought all the books they could buy for 25 cents a piece; they kept running into Christian books and would buy those also; every Monday morning they would take two small bags to the front desk at the County jail; and after a couple of months he was invited to take a tour of the jail. He stated he was taken in a room with books that were given to the inmates; he was appalled that 95% of the books were murder mysteries, romance stories, etc.; jail personnel did not want to give such books to the inmates but it was all there was; and he did not believe those books were appropriate. He noted he and the volunteers changed their goal from 1,000 books in two years into as many books as they could obtain; after three years they had 39,886 books; they tried to get books from two different Christian companies; and they were Christian western fictions. Mr. Hall stated the day after he stopped counting books, one company called him and said it had 20,000 books; the next day another company called and said it had 5,000 books; he paid shipping for the books; and now there are 25,000 books. He noted he and the volunteers decided to send every prison and jail in Florida three boxes of books; things kind of got carried away and out of hand; The Prison Book Project is now serving more than 1,100 prisons and jails across the country; and it has sent books through missionaries to more than 25 countries. He noted it recently sent small packages to the Netherlands, Cuba, and China; it smuggled a whole case of the Matthew video into communist China; The Project is in all 50 States now; and it has about 1,300 requests on a waiting list but cannot respond to them because it does not have the facilities. Mr. Hall stated the recent hurricane damage tore the roof off of the distribution center; a few days later the hurricane tore off the temporary roof and there was a flooding issue; the Project was moved to a different wing; and Hurricane Frances tore off the roof of that part of the building. He noted a few days later there was more rain and there was flooding a fourth time; the Project is now consolidated into the warehouse, which is the old Radio Shack building in Titusville; and such facility is free of charge to the Project. Mr. Hall stated since it does not have to pay for rent, there are additional funds to pay for shipping; it doubled the amount of books it was sending out; the boxes hold about 45 books per box; and the Project tries to build boxes with a good assortment of good fiction. He noted the Project is now supplied books by 31 Christian publishers; the people in prisons and jails range from barely able to read and write to college professors; the boxes have to contain material to cover all of that; and the Project sends things free of charge, so it has to raise the money it can to get it done. He stated mostly it comes out of his pocket and he is glad to do it; the data says 30 people will read each book; 45 books times 30 people means that 1,350 people will be touched by every box; and it costs the Project about $13.00 to send a box out. He noted average reading time is eight hours, so every box of books that is sent out will do 10,800 man hours of ministry; according to Florida TODAY last year, there are 2.1 million people in America’s prisons; there are four times that many in jails, which makes 8.4 million; and there are a total of 10.5 million people incarcerated in America today, more than any other country in the world, including China. Mr. Hall stated the Project gets an average of 50 letters every day; most of them are requesting material; the Project sends the letters to chaplains so they will be shared; and every letter is read, but not all can be answered. He noted the data indicates that of the people released from prisons in the general population, 85% will be back within two years; for those people who are involved in chapel activities in prisons the rate drops to 17%; and the data comes from multiple sources. He stated the University of Michigan did a study last year; it indicated for the last several years and in the foreseeable future 500,000 prison inmates will be released every year; that is about one quarter of the population; and they may have paid their debt to society, but unless they have changed, they need to be dealt with. Mr. Hall noted statistically society is going to have to deal with those individuals over and over again unless something is done to change their lives; that is what the Project is trying to do; one out of every 105 men in America is in prison; and one out of every 1,613 women is in prison. He stated for the first time in history the number of women in prison now exceeds 100,000; the hurricanes did a number on the Project; its space has been reduced by 30% because of the hurricanes; and he was told the distribution center would be available for the Project to move back into the first of December, then the last of December, and now it is April 2005. He noted he and the volunteers are working in a warehouse without electricity or water; the staff is all made up of volunteers; nobody gets paid including him; and volunteers are hard to come by consistently.

Commissioner Scarborough stated Mr. Hall is getting brand new books now; the variety of books is enormous; one of the books he saw was the Gospels in Greek; so there is the ability to ship specifically. He noted it is like having contact with multiple prisoners through the chaplains; there is the concern with violent Islam occurring; there are others out there who are doing things; and he saw newspaper articles about Al Quaida wanting to work through American prisons to recruit. He stated if that occurs there could be dangers way beyond what is thought of in a foreign country; and what good people are doing in Brevard County has to be recognized.

Commissioner Scarborough read aloud a resolution congratulating The Prison Book Project on its tenth anniversary.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution congratulating Ray Hall, founder of The Prison Book Project, on the tenth anniversary of the project, and wishing Ray and Kazuko Hall and their volunteers continued success as they strive to make a difference in the lives of the world’s prison population. Motion carried and ordered unanimously.

Commissioner Scarborough presented the Resolution to Mr. Hall.

Commissioner Colon stated this is so emotional because it is something that is close and dear to her heart; to hear everything Mr. Hall has done has been incredible; the numbers are real; and they are people who made some stupid mistakes. She noted they are not the hard core criminals and child molesters, even though some of them are in jail; some inmates are there because they have not paid their traffic tickets and have done things they should not have been doing; and hopefully some of the materials in the jails and prisons will change inmates’ lives, including books about being better fathers and mothers. She stated those people being better human beings is positive and gives back to the community; it is a savings to the taxpayers because those individuals may not go back to jail; and expressed appreciation to Mr. Hall and his volunteers. She noted she would like to know more about what folks in the community can do.

Mr. Hall stated last week The Prison Book Project received $167,000 worth of books from Publishers; and they will be going out as fast as he can get them out.

FINAL PLAT APPROVAL AND EASEMENT, RE: CYPRESS CREEK SUBDIVISION,
PHASE 2

Motion by Commissioner Voltz, seconded by Commissioner Colon, to grant final plat approval for Cypress Creek Subdivision, Phase 2, subject to minor changes as necessary, receipt of all documents required for recording, and developer obtaining applicable jurisdictional permits; execute a Tri-party Escrow Agreement with Cypress Creek II Development, Inc. and Colonial Bank, guaranteeing improvements in the Subdivision; and execute Ingress and Egress Easement with Cypress Creek II Development, L.L.C. for public trail through the Subdivision connecting northern and southern segments of the South Brevard Al Tuttle Trail. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH PHILIP AND DONNA SCANLAN, RE: JOEL
AVENUE

Motion by Commissioner Voltz, seconded by Commissioner Colon, to execute Unpaved Road Agreement with Philip and Donna Scanlan for a building permit off an existing right-of-way known as Joel Avenue, which has been constructed to the standards of the Unpaved Road Code of Ordinances, Section 62-102. Motion carried and ordered unanimously.

SITE PLAN EXTENSION, RE: WEST POINT PLAZA

Motion by Commissioner Voltz, seconded by Commissioner Colon, to grant Site Plan extension from January 6, 2005 to July 6, 2005 for West Point Plaza, SP #01-02-002, in order to allow the applicant to resolve mitigation issues with the St. Johns River Water Management District and the Army Corps of Engineers. Motion carried and ordered unanimously.

EASEMENT WAIVER, RE: VICTOR AND KATHY HERNANDEZ

Motion by Commissioner Voltz, seconded by Commissioner Colon, to grant Easement Waiver for Victor and Kathy Hernandez to allow a fifth easement for a building permit over a 39-foot wide flag stem. Motion carried and ordered unanimously.

APPROVAL OF ACCESS BY EASEMENT, RE: HIDDEN GROVE CONDOMINIUM

Motion by Commissioner Voltz, seconded by Commissioner Colon, to grant approval of access by way of a 50-foot wide easement for ingress, egress, and utilities for Hidden Grove Condominium. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN AGREEMENT WITH LABCO, LLC, RE: PROPERTY
ON THE NORTHWEST CORNER OF INDIANA AVENUE AND SEMINOLE
BOULEVARD

Motion by Commissioner Voltz, seconded by Commissioner Colon, to execute Binding Development Plan with Labco, LLC (f/k/a Hendricks, et. al.) for property located on the northwest corner of Indiana Avenue and Seminole Boulevard. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN AGREEMENT WITH WARREN C. EDWARDS AND JUDITH
R. EDWARDS, RE: PROPERTY ON EAST SIDE OF U.S. 1, NORTH OF ROCKLEDGE
DRIVE

Motion by Commissioner Voltz, seconded by Commissioner Colon, to execute Binding Development Plan Agreement with Warren C. Edwards and Judith R. Edwards for property located on the east side of U.S. 1, north of Rockledge Drive. Motion carried and ordered unanimously.

RIGHT-OF-WAY USE AGREEMENT WITH GRAND HAVEN MASTER HOMEOWNERS
ASSOCIATION, INC., RE: LANDSCAPING WITHIN PINEDA CAUSEWAY EXTENSION
RIGHT-OF-WAY AND OTHER RIGHTS-OF-WAY IN GRAND HAVEN SUBDIVISION

Motion by Commissioner Voltz, seconded by Commissioner Colon, to execute Right-of-way Use Agreement with Grand Haven Master Homeowners Association, Inc. for installation and maintenance of landscaping and irrigation within the Pineda Causeway Extension right-of-way and other rights-of-way in Grand Haven Subdivision. Motion carried and ordered unanimously.

REJECT BID #B-3-04-99, RE: WICKHAM ROAD AND FOREST LAKE DRIVE TURN LANE
PROJECT

Motion by Commissioner Voltz, seconded by Commissioner Colon, to reject all bids for Bid #B-3-04-99, Wickham Road and Forest Lake Drive Turn Lane Project, due to the non-availability of funding to award the bid; and approve Roadways and Landscaping project plans and specifications to perform the construction beginning March 2005 in the amount of $52,272.63 to be allocated from District 5 Impact Fees. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE FOR BIDS AND APPOINT SELECTION COMMITTEE, RE:
WASTEWATER TRANSMISSION SYSTEM

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize staff to solicit proposals for engineering consultant services; and appoint a Consultant Selection Committee consisting of Utility Services Director Richard Martens, Water and Wastewater Program Manager Ron Voll, Stormwater Utility Director Ron Jones, Assistant County Manager Peggy Busacca, and Transportation Engineering Director John Denninghoff, or their designees. Motion carried and ordered unanimously.

AWARD BID #B-4-05-20 TO DERRICO CONSTRUCTION CORPORATION, RE:
CONSTRUCTION OF RECLAIMED WATER DISTRIBUTION LINE INTERCONNECTS

Motion by Commissioner Voltz, seconded by Commissioner Colon, to award Bid #B-4-05-20 to Derrico Construction for construction of reclaimed water distribution line interconnects, at a total price of $908,764.25; and authorize the Chairman to execute the Construction Contract. Motion carried and ordered unanimously.

AUTHORIZE CHECK ENDORSEMENT, RE: INSURANCE PAYOUTS FOR HURRICANE
DAMAGE FOR CLIENTS PREVIOUSLY ASSISTED THROUGH REPAIR,
REHABILITATION, REPLACEMENT, AND FIRST-TIME HOMEBUYERS PROGRAMS

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize the County Manager or his designee to endorse insurance checks from clients previously assisted through the Repair, Rehabilitation, Replacement, and First Time Homebuyer Assistance Programs who received damages to their residences during the Hurricanes. Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF TITUSVILLE AND BUDGET CHANGE REQUEST, RE:
COMMUNITY DEVELOPMENT BLOCK GRANT FOR IMPROVEMENTS AT
BLANTON PARK

Motion by Commissioner Voltz, seconded by Commissioner Colon, to execute Agreement with the City of Titusville for $25,450 of its CDBG funds to replace and expand existing basketball
court and replace park lighting at Blanton Park; and approve the Budget Change Request to establish the project budget. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE AND AWARD BID, RE: REPLACEMENT OF FUEL ISLAND
CANOPIES

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize staff to solicit invitations to bid for replacement of canopies at three of the County’s fuel sites, which were
destroyed by Hurricanes Frances and Jeanne, and to award the bid to the lowest responsive and responsible bidder. Motion carried and ordered unanimously.

RESOLUTION AUTHORIZING RENEWAL OF TAX EXEMPT COMMERCIAL PAPER LOAN
PROGRAM, RE: FARNSWORTH AVENUE ROAD PAVING, HABITAT ROAD
CONSTRUCTION, AND SHELLWOOD DRIVE MSBU’S

Motion by Commissioner Voltz, seconded by Commissioner Colon, to adopt Resolution of the Board of County Commissioners of Brevard County, Florida, authorizing the borrowing of not to exceed $166,000 from the Pooled Commercial Paper Loan Program of the Florida Local Government Finance Commission pursuant to the terms of the Loan Agreement in order to refinance portions of three separate loans previously made to finance and refinance the acquisition and construction of various capital improvements; authorizing the execution of a loan note or loan notes to evidence such borrowing with a covenant to budget and appropriate legally available non-ad valorem revenues as provided in the Loan Agreement; authorizing the execution and delivery of such other documents as may be necessary to effect such borrowing; and providing an effective date, for Farnsworth Avenue Road Paving, Habitat Road Construction, and Shellwood Drive MSBU’s. Motion carried and ordered unanimously.

AUTHORIZATION TO AWARD AND EXECUTE CONTRACTS, RE: CONTINUING
ARCHITECTURAL/ENGINEERING CONSULTANT SERVICES

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize staff to negotiate and contract with BRPH Architects, Stottler Stagg, Rood & Zwick, and Holeman Suman to provide architectural/engineering consultant services for the Facilities Department, and authorize the Chairman to sign the associated Contracts. Motion carried and ordered unanimously.

AUTHORIZATION TO REPAIR, RE: SPACE COAST STADIUM DAMAGE FROM
HURRICANES

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize staff to complete repairs of damages caused by Hurricanes Frances and Jeanne at Space Coast Stadium; award contract under previously Board approved Job Order Contract; and authorize the Chairman to execute the Contract. Motion carried and ordered unanimously.

MEMORANDUM OF UNDERSTANDING WITH 2-1-1 BREVARD, INC. AND BREVARD
COUNTY 9-1-1, RE: REFERRAL TO RESIDENTS FOR NON-EMERGENCY
ACCESS TO HEALTH AND HUMAN SERVICE INFORMATION

Motion by Commissioner Voltz, seconded by Commissioner Colon, to execute the Memorandum of Understanding between 2-1-1 Brevard, Inc. and Brevard County 9-1-1 to provide information referral to residents seeking non-emergency access to health and human services. Motion carried and ordered unanimously.

TERMINATION OF INTERLOCAL AGREEMENT WITH CITY OF ROCKLEDGE, RE:
RENTAL SPACE IN ROCKLEDGE EMERGENCY OPERATIONS CENTER

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize termination of the Interlocal Agreement with the City of Rockledge dated May 23, 2000 for use of its EOC as a training center for 9-1-1 call takers and as backup public safety answering point in the event that an answering point in Brevard County is debilitated, and to donate the antenna tower to the City. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE ORDINANCE, RE: REVISING DEPARTMENTAL
STRUCTURE

Motion by Commissioner Voltz, seconded by Commissioner Colon, to grant permission to advertise a public hearing for December 14, 2004, to consider an ordinance revising the departmental structure of the County. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH THE OFFICE OF THE PUBLIC DEFENDER,
EIGHTEENTH JUDICIAL CIRCUIT, RE: LEGAL REPRESENTATION OF INDIGENT
DEFENDANTS IN COUNTY ORDINANCE VIOLATION PROCEEDINGS

Motion by Commissioner Voltz, seconded by Commissioner Colon, to execute Amendment to Agreement with the Office of the Public Defender to provide legal representation of indigent defendants in County Ordinance violation proceedings. Motion carried and ordered unanimously.

APPROVE SETTLEMENT, RE: EDWARD VAN BLARCOM, ET AL V. BREVARD COUNTY

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize settlement of all claims with regard to the lawsuit of Edward Van Blarcom, et al v. Brevard County, in the amount of $60,000 including attorneys’ fees and costs. Motion carried and ordered unanimously.

APPROVE SETTLEMENT, RE: CHARLES HOOD V. BREVARD COUNTY

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize settlement of all claims with regard to the lawsuit of Charles Hood v. Brevard County, in the amount of $85,000 including attorneys’ fees and costs. Motion carried and ordered unanimously.

PERMISSION TO EXPEND FUNDS, RE: PARAMEDIC SCHOOL REGISTRATION

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize funding of $120,000 from Fund 1360/Account 284700/5540400 for 32 firefighter/EMT’s to attend paramedic school at the Florida Medical Training Institute in Melbourne. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Voltz, seconded by Commissioner Colon, to appoint Larry Boudrie to the Housing Finance Authority replacing Alan Coburn, with term of appointment expiring April 12, 2008; and appoint Nick Gigante to the Merritt Island Redevelopment Agency replacing Bob Barranco, with term of appointment expiring November 29, 2008. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Voltz, seconded by Commissioner Colon, to approve the Bills and Budget Changes. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING EMS ORDINANCE NO. 95-54

Chairman Pritchard called for the public hearing to consider an ordinance amending EMS Ordinance No. 95-54.

Chief William Farmer stated the purpose behind the revision for the EMS Ordinance deals mostly with housekeeping; the first item the Board is to consider is its own executive authority; there have been some issues regarding the weakening of the Board’s executive authority to approve or disapprove Certificates of Public Convenience and Necessity (COPCN’s); and the proposed ordinance clearly defines that the Board is following State Statute and approving what it is responsible for, which is the EMS system. He noted the second item deals with the proper titling of the EMS Ordinance as a non-ad valorem assessment, meaning a flat rate for property regardless of that property’s value; and the Board also needs to approve the officers of the EMS Advisory Council, which looks at specific items to improve the EMS system across the County.

Lee Feldman, City Manager for City of Palm Bay, stated this morning the Board is considering an amendment to Ordinance No. 95-54 relating to EMS service in Brevard County; and read staff’s summary, explanation, and background of the Ordinance, as follows: “It is necessary to revise the EMS Ordinance to maintain the legislative intent of the Special Acts of Florida 1971, to properly title the current assessment to its actual nomenclature of fees, and to provide the approval process for the officers who sit on the County’s EMS Advisory Council. By approving the attached ordinance, all three of these housekeeping issues will be addressed.” He noted staff is proposing consolidation of the EMS Certificate of Public Convenience and Necessity process under the Fire Department, removing it from the Public Safety Department; no rationale has been provided to the Board for this move, even though the objectivity of the process will ultimately be sacrificed; staff has proposed that the Board no longer use criteria for the granting of certificates; the standard it wants the Board to adopt is simply “in your sole discretion”; and staff wishes to provide the Fire Chief with the power to review all applications before they go to the EMS Review Committee. Mr. Feldman stated conveniently, there is not a time limit imposed on the Chief’s review, thus enabling any application to sit in the County Fire Department for an indefinite period of time; the ordinance strips the EMS Review Committee of its abilities to make findings of fact regarding an application; now the Committee will only review and make advisory recommendations to the Board; and the ordinance eliminates the public hearing process before the Board for consideration of a COPCN. He noted without explanation or reason, the ordinance at least doubles the time for the Board to hear a COPCN item from the EMS Review Committee from between 30 and 45 days currently to a proposed 90 days; the new rules and regulations in the ordinance will apply to all pending COPCN applications; the City of Palm Bay has submitted an application for EMS transport services; and it was submitted on November 3, 2004 to the Fire Chief and he has submitted copies to the Board. He stated Chief Farmer has not yet forwarded the application to the Committee and will not do so until the ordinance is adopted; and inquired assuming that the Board has the ability to change the rules in the middle of the process, is it good public policy. Mr. Feldman noted he believes the Board knows the answer to that one; staff states the reason for adoption of the ordinance is to properly title the nomenclature of the assessment to that of fees; however, the ordinance before the Board today does not do that, and all it changes is the title of special assessment to non-ad valorem assessment; and nowhere in the definition of the EMS non-ad valorem assessment is the term “fee” used. He stated on the surface it appears that the changes substantially go beyond housekeeping matters and indeed tend to retroactively modify a process by which a COPCN application is addressed; the timing of these alleged housekeeping changes is especially suspect with the City of Palm Bay’s application currently pending; if this is truly a housekeeping endeavor, then it can certainly wait until after the City’s application has been addressed; and if not, it is important that the reasons for the changes are articulated to the Board and public. He noted after reading the ordinance as compared to that which was adopted on first reading by the Board last May, there are many substantive changes which have been incorporated by staff; the County Attorney should advise the Board if the ordinance is properly before it today with such changes because there are many other changes contained in the ordinance and many other questions; he would ask the Board to reject the ordinance today and direct staff to detail all the changes and rationale for them; and requested whatever the Board’s final end product might be, that it not change the rules that govern the process for applications already submitted for consideration and not eliminate the public hearing process. Mr. Feldman further requested the Board establish a deadline for the Fire Chief to forward the application already submitted by the City of Palm Bay to the EMS Review Committee; stated the City’s application was submitted in good faith and in accordance with established procedures; it should be reviewed and acted upon by the Committee and the Board based on the current criteria; and if the Board desires to change the criteria or process, the changes should be done in a public forum with input from the public and affected agencies. He requested the Board not further compound the complexity of the issue by adopting a recklessly prepared ordinance that is clearly meant to weaken or circumvent the Committee and completely bypass the public.

Chief Farmer stated Mr. Feldman turned in the City’s application to the Fire Department, which has been an integral part of the COPCN process from the beginning; and past practice has been that the Department has always reviewed the COPCN applications to insure there were no mistakes before it burdened the five public representatives of the COPCN Review Committee to come to something and find out that the applications were not sufficient on their face. He stated with regard to the finding of fact for the public hearing, Attorney Knox may be better able to answer that question; and regarding fees, his report to the Board did not say anything about fees and he does not know where Mr. Feldman is getting that information from. He advised there was no first reading of the ordinance; it only requires one public hearing; and this is it.

Commissioner Colon inquired would today’s action stop the City of Palm Bay from putting its application forward and would it be the same process that was in place before. Chief Farmer responded with regard to the Board’s ability to say yes or no and to grant the COPCN the answer is no; and as far as some of the specific public hearing issues and how it comes before the Board, Attorney Knox can better answer that than he can.

County Attorney Scott Knox stated the basic fundamental issue the County is dealing with in this particular ordinance is trying to reconcile a Special Act in Brevard County and the Ordinance as it existed before the changes were proposed; a Special Act was enacted in 1971 that gives the Board basically total discretion to grant or deny ambulance service in the County; the ordinance changes the procedure and substantive authority of the Board in the sense that it requires a quasi-judicial hearing, which means if certain criteria are met by the applicants, they are entitled to get a license whether the Board chooses to give it to them or not; so there is basically the conflict between one law that says the Board has complete discretion and the Ordinance that says it does not have complete discretion. He noted staff has gone back and tried to reconcile the two and put them into the context of the Special Act, which grants the Board complete discretion; if it does not want to do that, the Board can change it; and as far as when the application was filed by the City of Palm Bay, the ordinance proposal has been pending for six months, and November 2, 2004 is less than a month ago.

Commissioner Colon inquired by today’s action, does it stop the City from basically having the same process it has had in the past, and is the County changing the rules in the middle of the game. Attorney Knox responded the Board still has the option of granting or denying an application, so from that point of view, it has not changed anything; in terms of whether or not the City is going to be entitled to get a certificate if it meets the criteria of the old Ordinance, it would not under the new ordinance; whether or not it is a matter of fairness is up to the Board to decide; but the bottom line is that there are two different sets of criteria that govern. He noted under the old Ordinance, the City can meet certain criteria and become entitled to the license; and under the new ordinance, it is entirely up to the Board’s discretion whether it grants the license or not. Commissioner Colon stated by today’s action the County is making it harder for any municipality to try to do its own transportation; there was a certain criteria that any municipality in the County could go by; as of today that will change; and inquired what about the folks who are already in the process. She noted for anyone who would come in the future, she can see the County trying to figure out something it wants to do; for those folks whose applications are already in the process it is almost like saying they cannot apply because now the County is changing the rules; and inquired is the County being fair because the City’s application was given to the County in good faith. She stated the only right thing to do is to allow the process, whether the City might meet the criteria or not; the process needs to be fair; and it seems the County is trying to stop the actual process if it takes action today.

Attorney Knox stated the County is not trying to stop anything as the Board can grant an application as soon as the ordinance goes into effect; Palm Bay can apply and receive the certification and license if the Board chooses to do that; in terms of whether it is fair to treat the pending application under the new rules, it is an issue the Board has to decide; and legally it can do that, but whether or not it wants to do that is a different issue.

Commissioner Carlson stated she appreciates Commissioner Colon’s points, but what the County is trying to do is take the Special Act and make sure the Ordinance is not so loose that the County entitles various groups to come in and provide their own service without proper oversight; the issue has been in the hopper for six months; she would understand if prior to that six-month period if Palm Bay had put in something; but the City already knew the County was doing this, and it is a little late in the game.

Motion by Commissioner Carlson, seconded for discussion by Commissioner Voltz, to adopt Ordinance of the Brevard County Board of County Commissioners amending Chapters 226-26 through 226-33 and 42-71 through 42-100 of the Code of Ordinances of Brevard County, Florida pertaining to ambulance and EMS services; providing for the consolidation of the above-referenced Sections; amending definitions and purpose; amending duties of the EMS Review Committee; amending provisions related to procedures, classifications, and requirements for the approval of Certificates of Public Convenience and Necessity; amending provisions pertaining to recognized providers; providing for the assessment, levy, rates, collection, and definition of non-ad valorem assessments; amending procedures for revocation or modification of certificates; amending provisions related to award of franchises and operation of service by the County and others; providing for severability; and providing for an effective date.

Commissioner Voltz stated the Board is clarifying the original legislative intent of the ordinance. Attorney Knox stated the ordinance attempts to reconcile the Special Act that was passed in 1971 with the ordinance powers that the Board is able to grant itself by virtue of the Special Act; and the way it was structured before, the Special Act conflicted with the ordinance powers the Board had come up with in terms of what the Board’s substantive authority was and what the procedure was for getting a license.

Commissioner Colon stated the communication between the County and the City has not been good; she does not know if the Board is only hearing one side, but it needs to hear both sides and make sure it is being fair to the taxpayers of South Brevard; and whether or not the County wants to allow the City to go forward, it still has to show the numbers. She inquired what is Mr. Feldman’s understanding of what is happening here today.

Mr. Feldman responded it is clearly a change in the process, which was designed after the City had indicated its desire to apply through the process; the rules of the process were set up; the City complied with those rules; and it used the criteria that the EMS Advisory Council had established previously in preparing and expending public dollars in the preparation of an application. He stated the special laws that were enacted in 1971 clearly allows the Board the ability to issue a COPCN; the State law, which was modified after 1971, further clarifies that the issuance of a COPCN is a responsibility of board of county commissioners; there is nothing in the State law that was enacted after 1971 that allows the Board to do it completely at its sole discretion and to take arbitrary and capricious action with regard to EMS transport; and all the City would like to do is submit an application under the laws that the Board has previously established, have it heard by the EMS Review Committee, allow it to make its findings of fact as the current Ordinance provides, and present those findings of facts to the Board in a public hearing so it can make an informed decision based on the City’s application. He noted the Board can at that time vote it down, vote to approve it with conditions, or vote to approve it; that will remain the authority of the Board; there is nothing in the ordinance that will change that facet of it; and it is just a process to get to the Board. Mr. Feldman stated the November 30, 2004 memorandum from Chief Farmer to the Board talks about the nomenclature of fees; the ordinance, which has been before the Board several times but not heard, has changed each and every time it has been before it; it has never been the same document twice; and as far as what the conditions were prior to today’s reading, there were certain things in there that the City had no objection to. He noted it is the last modification, especially the provision that specifically makes it retroactive to pending applications, that is offensive to the City.

Commissioner Colon stated she does not believe the County is being fair. Commissioner Voltz stated the County is not preventing Palm Bay from applying; the Board will ultimately have the final say; and there will still be public discussion.

Commissioner Scarborough inquired if the Board did not take this action today and decided to keep the current Ordinance, would it entail amending the Special Act to have conformity. Attorney Knox responded if the Board wants to reconcile the discrepancies between the Ordinance and the Special Act, it has one of two choices, amend the Special Act or amend the Ordinance. Commissioner Scarborough stated if the Board rejected this proposal it would be incumbent upon it to ask the Delegation to change the Special Act. Attorney Knox noted that is correct, but it becomes a little dicey because the County is now a Charter County, which means it has to be put out for referendum if it is changed.

Chairman Pritchard stated in 1979 he wrote the EMS proposal for a municipality to provide EMS as well as transport, and fought it for 25 years; that is how long it took before the city finally got ALS transport; while he believes in the destiny of the cities, he also believes in a system that is operated in a most efficient and cognizant manner; and the County is clarifying the legislative intent. He noted he does not look at it as a roadblock; he and Mr. Feldman have gone through the turf battles of what happens when municipalities propose services that are taking away from an already provided service; he knows Mr. Feldman will be enhancing the service of his municipality because he has that ability through taxing and whatever else to do that; and he is representing the County on this side of the table and will support the motion. He stated it is not taking anything away from the City other than perhaps giving it another avenue to travel; the County needs to look at the legislative intent, and codify and implement it so that it is operating on the same page.

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

DISCUSSION, RE: FORMATION OF TASK FORCE FOR A BETTER BREVARD

Georgia Phillips, representing Space Coast League of Cities, stated last year when the Charter Review Commission was meeting there was a lot of discussion about growth management and a growth management committee to oversee the growth of Brevard County; the cities felt like it was going to harm their home rule and put non-elected people in a position to tell elected officials what to do; so the League of Cities decided to create a task force that could come together and discuss city and County problems. She noted the League has been talking to each Commissioner about the issue and what it wants to do; the task force has no name and no objective at this time; the League has appointed six people from the cities; there are two city managers, two elected officials, and two planners; and the League is trying to cover all the aspects of growth management. She requested the Board appoint six people from the County along the same scheme to be a part of the task force and decide what the issues are and how they can break down some of the barriers and start working together.

Commissioner Carlson inquired is it the intent of the task force to take the Getting to Smart Growth information from Brevard Tomorrow as a starting point. Ms. Phillips responded the League has been meeting with the Smart Growth Committee of Brevard Tomorrow; it likes the plan; the task force would take what Brevard Tomorrow has done as input when it is formed; and at this point a representative from Brevard Tomorrow is not on the task force and would be up to the 12 people to decide. Commissioner Carlson inquired would the voting members be elected officials; with Ms. Phillips responding it is up to the task force.

Commissioner Voltz inquired is the School Board going to be involved. Ms. Phillips responded the League has talked about involving it, but the biggest issue is between the County and the cities; the 12 people will get together and go from there; and eventually the School Board may become a part of it, but it is up to the 12 individuals. Commissioner Voltz stated the School Board is a part of growth management and needs to be included.

Commissioner Carlson stated Ms. Phillips is suggesting the folks come together and approach the School Board, Brevard Tomorrow, and whomever they think is appropriate. Ms. Phillips noted there will already be 12 people; and if the task force increases to 15, 20, or 25 people it may be an unmanageable group to come up with the bare basics for what it is supposed to be doing. Commissioner Voltz reiterated the School Board needs to be involved up front. Ms. Phillips stated it is the first thing the task force can do; she is not trying to exclude the School Board but trying to get the County people involved; and the task force can get the School Board involved even before the first meeting. Commissioner Colon stated there is nothing wrong with the School Board being part of the discussions; and hopefully it will be a staff person. Ms. Phillips noted the League is trying to keep the task force comprised of staff and elected officials as they are the ones who work with growth management on a daily basis.

Commissioner Voltz inquired would the Board appoint three County Commissioners and three staff members. Ms. Phillips responded the League’s thought was two County Commissioners, two County Managers, and two County planners. Commissioner Voltz inquired about the School Board having a total of six appointees; and noted it is an integral part of growth management. Ms. Phillips stated the School Board may want to appoint facilities and managerial staff.

Commissioner Scarborough stated as soon as there are two elected people from one body there are Sunshine law and advertisement issues; if the Board wants to go there, it can; but it is going to put a lot more imposition on the structuring of how the task force operates; and there is nothing wrong with it, but once the task force goes there, it better meet all the requirements or the whole thing is going to be scrutinized by people in the community as being improper. He noted there are multiple ways the task force can be structured to include different elements; growth attaches itself to different functions; Paul Gougelman sits as the Attorney for the MPO; and the process of the MPO and how it looks at things leads one to say someone like Bob Kamm needs to be involved. He stated the task force can be looked at creatively, but at this moment he has more questions than answers.

Commissioner Carlson stated the Board can come up with the six members today; someone could approach the School Board and ask it for one or two School Board members to take part on the task force; and to have representation from the School Board is critical. She noted Commissioner Colon has been doing the summits and she has been involved with Brevard Tomorrow; the two of them on the task force may be a good idea; and Assistant County Managers Peggy Busacca and Don Lusk, and planners Robin Sobrino and Bob Kamm or Ernie Brown could be appointed also. She stated they could talk to the cities and come to some common understanding, and bring back to the Board and League what they have defined to be a workable solution.

County Manager Tom Jenkins stated the County is about ready to go through a transition; and he was going to recommend Ms. Busacca, Ms. Sobrino, Bob Kamm, and Ernie Brown.

Commissioner Colon stated there are pluses and minuses to having two elected officials from the same body; more gets accomplished without all the red tape; it may be better to have one person representing the League of Cities, one County Commissioner, and one School Board member; and if more assistance is needed there could be additional appointees. She noted it is wonderful to get feedback, but if there are too many people involved, it loses the whole planning part of it and the process gets bogged down; a component that is missing and needs to be there is the legal side; and the County Attorney’s Office needs to be there to make sure there are things that can be done from the County’s end.

Ms. Phillips stated Attorney Gougelman is the League’s Attorney and volunteers in that capacity; she has no objection if the Board wants to put one elected official on the task force; and the League can have one elected official also.

Commissioner Scarborough stated there is not a problem with the League having two elected officials, but the problem lies with the Board because it votes together. Ms. Phillips stated it is up to the Board as to what it wants to do. Mr. Jenkins noted perhaps the County Attorney could take the place of one of the County Commissioners.

Chairman Pritchard stated when he spoke to Ms. Phillips, Attorney Gougelman, and Tony Carroll, he told them this issue needs to be done because the County and cities are at this cusp; they are facing it with EMS and ALS transport, and what is going to be done about the County; and when talking about density it is discussing people, and how many people does the County want to live here. He noted it needs to come up with a number; if it added up all the numbers in the Comprehensive Plan it would have 2.5 million or 3 million people that could fit in the County based on the existing plans; he does not believe the County wants to see that kind of growth; and it needs to come up with a way to figure out how many people and where the County is going to put them. He stated the Brevard Tomorrow presentation on Smart Growth was very good; it gave a lot of ideas; it was not that the County will do it this way and will not do it that way; and it is a good format and should be used. He noted he would support having one County Commissioner and one appointee from the County Manager’s office; and if Attorney Gougelman is going to be a representative on the League of Cities side he is also the Attorney for the MPO, so he does not know if the County Attorney’s Office needs to be burdened with this. Chairman Pritchard stated the County and League are now digesting what they are going to be doing and how they are going to do it; and he has some suggestions that include Ms. Busacca, Ms. Sobrino, Ed Washburn, John Denninghoff, Bob Kamm, Ron Jones, and Ernie Brown. He stated the whole point is to get the right people at the right time; if the School Board is going to be included, it needs to be someone from Ed Curry’s office who has an idea about what is going to be reviewed in terms of how to build a school, where it may go, what the cost might be, and all the criteria; what is not needed is someone well-intentioned, yet clueless who comes to meetings just as a way of expressing a personalized agenda; and something needs to be done now before it gets out of hand.

Commissioner Carlson stated she would like to see the task force be more of a consensus-building group than having to vote on everything; it ends up being very parochial; and everyone is not always going to agree on things.

Chairman Pritchard stated his assumption is that the task force as a whole would make a decision and the decision would carry forward; what needs to be looked at is how big should the task force be; if it gets too big it is unwieldy; and suggested the issue be digested and brought back on December 7, 2004 with some input from the School Board and how many appointees it feels might be appropriate for the task force.

Commissioner Carlson stated perhaps Attorney Gougelman could draft an agenda item after some of the discussions and approach the School Board; and he could bring it back for discussion, including the makeup of the task force after he has talked to the League.

Attorney Paul Gougelman stated he would be happy to do anything the Board wants in that regard; the League is coming in with six people, but is not wed to it; six is not the magic number; and it could be five members and perhaps the School Board have the sixth member. He noted the League is very flexible as far as where it wants to go with this; it is looking for the Board’s thoughts to give guidance on where the League needs to go; and after that everyone can start worrying about some of the issues they want to look at. He stated he and Ms. Phillips are not members of the task force and are ex-officio; and they have helped to try and shepherd the issue and get it started. He introduced Tony Caravella, Planning Director of City of Cocoa Beach, and Cheryl Dean, Planning and Zoning Administrator for City of Melbourne; stated they are two of the members that the League has asked to be part of the task force; most of the issues the task force may take up will probably not be school related-type issues; and some of the issues the League foresees include transportation concurrency, annexation, and joint planning agreements. He noted certainly schools could come up as an issue.

Commissioner Voltz stated it is always good to have the School Board’s input; and the League could approach the School Board. Mr. Gougelman noted he would be happy to do that.

Commissioner Colon stated the next summit is going to be at the end of February 2005; it gives an opportunity for all the jurisdictions to come together; the task force can get to the nitty-gritty; and the summits started with the cities and County, but now it also includes the School Board and State. She noted the task force is something that is positive; it is going to accomplish a lot; and it is a win-win for everyone.

Attorney Gougelman stated he will contact the School Board to see if it has any interest in participating in the task force. Commissioner Carlson suggested Attorney Gougelman bring back input and suggestions to the Board at its December 7, 2004 meeting regarding the makeup of the task force and its role. Commissioner Voltz noted Attorney Gougelman could come back on December 14, 2004 to allow additional time. Attorney Gougelman stated December 14, 2004 is fine.

Chairman Pritchard stated the task force is ad-hoc; it is going to have a mission of managing growth; it needs to be focused and realize that it has “x” amount of time; and it may be 18 months or two years. He noted he wants to make sure the task force is done right; he does not want something that is just haphazard and the County is forever making modifications; to that end, it needs to be careful as to who is appointed and that it gets the people who are capable of making decisions based on their knowledge, skills, and experience; and they can provide a significant amount of input. He stated the County and cities have different standards and definitions; and what is low to the County is medium to someone else and vice versa. He expressed concern that the municipalities have annexation capability where the County may have approved a parcel at one unit per acre and when a city annexed such parcel it became seven units per acre; stated the roads cannot handle that; and it is something the task force needs to focus on. He stated the idea of making a five-minute drive a 20-minute ordeal does not appeal to him.

Commissioner Colon stated this is more of a team-building effort; and it is bringing all the parties together. Commissioner Carlson thanked the League for bringing the issue forward.

The meeting recessed at 10:34 a.m. and reconvened at 10:46 a.m.

REPORT, RE: LETTER TO LEGISLATIVE DELEGATION OPPOSING PASSING OF COSTS
TO COUNTIES FOR PRE-DETENTION OF YOUTHS

Chairman Pritchard stated the letter to the Legislative Delegation has been sanitized a little bit, but still gets the message across.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to authorize the Chairman to send a letter to the Legislative Delegation opposing passing of costs to counties for pre-detention of youths. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN AGREEMENT WITH FRED D. BOOZER, JR., TRUSTEE,
RE: PROPERTY LOCATED ON WEST SIDE OF U.S. 1, OPPOSITE OF WEST END
OF RUBY STREET

Assistant County Manager Peggy Busacca stated the Binding Development Plan Agreement has been reviewed by staff and is consistent with the Board’s action; and it would normally have been put on the Consent Agenda, but it was received from the applicant late.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Binding Development Plan Agreement with Fred D. Boozer, Jr., Trustee, for property located on the west side of U.S. 1, opposite of the west end of Ruby Street. Motion carried and ordered unanimously.

AGREEMENT WITH CROSSWINDS YOUTH SERVICES, INC., RE: JUVENILE
ASSESSMENT CENTER SERVICES

Commissioner Voltz stated the item was one of her big issues when she was on the Board before; she is pleased it is back and a 24-hour program; and she will move the item.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to execute Agreement with Crosswinds Youth Services, Inc. for Juvenile Assessment Center (JAC) services in the amount of $234,094; and authorize the Chairman to execute any future amendments to the Agreement, contingent upon approval of the County Attorney and Risk Management. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE AND SCHEDULE EXECUTIVE SESSION, RE: TERRILEE
LEWIS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF SCOTT LUMM, DECEASED V. BREVARD COUNTY

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to grant permission to advertise and schedule an executive session for December 7, 2004 at 11:30 a.m., or as soon thereafter as possible, to discuss strategy related to litigation regarding Terrilee Lewis, Individually and as Personal Representative of the Estate of Scott Lumm, Deceased v. Brevard County case. Motion carried and ordered unanimously.

REVISIONS, RE: BOARD POLICIES AND PROCEDURES AND LIAISON APPOINTMENTS

Chairman Pritchard stated he has some ideas on how the Board might be able to operate; and he made the liaison appointments for the variety of committees the Commissioners serve on based on input.

Commissioner Voltz stated when her staff called about the Community Based Care they were told the appointment was specifically for former Commissioner Nancy Higgs; and she does not know if Ms. Higgs has to resign or what.

Commissioner Colon stated Ms. Higgs is going to serve as a citizen now, but the Board’s appointment would probably be Commissioner Voltz.

Assistant County Manager Don Lusk stated it is the Chairman’s appointment; Ms. Higgs may continue to serve as a citizen; so the Chairman needs to make an appointment to Community Based Care. Chairman Pritchard stated he has done that.

Commissioner Carlson stated the Board appointed her to the St. Johns River Alliance; it should be part of the group under District 4; and the Alliance came from the designation of the American Heritage River.

The Board reached consensus to approve Chairman Pritchard’s recommended liaison appointments for 2004/2005, as follows:

District 1: Water Supply Working Group, KSC Congressional Support Committee, Myregion.org, Value Adjustment Board, and Metropolitan Planning Organization.

District 2: East Central Florida Regional Planning Council, Tourist Development Council, Public Safety Coordinating Council, Economic Development Commission, and Metropolitan Planning Organization.

District 3: Community Based Care, Brevard Health Alliance, Elections Canvassing Board, Value Adjustment Board, and Metropolitan Planning Organization.

District 4: Brevard Tomorrow, SJRWMD Seven Region Recreational Advisory Council, Indian River Lagoon National Estuary Program, Art in Public Places, Metropolitan Planning Organization, and St. Johns River Alliance.

District 5: East Central Florida Regional Planning Council, Children’s Services Council, Together in Partnership, Value Adjustment Board, and Metropolitan Planning Organization.

Commissioner Voltz stated she has a problem discontinuing the every month evening Board meetings. Commissioner Carlson inquired does the Board have to have a night meeting; with County Attorney Scott Knox responding no. Commissioner Voltz stated there are so many issues and it would prevent the public from attending. Commissioner Carlson noted she agrees; the night meetings usually do not have anything substantive to talk about and they are normally easy meetings; if the Board wants to call a meeting that has a lot of public input perhaps it could do it at a particular time or reverse a 9:00 a.m. meeting to a 5:30 p.m. meeting when something comes up that the community would like to hear in the evening.

Chairman Pritchard stated that was his thought on it; because it is a night meeting the County tends to make the agenda as de minimus as possible; he was questioning “the value” of having the evening meeting; so he brought it up for discussion.

Commissioner Scarborough stated some of the meetings were long due to the hurricanes; and encouraged Chairman Pritchard to call extra meetings if necessary so someone is not sitting in the audience for 10 hours to have five minutes at the podium. He noted it is denial of an opportunity to be heard; he would prefer to come back and have an extra meeting so someone does not have the inconvenience of having to sit for a long period of time; mid-afternoon is okay; but some people do not know when to come to the meeting for their item and they sit here the whole day waiting to be heard on minimal items.

Commissioner Voltz stated when she was on the Board before the meetings were held every week; some of them went unbelievably long; and having meetings every other week that last 12 and 14 hours one cannot function mentally after that period of time.

Chairman Pritchard stated he presented the revisions so they could be reviewed by the Board; it was not so that the Board could have a discussion and determination today on every item; if it needs more time the revisions could be done at the December 7, 2004 meeting; and suggested the Board digest the information fully and bring the issue back on December 7, 2004.

Commissioner Voltz stated item 3 says, “No add-ons delivered, mailed, faxed or emailed for any agenda 24 hours prior to the meeting”; 24 hours would be Monday morning at 9:00 a.m.; and
perhaps Friday noon would be better to give the Commissioners an opportunity on Friday afternoon and over the weekend to do any research they might need to do. Chairman Pritchard stated the reason he put 24 hours prior to the meeting is because there are Thursday meetings also; he has received numerous changes and add-ons at 4:00 p.m. and 5:00 p.m. on the day prior to a meeting or the day of the meeting; the last zoning meeting his office was getting material at 4:00 p.m. for a 5:30 p.m. meeting; and inquired how can he possibly have enough time to go through the information. Commissioner Voltz stated Friday at noon for the regular meeting agendas and 24 hours prior for any other meetings would allow the Board plenty of time. Chairman Pritchard inquired if the Commissioners want to provide the revisions to their staff to make changes, give such changes to his staff, and the Board can discuss the composite of recommendations on December 7, 2004. Commissioner Voltz responded that is fine.

CITIZEN REQUEST - DAWN JORDAN, RE: REFUND OF REZONING APPLICATION FEE

Zoning Official Rick Enos stated the refund that is permitted according to Board policy is 50% of the fee.

Chairman Pritchard stated he can see if advertisement was involved and costs were expended; and inquired what is the Board policy of 50% based on. Mr. Enos responded he is not sure; the policy has been in place for a long time; if advertisement did occur then the County has the hard costs; and the refund is 20%. He noted the 50% is probably based on the fact that the County had expenses; staff would have prepared the entire package by this time; and it would have gone through all of the expenses that it would have created, except for the hard expenses such as advertisement.

Dawn Jordan stated she wrote a letter to the Board; she has substantiating documents that should have been attached to the letter; someone in the County advised the first lady about the scrub jays and gopher tortoises, and that she could not build on but 40% of the lot since it sits on the aquifer shelf; so the individual decided she did not want that under those conditions. She noted the second lady had the property researched due to contamination in the ground; the chemical engineer presented the individual with the poison that is in the ground where she lives; it scared the woman and she wrote a letter to the realtors; and she had all three pieces sold and had applied for the rezoning, but did not foresee any of the other problems because she divulged to the people that there was a contamination in the ground. She stated the final lady canceled as well; she told the realtor it was best that she remove the property from the market; she did not see that she would ever be able to sell it; and the County had her money for 13 days. She noted it was a reasonable amount of time that she requested the refund; if it had been 30 days or longer she could see the County keeping her 50%; she understands it is the Board’s policy; but she also understands that it has the authority to give her more of the money back than the 50% if it sees fit. Ms. Jordan stated her property is along Blacks Road; there are two pieces of property on the right side and to the south; there is another piece of property that is not as large; and someone is now in the process of surveying and building in the area. She noted she does not understand why a contractor can get permission to build on wetlands; and inquired is he going to divulge to the people what is in the ground. She stated she has been hung out to dry; and requested the Board approve her a refund of more than the 50%.

Commissioner Carlson stated the engineering group looked into the soil on Ms. Jordan’s property; and inquired what started the process. Ms. Jordan responded she had nothing to do with it, but the lady who was purchasing the property requested the review be done; and the contamination content of what is in the soil is on file in the library. Commissioner Carlson inquired what is in the soil; with Ms. Jordan responding trichloroethane and it is cancerous. Commissioner Carlson inquired what is the source of it; with Ms. Jordan responding she is not supposed to mention any names because she could get in a lot of trouble. Commissioner Carlson noted she is wondering about the development Ms. Jordan is talking about that is nearby; and if there is some contamination in the soil, Office of Natural Resources Management would either know about it or would want to know about it. Ms. Jordan stated it should know about it because the whole area is in the plume where the stuff came across the road and went down to the river; and there are five wells on the property at the end of her lot and they are actually on her easement.

Assistant County Manager Peggy Busacca stated she can speak to the contamination; it is a well-known site; several years ago people who were involved were actually held criminally liable; and the State monitors the area. She noted it is hazardous material that was released onto the ground that soaked in.

Commissioner Carlson inquired does the County allow building to be developed on sites like that without being cleaned up. Ms. Busacca responded Brevard County does not regulate it; there are State and federal laws that regulate it; and that is why Ms. Jordan’s realtor probably explained that this contamination was possible. Commissioner Carlson stated the County gets money from the State to clean up the brownfields; and Steve Peffer is working on it.

Ms. Busacca stated because this was part of a criminal investigation, the money to clean up all of that is related to the business; whether the business went out of business ultimately or not she does not know; the federal and State agencies have been involved; and it is probably 12 or 15 years old. Ms. Jordan noted it has been 30 years or longer that the contamination has been in the ground; and it does not dissipate.

Commissioner Voltz stated the County knew about the site from a long time ago and still took Ms. Jordan’s money.

Ms. Busacca stated Office of Natural Resources Management was aware of the situation, but this was a rezoning application; Ms. Jordan indicated she wanted to rezone the property; it is not staff’s habit to tell people the County will not accept their applications; and the Zoning staff would have no knowledge of that information. Commissioner Carlson stated it would be disclosure by the real estate group. Ms. Jordan noted she is liable for suit if she does not tell people that the contamination is there; the property directly north of her across Blacks Road was sold for taxes; and inquired is it normal for the owner to divulge to the person he sold the property to that the contamination is in the ground. Commissioner Voltz responded probably not. Ms. Jordan stated the owner resold the property for double the amount of money; and she does not think the people who purchased the property know that the contamination is in the ground.

County Attorney Scott Knox responded the seller is required to disclose any latent conditions that pertain to the property. Ms. Jordan stated she did that.

Commissioner Voltz noted even if the seller is Brevard County, it needs to disclose because it holds the tax lien and sold the property for taxes. Attorney Knox stated if it knows about something, it needs to disclose it; but if it does not know about it, then it is a different issue.

Commissioner Scarborough inquired how much time did staff put into it and is the 50% there because at one time the Board put it there; stated he does not see any compelling reason to see there is a magic number at 50%; and inquired if 50% is a rationally-based number. He noted the fee was created by Resolution; and inquired can the Board do something other than 50% without going back to the Resolution. Attorney Knox responded the Resolution is a policy the Board established for staff to incorporate; and it can change it if it desires. Commissioner Scarborough inquired can the Board do that by having a resolution before it; with Attorney Knox responding the Board can waive the fee if it would like. Commissioner Scarborough stated there are a lot of extenuating circumstances, but he is not convinced that the County should not be there in the initial stages of trying to work through some of this with applicants; and it can look at it in a rational sense.

Commissioner Voltz inquired where is the property located; with Mr. Enos responding on Blacks Road, east of U.S. 1 and south of Rockledge.

Chairman Pritchard stated Commissioner Scarborough’s point is well taken; 50% is a bit arbitrary in terms of whether or not it can be applied; the Board needs to look at whether or not any money was expended; and by that he does not mean staff time. He noted ad valorem taxes pay for staff to be there to do certain functions; and the County has not paid for advertising and does not have any other indirect or direct costs. Commissioner Carlson stated indirect costs would be staff time. Chairman Pritchard stated there could be other indirect costs that he is not aware of; the point is the County did not expend anything; and Ms. Jordan should receive a full refund. Commissioner Carlson stated she does not have any problem with that as there are extenuating circumstances; Ms. Jordan disclosed information to the buyer; and that is why the buyer chose to do a chemical test, and when he found the information, Ms. Jordan chose not to put the property on the market any longer.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to waive the Policy and approve refund of rezoning application fee for Dawn Jordan in the amount of $941.00. Motion carried and ordered unanimously.

RESOLUTION, RE: APPROVING FINDINGS OF FACT FOR DENIAL OF ANTHONY
LaCOURT’S REQUEST FOR CUP FOR ALCOHOLIC BEVERAGES FOR
ON-PREMISES CONSUMPTION (DIAMOND ZONE BILLIARDS FAMILY
SPORTSBAR)

Chairman Pritchard requested the County Attorney explain the issue of findings of fact and generally what the Board does at this point.

County Attorney Scott Knox stated generally in a zoning case that is not a simple zoning case where the Board has come to some long deliberation and gone through a long public hearing, the Board asks the County Attorney to prepare a proposed findings of fact that sets forth the basis upon which the Board made its decision; that is what his Office did in this case; typically the Board is able to come back and look at those findings of fact; and if it finds anything that is inappropriate or incorrect it can make those changes. He noted if it decides it has a different point of view or a change of heart since the last time it looked at it, it can also tell his Office to come back and redraft the resolution.

Commissioner Voltz inquired does the Board want to hear from the applicant first. Commissioner Carlson responded findings of fact has already been set, so the Board has already listened to the applicant and those in opposition; and if it reopens the hearing then it has to listen to it all over again and re-advertise.

Attorney Knox stated if the Board wants to change its mind, it does not have to reopen the hearing; it has to reopen the public hearing for the purposes of changing its decision; but it does not have to take additional evidence.

Commissioner Carlson inquired if additional evidence is provided by the applicant coming forward and talking to the Board, is it something it needs to consider. Attorney Knox responded the evidence the Board has before it in the public hearings it already held is the basis upon which it makes its decision; and any new evidence it would not have to consider. Commissioner Carlson noted hearing the applicant now is not a problem. Attorney Knox stated that is correct; the issue is the findings of fact; and if the applicant wants to address that issue, the Board can do that. Commissioner Carlson stated the applicant can address anything in the findings of fact. Attorney Knox noted that is correct, but new evidence would not be appropriate at this point.

Commissioner Colon stated it was her understanding that after the Board did the findings of fact that was it and the case is closed; both sides brought their best case forward; she is extremely uncomfortable with a precedent being set; and the Board has already been down this path before. She noted if a Commissioner wishes to have another public hearing, then there is nothing wrong with that in order to allow everyone to be present; today she is extremely uncomfortable of allowing that to happen because the Board will be criticized for it; and it is trying to be fair.

Commissioner Voltz stated since she was not at the public hearing before she has 200 pages of documents that she went through; she has seen other evidence where there is a CUP for alcohol and pool tables 800 feet across the street from Diamond Zone Billiards Family Sportsbar, which was denied; that issue was not brought up in all 200 pages that she reviewed; and to approve the findings of fact to deny the request of Anthony LaCourt for a CUP would be an error on the Board’s part. She requested the Board rescind the motion to deny the request and open up the issue again for public hearing with the new evidence. Commissioner Carlson stated it was discussed in context; she is not sure if the County Attorney puts every substantive thing the Board spoke about in the findings of fact; it talked about where the existing alcoholic beverage licenses were; and it had a long dissertation on the issue. Commissioner Voltz reiterated there is a CUP across the street from the property in question. Commissioner Carlson stated the heart of the discussion was that the development was in front of a one-street housing development; it was the only way the residents could get in and out, and it was the biggest complaint; and Attorney Knox could provide Commissioner Voltz with more feedback.

Attorney Knox stated he was not at the meeting, so he does not know exactly what the issue was all about; but if there was evidence presented on where the CUP’s are located and it is not in the proposed findings of fact, that can be added to the findings of fact; and if it changes anybody’s view of the issue, then it is certainly something the Board can decide if it wants to change the findings of fact at this point.

Chairman Pritchard stated in the findings of fact it does not state that there is another entrance into the proposed CUP facility that is a few hundred feet away from Duval Street, which is the main drive into the Biscayne Drive neighborhood; the findings of fact uses words like “immediately adjacent” or “right next” or “adjacent” or “adjacent to”; he is very familiar with the property; the word “adjacent” to him implies it is right on top of; and that is not quite the situation. He noted there is room that would fit into the definition that would take away the implication that “adjacent” means right on top. Commissioner Colon inquired would it be more appropriate to continue the item to the next Board meeting since there are two Commissioners who have additional questions; and stated it could be placed under public hearing so both sides can speak to the issue. Commissioner Voltz stated if the Board wants to do that, it can rescind the motion to deny the CUP and open the issue to another public hearing to draft new findings of fact for the CUP.

Attorney Knox stated if the Board is going to take additional evidence or entertain the idea of changing its mind, staff would need to readvertise and reopen the public hearing at the next available meeting; and the Board has to rescind the action it previously took if it wants to consider the issue again in light of new evidence.

Motion by Commissioner Voltz, seconded by Commissioner Pritchard, to rescind the previous motion to deny Anthony LaCourt’s request for CUP for alcoholic beverages for on-premises consumption (Diamond Zone Billiards Family Sportsbar), and readvertise the item for public hearing.

Commissioner Voltz stated it is important that the CUP across the street from the property in question was not brought up in the findings of fact; and it is pertinent evidence. Commissioner Pritchard noted the property has changed and is not the enclave that was originally shown; what was a wall of brush and shrubs that separated it from Courtenay Parkway is gone; landscaping will be put in; so the property provides a different perspective than it used to and the other side of Duval Street is going to do the same. He stated there is a large steel building under construction; the neighborhood’s location is on a main road that separates a PUD; both the north and south PUD’s front Courtenay Parkway, which is well traveled; and the demographics of the north and south PUD’s are different than what they were because of the amount of construction that has taken place and the brush, etc. that has been removed. He noted the buffering is gone at this point on Courtenay Parkway; and the enhanced buffering on the back and the woodlands are still there. Commissioner Voltz stated the Board will be talking about the CUP for alcohol and not the Billiards as it is going to go anyway; if it was up to her, nobody would get a CUP for alcohol, but it is not up to her; it is something the Board needs to look at; and the applicants have gone above and beyond to meet some of the quality of life issues around the surrounding area.

Chairman Pritchard called for a vote on the motion. Motion did not carry; Commissioners Pritchard and Voltz voted aye, and Commissioners Scarborough, Carlson, and Colon voted nay.

Commissioner Scarborough stated if a Commissioner wishes to address findings of fact, it could easily be done by deferring the item to a later meeting without getting into the details; his decision was not based upon what was out there on Courtenay Parkway, but what was behind Courtenay Parkway in a residential area and the compatibility issue; he does not know if any additional information dealing with CUP’s there would have persuaded him; and there was extensive discussions. Commissioner Voltz stated the alcohol issue is probably the most important issue because it is all the Board talked about; the people who frequent there are not going to be driving into the neighborhood and Courtenay Parkway is going to be the main thoroughfare for this place; Courtenay Parkway is the main thoroughfare for the Moose Hall with pool tables and alcohol; so that is where she is coming from. Commissioner Scarborough stated different people may view facts differently; and he has not heard anything said today that would persuade him to go in a different direction.

Commissioner Voltz inquired if the Board is taken to court on this issue, is it going to win or lose; with Attorney Knox responding one never knows. Attorney Knox stated the issue of compatibility is going to be the issue that will be determined by the court; whether or not the Board has enough evidence to support that, it is a call the court usually makes; and it may or may not agree with the Board.

Chairman Pritchard inquired is there a suggestion that the findings of fact be reviewed or expanded. Commissioner Scarborough responded perhaps Commissioners can touch base with the County Attorney’s Office; such Office can bring back the comments that are made in the findings of fact; and all the changes could be delineated in memorandum form. He stated if any Commissioners have any questions, they can go immediately to those in the next discussion.

Commissioner Carlson stated Assistant County Attorney Eden Bentley was at the meetings during the discussions; the Commissioners can work with Ms. Bentley and Attorney Knox to determine if some of the things that were left out should have been included; and perhaps it was an oversight on Ms. Bentley’s part.

Chairman Pritchard inquired how long will it take; with Attorney Knox responding Ms. Bentley can contact the Commissioners this week and the comments and changes can be ready for discussion by the December 14, 2004 meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table resolution approving findings of fact for denial of Anthony LaCourt’s request for CUP for alcoholic beverages for on-premises consumption (Diamond Zone Billiards Family Sportsbar) to the December 14, 2004 meeting; and direct the County Attorney to work with each Commissioner and bring back comments and changes to be delineated in memorandum form for discussion at such meeting. Motion carried and ordered unanimously.

STAFF DIRECTION, RE: INSTITUTIONAL DEVELOPMENT ON PARCELS WITHIN
WETLAND AREAS

Mary Sphar stated she requested the staff report be sent to her; and she reviewed it, but a more detailed report by staff would be helpful in guiding the Board to a wise decision on the item. She stated there needs to be a more detailed analysis on the potential applications of the wetlands language than is given in the introductory paragraph of the staff report attached as part of the agenda package; oversimplification sometimes leads to misunderstanding; and she would like a staff report to give more of a history of how institutional wetlands impacts have been handled in the past. She noted option 2 is to direct staff to create a new institutional category within the Wetland Protection Code and specify criteria for institutional development; it would be difficult, divisive, and might involve an eventual Comprehensive Plan change; Option 1 looks a lot more reasonable, to direct staff to review institutional developments as either residential or commercial with regard to wetland protection criteria; and the question is whether all institutional uses should be treated as commercial or whether there are some uses for which treatment as residential would be more appropriate. Ms. Sphar stated she looked at the categories in the Institutional Use Ordinance, and right now treating all the uses as commercial is appropriate; however, she would urge a more detailed staff report to make sure.

Natural Resources Management Director Ernie Brown stated the proposal was set before the Board because of a recent conflict that was presented when the Zoning Code was changed for institutional uses; historically staff had been applying the existing residential and commercial applications, primarily the residential applications, because most of the churches were coming in residential areas; they were fairly small in impacts; however, a recent one that came in was much larger than what staff had seen in the past. He noted the conflict provided a lack of guidance that staff needed clarity on as to how the Board would like to proceed; staff is open to any of the options that are set forth here or any other direction the Board sees appropriate; and it can provide more information in the staff report that would give a history as to how these things have been developed and dealt with in the past. He stated the County can no longer deal with the institutional classification because the Ordinance does not deal with institutional classification; so direction from the Board is requested.

Commissioner Carlson stated the Board needs to be very careful on how it applies the wetland policies; there are churches, other non-profits, and things of that nature that might go into residential communities; and inquired is it fair to say that staff used a hybrid between residential and commercial because there are different things. She noted a church has more people coming and going, so it is not like a residential zoning or commercial zoning in a residential setting; and perhaps Ms. Busacca can elude to how the County does that, how it has committed itself in terms of reviewing these types of developments in the past, and if it is in-between residential and commercial how exactly does it fit.

Assistant County Manager Peggy Busacca stated because these have been treated as residential in the past, there are people who would assume that they would continue to be treated that way in the future; however, the County has not frequently seen a church of the size that is described in the agenda item, which is essentially the size of two Wal-marts. She stated one of the questions the Board may want to consider is whether there is a size threshold and the large structures could be treated more as commercial use because they would perhaps have the same type of environmental impacts with the large parking and retention areas versus the smaller properties that would have more of a residential impact. She stated some churches come in and never have their parking lots paved; those impacts are probably significantly less than the areas with very large mega churches; and it is an option staff can return to the Board if that is the desire.

Commissioner Carlson stated the County has performance standards for churches, neighborhoods, etc. that it has been able to deal with.

Chairman Pritchard stated under cost benefit analysis, the goal of the Wetland Protection Ordinance is to promote a no net loss of wetland function or acreage; and inquired how does one determine the functionality of a wetland, whether it is just a wet spot in the ground or a functioning wetland.

Mr. Brown responded that question is best answered by a certified wetland professional scientist; however, he can basically frame the criteria of what defines a wetland, which is hydrology, hydric plants or plants that require a significant amount of water to function, and hydric soils or wet soils; those parameters are evaluated in order to determine whether or not it is in fact a wetland; and the information and criteria are set forth by the Corps of Engineers that all states, municipalities, and other individuals have to use to make the determination as to whether or not it is defined as a jurisdictional wetland. He noted from that perspective, the definition of is it a wetland is defined by the federal government; and the County’s Ordinances have further definitions and clarifications.

Chairman Pritchard inquired is functional wetland defined or just wetland. Mr. Brown responded the federal government does not define a functional wetland per se; there are functions of wetlands to include filtration, infiltration for recharge of aquifers, and filtration for water quality; they have proven scientifically to be some of the best, if not, the best water filtration systems; and many water/wastewater treatment plants are using them now as the most cost-effective means of filtration of pollutants and contaminants. He stated it is a function of wetlands that serves very well, and many other things, such as habitat for a diversity of wildlife and a balanced ecosystem, are other functions that are not only codified here, but also at the State and federal levels. Chairman Pritchard stated one project of 75,000 square feet of building impact is huge; then there is also parking; total impervious area is 9.5 acres on a 20-acre site; and inquired is it irresponsible to say 50% of the site is not going to be developed. He noted he is not getting into the court case where the entire lot was a wetland, but in this case here, there is 20 acres of which 9.5 is going to be proposed developed; and inquired the affect it would have if a wetland was there that occupied “x” amount of part of this, how can one separate the development of half of an acreage from the impact of a wetland that may be designated a wetland, yet questioning the functionality of a wetland. He noted he spoke to several folks about when one sees water on the ground it is not filtering any longer; it is a pond and does not filter; he found that to be surprising when he was told that; someone told him when water goes down and fills up again, that is the filtering process; but water does not sink on water. He stated it was a question of how functional is a water body if it is somewhat stagnant, and how does one determine it is actually functioning. He stated if it is not functioning, he has to question what is the purpose of it other than it is nice to look at; but if functioning water body is the criteria the County is using to say that something can or cannot be done, then he is questioning what is the function of the water body that is prohibiting this from not happening.

Mr. Brown responded there are very lengthy site specific parameters that would probably need to be addressed on the actual site; however, the function of a wetland is not the criteria the County uses to determine whether or not it is a wetland; it is the fundamental federally-upheld criteria of hydric soils, hydric vegetation, and hydrology. He stated he would agree with the fertility of a wetland and the extreme function; a greater function or a multiple benefit wetland is the most desirable wetlands the County should seek for preservation; and he is not sure that is the question that is here, but as to whether or not it is able or required to protect a wetland avoidance minimization and then mitigation under no net loss, is relative to those three parameters of hydrology, hydric vegetation, and hydric soils. Chairman Pritchard inquired is the goal of the Wetland Protection Ordinance written in the Ordinance; with Mr. Brown responding yes.

Commissioner Carlson stated years ago folks used wetlands for stormwater runoff or drainage of their property; a lot of times there was a degraded wetland because of that; that is why new laws came in that said individuals had to separate drainage from a wetland on site; and the wetlands are not supposed to be used for that purpose, which is the whole idea.

Commissioner Scarborough stated he wants to move away from the Wetland Ordinance to the institutional designation; previously churches could be moved into residential areas, but then there was the mega church; the County began to define institutional to deal with that because it became incompatible for residential neighborhoods to have thousands of people on residential streets; and there was the enormity of a continuing activity. He noted he does not know where the particular church is, but it appears to be of the mega; and inquired when the County developed the institutional classification, did it allow the smaller churches to come into residential areas.

Interim Planning and Zoning Director Robin Sobrino responded the County has two sub-classifications of institutional use; one is institutional light and one is institutional heavy; one of the key factors in discerning between the two sub-classifications is the traffic generation associated with the use; and in order to be in the institutional light classification it is anticipated it would have a lower impact trip-wise and it would be calculated to what a single-family residential use on a similarly sized property would be. She stated if a church exceeds that limit of trips, then it would need to go to the institutional heavy classification, which would impose greater restrictions upon it.

Commissioner Scarborough stated when the County discussed this, it was a transportation discussion; and inquired did it at any time get into the concepts of other impacts like wetland impacts or any other impacts. Ms. Sobrino responded the County was looking at the land use issues, not the environmental features. Commissioner Scarborough stated there has to be a linkage between the two concepts; it is a creation of the institutional classification with the mega church that has driven the issue; where Chairman Pritchard may want to address what is a functional wetland goes totally to a wetland issue beyond the scope; but the ordinances need to function together. He noted perhaps in doing the institutional classification, the County did not get there; the question becomes is the transportation issue synonymous with an environmental wetland issue; but probably not because different factors are being looked at; when there is something the size or larger than a Wal-mart, there may be more of a commercial-type; and where it occurs may be at different places. He stated he needs to have more definition as to how the institutional classification ultimately will dovetail into the environmental issue; it is quite simple and he will know it when he sees it; the County does not want five Commissioners to go out and visit each site and say one is and one is not; and if the County could define it a little bit better it may help him.

Commissioner Voltz inquired if Commissioner Scarborough wants to table the item; with Commissioner Scarborough responding he would feel better if he had more information on how the two come together.

Commissioner Carlson stated the County feels uncomfortable treating something the size of a mega church or whatever differently than a Wal-mart when it comes to how it impacts the community, etc.; and the Board needs additional time to digest and see what the environmental impacts are. Commissioner Scarborough stated the County should always be blind as to whether it is a Wal-mart or a church; with transportation and all the other requirements, the impact is there; it is not that the County is opposed to churches; but they do not belong around every neighborhood corner and in every wetland.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to direct staff to report back to the Board on December 14, 2004 with additional definition and detail as to how the institutional development on parcels within wetland areas will ultimately dovetail into the environmental issue and its impact on the community.

Ms. Busacca stated this particular application is not awaiting the Board’s decision; and if the Board would like to table the item until January 2005, it is okay. Commissioner Voltz stated the December 14, 2004 meeting will be fine.

Chairman Pritchard requested staff provide a matrix that can show the impact to industrial, institutional, and commercial uses, what the affect may be if the County were to create an institutional category, and how it might take from commercial or industrial uses, and come up with something that is appropriate. He called for a vote on the motion. Motion carried and ordered unanimously.

The meeting recessed at 11:48 a.m. and reconvened at 1:00 p.m.

*Mr. Jenkins’ absence was noted at this time.

LEGISLATIVE INTENT, RE: RESORT DWELLINGS

Zoning Official Rick Enos stated staff is asking the Board to define which direction it would like to go if it chooses to regulate resort homes; there are a number of options; and direction is needed as to how the Board would like staff to prepare an ordinance to bring forward later on in a public hearing. He noted there are three different options; they are frameworks for different possibilities; there are many permutations between the options; and the Board needs to define what a resort dwelling is, particularly the length of time. He stated it is important because the State defines a resort dwelling as stays of less than one month; the Board can make it more or less than that; right now the County is depending on the State definition to define what a resort dwelling is; and it is important because if the length of stay is more than what it takes to be a resort dwelling then it would not be regulated. He noted there are three potential options; the first option is the most restrictive; it prohibits resort dwellings in single-family and multi-family zoning, permitting them only in the commercial and hotel zones; and the second option is to prohibit them in single-family zoning, while permitting it in multi-family, as well as commercial and hotel zones. Mr. Enos stated the third option is to permit resort dwellings in all or some single-family residential zones; certain conditions can be added; it can be regulated by density or location, such as Barrier Islands, areas east of A1A, or areas with a transient character; and the Board could set performance standards, which the owner of the resort home and his tenants would have to meet to be able to maintain their licenses. He noted things such as length of stay, offsite parking, a number of persons occupying the residence, excessive or late noise, and neighborhood compatibility standards could be considered; if the standards were not met after a certain number of violations, the Board could revoke the permit; the Board may want to consider providing some type of relief for existing uses and uses that are already permitted properly through the State; and it may want to consider amortizing them over a period of time that it finds acceptable.

Rick Torpy, representing The Torpy Group, stated he is present to speak on behalf of a couple of his clients, Mr. and Mrs. Utting, concerning a specific problem with the resort dwelling issue; and the problem is a very personal one to everybody. He noted he lives in a single-family residential neighborhood; one of the problems with it is if the Board approves the use of single-family homes for weekly, every two weeks, or monthly rentals, everyone in this room could run into the situation where there are houses across the street from them and on either side that have transients coming and going on a weekly basis; and that is not the intention of a single-family residential neighborhood. He stated he is a property rights advocate and generally talks to the Board about zoning rights, vested rights, and the rights people have to use their land; and he does not want to seem inconsistent. He stated he is also a rules advocate; if he wanted to come to the Board today for a neighborhood of single-family residences, which were going to be used as resort dwellings, he would be asking for permission to put that in a particular zoning district; and a single-family residential district where people like the Uttings, himself, and the Commissioners have moved into is not designed for commercial purposes. He stated if he buys a house and his primary purpose is to rent it every week to a different group of people, that is not residential and is using his house for commercial purposes; and he would have to be in front of the Board on a zoning request. Mr. Torpy stated some folks are going to speak to the Board today and say they have already done that and bought the houses, they are already using them for those purposes, and the rules are unclear; but the rules are not unclear as it is a single-family residential neighborhood that people move into for that purpose. He noted the Board is also going to hear today that the folks are losing money; but not really; they might not be able to rent the house weekly or monthly; but they still have a single-family house in a single-family residential neighborhood that they can sell; and the last he checked property values in Brevard County are skyrocketing and he doubts that anybody’s home is going to be worth less than they paid for it as a single-family residential dwelling. He stated they might not be able to gain the income they were hoping to running it as a business, but the house is still going to have the value; this is a very important point and issue; he does not want the Board today, in its deliberations, to make decisions on individual cases; and he has been before the Board on vested rights cases that have application to individual residents. Attorney Torpy stated the Board may or may not pass a rule today that impacts adversely some individuals who are using their homes for resort dwellings; if what it does today somehow adversely impacts those folks, they have the vested rights process to come before the Board and ask for some special dispensation and relief from any rule it passes; and it does not have any relevance in the rule the Board is passing today because it can deal with it and it has processes. He requested the Board look at this from the standpoint of zoning, land use, and individual property owner rights; the question is can people who own property in a neighborhood that is zoned for single-family residences use that for commercial purposes, specifically renting it to individuals who come in for weekly, biweekly, monthly, or some period of time; stated it is a line-drawing question; and many people have homes they rent for one year or six months. He inquired at what point does that become inappropriate in a single-family residential neighborhood; stated the weekly, biweekly, or monthly rental of property is clearly commercial and more hotel/motel oriented; and inquired what is the impact on people like the Uttings, who unfortunately have those homes behind them, across the canal, and in front of them across the street where people are coming and going on a weekly basis. He noted it could be guys coming down for fishing trips, families coming down for the beach, spring breakers, or anybody; the point is it is not people who live there and have an interest in the community; they are vacationers; and vacationers do not belong in a single-family residential neighborhood. He stated vacationers belong in areas that are zoned for hotels and motels; they do not belong in areas that are zoned for people who want to live and raise their families, and not have the coming and going; he knows the Board considers these issues carefully; this is a difficult issue to consider today; but in attempting to balance the equities of what people can use their single-family homes for, he would ask the Board to keep in mind that the majority of the people who are going to be affected by the decision today are the people who live in those neighborhoods and do not want transients coming and going on a weekly basis, so they can have the quiet enjoyment that they purchased their homes in a single-family residential neighborhood for. Attorney Torpy requested the Board consider all of those thoughts.

Richard Cowen stated he lives in a beautiful section of south Brevard County; he cannot tell the Board how proud he was to be listening to Attorney Torpy from his side of the bench; he has met Attorney Torpy before, finds his advocacy is splendid, and his spokesmanship was eloquent; but he can trump him because he brought some pieces of paper with him today, which represent a pledge and a promise made by the Board to his neighbors in 1977 and 1978.

Mr. Cowen stated he has information on what was presented in the petition and by the Board when it quitclaimed certain property back to his neighbors, and what was pledged by the neighbors to improve, maintain, and beautify the property; and requested the Board take the time to examine what the neighbors pledged to do for the County almost 27 years ago. He stated in the petition, the neighbors describe the problems they experienced; on top of the general problems Attorney Torpy described, his neighbors outlined that the end of street on Richards Road, which borders on the Indian River, had been used as a staging ground for burglars, defiled by commercial fishermen, and a garbage dump for uncaring people; and the neighbors’ power to stop that did not exist. He noted staff prepared some materials that recited prohibitions from other parts of the State; he could not help but notice that the information from Monroe County, which is a strong tourist-oriented community to the south, spoke about how many individual watercraft could be brought by any particular tenant that seeks to take a one-week, two-week, or one month tenancy; his neighbors kept their promise by putting a ramp on the property that the County abandoned and gave back to them; and the documents speak very eloquently and thoroughly about those things. Mr. Cowen stated people go on the Internet as the landlord or owner of a single-family home and put out encouraging advertisement so that families of people with watercraft and boats, or commercial fishermen come into Brevard County and harvest legally or illegally the fish from its waters; they love to drop $300 or $400 a day or $1,500 a week so they can misuse the neighborhood; his neighborhood’s power to enforce any violations of the covenants it puts on the property are in the real world nonexistent; and he does not want people writing down the license plate numbers of his car or his wife’s car, trying to poison his dogs, or taking umbrage with his neighbors who call them for doing things that the residents have never done. He noted the beautification committee that maintains the private park area that the Board made possible will consider building a garden to continue honoring the spirit of neighborliness for those they have lost over the years; they have all stuck together through these terrible storms that struck the community in September; and they find themselves with no less than two of the homes on his street being offered on the Internet for weekly tenancies. He stated there are three options before the Board; if it is its decision to absolutely draw the line and say this type of behavior does not belong in the County, then it needs to be done today; but if it requires more input and more time, he will be better prepared the next time he comes before the Board. He provided information to the Board, but not the Clerk. He noted he was the author of a petition; he also worked closely with Lee Wenner, Val Steele, and others whose names appear on the documents; and he can answer any questions the Board may have concerning what was done in the past and the promises his neighborhood kept for the Board.

Darrell Curtis stated he and his wife are County residents and property owners of resort properties; they have owned and operated the properties as rental properties over a 28-year period; the majority of that has been on an annual lease basis; and it is hard to regulate tenants once they are there. He noted they have had a lot of experience with that, as well as his neighbors; it is hard to get a tenant out once they create a problem; the tenant stays for one or two years, or whatever the lease is; and that is what drove he and his wife to convert their properties from what they were to resort-type properties. He stated they personally managed the properties; they have put $30,000 to $40,000 into improving them; the neighbors are extremely pleased with what they have done; and he has letters from them, which he can provide to the Board. He noted when he and his wife learned of the problems that arose, they met with the County Manager’s Office to try to get more information; they were informed there have only been two complaints in the history of Brevard County about resort properties; and it is a good record and speaks for itself that there may be some problems, but only two complaints have been brought to Code Enforcement or the County. He stated if the properties are properly managed, all of the problems can be avoided; Monroe and Pasco Counties have good regulations; and such regulations can help property owners manage the properties.

Commissioner Carlson inquired does Mr. Curtis have a State license and occupational license. Mr. Curtis responded he and his wife pay State and County taxes; they do not have a resort license; they are registered with the State and County, and collect resort and State taxes; and they pay those as a resort dwelling.

Lucinda A. Coulter-Burbach stated she watched the tapes of two previous meetings; a lot of people think that people who own resort houses are rich or making a lot of money; she is a teacher and taught in Florida for 40 years; and one does not get rich teaching. She noted she and her first husband started buying rental property in 1966 in Florida; they put $25.00 down on one house they bought and paid $2,000 for the home; they fixed it up and did all of the labor themselves; and it was not until after her husband passed away that she ever hired anything done except electrical, plumbing, and roof work. She stated she and her husband did everything, including cleaning, landscaping, wallpapering, painting, etc.; her husband now is a disabled veteran who served this country for 28 years; and they started going to vacation rentals in other places, including St. George Island, Destin, and North Carolina. She noted they did not look at properties they could not rent for less than one week at a time; the house they bought had been on the market for two years; they would never have bought and paid what they did for the house if they had known they were not going to be able to rent it when they purchased it; and they specifically asked about covenants and restrictions, and were told there were none. Ms. Coulter-Burbach stated the same day they closed on the house they signed a Contract with a licensed realtor to manage the property for them; they have been very successful with it, but are not making money; they are not even breaking even by a long shot; and they have spent somewhere around $200,000 in Brevard County on furniture, appliances, and services. She noted she and her husband would not be here if it were not for vacation rentals; they paid $12,847 last year in property taxes; $5,728 went to schools; and nobody is going to go to school from her vacation rental. She stated they rent the house on the Internet and get a $2,000 deposit; if a tenant is going to cause trouble, she does not want them; she and her husband write the regulations very clearly; and they do not get spring breakers or party people as the house is in a residential neighborhood. She noted her next door neighbor said when he heard there was a vacation rental going in, he worried about it and wondered if it was going to hurt his property value; however, he told her yesterday that he has been very pleasantly surprised and the tenants are families. She stated she heard about the Board’s actions in August 2004; three hurricanes hit her house in Orlando and devastated the house on the beach here; today the roof is being fixed; and there has never been a complaint to the police or anybody else concerning her property. Ms. Coulter-Burbach noted she and her husband want to be good neighbors; the proposal is not fair; they cannot own their house if they cannot rent it; and they depended on it when they purchased their home and understood it was legal. She stated she just heard about the resort license about three weeks ago and thought she was in compliance; she had been told she did not need an occupational license; but she and her husband will apply for one; and they welcome reasonable regulations.

Jean Freeman stated she resides in North Waterway Estates; for seven years she has been the South Patrick Residents Association Area 5 Director of 400 homes, where two of the short-term rental homes are located; over the years she has received many telephone calls from residents regarding concerns in the residential area; however, she has received more calls regarding this issue of short-term resort single-family rentals than any other issue so far. She noted after the recent hurricanes, the area pulled together with neighbors helping neighbors; residents pitched in to help each other; this is what the community is all about; North Waterway Estates is family-oriented; and it is concerned that the short-term resort rentals as advertised over the Internet are causing problems in the neighborhood. She stated she respects the renter; however, the area is zoned as single-family, non-commercial; the residents should not have to suffer due to a resort scenario; and the residents purchased their homes in a residential community, not a resort. She requested the Board put itself in the residents’ situation; and inquired would it be pleased if the house next door or across the street was a resort rental, and each week different vacationers arrived ready to make the most of their weeks vacation. She noted they deserve a great week, but not in a single-family home area; and requested the Board consider the residents’ concerns and do away with short-term resort rentals like most other beach areas have done.

Barbara Eppard stated there is a problem on Richards Road; the residents do not want the short-term rentals there; they do not care if people are there for six months to a year for rentals; however, the residents do not want overnighters, weekenders, and weekly renters. She noted the residents do not know who is coming into the neighborhood; they do not know if the renters are the local rapists, drug dealers, or child molesters; the owners do not go through the trouble of a background check as it is too expensive and too time consuming; and the residents are frightened. She stated there are small children in the neighborhood; she has grandchildren and so do her neighbors; she has lived in her home for 38 years; and never did she think in 1966 when she bought her home that she would have to stand here and ask somebody to keep someone out of her neighborhood for her safety. She noted the renters come in on the weekends; there are six, seven, or eight cars at a time; such renters are in the streets and parking in everybody’s yards; and they party and go up and down the streets at all hours of the day and night. Ms. Eppard stated some renters have knocked on her door asking to use her pool; the two weekend rental houses are directly across from her, so she faces both of them all the time; in the evening she has to draw the curtains in the television room because the renters sit on the patio partying; and they have peeked in her window watching her watch television. She noted it is not privacy and not what she expected to do in her latter years of having to hide from her neighbors; it is not acceptable on her street; the owners of rentals claim they cannot make money on their rentals; and that is too bad and they need to sell them or make them yearly rentals. She stated the residents have been complaining about the issue; they do not want short-term rentals and want the Board to make a decision; it is not fair to the homeowners who have owned these homes, paid taxes, put their children through school, and still pay taxes; and the residents want to keep their homes, their sanity, and their safety. She noted the homeowners expect the Board not to let this issue continue.

Denise Williams stated she is former chairman of the Housing Authority; during her time in office, the Authority was faced with dilemmas that were similar to this in nature; fairness in making decisions regarding human lives and living conditions is difficult; and no matter how the Board rules, all parties will not be satisfied. She noted she lives across the street and the canal from two resort residences in the area; she is a second generation owner in the neighborhood; her parents retired there 28 years ago; both of them died in the house, choosing the beauty and peace of their house over nursing homes and hospitals; and she had the privilege of caring for her father, with the help of Hospice, until his death in July 2004. She stated the house now belongs to her and her son; all of her neighbors have known her family for 27 years; in times of need they all help out; and this is a neighborhood of homeowners with very few long-term rentals. She noted her parents bought their only home after lots of military traveling in a beautiful, peaceful, safe residential neighborhood; she and her neighbors feel strongly that they do not want their quality of life changed for the sake of monetary profit for a few investors; and requested the Board not allow short-term rentals in residential neighborhoods. Ms. Williams stated semantics can be used to any advantage; resort can sound very classy; but it can also refer to places like the strip in Daytona where Bike Week is held, and South Beach with its moral decay. She noted Miami Beach wisely has a ruling in place protecting residential areas from vacation rentals; and she prays the Board will follow suit.

George Utting stated he and his wife have lived in their home for 28 years; there are two houses within 150 feet of their home that have been purchased and operated as transient resort dwellings; one house is directly across the street from them; and the other house is directly across the canal and is owned by a company in Pasadena, California. He noted the house is advertised on the Internet as sleeping 11 persons; but if it is like the house directly across the street, the advertised capacity has been exceeded; the neighbors take pride in the neighborhood; and they do not want it to be turned into a resort motel area, renting weekly to transients. He stated it is not right nor should it be legal to have a transient weekly rental hotel suite operated as a business in an area which is zoned single-family residential; it is not only a public nuisance and parking hazard, but will certainly degrade the area and lower property values; he called the surrounding cities and found that Indialantic, Indian Harbor Beach, Satellite Beach, Cocoa Beach, and Palm Bay prohibit short-term rentals in single-family residential areas; and Miami Beach prohibits such rentals. He noted rentals of less than six months should be considered transient short-term rentals; if the right decision is not made, the Commissioners could have a vacation transient house next to them soon; and requested the Board prohibit resort dwellings in areas zoned for single-family homes and permit them only in areas zoned for multi-family, commercial, or hotel use.

Juanita Brooks stated at the last meeting she talked to the Board about owning a multi-family home in which she also has two short-term rentals, and why she turned all of that into a short-term rental; at that time, the Board talked about if multi-family would be included in this targeted population or not; it discussed the issue, but did not come up with a conclusion; and she hopes the Board will make a decision as to whether multi-family properties are included in such targeted population or not. She noted at the end of that meeting, the Board discussed grandfathering based on State licenses; about a year and a half ago when she turned her rentals into short-term rentals, she went to the Department of Revenue (DOR) because she knew she had to pay a State tax; she called the Cocoa office, which is the District office for the DOR; and it directed her to the Internet, in which she completed the application. Ms. Brooks provided copies of the application and packets to the Board, but not the Clerk; stated Items 14a and 14b specifically asks on the application the type of rental; it also asks if the business activity includes rent, transient, living, or sleeping accommodations, which means the six months or less; so those two questions are very important that they were asked on the application with DOR. She noted she asked the person in the Cocoa office if there was anything else she needed to do in order to operate her short-term rentals; she was told there might be some tax in the County; she contacted the County and found out there was a resort tax; and there is an application for such tax. Ms. Brooks stated Items 5 and 7 specifically address the types of units; she asked if there was anything else she needed to do in order to rent the units, and she was told no; she began renting the units as such; and it was not until about six weeks ago that she got an email saying that her property might be in jeopardy of being closed down, which was very shocking to her. She noted at that time she was told about a State license, which she had never heard of before; she tried to find out about such license and contacted Diane Maynard; she told her under no circumstances would she get a State license; and she was also told she had to have an occupational license, she was not going to get a State license until she had an occupational license, and she was not going to get an occupational license. She stated there is a lot of confusion about State license versus County license; she does not have them; and those are the reasons why.

Evelyn Brown stated she lives in North Waterway Estates; she is a real estate broker and landlord; and she is 100% opposed to resort rentals. She noted the house at 417 Cardinal Street sold for $330,000; a similar property with a one-car garage and no pool is currently on the market for $399,900; no one is going to lose money by selling the house; and the house at 417 Penguin Street sold for $370,000. She stated currently there is a house on the market similar to the properties in question at $450,000; two recent sales bring concerns of the homeowners into focus; one property was listed next door to one of the resort rentals on Penguin Street; and it was originally listed for $449,900. She noted it was on the market for 112 days before it closed at $400,000; it is a reduction of almost $50,000; another house on Eagle Street was listed at $454,000; and it sold in a matter of weeks and closed at $450,000. She stated why one home sold for $50,000 more than another home the listing agents could be contacted to find out; but she believes having a resort rental next door impacted the sale of the property on Penguin Street. She noted she was listening to Channel 6 News last night; one of the resort rental owners was trying to reassure the viewers that they try to choose the best tenants for their properties; the owner indicated she only rents to families; and it is a total violation of federal law. Ms. Brown stated Housing and Urban Development promotes equal opportunity housing for everyone; if the resort rental people pick and choose who they rent to, they are not following federal guidelines; they cannot legally pick and choose among their applicants; and there are only about three criteria one can discriminate on, including credit, pets, and smokers. She noted once someone makes an exception for one person on credit or whatever, he or she is forever after bound to consider all other applicants on an equal basis; the resort owners should research whether or not they are being violators of federal law because if one of the persons they turn down chooses to go to the federal government for discrimination they are in big trouble; nobody wants to mess with the federal government on these things; and as a broker, it causes her a great deal of concern. She stated she and her husband recently purchased a little bungalow on Merritt Island; it was a trashy house; they are putting a lot of money into it because they plan to rent it; but they also want to make it a nice property. She noted she found out a few weeks later that the house a couple of doors down is a resort rental; the people live in Kentucky; and inquired why should she and any other landlord in Brevard County restrict themselves to the betterment of the community and only rent to long-term renters when they can make three or four times as much doing resort rentals. Ms. Brown stated if the Board opens the door, she can guarantee every other landlord, maybe including her, is going to go for the big dollars; and inquired why should one person have a social conscience when it is perfectly legal not to have one. She requested the Board think about that particular scenario and what kind of doors it is going to be opening with whatever decision it makes; stated everyone likes to make money and save for retirement; the existing homeowners, if they have bought in the last six months or more, can probably sell the properties without a problem and make a nice profit; but if the door is opened, everyone is going to run as fast as they can right through it and open resort rentals as there is a market for it.

Eileen Coleman stated she and her husband have lived in their home for over 20 years; her husband is a firefighter with the City of Melbourne and she is a nurse with Health First; they have a duplex; and it is right across from A1A. She noted they did long-term rentals for years; she does not believe people understand the difference with long-term rentals; there are a lot of problems that can arise; and it is very difficult when someone has a lease. She stated it can take almost two months to get someone out, and that is with help; she and her husband were looking at retirement; their taxes continue to increase; and their children grew up in the house, and they want to keep it. She noted the option was to possibly do vacation rentals; and they checked for two years trying to find out what they had to do to comply. Ms. Coleman stated they have done advertisement on the Internet for the rental; she and her husband live right next door to their rental property; they have had doctors and their families rent from them; and they have only rented to a maximum of six people. She noted they regulated themselves; they tried to join Superior Small Lodging, which is an accreditation; it inspects yearly; but one has to have a State license first. She stated Ms. Maynard has stonewalled many times, keeping her and her husband from getting the license; she has told them the County will not issue them a license, therefore, she will not inspect them; so they are at that point right now. She noted the guests they have rented to have caused no problems; most of the people who come spend a lot of money in the community; they are out everyday and go to Kennedy Space Center, and Brevard Zoo, and go on charter fishing trips; and a cleaning service comes in once a week. She stated many owners of rentals have pool care and lawn care; there are other services such owners support in the community; the guests she and her husband have had have been excellent; and it has been the best rental experience in all the years they have rented property, and have never had a complaint. Ms. Coleman requested the Board reconsider its decision; stated the owners of rentals are members of the community; they live and work in the community; and suggested establishment of a review board or committee consisting of property owners, homeowners, and vacation rental property owners to discuss the issues. She noted the owners of rental properties want to be good property owners, keep their properties, and continue to live here.

Bob Coleman stated he talked to the Planning and Zoning Office, which indicated he owned a duplex zoned rental already; he was told he could rent the property the way he wanted to as the County had no rules on it; he called about an occupational license and was told the property was zoned RU-2-10; and the entire street has duplexes and border commercial properties, including Century 21 and a bank. He noted Ms. Maynard contacted he and his wife and indicated they needed a State license; they applied for same in March 2004; Ms. Maynard keeps refusing to give them an inspection; and he contacted George in the Planning and Zoning Office, and he indicated that a license was not necessary because it was rental property. He stated he also talked to Robin about occupational licensing; she told him the same thing as George did; he and his wife have had their property as a resort dwelling for one year now; and they have all the applications into the State and have to get the State license before they can get the County license. Mr. Coleman noted it is a Catch 22; Ms. Maynard will not give them a license, therefore, they cannot get a license from the County; and that is where they are at right now.

Eric Lee stated he and his wife purchased a home on Merritt Island in June 2002 with the intention of using it for family vacations, as well as renting it as a vacation rental to help offset the cost of the home; they do not want to rent long-term because they want to be able to enjoy using their property whenever possible; they called the County prior to purchasing the property and asked what they needed to do to rent the property short-term to make sure everything was legal; and they were told all they needed to do was pay State and local taxes since renting the property was considered residential use. He noted they asked if any licensing was required and were told no; in the two and a half years they have been renting the property as a short-term rental, they have never had any complaints from the neighbors; they rent to retired people and families; and they go out of their way to make sure the families they rent to understand that the property is in a residential area, and they have to respect the neighbors privacy. He stated he and his wife clearly make sure the renters understand that they do not allow parties and they have the right to remove them without cause; he believes from the last few meetings regarding the issue that there are a couple of properties out of hundreds of short-term properties in the County from which there are complaints; these complaints are about a few incidences and are based on behavior; and these are complaints that neighbors have across the country without regard to whether they are owned or rented. Mr. Lee noted one can drive through most neighborhoods and find some very well maintained homes and others that are not well maintained; some of these properties may be rentals and others may be owner-occupied; this is a problem that is not restricted to short-term properties; and he and his wife chose to rent their property short-term because they have more control over the care of the property and they take very good care of their property. He stated they have local companies to maintain the pool, lawn, pest control, and cleaning; they also chose to rent their property short-term because they can evict a tenant for any reason under their Florida State license; if a tenant is unreasonably loud or not following the rules, they can have the person removed; and it would be helpful to look at Polk County to see what happened in regard to local governments trying to restrict property owners’ rights. He noted Polk County had a short-term ordinance that was challenged and ruled unconstitutional; currently in such County, short-term properties have to be licensed and pay their State and local resort taxes as there is no ordinance at this time since it was ruled unconstitutional; licensing short-term rentals and continuing to pay taxes, along with a reasonable constitutional ordinance would be appropriate for Brevard County; and it would be consistent with the laws already on the books. He stated the current laws, along with a reasonable ordinance that the owners of rentals would like to help create with their representation would be sufficient; if individuals are too loud or causing a disturbance, those persons could be removed immediately; there is a precedent for business licenses to be issued in residential neighborhoods as bed and breakfasts, foster homes, and group homes; and home occupations are allowed in single-family zoned neighborhoods. Mr. Lee noted this would be the best thing to do rather than taking away property rights and getting involved in a constitutional battle; property owners have rights guaranteed to them by the Fourteenth Amendment; and they will do what is necessary to enjoy those rights.

David Hinkel stated he is a retired Navy Commander and moved to Brevard County because he loves it; it is a wonderful area; he lives in a wonderful neighborhood, which is quiet; and he is vehemently opposed to any type of transient rentals in the neighborhood. He noted there is one rental down the street; he does not want to turn back into a policeman where he has to watch and see what happens; he has come down the street and seen six or eight cars in front of the rental home; and he has also seen trash and the neighbors having to put up with what is going on. He stated short-term rentals is a bad thing for a neighborhood; as a neighborhood, everyone takes ownership in their property and their neighborhood; the neighbors know each other; and when someone comes in for a short period of time, the neighbors do not know who the people are. He noted the renters do not care; he cares about his neighborhood and his County; and requested the Board not allow short-term rentals in single-family developments. He stated that is not why he purchased his house; he did not want to live in a resort area; and requested the rentals not be less than six months in single-family housing.

Ed Magnor stated he is Rosie Saxon’s fiancée; Ms. Saxon has lived on Cardinal Drive since 1966; unfortunately, she lives next door to the new resort house; and she has the same problem as the gentleman from Merritt Island has. He noted at times tenants have partied day and night, and have used Ms. Saxon’s dock while she was not home; Ms. Saxon’s entire seawall is one big dock and fenced in; the tenants broke the corner of the fence, which she had to have repaired for $250.00; and there are numerous cars at the resort home and also along the street. He stated the sidewalk is usually blocked; Ms. Saxon’s husband passed away in 1990; and she would like to spend her golden years in peace.

David Stephan stated he lives in North Waterway Estates; the neighborhood is residential; having unknown persons every week creates a potentially unsafe condition for children; and there are different problems every week and people of unknown backgrounds. He noted it destroys the community atmosphere that the development was built to create; and requested the Commissioners think how they would feel if a transient rental would occur next door to their homes.

Fiona Stephan stated she is against resort dwellings being in a residential area; one of the unique things that happens in North Waterway Estates is that the neighbors are stewards of the grounds and waterways; and one of the things that happens with a short-term rental is that those people come to vacation and have fun as they should, but with little regard to what happens to the waterways. She noted they speed down the waterways and do not care about the animals; they also do not care about how they fuel their boats on the waterways; and reiterated her opposition to resort dwellings in a residential area.

Linda Vogel stated she lives on Richards Road and is a licensed realtor in the County; she is opposed to the use of residential property for short-term rentals; she has lived on Richards Road for one year; and she and her husband rented for a year in the area before they made a decision where to buy. She noted they looked everywhere from Palm Bay to Cocoa Beach; they chose Richards Road very carefully because it was a quiet community; a lot of the people who live on the Road have lived there for 20-plus years; and it saddens her to hear those people talk about wanting to move now because of this particular issue. She stated one of the short-term resort rentals is across the street from her home; the gentleman that bought the home lied to the seller; he was asked specifically if he was going to use the home for himself and his family; and he lied about it and turned the house into a resort rental. She noted one of the things that came up in discussion with her husband is the $60 million bond that was recently voted on to preserve Brevard County; she sees the proposed issue in direct opposition to preservation; resort rentals in residential neighborhoods is a destructive force; and encouraged the Board to make a decision in favor of change for good. Ms. Vogel stated mistakes are made, loopholes are found, things fall through the cracks, and change needs to be made at times; and encouraged the Board not to react in fear to threats of lawsuits.

Michael Cammarata stated he lives on Richards Road; he does not like weekly rentals; 12 years ago he came to Brevard County; and he told his wife he wanted to buy a home on Richards Road and retire there. He noted he worked in the construction industry all of his life; Florida is one of the best states he has ever lived in; the neighbors on his block get together and have parties at the end of the block; and he has good neighbors. He stated the neighbors do not like to see rentals on Richards Road; there are two rentals already; he understands there will be a rental next door to him; and the neighbors love Richards Road.

Barbara Van Dam stated she lives in Melbourne Shores and is a real estate broker whose office manages seasonal rentals; she empathizes with those property owners who have had a bad experience with tourists; any problems should have been immediately addressed to law enforcement or Code Enforcement; and any one of her office rentals, if there is something going on next door, the neighbors are calling her in the middle of the night, and she is there taking care of the problem because the office does not want bad renters. She noted perhaps some of these houses should be supervised by local people; subdivisions with homeowners associations regulate the amount of time people can rent their places; it is the fundamental American right of property owners to exercise their privilege of ownership; and that is to sell or rent, unless otherwise mandated through their homeowners association. She stated it is a very difficult decision for the Board because the unincorporated area is so large and diverse; South Beaches, where her office rentals are, is approximately 14 miles; but it is unique in the fact that there are single-family houses next to multi-family housing; so one cannot say it is a residential neighborhood necessarily because they are properly zoned multi-family next to single-family. Ms. Van Dam noted most of the properties are on the water with very expensive homes; three of the motels have been recently closed and removed for more single-family homes; there hardly are any places for tourists to stay; and last night Channel 6 News estimated a loss in Brevard County of $3 million in tourists dollars during the 2005 hurricane season. She stated Channel 6 News indicated tourists would be going elsewhere; that is hypothetical, but is what was said; and inquired if it was not for the off-season seasonal rentals, where would the hurricane victims stay while their houses are being renovated. She noted half of the homes her office manages currently have hurricane damage and a big loss of revenue for those owners; last winter season those rentals generated almost $10,000 in resort taxes, not including State taxes; a loss of tourist money will be large for the owners and County alike; and requested the Board grandfather those who have consistently paid their tourist taxes, and at the very least, do not implement its decisions to be effective until after the winter season as deposits have been in place for months. She stated the Board is implementing something that affects so many people.

Harri-Ann Irwin stated she lives on Richards Road and supports what most of her neighbors said; she lives in a single-family residence; she cannot rent out her rooms; and she cannot bring a bunch of people into her house, but the people down the street can. She noted there are no regulations to keep them from having many families; there are no regulations to keep them from doing whatever they want in the house; she lives next to the park and picks up the trash; and she sees the dogs leave their droppings. She stated she hears renters at 3:00 a.m. setting off firecrackers; she does not appreciate it; she loves tourists and is a licensed realtor; but the tourists belong in motels. She noted they could go to a condo or townhouse, but they have regulations also; Richards Road and a lot of the homes in the South Beaches started back in the 1960’s; the residents did not know there would be problems; and Richards Road homeowners do not have a homeowners association and cannot create one. Ms. Irwin stated the residents are relying on the Board to protect them; they are in the unincorporated area of Brevard County; the Board is their only recourse; and requested it take the issue into consideration for the residents.

Ayn Marie Samuelson, Vice President of South Patrick Residents Association, stated she owns residential rental property; this is an issue of rights and responsibilities; and she believes in property rights. She noted it is a fundamental right that has been guaranteed in the Constitution; this means she can rent her property; most of her properties are rented on an annual lease; and those people become part of the community, their children go to school, and they become involved in churches. She stated her rental fee is about $1,000 a month, not $1,000 a week as the resort dwellings; certainly she would like to make more money; but the other side of the coin is responsibility to the citizens and residents within her community. She noted she wants to make a good living, but she also has a responsibility to them; they have the expectation of living in their homes in a residential area enjoying the health, safety, and security of a residential area, not with transient individuals coming in on a weekly or bi-monthly basis to upset the apple cart; the expectation is there; and many people were surprised this would be an issue and resort dwellings would be allowed in the area. Ms. Samuelson stated she feels for the Uttings because they not only have someone to the north of them, but also to the south; and inquired what happens as the number of these types of resort dwellings increase, and will it change the character and stability of the neighborhoods. She noted she believes it will; if the Board thinks about it, it will see this as a factor that is extremely important to consider; these are the people and the taxpayers who have lived here for many years and have that expectation; and she recently carried several checks to the post office in the amount of about $28,000 that she pays in property taxes. She stated it would be a much easier burden if she rented according to resort rentals, but she refuses to do it because it is a responsibility; and urged the Board to look very carefully at the issue.

Bill Wuest, President of South Patrick Residents Association, stated he agrees with many of his neighbors who are opposed to transient rentals; and thanked the Board from many of the residents for arranging the task force to help clear the area of debris caused by the hurricanes.

Mr. Wuest noted ABC Company, Harris Sanitation, and Waste Management were able to get the area cleared of the debris. He stated many people are unable to attend the meeting today due to their work schedules, but they are concerned about transient rentals; and he rents his properties on a yearly basis, does credit checks, asks for references, and checks such references. He stated the Association gets news of sexual predators that are living in the community, either through the Guardian newspaper, Internet, or COPS Program sponsored by the Sheriff’s Office; with transient rentals, he does not believe the residents can check every group of people that come for either a few days, a week, or slightly longer time; and requested transient rentals not be permitted in residential areas.

John Seger stated he has rental property on Florida Boulevard; one issue that came up was broken sprinklers from transient rentals; he has had neighbors that live next door to his rental property park their cars close to his lawn on the parkway and have accidentally broken a sprinkler; and there is not any way one can say for sure that it is folks from his property that is doing it as there are folks all over the neighborhood. He noted 90% of his renters are families; the other 10% are retirees; he is not bringing in people who are undesirable; and he does not have spring breakers either. He stated anyone can drive by his house and look at his property; he takes very good care of it; he has a lawn service, bug service, weed and feed service, pool service, maid service, etc.; and he takes a lot of pride in his properties. He noted sometimes owners who rent their properties are being used as scapegoats; if something happens or noise occurs it gets blamed on such owners because they are not there to defend themselves; they are also accused of daily renters; but he does weekly, monthly, and longer rentals. Mr. Seger stated families come down who also have family here; they get together for Easter or Christmas just as other families get together, so it should not be an issue; he does not believe the rentals lower property values; and property values in Brevard County are increasing. He noted anyone can complain; owners of rental properties are being compared to hotels, but they should not be; hotels rent to many families daily, have restaurants next to them, and large signs on their property; however, rental properties do not have that; and such properties are like bed and breakfasts, but even then, those have multi-families that come into the property. He stated he has five neighbors around him; only one neighbor complains; such neighbor woke up one of his tenants at 2:00 a.m.; and he has police reports and emails showing that when the police arrived, it was quiet.

Attorney Mike Minot, representing Richard and Gina LaDrew, stated the LaDrews are owners of a property for vacation rentals; his clients support the Board’s consideration in adoption of ordinances, which would set performance standards that have been absent in the County Code to this point; anything that is reasonable, fair, and sets the standards for the use of these properties so that both the owners, neighbors, and County understands what is expected is acceptable; and there are many different examples that have been provided to the Board in its packages before today, including Monroe and Polk Counties’ regulations. He noted there is a host of different types of regulations in there covering many different topics; there has been no type of regulation in the County Code; what these owners have done before buying their properties and giving their life savings many times into the investment of Brevard County is researched and determined there is a State permit, which only requires five different physical characteristics of the property to be present; and it is inspected for that on a once-a-year basis.

He stated there may be, but not always, a homeowners association; the only formal regulations are these two he just described, otherwise, those properties have been self-regulated; and the Board has heard the testimonies of many people who have done that to the best of their personal abilities and set up their own criteria. Attorney Minot noted all of them welcome the opportunity to create a level playing field like the other counties that have been regulating this type of activity for years with great success; the County can have the ability to join those counties and say it is not going to take away the advantages of those properties just for the sake of cutting the owners off at their knees after they have put their long-term investments into such properties; and there has been confusion about what has been done in the past and what needs to be done. He stated in addition to paying the real estate taxes that have no exemption for homeowner occupancy, owners of rental properties pay the 10% sales tax or collect it from families who come to vacation; they pay 4% of that in the form of resort tax to the County; so they are collecting tax once and paying it again on their real estate. He noted the families who come here from out of town save all year so they can donate their money to the merchants and restaurants in the County; they are willing to spend their money here; the real estate market is in some way supported by people who bring their money from out of the County and purchase property here for this purpose; and the families who come here for a week or two are no different than when everyone here invites people to their homes. Attorney Minot stated everyone does not announce to their neighbors they are having people over; they do not call local government and say they are having guests for dinner, overnight stay, or a week or two stay; so those people are there and no one knows who are in the homes; and there are people who own second houses in the County who invite their extended family, clients, and guests, and nobody knows who they are. He noted the same is true for the particular families of rental properties; it is unfair to suggest that there is a safety factor or pedophile issue with respect to rental properties; there is no history of that whatsoever in the County with respect to such properties; and to do so is profiling in an incorrect way. Attorney Minot stated Ms. Van Dam stated a compelling case as to the real estate community wanting direction as well; so with the lack of direction, he and his clients join in asking for that type of direction; but the fairness and reasonableness must be in the regulations to not cut the business out from underneath his clients; and reasonable and fair regulations are such that everyone can live with. He noted to disregard the fairness, which was one of the comments Attorney Torpy made, is something the Board knows not to do; there is fundamental fairness for everyone who owns property; and they should be considered.

J Sky stated it is not easy to find out about the State license; when she got into the property rental business, she called State and local government agencies; no one told her about the State license; and this week she called DOR to find out why there is no mention of a State license on its application. She noted an employee with DOR spent half an hour going through the websites trying to find how to obtain a resort dwelling license, but could not direct her to it; she knows where it is now as she found out at the August 24, 2004 meeting; if the Board is considering basing its decision on the State license, most everyone did not know about it; and they did everything they could to find out what was needed to operate legally before they started the business. She stated the County told individuals they did not need occupational licenses or any other licenses to operate such a business; and requested the Board consider that fact if it is going to consider grandfathering. She noted the County seems to be profiling vacationers as all partying people; most of them are looking for peaceful and quiet enjoyment; the people she had renting from her this past weekend had to call her because there was a band in the neighborhood playing for hours at a time; so it works both ways. Ms. Sky stated just because she has short-term rentals does not mean there is no respect for anyone else; it is absurd to think that; it seems most of the people are from the same area where the complaints are stemming from; and regulation would help raise the level everywhere so everyone can operate this business in a respectful way to the neighbors. She noted she supports any regulation the Board wishes to impose to raise this business and the standards.

The meeting recessed at 2:39 p.m. and reconvened at 2:50 p.m.

Gene Cimino stated Joseph Menig had to leave early, but supports Option 2; it sounds like it is a complicated matter, but it is really very simple; and requested the Board think of one word, “resort”. He noted it is a business; individuals are operating a business primarily for money and financial reasons; for every one of them there are four to six residents surrounding them; and everyone is affected. He stated he wants to sell his house as he cannot take it anymore; he will take a good price and 20% less if anyone is interested; nobody wants to buy next to a motel or resort; and if he did, he would go to Cocoa Beach or any tourist-zoned area. He noted when he purchased his house he wanted to relax in a single-family home in a residential area and a nice community; that is what he thought he was getting, until the rentals happened about two years ago; and files with the Florida Department of Business Professional Regulation show incidences of noise all night, people always on vacation, trash left all over after people stay for the week and sometimes while they are still there, nowhere to park, 20 people or more staying at a home with sleeping bags, property damage, running over sprinklers, parking on grass, children up all night skateboarding, setting off fireworks, drunk people, beer bottles in yard, and theft of personal property. Mr. Cimino stated those are actual complaints on file; one of the speakers indicated it is hard to get an application to rent property; he pretended he wanted to do it for his home about one year ago; and it is simple to obtain an application from the Internet as the people are very nice and mail the applications right away. He noted he was told if someone is operating illegally, somebody will come and license them as long as he or she passed inspection; the point is some people are operating a business; the purpose of a zoning law is to protect the integrity of a neighborhood; and he, his wife, and his family have a constitutional right to enjoy peace and quiet. He stated somebody made a statement that he or she has visitors stay with them; if anybody visits him, they are not going to party because the neighbors are going to call him; he does not know the renters behind him who are out all night screaming and yelling; and he does not know their backgrounds. He noted a lot of the owners of rental properties are outside of the County and State; the owner who rents property behind his house is from Illinois and flew in a couple of days ago; real estate values will drop because of the rentals; and it is bad for the County. Mr. Cimino stated the residents vote and live here; the County could probably call the State and get a breakdown of where the owners live; and provided information to the Board, but not the Clerk, of one gentleman who posted ads on the Internet. He noted the individual was told by Bobby Bowen he had to cease and desist, however, the gentleman is still posting ads and has two websites.

Barbara Bradley-Benn, President of Merritt Island Executive Council of Homeowners Associations, Inc., stated she lives on north Merritt Island; this issue touches lives in Merritt Island where she has lived for 24 years; she has a rental property next to her; and the congressman who owns the property next to her bought the property as a retirement place, and he was re-elected. She noted he is in Virginia, so he rented the property to a NASA employee and his family; he since took another job; now there is a physicist with five children; but they are responsible people, and she does not even know there are two children there, let alone five. She stated if there were and it was within reason, including the noise and goings on like neighbors do when they are living their lives with their families, no one would object to that; the key to any decision being considered today is to strive for as near as possible a win-win result; this means a reasonable solution to the matter; and all property owners have rights. She noted one of those rights is reasonable expectation of peace and quiet; inconsiderate, part-time, out of the area neighbors that constantly change the permanent resident’s comfort zone seems wrong on the most basic levels of home ownership; and it is clearly a case involving all types of people, with the disruptive ones causing problems for the considerate and law-abiding ones. She stated she hopes the Board can come to an agreement that is a good decision for all; there must be rental restrictions and stronger consideration given to the neighbors and fulltime Florida residents; and everyone can get along if they act responsibly, but there needs to be restrictions put in place.

Gina LaDrew stated she is a resident of Brevard County and owns a family vacation home in the unincorporated area of Brevard; this is a difficult issue for all parties involved; but she is thankful for today because this has been an area in the County where there have been no rules; and the rentals have been self-regulated. She noted it has been going on for many years; there needs to be regulations in place; people are open to those regulations; owners of rental properties need to know what is expected of them and if possible, raise the standards. She stated she had a complaint on one property that had too many cars parked on it; she was able to address the issue; if something bothers a neighbor, she is not there to antagonize them; and if something bothers her neighbors, she will address it and put it in the lease, including a restriction on the parking of cars in the street or having such cars moved onto the property. She noted there is a hotel/motel on the street; and inquired how it is regulated in the County for pedophilia, since there has been discussion about that issue as well. Ms. LaDrew stated all the issues need to be addressed; owners of rental properties would like to work with the County and homeowners to come up with some kind of amicable arrangement; owners of such properties have made substantial investments; and her investment is for the long-term. She noted she pays 10% tax on the revenue that comes in; she has a higher tax base for the non-resident who rents her property; there are also State Statutes in line for State license 509, which she possesses, that enables her to evict a tenant on a moment’s notice; and it also addresses occupancy by a square footage basis. She stated a lot of issues she heard today are some of the same issues the Board is facing on a long-term basis; but with short-term, there is more venue in place; and with regulation, it could bring up the standard of renting on short-term. She noted as early as last night, she spoke with people who have substantial investments in the County and had no idea this issue was being discussed; it has been difficult; she has tried to get information from Tax Collector Rod Northcutt; and the County knows about rental properties and how much money is coming in, but it has an obligation to all people who are affected to notify them as well. She stated tomorrow individuals may be operating illegally and suddenly receive a notice they are operating illegally; and requested the Board be fair to both parties.

Jennifer Tweeddale stated many people who have purchased rental properties may have gotten a good deal on the property, but what does not show up on the tax records or Property Appraiser’s website is the amount of fix-up they have put into the houses; some people have put over $100,000 into fixing up their properties; and such owners have also been good neighbors. She noted during the storms, they showed good faith to the neighbors, including those on Richards Road, and allowed homeowners to run electric lines to the LaDrews property because they still had electricity; her neighbors came to her house to take hot showers; and reiterated the owners of rental properties have shown good faith in trying to be good property owners. She requested assistance from the Board to put some of the nervous neighbors’ worries at ease; stated there needs to be regulations; the State has about five or six areas that are regulated, including occupancy, fire codes, etc.; but it does not address parking or trash. She noted the owners are regulating themselves to try to keep their properties from bothering the neighbors; there are many counties in the State of Florida that are regulating short-term rentals; they have been very successful in doing that; and requested the Board review such counties’ regulations and possibly bring them into the County. She stated there is a need for short-term rentals as has been shown from the recent hurricanes; such rentals have been provided to many residents and relief workers; and inquired what would happen if such rentals did not exist, where would people go, what if they did not exist when the hotels and motels are down, and what is going to happen to the tourist base. Ms. Tweeddale noted she does not want to dwell on the tourist dollars; only two neighborhoods have given their opposition; there are over 400 short-term rentals; and reiterated only two neighborhoods are talking about two homes. She requested regulation to bring the standard up for those people who are not being conscientious property owners; stated she can speak for most of the property owners she knows; they want to have a good name in the community and run respectable businesses; and long-term is a business also as people make money on such rentals.

Joyce Macek stated she lives on Richards Road; she learned two days ago about short-term rentals on her street and was appalled; she moved here almost 20 years ago with her mother in the hopes of having a peaceful life, wonderful neighbors, and enjoying the ocean and river accesses; and it is invaded by other people coming weekly. She noted if anybody is interested in doing this kind of business, he or she needs to purchase property on the highways or in an area where it is allowed, not in residential areas; and reiterated she is appalled this is happening.

Johnny Valentine stated he lives in Melbourne Beach; there is a rental house on the south side of his house; he is soon to have a rental house on the north side of him; and he doubts the Commissioners have rental people living on each side of them. He noted if someone has an issue with a neighbor, he or she can confront them; residents cannot do that as most of the rental property owners live out of town; most of the owners are irresponsible and do not care; and they are looking at the money. He stated the reason they are renting weekly rather than six months or long-term basically is because they can get four times the amount of rent on a weekly basis than on a monthly basis; living next door to a short-term rental has been horrible; he never knows what type of person will be there; and it could be a sexual predator, felon, or someone with animals or a boom box. He noted he has experienced all of the above; most of the investors want to rent weekly; when they bought the property, they knew such rentals were not allowed and they were in a residential neighborhood; but they do not care. Mr. Valentine stated he owns two rental properties; they are in areas zoned TU-2 and are weekly rentals; when someone books with him on the Internet, he tells them the rate; and if somebody wants to rent by the month, it is four times the weekly rent. He noted he has vacancies right now and there are plenty of places to stay at this time; if he is in town, he will meet with his renters on Saturday morning; he rents from Saturday to Saturday; and he explains the rules, gets his money, and leaves. He stated he does not know anything about those people; sometimes his occupancy says he will take seven people, but there could be nine people and he would not know it; he has had some complaints from the neighbors; but he has tried to resolved them. He noted his neighbors basically cannot do anything because his rental properties are in the area that is zoned for such rentals; rental properties are destroying residential neighborhoods; he does not want the County to be Miami Beach; and the County works hard to save the wildlife and land here. He stated what is more important than both of these is saving the neighborhoods in the County; allowing short-term rentals in residential areas destroys property values and the neighborhoods; and requested the Board prohibit resort dwellings in single-family or multi-family residential zones. He noted investors can make a healthy profit and invest their monies in other areas that are allowed for short-term rentals.

Ava Cronin stated she is a resident of Melbourne Beach; she owns a triplex in the South Beaches, which she purchased as a vacation rental; the previous owners were State-licensed; she is State-licensed and pays all the proper taxes; and she has had all the inspections. She noted the triplex had been run as a vacation rental for years prior to her purchasing it; she makes random visits on the property; she does not allow more than four adults; and they can only have two cars on the property. She stated she takes pride in the property; she does not want it to go to seed; she has spent a lot of money improving the property; and it worries her that property owner’s rights are not being respected. She noted owners of vacation rental properties are paying higher taxes than their exempt neighbors and face higher increases each year; tourists spend a lot of money to come on vacation; they have the disposable income to spend at restaurants, stores, etc.; and owners of rental properties are reasonable people and their intentions are good. She stated they do not want to harm the neighborhoods; they have an interest in the neighborhoods; and inquired why would they want to run the neighborhood down. Ms. Cronin stated such owners want their properties to increase in value; they do not want to bother their neighbors; they would be willing to follow the rules if there was a clear set of rules to follow; and as it is now, the owners are a self-policing group. She noted she has imposed her rules; and owners of rental properties do not want to cause trouble, but want their rights as property owners respected.

Commissioner Scarborough inquired if Ms. Cronin has a single-family or duplex rental property; with Ms. Cronin responding she has a triplex. Commissioner Scarborough stated one of the options is to look at the distinction between the two of them.

Ms. Cronin stated she has a State license; when she had her inspection, Diane Maynard told her she needed an occupational license; and she called the Planning and Zoning Office, who told her it would not give her an occupational license because she is in a residential neighborhood.

Commissioner Voltz inquired if Ms. Cronin is zoned multi-family. Ms. Cronin responded apparently not; the triplex was built in the 1970’s there is some sort of zoning problem; she should be able to get an occupational license; and she was told she was zoned residential, which was why she could not get an occupational license. She stated she hopes to have the issue resolved soon.

Nick Spurlock stated he represents one of those younger families with children in the neighborhood; he is concerned about the pedophile issue; he sees property values decreasing if long-term rentals are allowed to escalate; and he has seen more problems with short-term rentals. He noted his wife came to a previous meeting and indicated a house on Cardinal Street, which is behind Sandpiper Drive where he lives, had only been rented seven weeks; two of those weeks the tenants partied well past midnight; he was trying to be a good neighbor and did not call the police; and it is not his job to be policing rentals. He stated he is happy for the owners who are making money on their investment; but unfortunately, the neighbors are the ones left behind to suffer.

Pam Pipher stated she moved here from Hilton Head Island, South Carolina; she lived next door to a rental house for eight years; she never once had a problem; and it was a beautiful neighborhood. She noted rentals are allowed on Hilton Head; when she moved here, she purchased two rental houses; she sold a business on Hilton Head and invested in Melbourne Beach; and she lives in Melbourne Beach about one mile from her two rental houses. She stated the rental properties are on A1A and she also lives on A1A; she sees her renters all the time; on Hilton Head, one side of her home was a rental and the other side was an empty lot; the empty lot was owned by a lady that had nothing better to do than ride by the empty lot everyday; and one time the lady called the police because she cut her lot. She noted she was not thanked by the woman for cutting the lot; another time the woman called the police because two of her vehicle tires were on her side of the lot; and the renter was a better neighbor to her than the woman who owned the empty lot who was a terrible neighbor and finally sold her lot after a few years. She stated she and her husband rented a house in Huntington Beach, California a couple of years ago for one week; it was nice and the neighborhood was beautiful; it is a wonderful way to vacation; and she is also renting a house in Hilton Head, and will be going there in two weeks with her family. She noted her family lives in Alabama, South Carolina, North Carolina, and Florida; the way for everyone to get together for Christmas is in Hilton Head; they are renting a 6,000 square-foot home; and this is the third year they have rented it. Ms. Pipher stated they leave the home as well as they find it; she is the typical renter; she screens her renters, finds out how many people are coming, how many children there are, and their ages; and she makes sure it is a family and people she wants to rent to. She noted if all these 400 rental homes go on the market, the housing prices are going to go down; she does not let her children scream in neighborhoods, tear down fences, run around naked, etc.; her family does not do that kind of thing; and she does not believe anybody in this room would do that if they were renting a house. She stated she invested a lot of money in the two homes she rents out; such homes are nice and have beautiful furnishings; and she is going to lose a lot of money if she has to stop renting.

Commissioner Carlson inquired about the Polk County issue that was mentioned earlier.

County Attorney Scott Knox stated a 2002 Order from a circuit court judge declared the Ordinance unconstitutional as being vague; he cannot tell why the judge thought it was vague; apparently the judge could not make a distinction between the definition of short-term rental and the grandfather provision dealing with short-term rental because one said it has to be utilized and the other one said it has to be made available; and he does not think it is confusing, but he is not the judge.

Commissioner Voltz stated this is a hot issue; she does not believe short-term rentals belong in residential neighborhoods; she rented property several times in her 36 years of marriage; and the last house she and her husband rented with a one-year lease, they cleaned up, planted trees, cut down dead trees, pressure-cleaned the house, etc. She noted the neighbors asked them if they were buying the house; they told the neighbors they were just renting; her neighbors were surprised they were putting so much work into the house; and she and her husband were not the typical renters, according to her neighbors. She stated she does not want to see neighborhoods destroyed from short-term rentals, which does happen; it is a hard issue because there are property rights on both sides; the Board needs to figure out what to do with those people who currently own rental homes; and short-term rentals are not compatible with the neighborhood. She noted people cannot say that all tenants are child molesters, etc.; there is nothing more important than sanctity of neighborhoods; neighbors need to be sure that they know who their fellow neighbors are; and she moved to a neighborhood that does not allow those kinds of things. She stated she is president of her homeowners association; a lot of complaints come in from people who rent their homes, as well as people who own their homes; the people who live there respond quicker to cleaning up their properties than people who rent their properties; and there are 19 properties with resort licenses, and nine of them are in District 3. Commissioner Voltz stated the Board needs to decide if and how it is going to allow those people to stay.

*Mr. Jenkins presence was noted at this time.

Chairman Pritchard inquired with implications, diminution of value, and Bert Harris Act, is this talking about the value of the dwelling and not necessarily the value of the income that would be derived from this as a business. Attorney Knox responded typically appraisers look at value from three standpoints, two of which are usually used; the first one is comparable sales, which is the actual fair market value of the property; the other one is the income approach; and if someone is making $1,500 a week it may be worth a lot more in the long term than a regular fair market value sale. He stated if there is a difference between the two, that is when Bert Harris becomes relevant because if there is diminished value, there is a claim available. Chairman Pritchard inquired what would be the affect on the County’s decision concerning grandfathering and vested rights, to continue the practice for folks who have purchased these properties and did so under current requirements, regulations, or a lack thereof. Attorney Knox responded the Board could apply any regulations it decides to impose prospectively and say everybody who has an existing business is allowed to stay; it could also say anybody who has an existing business is allowed to stay, but only for a certain specified period of time, which is called amortization; or it could say the regulations apply and the County does not care if someone has an existing business or not; but he would not recommend the latter. Chairman Pritchard stated if the Board were to take that approach, it would be inundated with lawsuits.

Commissioner Carlson stated staff put together the Monroe and Pasco County Ordinances; there are good pieces to both of them; such Ordinances address grandfathering, licenses, and things like that, which need to be addressed; and she agrees with Commissioner Voltz that short-term rentals do not belong in a subdivision. She noted it eats up the integrity of a neighborhood; there was one element in Pasco County’s Ordinance where it talked about authorization and location; it says, “Individual dwelling units within subdivisions may not be utilized for short-term rental purposes, unless the entire subdivision or distinct section, unit, or increment thereof, in which the dwelling unit is located, has been specifically authorized by the County”; and it has a process, which goes into dwelling units outside of subdivisions. She stated a couple of requirements are also listed, such as dwelling units within master planned subdivisions and dwelling units within existing subdivisions; it also talks about getting a vote of the entire subdivision and doing a CUP process; and the community submits it and says it would like to have short-term rentals. She stated she is not sure how well that would be taken in a community here; but it is one option. Commissioner Carlson stated the Polk County Ordinance talks about County permits, etc. and that Board being the overseer of allowing short-term rentals wherever they might be; it is a complex issue; Brevard County needs an amortization-type of scenario; and she does not know if it should be one or two years. She noted the County does not want to interrupt the winter market; and it is going to be a big deal.

Attorney Knox stated if the Board decides to go with amortization, staff probably needs to do some research on how much is acceptable in the courts. Commissioner Carlson stated the County needs to find out what is legally defensible. Commissioner Voltz stated the County needs to amortize.

Commissioner Colon stated some problems the County encountered the last time were folks who were operating with no licenses or permits; one of her greatest fears was all the discussion on the issue and people knowing the kind of profit that can be made, and how the County could stop the rest of the folks; and hopefully it has been able to do that when people inquired about the rentals. She inquired how does one prove who is renting legally or illegally; stated that is the dilemma; individuals can say anything they want to the County, such as they were already in business before the Board was discussing the issue, and by the time the ruling came in, they were already renting on a weekly basis; and a year or two for amortization is too long. She noted she is sensitive to the fact that there are folks who are counting on the most busiest month of the year when it comes to the hospitality industry; she was in that industry, so she understands it; but the Board has to have a time limit. She stated short-term rentals should not be allowed in residential areas; the only parts she is sensitive to are the ones located in tourists areas next to a hotel; individuals probably bought under those circumstances and felt comfortable with it; and the issue needs to be clear on what the Board wants to do. She noted it needs to stop such rentals now; it is going to spread; some people have taken care of their rental properties and she is proud of them; but not everyone is like them; and that is the part that is hard. Commissioner Colon stated everyone who came before the Board today would not want to live next to a weekly rental; the Board needs to be clear and not wishy-washy that it does not want short-term rentals, and advise what it is going to do in its power to make sure it does not happen or continue; and it can give folks “x” amount of months to get themselves together as it is going to be a hardship for them. She noted she has to look at the entire picture; and such picture does not look good.

Chairman Pritchard inquired is the Board talking about single-family residential neighborhoods; with Commissioner Carlson responding single-family detached. Chairman Pritchard inquired is the Board talking multi-family or a triplex; stated some of these neighborhoods have a triplex next to single-family; the Board realizes there are unique situations throughout the County; and not everyone lives in a neighborhood of single-family residences, and there is a mix. He noted he is trying to get a clarification; and inquired on the affect of defining resort dwelling, and what is the implication toward what the Board may do. Attorney Knox responded the State law defines it in a certain way; there is a required license for those kinds of dwellings; and it is under 30 days. He noted beyond that there is no license requirement; there is also a resort tax required that is being paid by people who may have the less than 30-day qualification, but they also may be paying it if they are above that; there are those who go beyond the 30 days and do not pay a tax; and there are different kinds of categories. He stated the Board needs to figure out what it wants to define as being short-term and how many months or days it wants to use to define that term; it needs to decide who is going to qualify for amortization and who is not; and it is going to take some work trying to figure out what the different kinds of fact scenarios are.

Chairman Pritchard stated he has spoken to many of the folks here today; the Board has been inundated with emails; Attorney Minot called yesterday and he spoke with him; and many people have made the same comment about regulation, requirement, and holding someone accountable for what he or she is doing. He noted it is the County’s position that it should be holding people accountable for what they do or not do in terms of maintaining property; he was looking on the report of methods of regulation; it talks about an administrative permit for resort dwellings; and it must be renewed yearly and can be revoked if complaints are not addressed by management. He stated management is made responsible to control their tenants behavior at the risk of their license; that is pretty heavy handed to have that type of power to take someone’s permit away and say they are not managing the property; therefore, it is no longer a resort rental; and that would require more than just a single complaint and probably require the intervention of a special master. Chairman Pritchard stated there are other ways to view this in neighborhoods other than single-family; it still leaves how the Board wants to address multi-family neighborhoods; inquired does it still want it to be incumbent on the neighbors; and noted someone’s vacation should not be someone else’s nightmare. He noted the County should make sure a business is operated as a business and requires an occupational license; if Code Enforcement is involved, then the County can take measures that would affect the ability of that business to operate; if the business is a nuisance, then the County can take that ability away; and it will eliminate that nuisance by eliminating the business. He stated it is another point that could be added to the list of considerations Commissioner Carlson brought up.

Commissioner Carlson stated the County should require all short-term rentals to have State licenses and occupational licenses; there are now rentals in residential communities and no licensing at all; they are carrying on with a commercial venture; and they may not be producing the traffic, but they are operating without an occupational license in a residential community. She noted the Board received a list of 19 licensed resort dwellings; it is an incomplete list based on what she sees; at least the folks have proper licensing; and they should be treated differently than those who are operating illegally because they have no occupational licenses. She stated if the County is going to allow folks to be grandfathered or anything else, it should at least look at those that have made the effort and obtained proper licensing.

Commissioner Voltz stated the Board can review that issue when it looks at amortization for those businesses; it would be a more fair and equitable way to do things; and if the Board is going to hold off and see what it is going to do, it needs to abate Code Enforcement at this time.

Chairman Pritchard stated the Board also needs to review the occupational license permits that have not been issued; the hot time of the year is now in terms of tourism; there are several hotels that are still not open; and there is a definitive economic impact on not having the people coming in. He noted the Board needs to address what it is going to do about issuing or not issuing occupational licenses, and what the affect may be while it is in the process of discussing the issues; and he is talking about the winter season, which is generally over by March or April.

Commissioner Scarborough stated before the Board today is legislative intent; he concurs with most of the comments here; it appears there is a consensus that there is a fundamental lack of compatibility with the single-family neighborhood and short-term rentals; and the issue becomes those persons who have investments in it have certain property rights. He noted the County Attorney needs to see an amortization and present it to the Board; Commissioner Carlson has brought to the Board a particular element dealing with certain people having more rights than others based upon State licenses; Chairman Pritchard has raised the issue of the multifamily and complexities there; and the Board may not yet be ready to proceed with an ordinance for advertisement, but it would be advantageous for staff to proceed with a draft of an ordinance with those particular parameters so the Board can go to the next level. He stated if it does not have something it can discuss, it may end up with a public hearing that is more difficult; he knows it is normally not the next step; but taking the comments today may be helpful. Chairman Pritchard stated that is fine.

Commissioner Carlson stated the County needs to define what short-term is; staff needs more direction if it is going to start trying to draft an ordinance; and there needs to be some place to start from.

Commissioner Voltz inquired does the County allow bed and breakfast establishments in residential areas; with Commissioner Carlson responding yes, with a CUP. Mr. Enos stated in some zoning classifications, bed and breakfast establishments can be permitted. Commissioner Voltz stated there are other issues too, including duplexes and triplexes; and some owners live on one side and rent out the other side to short-term rentals. Commissioner Scarborough stated the nice thing about a bed and breakfast is somebody is there almost like a housekeeper; he or she can ask someone to leave immediately if they are not doing right; it may be another element for the multifamily if the property owner is on the premises; and there may be a different issue there. Commissioner Colon stated the Board needs to be clear; this is the third meeting on this topic; at every different meeting she keeps getting more confused; and she is sure residents are just as confused. She noted if the direction of the Board is that it is totally against this kind of business going on in a single-family residential home, then it has to be perfectly clear; there needs to be a deadline to be fair, such as April 1, 2005 and that is it; it gives “x” amount of months for those folks to put the rentals on the market or lease them six months or one year; and it is a personal decision. She stated the Board’s job is to protect the neighborhood; she wants it to be perfectly clear on the issues; those rentals in tourists or business areas need to speak to the Board to figure out that issue; and it needs to be fair to those who have a hotel next to them. She reiterated the Board has to be clear today on what it wants to do; she needs to know because the wishy-washy stuff does not go with her.

Chairman Pritchard stated he is speaking about single-family residential neighborhood and a subdivision of single-family detached homes. Commissioner Colon inquired does it have to be a subdivision. Chairman Pritchard responded there has to be a delineation that can be measured; Waterway Manor is all single-family homes; other neighborhoods have a single house, a duplex, and a triplex; and it is a mix of uses. He noted when he speaks about a single-family residential neighborhood, he is talking about a single-family residential one house to a lot neighborhood with one family in the house. Commissioner Carlson stated there are other home settings where they are attached; there might be townhomes in nice subdivision settings, but are individually owned; Chairman Pritchard is talking about different residential zonings; and the Board needs to define which residential zonings for instance end on April 1, 2005 or whatever.

Chairman Pritchard inquired is a single-family residential neighborhood RU-1 zoning; with Mr. Enos responding yes, those are all the RU-1 zoning estate classifications. Mr. Enos advised the multifamily classifications typically have RU-2 designation, including RU-2-4, RU-2-6, RU-2-8, and RU-2-10; the townhouse classification is RA; and they are single-family attached and each person owns his or her individual lot. Chairman Pritchard inquired what might a single-family house located between two motels be zoned at; with Mr. Enos responding it could be zoned anything, including commercial, single-family, or multifamily. Chairman Pritchard stated his definition of single-family residential neighborhood is RR-1. Mr. Enos responded typically it is RR-1 or an estate class.

Commissioner Scarborough stated with multifamily, whether it is rental, there can be apartment-type complexes with apartments that have people with six-month rents; there is a different mode than the condominium concept with individual ownership; and inquired is there a way for the Board to differentiate that classification. Mr. Enos responded yes; the County would be getting outside of its zoning classifications; it would be reaching more into ownership patterns; and it is a different way of defining it. He stated the County could do that if the Board desires. Commissioner Scarborough stated April 1, 2005 may be fine, but the County Attorney wanted to advise the Board as to the Bert Harris Act and the time factor; and the County may need to allow additional time.

Attorney Knox recommended the Board direct staff to come back with a draft ordinance that gives a Chinese menu approach to the different issues; stated there are some basic regulations that are probably going to be the same for all types of situations; but there are some things, such as the definitions, which may be different depending on what the Board selects. He noted staff could provide perhaps three options on the amortization; the Board could select what it wants to do; and staff will try to bring back an option it believes will be sustainable in the courts if the County gets sued.

Commissioner Carlson inquired will staff review the fact of those who have State licensing now versus those who do not; with Attorney Knox responding yes. Attorney Knox stated staff will come up with a list of different ways to handle it and give the Board choices as to what it wants to do.

Commissioner Colon stated this is nothing new to a lot of counties; it is a matter of doing the research; and what the County is trying to do is not unique as far as communities protecting themselves. Attorney Knox stated it is not unique, but the Polk County Ordinance that was thrown out had a 10-year amortization provision in it; there are issues the Board needs to be aware of; and it cannot tell people to stop, go away, and do not bother it anymore without taking into account what could happen if it does that. Commissioner Colon noted she wants to make sure the Board has everything legally to protect it; anybody can sue it; and if it is going to be worried about somebody yelling that he or she is going to sue the Board, it will be here forever. Attorney Knox stated he is not worried about somebody suing the County so much as he wants to be able to defend whatever the Board does.

Commissioner Carlson inquired can the Board do anything in the realm of moratorium in terms of allowing additional short-term rentals to appear after a date so that it can develop the amortization issue further; with Attorney Knox responding yes. Commissioner Carlson inquired what sort of language could the Board craft to do something like that; with Attorney Knox responding it would need a short ordinance declaring a moratorium on these kinds of uses prospectively and no new uses. Commissioner Voltz inquired can it be included on Thursday’s agenda; with Attorney Knox responding it would be tight.

Assistant County Manager Peggy Busacca stated the County does not currently permit those uses; and inquired what exactly is it going to have a moratorium on if it is not issuing a permit on anything. Attorney Knox responded staff can define and establish it in the ordinance. Commissioner Scarborough inquired can it be done as an emergency ordinance; with Attorney Knox responding yes.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to direct staff to prepare an emergency ordinance establishing a moratorium for short-term rentals in single-family residential subdivisions for the December 7, 2004 meeting. Motion carried and ordered unanimously.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to direct staff to report back to the Board with a draft ordinance of options on the different scenarios for resort dwellings at the January 25, 2005 meeting, including amortization and occupational licenses. Motion carried and ordered unanimously.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve abatement of Code Enforcement on existing short-term rentals until January 25, 2005. Motion carried and ordered unanimously.

Chairman Pritchard stated there is also the question about occupational licenses so that those who are in “business” are able to continue as a business until some point.

Commissioner Voltz inquired does the County allow businesses in private homes. Mr. Enos responded it allows some home occupations in private homes; the key there is that the operator of the business is living in the home; and right now the County is not issuing occupational licenses for any of the short-term rentals unless they happen to be in a commercial or tourist zone. Chairman Pritchard stated the County not issuing the occupational license is prohibiting the use of the facility as it has been used. Mr. Enos noted except that the Board has abated enforcement. Commissioner Voltz stated at the January 25, 2005 meeting, the Board will discuss that particular issue and whether it wants to issue occupational licenses for those people who have two years, 10 years, or whatever the Board decides. Chairman Pritchard stated the people who have been doing this for a while have certain numbers of folks that come back repetitively; they may be booked or seeking bookings for February and March 2005; they do not know whether or not they can accept reservations for that time; and it tends to put them in a bind. He noted the County does not have the hotel occupancy; and he is wondering if it is putting itself on the cusp of having another issue that might become litigation if it takes the position of not providing the people what they have been doing for “x” amount of time. Commissioner Voltz stated those folks are going to continue operating as they are. Chairman Pritchard stated they are going to continue only until January 25, 2005 potentially. Commissioner Voltz noted no because the Board is probably going to amortize; and at that point, it could be the next five or 10 years. Chairman Pritchard stated a 10-year amortization seems reasonable to him; and inquired if the Polk County Court took the position that such amortization is not constitutional or whatever, then how is Brevard County going to face that dilemma. Commissioner Voltz noted it is something the Board needs to talk about. Commissioner Carlson stated after it receives input from the County Attorney, it can face that issue. Commissioner Voltz noted April 1, 2005 sounds pretty good to her, but legally the Board needs to look at what it should or should not do.

Chairman Pritchard stated the whole course of doing business is being interrupted; he is concerned about the course of doing business; he is also concerned about the course of what happens in the neighborhoods; but he is looking at the viability of someone who purchased with the intent of doing what he or she has been doing for the last five, 10, or 20 years. He noted a season is a season, and whether the Board is going to treat that appropriately is a concern; apparently what it this; is going to do is wait until January 25, 2005 to see where it is going to go on this; and it puts some owners of rentals in the middle of the deposits they will most likely have to send back.

Commissioner Voltz inquired what is the likelihood that the Board would tell the people as of April 1, 2005 they will no longer be able to do business. Attorney Knox responded it is not likely, but if it were likely, there is still a vested rights available for them to apply for. Chairman Pritchard stated it could carry through April or May 2005 due to the process the County has to go through; and dropping the hammer at this point subjects the County and the taxpayers to the potential of significant costs in litigation.

Ms. Busacca stated when the Board approved the impact fees, it suggested if someone had a contract as of a certain date that it could be valid; and inquired would it be possible to say if someone has a lease as of this date that for the next six months or something, it would be valid and could be shown to the County. Chairman Pritchard stated the County is talking about short-term less than six months or 12 months; and it would be the weekend, week, month, and less than 30-day rentals. Ms. Busacca stated it might go into Attorney Knox’s moratorium to say that such moratorium was based on the date that the lease or deposit was provided. Attorney Knox stated it was his thought the moratorium would govern any new buildings being converted to this use as opposed to existing buildings that may have new people coming in for the spring or something; he is not sure the contracts worked out too well for the last deal; and there is no end to the way of imagination when it comes to coming up with a contract that seems to fit the requirement of the grandfathering provision. Commissioner Carlson stated the County cannot do what Ms. Busacca indicated and do the moratorium based on the lease scenario. Attorney Knox responded it can set a hard and fast deadline telling people where they qualify and where they do not; and using the contract as the way to do that did not play out real well because people came up with very imaginative ways to come up with contracts. Commissioner Carlson stated the County learned that lesson.

Commissioner Colon stated this issue has been going on since August 2004; no matter what date is used, it is never going to be good enough for some folks; that is why the Board has to be fair; and people need to know where they stand. She noted the County is not going to please everybody; owners of these properties need to start looking at what they are going to do with them; the Board is not being fair to both parties involved by dragging out the issue; and it has so many other issues it has to deal with. She stated the Board needs to say exactly what it wants; she understands it is not that cut and dry; but no one is going to have a perfect ordinance; and people are going to take the County to court no matter what. She noted having people come before the Board time and time again, and taking time off from work and their private lives is not fair; and she has seen the County do this in the past.

Chairman Pritchard stated that is why the Board is hashing out all of the items; when it is talking about having a drop-dead deadline, it did not fill in the blank when that is; it should be able to let folks get through the season; now the Board is back into the April/May 2005 discussion; and it is not going to be getting the matrix of what it might do in terms of zoning until January 25, 2005. He noted the Board is not really resolving anything because the discussions keep going around; it also has not addressed whether it is RR-1 or other types of residential units that it is specifically talking about; it does not have the answers to the questions it has been asking; and it is continuously asking more questions because it wants to make sure it gets the information that is going to give it the ability to make this decision. Commissioner Carlson stated the Board is not going to get that information back until January 25, 2005; when Attorney Knox drafts the ordinance for the moratorium next week, there can be some language and perhaps he can come up with some creative way of drafting it; and hopefully it will give individuals a better bearing on where the County is going from here. She noted January 25, 2005 is when the Board is going to have enough information to do anything with.

Chairman Pritchard stated one of the members of the audience indicated she was having contracts come in; if she cannot occupy the dwelling with a renter because the County is not issuing an occupation license, then how can it tell her to keep the deposit and go ahead because it is not going to be enforcing something; and inquired what is the County abating that it is not going to be issuing occupational licenses for, and can someone rent his or her property for whatever time he or she normally would.

Ms. Busacca responded the Tax Collector is requiring an occupational license based on State law; the Zoning Code is moot on the topic; when staff came to the Board and asked if it wanted occupational licenses to be issued in a residential zone, it said no; so there are no occupational licenses being issued that requires zoning review. She stated by the Board abating the enforcement, it means the activity can continue under the Zoning Code because it continues to be moot on the issue; the Tax Collector may or may not have an issue; but she cannot speak to what he does as far as enforcing that. Attorney Knox stated it can be handled in the moratorium on December 7, 2004.

Commissioner Voltz stated the consensus is the Board does not want short-term rentals in residential areas; the people realize where the County is headed; how it gets there is another story; and it is an important issue. She noted the rest of it can be taken care of with the abatement on January 25, 2005.

Chairman Pritchard stated subdivisions he has lived in and currently live in have prohibitions against anything less than six months, which is the minimum rental; it was done that way particularly to avoid the problems and conflict; if someone has a bad neighbor, one can sort of deal with the neighbor; but when bad neighbors come and go, and it all occurs in the course of weekly or monthly, it makes it very difficult to deal with. He noted the Board is empathizing with the folks that have to abide by what goes on in the neighborhood, and it is also trying to deal fairly with the people who have purchased property for these uses. He stated on December 7, 2004 the Board will be getting the language for the moratorium; and on January 25, 2005 it will be getting an ordinance with options.

Commissioner Voltz stated California and Texas are heading toward no short-term rentals in residential areas; Tampa and St. Petersburg are also headed that way; and Attorney Knox may want to review what they have also.

The meeting recessed at 4:15 p.m. and reconvened at 4:23 p.m.

DISCUSSION, RE: APPLICATION OF FISCAL IMPACT ANALYSIS MODEL

Planner Steve Swanke stated the Fiscal Impact Analysis Model was developed by Fishkind and Associates under a Contract with the Department of Community Affairs (DCA); its intended use is to look at a jurisdiction-wide development scenario as contemplated by their Future Land Use Map in the Comprehensive Plan and to calculate whether or not the local governments fiscal policies are sufficient to provide the needed infrastructure to support that level of development; the Board acquired the Model from Fishkind and Associates and had it calibrated for the unincorporated areas of Brevard County; and it has expressed an interest in using the results of the Model in its consideration of certain land use decisions, including rezonings and Future Land Use Map amendments. He noted the Board has also asked for a report as to how that might be applied; in looking at the Model, it is well suited for its original purpose; however, staff has some concerns about using the Model for parcel specific-type of analysis; one of the reasons is that the cost data that has been input into the Model is average cost data; and when one starts looking at a small number of parcels or an individual parcel, that can vary substantially from the average cost. He stated when looking at a large number of parcels the variations will equalize themselves out and it becomes a more accurate representation; the County can compensate for that by providing more accurate cost information for the Model; but it is an extensive effort that will require a great deal of input from a variety of departments or some type of outside support to accomplish. Mr. Swanke noted the Board has some options; it can direct staff to utilize the Model for all rezonings and map amendments; it can establish a threshold that might exclude certain properties below a certain size from being subject to the Model; and it can direct staff to update the Model and make it more accurate for this type of analysis, or direct it to not apply the Model to certain types of land use decisions.

Commissioner Carlson inquired based on how the Model was defined for State purposes, does staff have a recommendation; stated it suggests Options 2 and 3; she has questions in terms of the actual usage of the Model; and some economic models identify dollar values to quality of life, which it is subjective. She inquired is there an ability to evaluate on a micro-level an individual rezoning or parcel in the context of a much larger picture as the County or the Future Land Use Map, and the economics that go along with it.

Mr. Swanke responded the Model is not set up to evaluate anything other than revenue streams from a particular development or aggregate levels of development, and average costs associated with providing the infrastructure to serve that, both operational and capital costs. He stated there was discussion earlier that suggested the County might be able to compare or analyze the fiscal impacts of taking a vacant piece of property off the tax rolls and using it for environmentally-endangered lands or something to that affect, but it was not really developed for that purpose; and the County could only analyze the monetary types of impact and not the intrinsic values that would be gained.

Commissioner Carlson stated the County could do an economic analysis and always come out saying this would be economically good for the community as it would bring more dollars; it would not deal with the scenarios if the County has a Future Land Use Map that is projected to be built out at this level; and inquired does it take that into consideration from a large scale perspective and apply an economic burden to that from the County’s perspective as far as providing services and transportation needs. Mr. Swanke responded yes, that is what it is intended to do; it is intended to be used as a part of the Evaluation and Appraisal Report (EAR) process and adoption of Comprehensive Plan amendments related to that. Mr. Swanke stated when the County does the next EAR and constructs its Future Land Use Map, it will have the existing level of development and what it is projecting to occur over the next 20 years; it will have its improvement needs for transportation and fire rescue infrastructures; and it will put a cost to that and see if the financial policies of the Board are going to generate enough money to make that happen. Commissioner Carlson stated with that kind of information the County should be able to go to the CIP and say is it good enough; and inquired does it have a lot to do with timing and the implications of it. Mr. Swanke responded yes, but when dealing with a large number of parcels and all of unincorporated Brevard, the variations and individual timing are going to tend to equalize out; but when dealing at a parcel specific level, it is not going to work as well or be as accurate.

Commissioner Carlson stated staff indicated DCA is likely to require the County to demonstrate the financial feasibility of its Future Land Use Map as a part of the EAR, and inquired is staff anticipating DCA asking the County to apply this Model; with Mr. Swanke responding yes. Commissioner Carlson inquired does it also apply to the cities for their comprehensive plans; with Mr. Swanke responding yes. Commissioner Carlson stated that would be a good place to start to see how effective it is and then go from there. She inquired when does the County have to submit the EAR; with Interim Planning and Zoning Director Robin Sobrino responding about 18 months to two years for final submittal. Ms. Sobrino advised the County is going to be in the EAR preparation process probably for the next year. Commissioner Carlson inquired if the County applies the impact analysis, is it going to take that long; will it have some idea before 18 months to two years; and how much complexity is it to apply it based on the normal process the County goes through for the EAR update. Mr. Swanke responded staff has been trained in the use of the Model and Dr. Fishkind’s staff has entered in a great deal of the information; it requires updates on an annual basis in terms of things like the millage rates the Board sets each year; and assumptions have to be made about what such rates are going to be over the next 20 years. He stated staff has not done the development projections for the EAR yet, and it does not have all the improvement cost information needed to enter into the Model; and staff is a long way from conducting that type of analysis and coming out with a viable result.

Commissioner Carlson inquired does staff have a suggestions as to how the County would apply this for the short-term or is this the best way to approach it from the EAR perspective. She stated she believes the Board would like to see something with a short-term as the County is going through growth so fast; and two years is a long time.

Assistant County Manager Peggy Busacca stated staff would be happy to develop a timeframe by which it could do an analysis of the existing Future Land Use Map, and return the information to the Board; if the Board did not feel that schedule was appropriate, it could be discussed again; and if staff understands this is a priority of the Board then it can put it into the work schedule and let the Board know how long it will take.

Commissioner Voltz inquired how often does the County do the EAR report; with Ms. Busacca responding every five years.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to direct staff to bring back a time schedule for application of the Fiscal Impact Analysis Model to the existing Future Land Use Element and Capital Improvements Element for the December 14, 2004 meeting. Motion carried and ordered unanimously.

BOARD DIRECTION AND CLARIFICATION, RE: EXPANSION OF NONCONFORMING
STRUCTURES SEAWARD OF COASTAL SETBACK LINE

Natural Resources Management Director Ernie Brown stated the Coastal Management Element of the Comprehensive Plan outlines the coastal setback line; the dilemma staff is seeking guidance on is non-conforming structures seaward of the coastal setback line; and inquired is one able to build landward of the structure, but seaward of the line. He noted it goes back to the intent and purpose of the line, which in part was to protect property; the County does not want anyone to build seaward of the structure because it brings them closer to the impending peril associated with oceanfront property; and there are environmental impacts associated with building in the coastal setback area. He stated an application came in; there is a small amount of land between the existing structure, which is seaward of the coastal setback line, and where the request to build is between those two lines, which is about 170 or 200 square feet of impact that the applicant would be building going landward; and staff is requesting guidance as to whether or not this particular Ordinance would allow for de minimus impacts within the coastal setback, but landward of the structure.

Chairman Pritchard requested staff explain what the coastal setback line is and what the County’s policy requirement has been about the 25-foot within the coastal setback line.

Amanda Elmore, Environmental Permitting Supervisor, stated the coastal setback line is 25 feet landward of the 1981 DEP line; and the Ordinance prohibits development seaward of the coastal setback line.

Commissioner Carlson stated the County talks about non-conforming uses and people will not rebuild if they have greater than 50% damage; and inquired was this particular application greater than 50% damage; with Mr. Brown responding no. Commissioner Carlson noted so it does not fall in that realm for rebuilding purposes and where that structure should be built; there is a Catch 22 in item 3 attached to the Agenda Report, where it talks about the 50% and fair market value; and it says, . . . “except condominiums, duplexes, and single-family residential structures, which are inconsistent with the Comprehensive Plan, Future Land Use Map series, or are non-conforming structures in residential and GU zonings may be rebuilt at the original square footage if destroyed by fire, wind, flooding, or any other similar act of God resulting in destruction of the structure beyond 50% of the fair market value, but should such structure be rebuilt, it shall either approach or preferably meet all setback requirements.” She stated the County is talking about setbacks from the coastal setback line, but the structure has not been destroyed greater than 50%; if someone goes back away from where potential danger is going to be in the future, he or she is still in that zone; the structure is more landward and outside of the County’s coastal setback line; and it creates a real quagmire for the County because the people are still in harm’s way. She inquired what does the County do in that case when it has setbacks. Commissioner Carlson stated the County is only looking at one case, but should be looking at all cases; and inquired would people have enough property to rebuild landward of the 25-foot setback; with Mr. Brown responding it would be a continuance of an existing building; and the person would have to create a 10-foot spacer between the existing structure and start at the 25-foot mark. Commissioner Carlson stated the County has no grounds to have someone destroy the rest of the structure and rebuild where it would like them to.

Mary Sphar stated she has a problem with this item and the next item not being placed on the agenda website yesterday; she is the wetlands issue chair for the local Sierra Club group; she was searching for items concerning wetlands; and she found two items and called Commissioner Scarborough’s office to have such items faxed to her. She noted she does not have cable television at her house, so she could not look to see if there were any time certains; this morning she called Commissioner Scarborough’s office again and asked about time certains; she received a faxed copy of the agenda from his office; and other members of the public may have items they wish to speak on, which are added late to the agenda. She inquired is this issue an emergency where it had to be placed on the agenda website not even the day before the meeting; stated it is not the way the County should be conducting business to get adequate public input; she has no idea how much notice the Board had on the item; and requested the Board establish a policy so at least the day before a meeting the public can find out on the Internet what is going to be on the agenda. She noted it is not only her who has complained about it, but others have also; it is still going on; and requested something be done about it.

Commissioner Voltz stated she agrees with Ms. Sphar; she looked at the date she received the item, which was November 22, 2004; she kept looking on the Internet for an updated agenda; and she never received one until today. She noted when items get added to the agenda, it needs to be immediately added onto the Internet so that everybody can see what is going on; and it is the appropriate way to do it so it does not appear as though the County is doing anything wrong or trying to slip something through.

Commissioner Carlson stated for Items VI.A.5. and VI.A.6. she did not have enough time to talk to staff; she does not have a problem continuing the items until December 7, 2004 so she can touch base with staff; she is going to be out of town tomorrow through Friday at the Florida Association of Counties Conference, so she is going to have to find time somewhere in between Friday and Monday to talk to them to get more details on the de minimus impact scenario and the wetlands impact. She noted another issue is coming up, which is in a redevelopment scenario of a wetland impact that needs additional time; she would be supportive of continuing the item to give her more time to get with staff to find out some of the subtleties of both of these because she is not sure she understands them; and requested more feedback from staff.

Malcolm Kirschenbaum stated this item applies to him; he applied for a building permit in 2003 to do an addition to a beach house he built in 1979; he received approval from DNR in 1979 and from DEP in 2003; and when it came to the County for review for the building permit, it went through everybody’s approval until it went to Natural Resources Management Office, and a question was raised because there is a sliver of this addition that is seaward of the setback line. He noted it is a 50-foot lot that he built the house on; when the issue came up, it went to the think tank for some discussion; it was brought to the Board for clarification; and he has a map if the Board wishes to review it. He showed the addition to the Board; stated the red outline is less than 170 square feet and within the area; staff recommended the fix; and he was happy with it. He noted he does not want to make big impacts to everybody else, but it is a very narrow sliver of land; and he would argue that the variances he received in 1979 do not make this a non-conforming use. He stated there was a determination and some disagreement back and forth with County staff whether it was or was not conforming; he has never discussed it with anybody until he found out it was going to be on the agenda for the Board’s review; his application came to the County in April 2003; and it sent a letter to DEP that all of his setbacks worked, which is when he obtained structural engineering, architectural engineering, DEP engineering, a $2,000 DEP permit, and approvals on everything until it came to this narrow little question mark. Mr. Kirschenbaum stated he understands the dilemma the Board is in with late notice, but he received late notice also because he did not know this issue had risen to the impact of coming to the Board; and it has been a long arduous journey for him to add a garage to his house.

Chairman Pritchard stated the requested action on the Agenda Report says, “Board direction and clarification regarding expansion of non-conforming structure into the area seaward of the coastal setback line”; it is landward of the structure even though it is seaward of the coastal setback line; and inquired what was the intent of the coastal setback line.

Assistant County Manager Peggy Busacca responded after the Thanksgiving Day storm in 1985, Brevard County put a moratorium on all building on the oceanfront and did a survey; the estimate was it had lost 25 feet of oceanfront property in that three-day event; the Board at the time adopted a line of prohibition, which was 25 feet west of the existing coastal construction control line established by DEP; later the State identified that was within the area that was expected to be affected by storm surge; so it is related not only to the amount of erosion that occurred, but also the storm surge that can occur.

Chairman Pritchard stated when he first came here, which was in 1994, he recalls walking the beach from Cape Canaveral; the waves literally washed upon one house, which is now since gone; there were other structures that were in that same dilemma; and with the recent storms the County has had, maybe there is an adjustment in the coastal setback line that might be appropriate if it looks at stabilizing the dune line. He noted if the County does not stabilize the dune line, pretty soon A1A is going to be the dune line; it has to do all it can to insure the dune line stays out where it should be; if it is looking at building landward of a structure, even though a portion of it is within the coastal setback line, then so what; and inquired what is the terrible affect of doing something like that. He stated the County is not talking about going seaward of the structure; it is landward of the structure, even though it is still seaward of the coastal setback line; and he wanted to bring to the Board’s attention the issues, questions he raised, and discussions he had with Mr. Brown. He noted in looking at options for Board consideration, items A and C seemed reasonable to him, which would be a little bit of item D, “to define an impact as a combination of options above”; inquired if the County starts looking at something as if it is going up then what is the affect on the parcel, and if it is less than 10% of the footprint of the property, what is the affect; and stated something like this could also work in other areas besides the coastal setback line area. Chairman Pritchard stated those are things that can come back as part of the discussion for December 14, 2004.

Commissioner Colon inquired is Commissioner Carlson still not comfortable with what she has heard; stated at first it sounded complicated with the seaward part; but then she realized it was the landward part. Commissioner Carlson stated she would like to understand the cumulative issues regarding de minimus impact; there are some cumulative things the Board probably should review; Chairman Pritchard’s perspective of items A or C, or potentially item D and a combination of, she probably would not feel that uncomfortable with; but she wants to understand the usage of de minimus impact as Mr. Brown talked about since he has worked with it in other areas, and she would like to know what his experience with that was. She noted she has not had an opportunity to touch base with Mr. Brown on it.

Commissioner Voltz stated the Board could still take action on the item, and if there is a problem with it, then Commissioner Carlson could bring it back on the agenda for the Board to review the issues.

Commissioner Scarborough inquired if Mr. Kirschenbaum has a problem holding off on the item. Mr. Kirschenbaum responded he has been waiting for a long time; he will not be in town on December 14, 2004; but he does not need to come back to the Board unless it wants additional information. Commissioner Scarborough stated he does not know if Mr. Kirschenbaum needs to come back; but once the Board does something for Mr. Kirschenbaum then it has impacts elsewhere; there is an interest in the community of its broader impacts; and while the Board can review Mr. Kirschenbaum’s plan, it does not answer the question of is there a broader impact. He noted there is an issue as to the timeliness of some people having an opportunity to ask questions, so if Mr. Kirschenbaum would not have a problem waiting until perhaps December 7, 2004, it may be best. Mr. Kirschenbaum stated there was discussion that this is a non-conforming structure; he does not agree with that; he was willing to take this fix because it was something staff thought would take care of some other people’s problems; but in 1979 he received variances to build on a footprint on this property; and he does not believe it is correct legally to say that when the Board adopted a new Ordinance it made his house non-conforming. He noted he received variances from DNR and the County in 1979; when DEP gave him a permit for the property, it requested a letter from the County; Planning and Zoning Office wrote a letter and said all of his setbacks allowed him to build this addition; and he understands what Mr. Brown is trying to do, but he does not believe it applies to him on the bigger picture. He stated the de minimus issue is a good thing for somebody else, but his variances when he built his house in 1979 run with the land. Commissioner Scarborough noted Mr. Kirschenbaum already has the rights. Mr. Kirschenbaum stated that is correct; but somebody made a decision that this was a non-conforming house; and reiterated he does not agree with it because he has the variance to build it on all the setbacks with DNR and DEP approvals.

Commissioner Voltz inquired is there something the Board can do to help Mr. Kirschenbaum get through with this and discuss the issues at a later time. Mr. Kirschenbaum responded if the Board told staff that his house is a conforming structure, then he does not need any variance from anybody else.

County Attorney Scott Knox stated Mr. Kirschenbaum’s project stopped at the Natural Resources Management Office’s level; Mr. Brown brought it to the group that meets every Wednesday to consider these kinds of issues; there was a spirited debate for about one hour concerning whether it complied or not; and by the end of the debate, there was a 3:3 split among the advisors to Mr. Brown, who has to make the decision; and Mr. Brown did not know where to go with it except to go to the Board. Attorney Knox stated he fell on the side of Mr. Kirschenbaum as far as the issue.

Ms. Busacca stated the variance given in 1979 predates the 1985 coastal setback line; and staff was concerned that a variance could not be given for an Ordinance that was not adopted until six years subsequent to the variance.

Mr. Kirschenbaum stated the Board cannot adopt an ordinance that makes his house non-conforming when he was given the variances; such variances run with the land; and Attorney Knox just indicated he agreed with him.

Commissioner Scarborough stated he went to the South Beaches and some of it is scary down there; he feels much better dealing with Mr. Kirschenbaum’s item as a singular issue as opposed to opening this up; there are some things in the South Beaches that it is only a matter of time before more dwellings are lost and fall into the ocean; and the County has things at risk.

Chairman Pritchard stated the County cannot keep moving the line as the dune gets further destroyed; at some point it needs to stabilize; otherwise the hotels will fall; and Jeff Parker had a great cartoon in the newspaper showing a surfer alongside A1A trying to race a car. He noted it could very well happen; and that is what the County needs to prevent. Commissioner Scarborough stated he agrees with Chairman Pritchard in taking actions to save the dune, otherwise it will lose A1A; perhaps the Board can make a decision on Mr. Kirschenbaum’s issue and remove it from the bigger picture; and Mr. Brown can bring the bigger picture back.

Commissioner Carlson stated she does not have any problem taking Mr. Kirschenbaum’s issue separately; the bigger issue is to look at the Code when it talks to non-conforming uses; Mr. Kirschenbaum has an argument; and the County is trumped in the current Code right now when it comes across non-conforming uses and greater than 50% gets destroyed. She noted if it is an act of God, then people can rebuild; if the Board does not want that to happen, it needs to change the Code now and make sure it does not happen again; it might be part of the bigger picture, including the de minimus impacts; and she does not have a problem separating it.

She inquired what does the Board want to do right now.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to direct staff to approve Malcolm Kirschenbaum’s project to add a garage to a beach house built in 1979. Motion carried and ordered unanimously.

Commissioner Carlson inquired does the Board want to bring the bigger issue back at the December 14, 2004 meeting. Commissioner Scarborough stated he is of the opinion, unless Mr. Brown wants to push it, to let this issue sleep a little as the County has some other problems that are more practical like saving the dunes and homes. Commissioner Carlson stated the bigger issue has everything to do with that; the Code says it has to be 25 feet and the coastal setback line still applies; the Board needs to review the Code if the County is talking about the older developments that are non-conforming that it does not want rebuilt after they have been destroyed to some extent. She stated the last page included in the information says, “. . . except act of God, resulting in destruction of the structure beyond 50% of the fair market value”; and someone can rebuild the structure. She noted the County needs to look at the Code more carefully; and she does not have a problem doing it next year. Commissioner Scarborough stated this allows someone to add a little bit to an existing structure; there is basically a relationship between the value of the land and the value of the structure; many of the structures are far out of relationship with the value of what is there; and it is very small in comparison to value of the property, which allows the destruction of the actual dwelling and the building of a new dwelling at an increased value at a profit to the property owner. He noted to allow some people to put investment into a structure that is at a disproportionate relationship to the value of the land seaward of the coastal construction line is contrary to the best policy to let the market drive the demolishment and reconstruction of much more valuable properties, which is going to naturally occur through the market process; but he could be wrong.

Chairman Pritchard stated if the line keeps moving due to more storm damage, then sooner or later the County will end up with nothing left. Commissioner Carlson stated the property owners who currently live there and own property on the beach, the County should at least provide for them the methods to refurbish the dune and things like that to the greatest extent possible. Commissioner Scarborough stated the dune is a separate issue. Chairman Pritchard stated the dune needs to be stabilized; if the County is going to draw a line in the sand somewhere, it needs to draw it there and start factoring in; and if there is an area that has been carved out and the County starts gerrymandering to accommodate what is missing due to the recent storms, then there are more problems once the line is drawn. He noted expansion of nonconforming structures into the area seaward of the coastal setback line will come back at an appropriate time with additional items to be discussed at a future date as the County has other issues that are going to fall into dune stabilization.

BOARD DIRECTION AND CLARIFICATION, RE: DE MINIMUS IMPACTS TO WETLANDS
FOR SINGLE-FAMILY RESIDENTIAL LOTS

Mary Sphar, representing Sierra Club Turtle Coast Group, stated she reviewed the agenda item information and noticed the box was not checked about whether or not it had been reviewed by the County Attorney; if not, she suggests it be done; for a long time there was disagreement between Sierra Club and the County Attorney’s Office over the application of the residential wetlands language, Policy 5.2.E.1; and the problem was with the interaction of such Policy with Policy 5.3. She noted it was straightened out with wording clarification to Policy 5.3; it was approved unanimously this year and also approved by the DCA; the County Attorney’s Office and Sierra Club have never disagreed on whether the residential policy forbids impacts to wetlands; and it does not. She stated the Sierra Club agrees that it does not forbid de minimus impacts; it simply requires newly platted lots to have sufficient uplands for the intended use and for buffering to preserve wetland function; Policy 5.2.E.1. does not prohibit the alteration or destruction of wetlands, although this Policy makes it very unlikely that alteration or destruction of wetlands in lots subdivided after January 14, 2000 will occur, provided the Policy is properly applied; and the agenda item states, “However, current interpretation does not allow for de minimus impacts even if efforts to avoid impacts have been attempted.” She noted this prohibits any reasonable flexibility for staff to work with applicants to achieve the intent of the Ordinance; the Wetlands Ordinance contains the same language as the Comprehensive Plan; the Sierra Club does not understand the statement she read from the agenda item; and the letter from Attorney Knox to Attorney David Theriac would imply disagreement with the statement in the agenda item. She stated the Sierra Club sees no reason to provide for de minimus impacts since impacts are not forbidden in the first place; Sierra Club requests the Board decline to amend the existing Code and apply the Comprehensive Plan and Wetlands Ordinance as they are written.

Commissioner Carlson stated she thought the way it was written and all the dissertation had a lot of flexibility for residential lots; and it was one of the reasons she wanted to have the discussion with Mr. Brown to find out where the problem was in interpretation. She requested Attorney Knox enlighten the Board about the conversation he has had with the Sierra Club’s Attorney.

Attorney Knox stated it was several years ago, but at the time they discussed the issue, they concluded that there was not a problem with residential lots; he is not sure where this particular problem came up; and maybe the County needs to understand that.

Coleen Hughes stated the Ordinance hinders she and her husband from building on their residential lot; she has an engineering plan for their lot; they bought their lot 16 years ago; and they sold the residence they lived in and went to get their permits. She noted a red flag came up that there may be wetlands because the lot east of her lot has some type of natural pond on it; the vegetation has grown onto their property; with it being shaded with all the trees, the soil is very moist; so she and her husband paid for someone to review the property. She stated the red line on the plan is what the first environmentalists put as the wetland area; the red checks are also wetlands; the back 70 feet of the property is claimed as wetlands; and Natural Resources Management staff also reviewed the property. She noted the wetlands encroach on the back porch area, in the front where the septic tank is, and the east side of the front porch; it is very minimal and estimated at approximately 64 square feet; according to the Ordinance, she and her husband have to redo the whole house again as they cannot mitigate; Office of Natural Resources Management staff has been nice, but the Ordinance ties their hands as to what they can do; and requested the Board review the new options by staff. Ms. Hughes stated she and her husband have about $13,000 invested into this project now; they would have to start over as they cannot take off the porch because it is a stem wall; impact fees are also an issue; and Community Educators has been holding the loan since February 2004. She noted there are a lot of things going on; if she and her husband have to start over, they could not afford to build the house now and would have to start saving money again; and requested the Board’s assistance so the home can be built. She stated the project started in 2002; she and her husband went to the builder and got everything done by February 2004; it went to the County in June 2004; and they have been trying to work with Natural Resources Management staff. She noted the first time the lines came back they were almost through the middle of the house; the surveyors had done the flagging incorrectly; the survey company re-flagged the property; and Natural Resources Management staff caught the error.

Commissioner Scarborough inquired is there any way the County can deal with Ms. Hughes’ issue without changing things fundamentally.

Natural Resources Management Director Ernie Brown advised the Board can direct staff to approve Ms. Hughes’ plan as it sees fit; he walked into the Office three weeks ago and there has been a lot of turnover, understandings, interpretations, etc.; staff is in desperate need of the Board’s direction as to how it wants this done; and whether it changes the Ordinance, amends it, or provides direct clarification of its intent, it would help him because staff has three or four other letters sitting in the Office that he is uncomfortable taking action on.

Commissioner Carlson stated the County has been supported by the courts in Beady v. Marbury, in the use of this language; and inquired if it applied de minimus impact, how would it affect its court standing, and if it has something that works and the courts support it, why would it want to change it, where is the de minimus leeway Mr. Brown is looking for, and how can it deal with that before undoing everything.

Assistant County Manager Peggy Busacca stated paragraph c (1) states that the maximum density or intensity of the residential land use within wetlands is a certain thing, and “subdivided lots shall contain sufficient uplands for the intended use”; paragraph e states, “The filling of wetlands for residential uses within already platted or created lots and wetland impacts should be first avoided then minimized, and subsequently mitigated if possible”; the Board could read that paragraph c (1) was to allow the creation of lots subsequent to 1988 to allow that it would be largely uplands for the intended use; and paragraph e could be read to permit de minimus impacts after the avoidance and minimization. She noted the Board has not had a chance to see Ms. Hughes’ specific case; she had originally shown the septic tank in the wetlands, as well as the primary access; she has redesigned it and has gone through the avoidance and minimization activity; and the amount of mitigation that would be required is minimal. She stated she believes it could be read as Ms. Sphar remembers based on the current language.

Commissioner Carlson stated the language has de minimus impact.

Ms. Sphar stated the provision appears not meeting the one unit per five acres on a lot that was created before January 14, 2000; there is another issue on today’s agenda, which is going to deal with how to handle cases that do not comply with the wetlands language as written in the Comprehensive Plan and the Ordinance; at the time there was a resolution on the 1995 wetlands amendment, Christine Lepore contacted the Attorney for the Sierra Club, Audubon Society, and Native Plant Society; and she requested paragraph 5.2.e.4 be incorporated into the Comprehensive Plan language. She noted it provides a method of handling cases which are takings or inordinate burdens under the Bert Harris Private Property Protection Act; Ms. Lepore wrote, “The applicant is to go through the process described in Section 62-507 (b) (2) of the County Code of Ordinances”; she has had occasion to help prepare two of those appeals, one which actually went forward; it was the Oleander Power Plant; and the second one was resolved by consensus and did not have to go forward. Ms. Sphar stated one has to go through quite a few steps, ask for an administrative decision in writing, and provide documentation and legal argument about why he or she has been aggrieved, has an inordinate burden, or why the County decision is wrong; he or she has to comply in this particular case with requirements of showing there is a situation, which could possibly be considered a taking or near taking; what is important is the Board cannot just grant a variance to the wetlands language as it is not among the Zoning Code; and the natural resources language requires a different process, and is also specified in the stipulated settlement. She noted there is another applicant who is probably going to have to follow the same process instead of being granted a variance by request, either personal appearance or letter to the Board; and it needs to go through the process as specified.

Commissioner Voltz stated common sense says Ms. Hughes has met the County’s criteria; an extremely small amount of her house is in wetlands; she is not destroying anything; the County needs to use common sense, and other than that, it is ridiculous. Ms. Sphar noted it is the law.

Chairman Pritchard stated Commissioner Voltz makes a good point; he has been to the property; it has become a repository for the upland drainage that is now on the bottom of a hill; and what has been done in this case causes little impact, if any. He requested Ms. Busacca emphasize the points she brought up concerning paragraph e, intended to regulate the development of an individual parcel, and the paragraph about filling a wetland for residential use and limited structural building area.

Ms. Busacca stated if it is the Board’s intent, it could read paragraph c (1) as regulation of the creation of lots, and that is how staff is to review a subdivision; it will also keep someone from selling a four-acre lot that is 100% wetlands because he or she would have created a lot, which is less than one unit per five acres; however, if the Board wishes to say paragraph e provides for the filling of wetlands for residential uses only after there has been avoidance and minimization, subsequently there would be mitigation. She noted staff tells her this is not the way it has been interpreted in the past; they have been consistent with that; but the Board has to tell staff what it intends for them to do when it comes to this regulation.

Commissioner Carlson inquired if the County has been consistent with applying it, what is the difference now and why is Mr. Brown having difficulty in applying what has consistently been applied over time. Ms. Busacca stated as new eyes have come in to look, both she and Mr. Brown are relatively new to the natural resources world and have read the Ordinance in a different way; and they came to the Board and asked what it intends. Commissioner Carlson inquired have they talked to those who have interpreted the language before; with Ms. Busacca responding yes, and staff has consistently interpreted it as if it is less than five acres, then there is no mitigation permitted for a residential lot created after 1988.

Attorney Knox stated the language of the two sections Ms. Busacca cited to the Board is susceptible to the interpretation she gave. Ms. Busacca stated she would prefer Attorney Knox not call it her interpretation as she was simply giving one point of view.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to approve that residential uses may have mitigation of wetlands after avoidance minimization.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Board direction and clarification of de minimus impacts to wetlands for single-family residential lots until December 7, 2004. Motion did not carry. Commissioners Scarborough and Carlson voted aye, Commissioners Pritchard, Voltz, and Colon voted nay.

Chairman Pritchard called for a vote on the original motion. Motion carried and ordered; Commissioners Scarborough and Carlson voted nay.

Commissioner Scarborough stated he would like to grant it, but he needs additional time when there is a change in overall County policies. Commissioner Voltz stated the County does not need to hold up Ms. Hughes’ project, which has been going on for a long time.

Ms. Hughes stated the Beady v. Marbury court case that her lot was compared to had no buildable uplands; the only buildable uplands was a pond that was filled in; and it was not the same as her situation.

Chairman Pritchard stated the court case that has been used to substantiate and justify the position the Board has taken was totally different from Ms. Hughes situation; it was nearly a complete lot of wetland; and it is a big difference.

Commissioner Colon inquired does the Board’s decision provide clarification to staff or does there need to be an agenda item for further discussion, and is staff comfortable enough with the language. She stated the Board was trying to be careful of making sure that it uses the policies it has now.

Chairman Pritchard inquired is Commissioner Colon’s concern about the letters on the desks; with Commissioner Colon responding yes. Commissioner Colon stated staff needs to be honest with the Board if they need further clarification.

Ms. Busacca stated perhaps to give everyone a level of comfortable, staff can report back to the Board with an outline of how the policy would be utilized and how it differs from the policy before.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct staff to report back to the Board at the January 11, 2005 meeting with an outline of how the policy would be utilized and how it differs from the policy before.

Commissioner Scarborough stated each Commissioner expressed concerns for adequate time for the public to know what is on the agenda; this item and the one previous were added to the agenda later; and if there is not full information, it comes back and bites the County later.

Commissioner Colon stated she is comfortable with the decision the Board made today, but she does not want to put innocent people in the crossfire; and the County tends sometimes to do that.

Commissioner Carlson stated the County has done this before and set a precedent; it has been applying it a certain way for a long time and then applies it differently; maybe it is good or maybe it is bad; and inquired if it gets an outline, what does it then do to Ms. Hughes when it said it is okay for her, but everybody else it is not because the Board has changed its mind again. She noted that is her only concern and why she did not vote for the motion.

Commissioner Colon stated there is fresh eyes, which is critical; there are policies that have been in place; the County has a reputation of making things extremely difficult for the community; and it has to stop. She noted the clarification of policies by putting the issue on the agenda, discussing it further, and seeing where the Board wants to go is the best way of doing business; and there will not be the animosity that goes on between the community and County staff, which is unfair.

Chairman Pritchard stated the comments Ms. Busacca made about paragraphs c (1) and e are appropriate; Attorney Knox has no problem with interpretation of the language; it needs to be brought forward when the Board discusses the issue on January 11, 2005; and it will include the language Ms. Busacca has mentioned. He noted he is interested in hearing Mr. Brown’s interpretation of certain things and where this is going; and the fresh eyes are necessary.

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

ACCEPTANCE, RE: COUNTY MANAGER’S RESIGNATION

Motion by Commissioner Carlson, seconded by Commissioner Colon, to accept the County Manager’s resignation, effective at 5:00 p.m. on January 3, 2005; and appoint Assistant County Manager Peggy Busacca as Interim County Manager for at least one year, along with the salary that goes with it.

Chairman Pritchard inquired is it common to provide the same salary.

County Manager Tom Jenkins responded he is probably being paid $20,000 to $40,000 less than his peers who have been in the job a shorter period of time than he has; when the Board gets a permanent replacement, it is going to find it is going to pay a lot more than it is paying him; and his salary is more than appropriate to pay the Interim County Manager.

Commissioner Scarborough stated when he was on the Titusville City Council, he was in the process of hiring a city manager; it went through an analysis of salaries and the budget; the only thing that is logical is the relationship of the manager to the other department heads; and there needs to be the appropriate spread.

Commissioner Voltz stated she does not know if one year is an appropriate time frame; perhaps it needs to be until the Board hires a current county manager; and the County needs to go for a nationwide search and advertise in the appropriate magazines, including League of Cities, Florida Association of Counties, etc.

Commissioner Carlson stated it is important that the Board look at what qualifications it wants in that person; the Board has been lucky to have someone here who has lived in the community for a long time; Ms. Busacca has also lived in the community for a long time and understands it very well, including the quality of life issues; and a nationwide search is fine, but she is not sure what the Board is going to find.

Commissioner Voltz stated she agrees; the Board may end up hiring somebody from the community, which would be ideal. Commissioner Carlson stated the door is wide open at this point, so whether it is a nationwide search or however the Board does it, it has to keep the special issues in mind. Commissioner Voltz stated Mr. Jenkins needs to begin to turn everything over to Ms. Busacca, so she can begin to take over; and there is a lot for Mr. Jenkins to turn over and get Ms. Busacca prepared. Commissioner Carlson stated the Board should ask Ms. Busacca if she is okay with it. Commissioner Voltz noted she already did, and Ms. Busacca said okay.

Chairman Pritchard stated the Board is fortunate it has someone that is completely capable of taking over; he was not questioning the value of Ms. Busacca’s service; he was simply asking at what step should it occur; and he does not have any problem with that.

Commissioner Colon stated the Board is extremely blessed because it also has Don Lusk and Stockton Whitten, who do an outstanding job; it is blessed because it is able to pick from the three of them; it says a lot about the folks the County has; and it is going to be an awesome team because the County has to make sure the fort is held while it goes through the whole process.

Commissioner Colon noted she has been through the process three times; she is not going to look at what is just on paper; it is critical, once the applicants are here, to see what the County is about; and Ms. Busacca, and Messrs. Lusk and Whitten are an awesome team. She stated Mr. Jenkins will be missed; and she is glad he is not going far. Commissioner Scarborough stated Mr. Jenkins has provided wonderful service to the people of Brevard County; the Board appreciates all he has done; and it has been a pleasure working with him.

Commissioner Voltz stated the Board is not prohibiting its current Assistant County Managers from applying for the job; and if they want to do that, it would say a lot for each one of them. Chairman Pritchard stated it is all part of the management process.

Chairman Pritchard called for a vote on the motion, to accept the County Manager’s resignation, effective at 5:00 p.m. on January 3, 2005; appoint Assistant County Manager Peggy Busacca as Interim County Manager; and approve the pay rate for Ms. Busacca at the same rate as the County Manager’s current pay. Motion carried and ordered unanimously.

Chairman Pritchard stated the County needs to conduct a search and determine how it is going to do that, and whether it is going to have a consultant or do it in a variety of ways; and inquired how might it wish to handle that. Commissioner Colon stated the options can come back to the Board at the next meeting; and it needs to see which direction it wants to take. Chairman Pritchard stated there has to be the creation of options; if the Board is going to leave it up to the County Manager’s office to provide it with options, then it needs to provide such office with its thoughts; he would like to see the RFP written in such a manner that it would include the private sector, so the County could look at a former CEO of a major company; and the criteria for a search needs to be brought back to the Board.

Commissioner Scarborough stated he has touched based with Commissioners in Hillsborough, Osceola, and Hernando Counties; Osceola County went out for an RFP for the consultant; it first decided on the best person for it; and suggested Frank Abbate put things together for the Board next week so it has different options to review. Mr. Jenkins stated Mr. Abbate can put options together in terms of getting a search firm; and once such firm is selected, the Board can discuss with that firm what it is looking for.

Commissioner Voltz stated the Board has a number of workshops scheduled in January 2005; and the issue should be discussed in one of those workshops. Chairman Pritchard stated the Board will leave it up to Ms. Busacca to decide whether or not she needs to bring in someone as an Assistant County Manager; she can look within the organization and make that decision; and it falls into her realm of administrative duties. Commissioner Colon stated it was admirable of Mr. Jenkins to give the Board enough notice and time to make the transition, which is going to be extremely smooth; and reiterated she has gone through this three times already and it is not easy. She stated by the Board taking the actions it has done today, it shows the confidence it has in County staff; and there will continue to be that kind of stability that is needed. She thanked Mr. Jenkins for staying until January 3, 2005.

Chairman Pritchard stated anyone that can survive 17 years is admirable; Mr. Jenkins’ tenure has been extraordinary; city managers are lucky to last five to seven years; and county managers are usually subject to less time. He noted Mr. Jenkins’ ability to work with the Board and see that the will of the majority of the Commissioners has been done has been remarkable.

CITIZEN REQUEST - GURU INVESTMENTS C-STORE, RE: VARIANCE TO ALLOW
REDEVELOPMENT OF SITE CONTAINING WETLANDS

Luke Miorelli, representing Guru Investments, provided photographs of the site to the Board, but not the Clerk; stated the purpose of the Wetlands Ordinance is to protect functioning wetlands; what Guru Investments is dealing with is not a functioning wetland, but a low spot in the back of an existing property that it would like to redevelop that is covered in Brazilian pepper trees; and the site is an existing gas station site on U.S. 1 in Grant directly south of Ozzie’s Crab House. He noted the site was built probably in the late 1950’s or early 1960’s; the gas station/service station was converted to a convenience store; his clients would like to build a new modern convenience store that comes in compliance with all the ordinances and requirements of the County; and the first picture is at the northeast corner of the property looking to the west, which would be the wetlands his clients are requesting to mitigate or impact along the western property line. He stated the second picture with the culvert at the bottom is looking to the south where there is also wetlands; the plan has the overlay and oddball-shaped pieces; the survey shows the wetlands lie on the property and around it; and the last picture is a store he built recently for the same owners. He noted the problem is three sides of the property are surrounded by wetlands; besides wetlands there are rights-of-way on two sides of the property and right-of-way on the eastern side of the property; there is no room to go anywhere; and his clients cannot go to the west, which is the only available land. Mr. Miorelli stated the wetlands are in the way; as surveyed, there are no wetland species, primarily because of the soil type; by County Ordinance, his clients have to take out the Brazilian pepper trees even if there was a way to develop the site; and they would have to go in with bulldozers or whatever into the small area. He noted the area of the wetlands is less than one-quarter acre; the total area of the site is less than one acre or under .8 acre; 100% of the stormwater that comes off of this property goes directly into the Indian River via the wetlands and the ditch to the south; and the ditch goes underneath U.S. 1, directly into the Indian River. He stated the existing septic system, which would be non-conforming by today’s standard, is more of the cesspool-type and is dumping directly into the Indian River, putting nutrients into it; there is no landscaping on the site; there is no protected green areas; and requested the ability to deal with the wetlands in compliance with St. Johns River Water Management District, that has determined such wetlands are poor quality. He noted Bill Kerr is going to speak to the quality of the wetlands so they can be impacted to put in a modern store; it is redevelopment of a site, so his clients are taking down an old rundown facility and putting in a new one; 100% of the stormwater is now going to be treated both for quality and quantity per the requirements of the Water Management District and Brevard County; and in order to comply with the requirements, his clients must have to have an advanced wastewater treatment system, so they are not going to be putting nutrients into the Indian River. Mr. Miorelli stated his clients will get the structure to meet the new setbacks; it will meet current Building Codes; they will be landscaping what has been deemed part of the scenic corridor in the south end of the County; his clients are looking for a lot-specific requirement so they can redevelop the lot; and it is within the basic requirements of the County’s Ordinance.

Commissioner Scarborough stated Mr. Miorelli talks about a variance to allow him to meet the Water Management District’s requirements; and inquired what specific variance is he requesting. Mr. Miorelli responded the County Ordinance does not address redevelopment of a site; but it says one can get a variance. Commissioner Scarborough stated normally the County has an ordinance that says specific things; Mr. Miorelli is asking a variance from that specific requirement; and inquired what specific requirement is he asking a variance of. Mr. Miorelli responded his clients would like to be able to impact the wetlands on a commercial property; that is the variance; there is a portion of the Ordinance that says if someone is surrounded on three sides by development then he or she qualifies for that; and his clients has a drainage right-of-way on the south, a County right-of-way on the north, and a State road right-of-way, U.S. 1, on the east. He stated his clients are hemmed in and cannot go anywhere; it is not like they can negotiate with the neighbors and get more land; and it does not do any good because the Brazilian pepper trees are in the way.

Mary Sphar, representing Sierra Club, stated this is an interesting application; she was not aware that it might be possible to consider the wetlands not to be functional; in the glossary of the Comprehensive Plan there is a definition of wetland functionality; so it should be something that could be looked at. She noted in the letter she referenced previously from the County Attorney to Attorney Theriac, Attorney Knox makes a point about the application and the residential policy, which also would apply to the commercial Policy 5.2.E.3; Attorney Knox would now say that the commercial Policy 5.2.E.3. must also be read together with Objective 5 and the first sentence of Policy 5.2 that apply the operative no net loss policy to functional wetlands only; thus the restrictions in Policy 5.2.E.3 apply to functional wetlands only; and the Sierra Club agrees with the analysis by Attorney Knox. She stated it would be appropriate to determine whether or not these wetlands are actually functional wetlands because if not, she does not see why Guru Investments would need a variance; she is concerned that someone is asking for a variance from the Wetlands Ordinance, the particular part of the Ordinance, which was copied from Policy 5.2.E.3; she does not see what the problem is if Guru Investments does not have functional wetlands; and the wetlands language that was in effect before January 14, 2000 allowed an applicant to appeal to the Board a staff decision on whether commercial development activities could take place in wetlands. Ms. Sphar noted it was commonly referred to as a public interest determination; it was a process plagued by politics; it did not provide even-handed treatment of all applicants; and public interest determination was regarded as a problem by many people. She stated with the stipulated settlement of the 1995 wetlands amendment legal action, new language went into effect; such language took effect on January 14, 2000; the public interest determination was replaced by objective criteria for determining the commercial parcels where wetlands impacts were permissible and the parcels where development was not allowed; and to provide for extreme cases resulting in a taking or inordinate burden under the Bert Harris Act, a procedure for appeals was specified in the Comprehensive Plan, Policy 5.2.E.4. She noted the applicant could appeal a denial under Section 62-507 (b) (2) of the County Code of Ordinances; his type of appeal is not simple; and Guru Investments’ situation needs to be reviewed again.

Commissioner Scarborough stated Ms. Sphar indicated Guru Investments may not need a variance. Ms. Sphar noted that is correct; and the Policy that is holding Guru Investments up applies to functional wetlands only. Commissioner Scarborough inquired does the County Attorney agree with that; with County Attorney Scott Knox responding he remembers it in terms of the Comprehensive Plan.

Assistant County Manager Peggy Busacca stated the issue is that the County Code does not discuss redevelopment areas; it discusses new development, but not what the County does when a piece of property is redeveloped; logically, it would seem that one argument could be made that a redevelopment is the same as a new development when it comes to the wetland because it has not been impacted before; then it should be substantially surrounded; and the other argument is that if the property has already been development then this language does not really apply. She noted she agrees with Ms. Sphar that there is no variance here; the issue is broader than just this one specific case because the County is going to continue to see redevelopment come along; and it does not have any language for it.

Chairman Pritchard stated the County wants to encourage redevelopment; it needs to take the position of blighted and redevelopment before more things are plowed down; and it needs to encourage doing more things.

Ms. Busacca stated the Board could give staff direction on what to do with redevelopment; Attorney Knox has advised staff in the past that there is the green light doctrine, which staff could move forward if there is an intent; and the Board needs to give staff intent about what to do with redevelopment sites.

Commissioner Carlson inquired does functionality of the wetland play into the equation or not; with Ms. Busacca responding the functionality is part of the permitting decision when getting to the mitigation. Ms. Busacca stated there are two issues, what does the Board want to do about redevelopment, and does it look at functionality as a permitting mitigation issue.

R. Jo Shi, representing Guru Investments, requested the Board’s support of the item; stated he is the owner of the property and is investing $1.3 million in the community to provide state-of-the-art C-stores and a gas station, which will service people from Sebastian to Palm Bay. He noted there is nothing available in that area; such area was the hardest hit with the hurricanes; revitalization is needed for the community’s benefit; and undertaking the risk for this size project for a small business is a huge task. He urged the Board to approve the small variance on this small piece of property.

William Kerr, representing BKI, Inc., stated he has been an environmental consultant in the County for over 20 years; he has evaluated the wetland; it is a wetland because of wetland soils; and the property is about 98% Brazilian pepper trees. He noted the reason the wetland extends to the south of the property is that there is an old drainage canal that has been maintained over the years; the main portion of the wetland is to the west; there is some hydric soil in the center and back of the property on the west side; however, because of the fill, the single-family home to the west, the roadways to the north, and the old site to the east, there is a low area in the back that has accumulated enough organic material to become wetland soils. He stated in his opinion it is not a viable wetland; staff knows its Code pretty well; if that is the way to get Guru Investments down the road, then he wants to take the easiest path and go that way; and the other issue that needs to be considered and not with this particular site is the County is trying to encourage redevelopment. Mr. Kerr stated it has its Codes established so that one meets water quality treatment criteria for the Indian River Lagoon and other waters that are discharged into it; with this particular site, there is not enough room without impacting the wetlands, which is non-functional and non-viable, to put in all the amenities that allow the water quality treatment and an upgraded sewer treatment system so that it meets criteria; and there is an advanced wastewater treatment system. He noted there is a conflict in the environment; if someone cannot put in the amenities to deal with water quality and upgrade the sewer treatment system so he or she does not pollute the Indian River Lagoon because they cannot impact a non-viable wetland or a viable wetland that is nearly surrounded, then there is a problem; there is a Catch 22 as the individual is unable to meet the water quality criteria without impacting a lousy wetland that does not have any wetland dependent endangered species surviving in it; and if Guru Investments can get out under a non-viable wetland, then it needs to go that way.

Chairman Pritchard inquired what is it that makes this damp spot in the ground something that is worthy of preventing something else from happening. Mr. Kerr responded wetlands provide functions; they do not recharge the aquifer because water cannot be stored on water; such wetlands allow a low area in the ground to fill up with water during a storm, which slows the time that the volume of water gets to the lower water body, to the Indian River Lagoon in this case; it helps to protect from flooding because some water will gather in wetlands and low spots first; and as the rest of the world fills up, it will run across the top of the ground and trap a large volume of water in the low pockets, which prevents flooding in the future. He stated as every wetland is filled up, there is the potential for an accumulating affect for the downstream system to get water more rapidly; therefore, there is more flooding and more water going there faster. Mr. Kerr stated the second function that wetlands supply is that it is the most diverse habitat in the State; and wetlands in the State of Florida, excluding lakes, rivers, etc. dry out and get wet. He noted this diversity allows lots of different plants and animals; diversity is the thing one wants; no one wants a monoculture Brazilian pepper tree or a monoculture of anything because if a disease comes along it can knock out that whole community; and the County wants diversity in the environment and a lot of change so it can withstand and be buffered from a lot of damaging effects. Mr. Kerr stated the value wetlands provide is that they decrease flooding, adds water quality treatment because the water trapped there either evaporates or percolates in the ground; and the herbaceous-type wetlands supply tremendous diversity for the environment.

Chairman Pritchard noted the wetland does not recharge the aquifer. Mr. Kerr stated that is correct; and scrub areas recharge the aquifers.

Commissioner Scarborough stated Mr. Kerr has testified as to the viability and functionality of wetlands; and inquired can the Board avoid the variance issue and make a motion to have a finding of fact and be done with this issue.

County Attorney Scott Knox responded the County has a Comprehensive Plan that says the whole thing is tied to functional wetlands; that is what his letter was about and what Ms. Sphar rightfully pointed out; the Ordinance still does not say functional wetlands and only says wetlands; and the County has to interpret the Ordinance consistent with the Comprehensive Plan. He stated functional wetlands are what the County is talking about; and if it is not functional, he does not believe there is a problem.

Commissioner Scarborough stated redevelopment can be all kinds of different things; it would be preferable to bring it back as a report; he agrees with Chairman Pritchard, the County wants to encourage redevelopment; and if it becomes problematic in dealing with that issue, the County needs to go there.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve finding of fact based on testimony of Bill Kerr, representing BKI, Inc., that the wetlands on property owned by Guru Investments are non-viable and non-functional, and therefore not wetlands as set forth in the Wetlands Ordinance.

Mr. Kerr stated Guru Investments has gone to St. Johns River Water Management District; and it has confirmed that the property has a low quality wetland.

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

Chairman Pritchard requested Mr. Kerr list his credentials. Mr. Kerr stated he has a degree in biology from Stetson University; he has been practicing 20 years as an environmental consultant in the State of Florida, with extensive experience with both federal and State permitting and wetland issues; and he is a qualified environmental and wetland permitting specialist in the State of Florida, and both federal and State court. Chairman Pritchard inquired has Mr. Kerr been involved with the Water Management District; with Mr. Kerr responding he has been a District Board Member since 1999.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to direct staff to provide a report on creation of criteria dealing with redevelopment.

Commissioner Scarborough stated once there is property that has been utilized, it needs to be looked at differently than virgin property; there are a lot of dynamics to this; the issue needs to be discussed due to the extent and nature of the development and how it has different impacts; and as the County gets into more complex issues, it needs to have good criteria.

Chairman Pritchard requested functional wetlands be included; stated there needs to be an interpretation; the County cannot rely on a wet spot in the ground to prevent something from happening if such spot is not providing a service; and it needs to determine how it is going to measure what that service is. He noted the County also needs to determine how it is going to offset that service when it is talking about redevelopment; there are blighted areas; and if the County has redevelopment areas, it needs to encourage that those areas are redeveloped before it starts digging into other areas.

Attorney Knox stated perhaps staff can work on defining the term “wetlands” in terms of functional wetlands. Chairman Pritchard stated that is fine.

Chairman Pritchard called for a vote on the motion, to direct staff to provide a report on creation of criteria dealing with redevelopment, and define the term “wetlands” in terms of functional wetlands. Motion carried and ordered unanimously.

CITIZENS’ REQUEST - E. G. AND S. P. JONES AND HARVEY HANLEY, RE: REMOVAL
OF OBSTRUCTIONS FROM MULLET COURT AND PARADISE LANE

Commissioner Voltz stated the applicants are not present for the item.

Commissioner Scarborough stated he was briefed by staff; they told him it was on private property; the County does not have any legal standing; and the Board does not need to take any action.

The Board took no action on citizens’ request of E. G. and S. P. Jones, and Harvey Hanley regarding removal of obstructions from Mullet Court and Paradise Lane as the County does not have any legal standing on the issue as it is private property.

CONFLICT RESOLUTION PROCEEDINGS WITH TOWN OF MALABAR, RE:
ENVIRONMENTALLY ENDANGERED LANDS PROGRAM

County Manager Tom Jenkins stated the County is already meeting with the Town about law enforcement services and now it is going to meet about this issue as well.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to authorize the County Manager and County Attorney or their designees to meet with the Town Attorney and Town Mayor of the Town of Malabar to undertake conflict resolution proceedings regarding the County’s Environmentally Endangered Lands Program. Motion carried and ordered unanimously.

WARRANT LIST

Upon motion and vote, the meeting adjourned at 6:20 p.m.

ATTEST: __________________________________
RON PRITCHARD, D.P.A., CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

_____________________
SCOTT ELLIS, CLERK

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