April 2, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on April 2, 2002, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Susan Carlson and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Spiritual Leader John Goldring, Barefoot Bay, Florida.

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

APPROVAL OF MINUTES

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve the February 7, 2002 Zoning Meeting Minutes. Motion carried and ordered unanimously.

REALLOCATION OF FUNDING FOR TRANSPORTATION PROGRAM, AND APPROVAL
OF PRELIMINARY ENGINEERING REPORT, RE: MATHERS BRIDGE
REHABILITATION PROJECT

County Manager Tom Jenkins requested the Board withdraw Item VI.A.11 from the agenda as additional information is needed.

The Board withdrew reallocation of funding for Transportation Program and approval of preliminary engineering report for Mathers Bridge Rehabilitation Project from the agenda.

PERMISSION TO SCHEDULE EXECUTIVE SESSION, RE: FRANDSEN V. BREVARD
COUNTY CASE

County Attorney Scott Knox requested permission to schedule an executive session on April 16, 2002 concerning the Frandsen v. Brevard County case, which involves the Nudity Ordinance; stated the case is scheduled to go to trial in May 2002; mediation was held yesterday; and the insurance company's lawyer is available on April 16, 2002.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to grant permission to schedule an executive session on April 16, 2002, at 11:30 a.m. concerning the Frandsen v. Brevard County case. Motion carried and ordered unanimously.

REPORT, RE: SAMPLE THE ARTS AND MELBOURNE MUNICIPAL BAND

Commissioner Carlson stated normally she announces the Sample the Arts, which is the organization that is out in the foyer; the Melbourne Municipal Band is supposed to be there as well; Sample the Arts is a Program sponsored by Brevard Cultural Alliance; and the Melbourne Municipal Band is a 100-piece band of volunteer musicians established in 1907, which has been running continually for the past 37 years. She noted the Band offers monthly concerts around the year at the Melbourne Auditorium; in the Summer months, patrons enjoy Not in the Park Picnic Pops in the air conditioned comfort of the Melbourne Auditorium; and the Band does a lot of things for the community.

REPORT, RE: MEETING ON CONNECTION OF ST. ANDREWS BOULEVARD AND
SUNTREE TO PINEDA CAUSEWAY EXTENSION

Commissioner Carlson stated her Office is hosting a meeting in the Commission Chambers at 9:00 a.m. on April 6, 2002 to get everyone up-to-date on the issue of connecting St. Andrews Boulevard and Suntree to the Pineda Causeway Extension; there is a lot of historical perspective; people are asking questions and getting concerned about different views; and she has asked the Suntree Master Homeowners Association to develop a list of questions and points needing clarification. She noted staff will be present with her to try to get everyone concerned to have the same understanding on the issue; and anyone interested can attend the meeting Saturday morning.

REPORT, RE: TRASH BASH DAY

Larry Weber, representing Keep Brevard Beautiful (KBB), stated April 20, 2002 is the 17th year for Trash Bash Day; last year there were 2,733 volunteers; 127,210 pounds of litter were picked up off the streets, rivers, and banks over a four-hour period in the morning; and in the Great American Clean-up last year, which was held in March, April and part of May 2002, there were 15,708 volunteers who collected 268,478 pounds of litter. He noted this year will be the St. Johns and American Heritage River Cleanup on May 4, 2002; it is a great competition among the Commissioners; there are 30 sites throughout the County; and everyone is well represented. Mr. Weber provided shirts for the Board members; stated there is a competition each year among the high schools; Tabby Johnson of Eau Gallie High School was the winner this year; and individuals can go to KBB's website at www.keepbrevardbeautiful.com which lists all the sites and the directions, or call 453-8767 for additional information. He stated KBB works very closely with Florida TODAY Newspaper and Waste Management; and Waste Management is a sponsor of KBB and picks up all the litter.

Commissioner O'Brien stated the Cities of Melbourne Beach, Cocoa Beach, Rockledge, Palm Bay, and Cocoa are also sponsors of KBB. Mr. Weber stated such Cities sponsor the T-shirts.

REPORT, RE: FUND RAISER FOR CROSSWINDS

Jim Ross, representing Crosswinds, expressed appreciation to the Board for the great job it has done in supporting children in the community and Crosswinds; stated due to the Board's support, kids and their families are much stronger today; the Great Brevard Duck Race is a lot of fun and all of the profits go to Crosswinds to better serve the kids; and the Duck Race will be held in Titusville at the Indian River Festival on April 28, 2002, at 2:00 p.m. He noted people do not have to be present to win one of the great prizes; the grand prize comes from Daytona International Speedway which is four VIP seats to the Nascar Pepsi 400 this year; the second prize is a seven-night cruise on Royal Caribbean Cruise Line; and the third prize is Swim with the Dolphins at Discovery Cove in Orlando. Mr. Ross stated the fourth prize is flying anywhere in the Nation that Southwest Airlines flies; there are 17 great prizes that people can be eligible to win; to be eligible to win one of the prizes, individuals can go into one of 92 locations in Brevard County; there has been fantastic cooperation from the business community to make these outlets available; and for the next four weeks, people can buy ducks at any of the following: Community Educators Credit Union, Space Coast Credit Union, First Union, Bank of America, Harbor Federal, Riverside National Bank, Publix Supermarkets in South Brevard, and any Crosswinds location. He noted this is a wonderful opportunity to work together to raise money for Crosswinds; last year, $42,000 was raised; this year the goal is $52,000; and invited everyone to go to one of the locations and adopt ducks for a great cause and have lots of fun in the process. Mr. Ross stated Crosswinds helps young people in crisis, beginning at age 10 to age 17; Crosswinds provides free services for the young people and their families through counseling, mentoring, a safe shelter, and a number of other programs; on a daily basis Crosswinds sees kids' lives turning around, often saving young people's lives and changing their lives for the better; and as a result, the community is much better.

Commissioner O'Brien stated his firm furnishes the boom that controls the raceway; with Mr. Ross responding Commissioner O'Brien is one of the many people in the community who has been very generous to make the event successful. Mr. Ross stated Crosswinds appreciates the donation from Commissioner O'Brien.

REPORT, RE: BILLBOARD BILL

Chairman Scarborough stated if Governor Jeb Bush does not veto the Billboard Bill, it becomes law on Thursday; the Board has taken numerous actions and he sent a letter to Governor Bush; and encouraged the Board to join with him in contacting the Governor's Office.

APPROVAL, RE: CHANGE IN TIME FOR SCHEDULED WORKSHOP

Chairman Scarborough stated he was notified that there is going to be a MyRegion Executive Committee Meeting on April 18, 2002; it is prudent for the Board not to try to reschedule its workshop; however, one of the items for the workshop is Wekiva River; it is going to conflict with some of the East Central Florida Regional Planning Council staff, which supports MyRegion; and the Board may have to adjust the time schedule for its workshop.

Commissioner Higgs suggested the Board's workshop begin at 1:00 p.m. instead of 9:00 a.m.

The Board rescheduled the time for the April 18, 2002 Workshop from 9:00 a.m. to 1:00 p.m.

RESOLUTION, RE: PROCLAIMING CANCER AWARENESS MONTH

Commissioner Higgs read aloud a resolution proclaiming the month of April 2002, as Cancer Awareness Month in Brevard County.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to adopt Resolution proclaiming the month of April 2002, as Cancer Awareness Month in Brevard County, and urging all citizens to recognize the importance of identifying cancer symptoms early, receiving early treatment, and coping as a cancer survivor. Motion carried and ordered unanimously. (See page for Resolution No. 02-076.)

Dr. Bob Mandell, Cancer Advisory Council member from Health First, expressed appreciation to the Board for the Resolution; stated the Resolution encompasses what individuals know about cancer and its future treatment and plans for fighting it; it starts with beginning of the awareness and mentions all the way through treatment; and until there is a magic bullet that will cure any cancer, and probably there is no one cure for all the cancers, the best method of curing cancer is catching it early. He noted there are some cancers, such as cancer of the cervix, that can almost be eliminated as long as women will get their pap smears; mammography has decreased the amount of mortality and morbidity in breast cancer; prostrate screening has picked up many early prostrate cancers; and awareness is the most important thing.

Kathy Bohlman, Cancer Program Coordinator at Holmes Regional Medical Center, stated this month the American Cancer Society is going to have two more Relay for Life events; two events have already happened in Titusville and one in Port St. John, which have raised much needed money for the County effort to fight cancer; the American Cancer Society has prevention programs, education programs, supportive programs, and programs to help finance research and advocate for cancer survivors in Brevard County and Nationwide; and June 8, 2002, will be the first Men's Health Summit at the Church of Jesus Christ of Latter Day Saints in Rockledge where men are going to be encouraged to watch their health and get prostate exams.

Jeannie Leeburg, Executive Director of American Cancer Society, stated this weekend at Cocoa Beach High School will be the 3rd Relay for Life in Brevard County; Relay for Life is the number one fund-raiser in the world; not only does it build on teams, but it also highlights the programs that the American Cancer Society provides for cancer patients; all of the programs and services are free to the public; and the Society depends on donations for these types of services. She noted the Society provides rides back and forth for treatment if someone needs to get to a treatment center; the Society does makeovers for ladies who have lost their hair and their skin has changed due to treatment; the Society has an "I Can Cope" Program, which is an educational Program that deals with everything from cancer and finances to cancer and sexuality; and the Society pays for individuals who have to go out of town to stay in hotels and Hope Lodges free of charge. Ms. Leeburg stated last year 2,168 people in Brevard County were diagnosed with cancer; of those, 1,778 people called the Society for services; many people are using the Society's website at www.cancer.org and can call 1-800-ACS-2345 to talk to an oncology nurse or doctor at any time day or night; and April 19 and 20, 2002 at Melbourne High School will be Melbourne's 1st Relay for Life. She noted Chairman Scarborough's wife has been very supportive in Titusville and had a team two weeks ago; Commissioner Higgs has been supportive in golf tournaments; and the Board members have attended various events at one time or another.

Commissioner Higgs presented the Resolution to Dr. Bob Mandell, Kathy Bohlman, and Jeannie Leeburg.

RESOLUTION, RE: PROCLAIMING DAYS OF REMEMBRANCE OF THE VICTIMS OF
THE HOLOCAUST

Commissioner Higgs read aloud a resolution proclaiming Days of Remembrance of the Victims of the Holocaust.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution proclaiming the week of April 7 through 13, 2002, as Days of Remembrance of the Victims of the Holocaust in Brevard County, in memory of the victims and in hope that people will strive always to overcome prejudice and inhumanity through education, vigilance, and resistance. Motion carried and ordered unanimously. (See page for Resolution No. 02-077.)

Spiritual Leader John Goldring expressed appreciation to the Board for the Resolution; stated the dark days of the Holocaust show that indeed the victims must be remembered, but hope will shine through the terror; and everyone must not lose sight of the results of the Holocaust, not allow this type of genocide and racial cleansing to happen again, and never forget. He noted as the poet Lawrence Benyon wrote, "They shall not grow old as we that are left grow old. Age shall not weary them, nor the years condemn. At the going down of the sun and in the morning we will remember them." Mr. Goldring stated everyone looks forward to a future of shining hope that nothing like the Holocaust will ever be allowed to happen again; and expressed appreciation to the Board for the Resolution. He invited the Board and community to Temple Israel on April 9, 2002, at 7:30 p.m. for a memorial service.

Commissioner Higgs presented the Resolution to Mr. Goldring.

PRESENTATION BY SHERIFF, RE: COMMENDATION PLAQUES

Sheriff Philip Williams stated it is his pleasure to be here this morning to recognize some individuals who have contributed greatly to the safety of Brevard County and the cities; the Sheriff's Office has a Warrants Unit; and its mission is to locate those people who have not shown up for court or have cases filed with the State Attorney's Office and warrants have been issued for their arrests. He noted Lieutenant Boyd heads the Unit; Denise Webb is a member of the Unit; Dawnelle Taylor is the person who sends the officers out with their warrants and the information as to where the individuals live and how their appearances have changed; and Sergeant David Fitch, who heads up the Unit on a day-to-day basis, has done a tremendous job for the County. Sheriff Williams noted Sergeant Fitch formed a partnership with the municipalities to get the warrants served; three individuals who have participated in these warrants have done an outstanding job; the combined efforts of these three officers and the Warrants Unit in the past few months have resulted in 2,061 attempts to serve warrants; and the warrants that have been served are 634, with 417 people being captured. He introduced Chief Ross of Titusville Police Department; and presented a plaque to Officer Josh Little of such Department. Sheriff Williams introduced Police Chief Keith Chandler of Melbourne Police Department; and presented plaques to Patrol Officers Ron Anderson and Joe Ameigh.

The Board acknowledged the Sheriff's presentation of plaques to Patrol Officers Ron Anderson and Joe Ameigh of Melbourne Police Department, and Officer Josh Little of Titusville Police Department for their assistance to the Sheriff's Office Fugitive Unit.

Commissioner Colon stated the Department of Corrections (DOC) also plays a key role. Sheriff Williams stated it is a partnership between State Probation and Parole, County Probation and Parole, and the municipalities.

RESOLUTION, RE: PROCLAIMING NATIONAL COUNTY GOVERNMENT WEEK

Commissioner Carlson read aloud a resolution proclaiming the week of April 7 through 13, 2002, as National County Government Week

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution proclaiming the week of April 7 through 13, 2002, as National County Government Week. Motion carried and ordered unanimously. (See page for Resolution No. 02-078.)

RESOLUTION, RE: PROCLAIMING CHILD ABUSE PREVENTION MONTH

Commissioner Carlson read aloud a resolution proclaiming April 2002, as Child Abuse Prevention Month.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution proclaiming April 2002, as Child Abuse Prevention Month. Motion carried and ordered unanimously. (See page for Resolution No. 02-079.)

Cheryl Richieardy expressed appreciation to the Board for the Resolution; stated every year, more than three million children are abused or neglected in this country; unfortunately, Brevard County is not exempt from this heinous crime; and there are more than 5,000 reports of child abuse and neglect in Brevard County each year. She noted more than 1,500 of those are verified; the Yellow Umbrella has a mission, which is to prevent child maltreatment in Brevard County through education and by promoting positive and nurturing parenting; it is everyone's duty and obligation as human beings and citizens of Brevard County to do everything possible to play an active role in prevention; and they must be aware and do what it takes to protect every child. Ms. Richieardy advised in 2001, the Yellow Umbrella provided direct services to 9,533 adults and children.

Commissioner Carlson stated joining Ms. Richieardy is Yvette Torres from her Office, who takes a very active part in the Yellow Umbrella and is on the Board of Directors.

Commissioner Carlson presented the Resolution to Ms. Richieardy and Ms. Torres.

ACCEPTANCE OF DEEDS FROM WILLIAM B. FERRELL, SR. AND LAWRENCE M. LITUS,
P.A., TRUSTEE, RE: EXTENSION OF WASHINGTONIA DRIVE

Commissioner Carlson requested Item III.A.8. be pulled from the Consent Agenda for discussion.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: VIERA DRI, TRACT NN

Motion by Commissioner Higgs, seconded by Commissioner Colon, to grant final engineering and preliminary plat approval for Viera DRI, Tract NN, subject to minor changes as applicable and developer obtaining necessary jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: CASABELLA SUBDIVISION, PHASE I

Motion by Commissioner Higgs, seconded by Commissioner Colon, to grant final plat approval for Casabella Subdivision, Phase I, subject to minor changes if necessary, receipt of all documents required for recording, and developer obtaining jurisdictional permits. Motion carried and ordered unanimously.

WAIVER OF SECTION 62-3000B.1, OPEN SPACE REQUIREMENT, RE: CHASE
HAMMOCK LAKES SUBDIVISION

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve waiver to Section 62-3000B.1, Open Space Requirement, that requires a minimum 50% of permanent open space, be reduced to 35% for Chase Hammock Lakes Subdivision. Motion carried and ordered unanimously.

INFRASTRUCTURE CONTRACT WITH S&S ENTERPRISES, INC., RE: IMPROVEMENTS
IN ISLES OF BAYTREE, PHASE 2

Motion by Commissioner Higgs, seconded by Commissioner Colon, to execute Contract with S&S Enterprises, Inc. for infrastructure improvements in Isles of Baytree, Phase 2. Motion carried and ordered unanimously. (See page for Contract.)

UNPAVED ROAD AGREEMENT WITH DANIEL G. GIROUX, RE: GIROUX PROJECT
UNPAVED ROAD

Motion by Commissioner Higgs, seconded by Commissioner Colon, to execute Unpaved Road Agreement with Daniel G. Giroux for Giroux Project Unpaved Road. Motion carried and ordered unanimously. (See page for Agreement.)

RESOLUTION, RE: AUTHORIZING COUNTY MANAGER OR HIS DESIGNEE TO ENTER
INTO HIGHWAY MAINTENANCE MEMORANDUM OF AGREEMENT WITH
FLORIDA DEPARTMENT OF TRANSPORTATION

Motion by Commissioner Higgs, seconded by Commissioner Colon, to adopt Resolution authorizing the County Manager or his designee to enter into a Highway Maintenance Memorandum of Agreement with Florida Department of Transportation for S.R. 520 in District 2 and the Park and Ride Facility on S.R. 518 in District 5. Motion carried and ordered unanimously. (See page for Resolution No. 02-080.)

RESOLUTION, RE: AMENDING APPLICATION FEES FOR HAULING OPERATIONS

Motion by Commissioner Higgs, seconded by Commissioner Colon, to adopt Resolution amending the current application fee schedule for all hauling operations whether materials are hauled or removed from the site from a stockpile or through excavation. Motion carried and ordered unanimously. (See page for Resolution No. 02-081.)

PERMISSION TO ISSUE WORK ORDERS TO OUTLAW & JONES, INC., RE: HOLLYWOOD
BOULEVARD AND EBER ROAD INTERSECTION IMPROVEMENT PROJECTS

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize Public Works Department to issue a Work Order to Outlaw & Jones, Inc. to provide design services for the Hollywood Boulevard and Eber Road intersection improvement project at $57,900. Motion carried and ordered unanimously.

EASEMENTS TO FLORIDA GAS TRANSMISSION COMPANY, RE: CAPE KENNEDY
LATERAL LOOP EXPANSION

Motion by Commissioner Higgs, seconded by Commissioner Colon, to execute two Utility Easements for Installation of a Gas Line, Access Road Easement, and Temporary Construction Easement in favor of Florida Gas Transmission Company for installation of a pipeline on County-owned property in Sections 25 and 34, Township 23S., Range 35E., for the Cape Kennedy Lateral Loop Expansion. Motion carried and ordered unanimously. (See pages
for Easements.)

SPEED HUMP REQUEST, RE: RIVIERA BOULEVARD EAST

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize installation of speed humps on Riviera Boulevard East as 88% of the residents indicated approval of the installation. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT AND INCLUDE IN COUNTY'S CIP, RE: UNFUNDED PORTION
OF REGIONAL STORMWATER UTILITY DEPARTMENT'S CAPITAL IMPROVEMENTS
PROGRAM

Motion by Commissioner Higgs, seconded by Commissioner Colon, to acknowledge receipt and authorize inclusion of the unfunded portion of Regional Stormwater Utility Department's Capital Improvements Program in the Capital Improvements Plan. Motion carried and ordered unanimously.

RESOLUTION, RE: CREATING A COMMUNITY ACTION BOARD

Motion by Commissioner Higgs, seconded by Commissioner Colon, to adopt Resolution creating the "Community Action Board"; establishing by-laws for membership and goals; providing for an effective date and reporting requirements and rescinding previous authority for CBO and CAA Advisory Boards. Motion carried and ordered unanimously. (See page
for Resolution No. 02-082.)

APPROVAL OF CBO ADVISORY BOARD RECOMMENDATION, AND EXECUTION OF
CONTRACTS, RE: FUNDING OF COME UNITY, INC. AND BREVARD COUNTY
TRIAD

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve the recommendations of the CBO Advisory Board, and authorize the Chairman to execute Contracts for funding of Come Unity, Inc. and Brevard County Triad. Motion carried and ordered unanimously. (See pages for Contracts.)

RESOLUTION, GRANT AGREEMENT, BUDGET CHANGE REQUEST, AND TEMPORARY
LOAN, RE: BOATING IMPROVEMENTS AT POW/MIA PARK

Motion by Commissioner Higgs, seconded by Commissioner Colon, to adopt Resolution requesting assistance under the Florida Fish and Wildlife Conservation Commission Florida Boating Improvement Program for boating improvements at POW/MIA Park; authorize the County Manager to execute the Grant Agreement; authorize a Budget Change Request to establish the project account; and approve a temporary loan from the General Fund if the grant is approved. Motion carried and ordered unanimously. (See page for Resolution No. 02-083.)

CONTRACT FOR SALE AND PURCHASE WITH WAYNE T. HACKEL, EXEMPT
APPRAISAL, AUTHORIZE SURVEY, ENVIRONMENTAL AUDIT, TITLE
INSURANCE, ACCEPT TITLE EXCEPTIONS, CONTRACT AMENDMENTS, AND
CLOSING, RE: PROPERTY SOUTH OF SHARPES COMMUNITY CENTER

Motion by Commissioner Higgs, seconded by Commissioner Colon, to execute Contract for Sale and Purchase with Wayne T. Hackel for property south of the proposed Sharpes Community Center; exempt appraisal; authorize Parks and Recreation Department to obtain survey, environmental audit, and title insurance, and to accept title exceptions; authorize closing of the sale; and authorize the Chairman to execute Contract Amendments that may be required. Motion carried and ordered unanimously. (See page for Contract.)

AMENDMENT NO. 2 TO MANAGEMENT LEASE AGREEMENT #4263 WITH STATE OF
FLORIDA, RE: BREVARD COASTAL SCRUB ECOSYSTEM PROJECT

Motion by Commissioner Higgs, seconded by Commissioner Colon, to execute Amendment #2 to Management Lease Agreement #4263 with the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida for 97 individual ownerships within the Brevard Coastal Scrub Ecosystem project. Motion carried and ordered unanimously. (See page
for Amendment No. 2.)

PERMISSION TO PURCHASE OFF MANATEE COUNTY REQUEST FOR PROPOSALS,
RE: US FILTER'S BIOXIDE ODOR AND CORROSION CONTROL CHEMICAL

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize procurement of US Filter's bioxide odor and corrosion control chemical under Manatee County's RFP #99-1080-Florida. Motion carried and ordered unanimously.

AUTHORIZE PURCHASE ORDER IN EXCESS OF $35,000, RE: M. D. UTILITY
CONTRACTORS, INC. RELOCATION OF SEWER LINE

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize issuance of a Purchase Order of $42,100 to M. D. Utility Contractors, Inc. for relocation of a sewer line at 2033 South Patrick Drive. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE AMENDING
CHAPTER 58, ARTICLE II, SECTION 58-37, RE: HISTORICAL COMMISSION

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize advertising a public hearing to consider an ordinance empowering the Historical Commission to elect its own Chairman. Motion carried and ordered unanimously.

PERMISSION TO BID, AWARD BID, AND EXECUTE CONTRACT, RE: ROOFING
PROJECTS FOR COUNTRY ACRES AND PARKWAY SERVICE COMPLEX,
BUILDING J

Motion by Commissioner Higgs, seconded by Commissioner Colon, to grant permission to advertise for bids for roofing projects at Country Acres and Parkway Service Complex, Building J; award bids to the lowest qualified responsive bidders; and authorize the Chairman to execute Contracts with the successful bidders. Motion carried and ordered unanimously.

RESOLUTION, RE: CONSIDER TAX ABATEMENT APPLICATION OF ALLSTAR
CORPORATE MEDIA, INC.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to adopt Resolution qualifying AllStar Corporate Media, Inc. as an eligible business under the County's Tax Abatement Program; and authorize advertising a public hearing to consider an exemption ordinance. Motion carried and ordered; Commissioner Higgs voted nay. (See page
for Resolution No. 02-084.)

AUTHORIZATION, RE: CLOSE-OUT OF LOCKHEED MARTIN CORPORATION STATE
ROAD FUND GRANT AND TEMPORARY LOAN FOR FINAL RETAINAGE PAYMENT

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize the close-out of the State Economic Development Transportation Grant for Lockheed Martin Corporation; and authorize a temporary loan to make the final retainage payment. Motion carried and ordered unanimously.

APPROVAL OF EXPENDITURE, RE: SOFTWARE UPGRADE FOR TELEPHONE
SWITCHES

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize expenditure of budgeted funds for upgrading the software on all six County telephone switches to the current version, as required by the Maintenance Contract, and some hardware, including computer processing boards and CD readers; and execute six Purchase Agreements with BellSouth Communication Systems, LLC for each location. Motion carried and ordered unanimously. (See pages for Agreements.)

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS, RE: AUTOMATED
ENROLLMENT PROCESS FOR GROUP HEALTH INSURANCE PROGRAM

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize Human Resources Office to develop, issue, and conduct an RFP process to select a vendor to provide an automated enrollment process for the Group Health Insurance Program for implementation in September, 2002; and appoint a Selection Committee of Stockton Whitten, Debbie Moody, Frank Sakuma, Melissa Thompson, Barbara Diesel, John Sternagel, and Frank Abbate to return to the Board with a recommendation. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: BREVARD COUNTY HOUSING FINANCE AUTHORITY'S
FINANCIAL STATEMENTS FOR FY ENDED SEPTEMBER 30, 2001

Motion by Commissioner Higgs, seconded by Commissioner Colon, to acknowledge receipt of the Brevard County Housing Finance Authority's financial statements for the fiscal year that ended September 30, 2001. Motion carried and ordered unanimously.

AUTHORIZE VOLUNTARY DISMISSAL, RE: BREVARD COUNTY V. BARBARA LEE
PARSONS AND CHARLES LINDBERGH CARTER

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize the County Attorney's Office to voluntarily dismiss the lawsuit seeking an injunction against Barbara Lee Parsons and Charles Lindbergh Carter, as they have since obtained a building permit and are living in a trailer during construction of their primary residence. Motion carried and ordered unanimously.

APPOINTMENT, RE: COCOA WEST COMMUNITY CENTER ADVISORY COMMITTEE

Motion by Commissioner Higgs, seconded by Commissioner Colon, to appoint Delmar White to serve on the Cocoa West Community Center Advisory Committee, with term of appointment expiring December 31, 2002. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve the Bills and Budget Changes. Motion carried and ordered unanimously. (See pages for List of Bills and Budget Changes.)

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENTS IN BAYTREE CORPORATE PARK - JACARANDA TRADING CO.

Chairman Scarborough called for the public hearing to consider a resolution vacating public utility and drainage easements in Baytree Corporate Park, as petitioned by Jacaranda Trading Company.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution vacating public utility and drainage easements in Baytree Corporate Park, as petitioned by Jacaranda Trading Company. Motion carried and ordered unanimously. (See page
for Resolution No. 02-085.)

PUBLIC HEARING, RE: APPEAL BY MAURICE AND CAROLYN BOUVIER, RE: DENIAL
OF SEAWALL PERMIT

Chairman Scarborough called for the public hearing to consider appeal by Maurice and Carolyn Bouvier for denial of seawall permit.

Attorney Tim Pickles, representing the applicant, stated his client had a seawall constructed without a permit; the contractor informed Mr. Bouvier that he would obtain a permit, but that did not happen; the Department of Natural Resources (DNR) notified his client of the violation; and Mr. Bouvier is requesting that the Board grant the appeal and reverse the decision of the DNR in denying the permit. He noted based upon the testimony that was presented at the last hearing by the engineer, the applicant believes that the criteria of Ordinance Section 62-3668 have been met and that this item is in the best public interest and will not have any adverse impact on the environment; quite to the contrary, the testimony prior was that the shoreline had been receiving a significant amount of erosion; there is no debate that the seawall will reduce the erosion; there could be a debate as to whether or not natural vegetative plants would do a better job; but there is a seawall there now. Attorney Pickles stated it would be manifestly unjust for the Board to require removal of the seawall, particularly because as his client looks out over his private canal, he sees seawalls right across the way from him and there are seawalls within his subdivision, some of which may have been built without a permit and some of which have been issued permits; to the south of his client is another subdivision on the same canal that has approximately 90% hardening by seawalls; there is not a legitimate debate of any kind of negative impact that the seawall will have on any environment or the water quality; and the question is whether or not the Board wants to hold the strict interpretation of the Ordinance, which says based upon its belief that it wants to promote natural vegetative buffering, does it want to permit any seawalls. He advised seawalls have been permitted; this seawall is no different; if Mr. Bouvier had to do it all over again, he would not have built the seawall without a permit; from a legal standpoint, the Board has the authority to overturn the Department's decision; and it is in the best public interest and will not adversely affect the environment. Attorney Pickles stated as a question of fairness, the applicant, as well as other property owners within the subdivision, want to do what is necessary to protect their property and the shoreline; and inquired in so doing, if they do not harm the environment, why is it that a property owner should be restricted from utilizing what tools he believes are necessary in order to protect his property and not having any negative impact on the environment. He noted there are two options; one is that the Board can approve the appeal as stated; his client would request the Board do that; and the other option is that the Board address the Ordinance and delineate the difference between what is meant to protect the Indian River Lagoon and what is meant to restrict property owners from being able to protect their properties within a private canal.

Maurice Bouvier stated there are three main points that need to be made; one is the history and status of seawalls in Indian River Isles North; the Ordinance was established in December, 1991; there are 12 seawalls on the north end of the canal; and most of them have been built since 1991. He noted the fact is that at the most, one of the 12 seawalls complies with the Ordinance; the most recent seawalls were built in 1998, 1999, and December, 2000; of the three seawalls that were most recently built, one seawall was built across from him; and Brevard County has no record of it. He stated the seawall that was built in 1999 was built at the end of the canal; it was built based upon an engineering study; such study consists of a survey with elevation points and a statement written on the homebuilders letterhead that simply states that without a seawall, the backyard is too steep; he is an engineer; and he guarantees that no reputable engineer would call this an engineering report. Mr. Bouvier stated of the 12 seawalls that are there, the one was built on an engineering report permit, but the Ordinance does not allow it; it says if the six criteria are not met, the permit is rejected and one must go through an appeal process to the Board; and that was not done and the permit was issued illegally. He noted the seawall built in December 2000, slipped through the crack; the permit was issued in error; and reiterated that of the 12 seawalls present, at most one of them satisfies the requirement. He stated there is a long history of not enforcing the Ordinance in Indian River Isles North; that history has led him and others to assume that seawalls were the right way to combat the erosion along the canal; and when an Ordinance goes nine or ten years without enforcement, it loses its power to be enforced. Mr. Bouvier stated the second item is that of the rights of the property owners on the canal; it is a private canal, but property owners pay much higher than average taxes to live on a canal; when it silts up as it is now, the water depth is two feet getting into the river; nobody can get a reasonable size boat into the canal; and it is not a useable canal and is a wide shallow ditch. He noted when the property owners tell the County the canal is silted up, it says it is a private canal and the owners need to dredge it; the property owners are going to pay to have that done; but when the owners want to protect their property, build a seawall, and stop the silting and runoff, the County says property owners cannot do that on their private canal; and he does not understand where the property rights issue comes into play. Mr. Bouvier stated the third point is that the stated intent of the Ordinance is to improve the quality of surface water in Brevard County and protect and enhance the natural functions of these waters; seawalls will do that and stop the runoff and silting; not one person he has talked to in DNR or anywhere else says that this is harmful; and inquired where does one come to the point that reason and logic enter into the decision-making process. He inquired if it is good, beneficial, harmful to no one, and complies with the intent of the Ordinance, why is it not encouraged; stated he is paying for it out of his pocket; the County waters are benefiting from it; and inquired why it is wrong for him to do what he wants to do. Mr. Bouvier provided a petition containing signatures in support of the request to the Board but not the Clerk.

Charles McClain stated the Bouviers are neighbors of his; a serious injustice is being done to them; he knows the pain, emotional and financial, that they have gone through; and there is no reason why they should be going through this. He noted he would like to get a seawall put in but cannot afford one at this time; he would appreciate the Board supporting the Bouviers in their endeavor to get this accomplished; he put his life on the line 13 times; and one of them was for freedom for everyone and another was for his family and the opportunity to have property. He stated he would like to do what is reasonable and within limits to his property; one of those things is possibly a seawall; and urged the Board to take this serious and do the best it can to help the Bouviers.

John Brewer stated he is a neighbor of the Bouviers and has lived in his house since 1983; when he moved in, he decided that the natural vegetation was going to be the best way to combat erosion on the canal; therefore, he did not remove any of the natural vegetation in his backyard; and the lot next to him is a vacant lot that has never been built on, and none of the vegetation has ever been removed from around the canal. He noted in both cases, the lots have lost at least two feet of property into the canal; this is a case where the natural vegetation has not worked; his understanding is that the DNR has recommended that the people use natural vegetation to combat the erosion in the canal; and these are two cases where the Board must consider the fact that the natural vegetation has not worked. Mr. Brewer requested the Board consider his points when it votes on the issue; one of the reasons there is a conflict here is because DNR has recommended individuals use the natural process; and the natural process is not working.

Attorney Pickles reiterated that the Board has the ability to grant the appeal per the Ordinances; it also has the ability to revisit the Ordinance and make the changes which are more applicable to a private canal; and Mr. Bouvier pointed out the conundrum here in that the homeowners are responsible for dredging the canal and are going to pay for it since it is a private canal, yet the County is going to tell them that they cannot do what they want to do in order to protect the canal. He stated he does not believe it is disputed, and the Board may have questions for staff, to where it can show that a seawall is going to negatively impact or increase silting; he does not believe that to be the case and the evidence that has been shown through the engineer's testimony does not support that; it is possible that a natural vegetative planting could reduce runoff and silting; but there is no question that a seawall does prohibit the runoff and silting.

Attorney Pickles noted it is clear that there is a serious interest in the subdivision in seeing that the property owners do not have to spend inordinate amounts of money to dredge the canal; they bought on the canal and expect to be able to get a boat in there; and if it silts up, the owners are going to need to spend a lot of money to dredge the canal to be able to get their boats back in. He stated if the Board grants the appeal or revisits the Ordinance, other property owners can make sure they do things in the correct fashion; proper safeguards can be taken to make sure people are not putting up things that are going to negatively affect the environment; and requested the Board consider the appeal and either grant it or make a commitment to revisit the Ordinance such that proper safeguards can be put into place and people on private canals can adequately protect their property.

Commissioner Carlson stated she met with Attorney Pickles and Mr. Bouvier; her big concern is water quality and private canal versus public interest; she talked to staff and Jim Eagan, Executive Director of Marine Resources Council (MRC); she approached Mr. Eagan with the issues of building a seawall and the nutrient loading into the canals; and Mr. Eagan told her that seawalls do not reduce erosion because the wall is put in against the land, and when the wave action occurs, the water undermines the soil on both sides and it still causes erosion. She noted Mr. Eagan indicated the seawall does not keep any of the water quality issues at bay as well; if there is nutrient loading, it still comes down and dumps into the Lagoon no matter if there is a seawall or not; that is the reason Mr. Eagan pushes native vegetation; she had never heard of a vegetative buffer not working, as indicated by the previous speaker; and it is new to her and an issue that needs to be addressed. Commissioner Carlson stated if this particular canal has that kind of problem and property owners are still seeing erosion, there need to be other means of attacking the problem so they can save their property; the other piece she is concerned about is the precedent-setting aspect of the action; unfortunately, there is a history of abuse to the Code where illegal seawalls have been erected or the County does not have any record of any permits; and it could be due to lack of oversight enforcement. She inquired are there are 12 seawalls on the canal and only one seawall complies; with Debbie Coles, Environmental Permitting, responding not all of them are seawalls. Ms. Coles stated the County does not have records on most of the seawalls; one seawall was permitted by mistake; one seawall is in between Lots 17 and 15, which was permitted legally; and the permit is in the file.

Commissioner Carlson stated Mr. Bouvier hired an individual who put in the seawall; the person has a history with the County and does not go for permits; it is unfortunate for Mr. Bouvier, but is a civil issue; and she would like to hear from the rest of the Board members. She noted the Board can readdress private canals in the Ordinance; and it could do a better job at enforcing how seawalls get in place and how they have been put in place in this particular canal, which is a sad case of how the Code can be disrespected.

Commissioner O'Brien stated the comments made by Mr. Eagan may be a little dated because the erosion that may take place beneath the seawall has been changed across the years by the use of geotextiles behind the wall and pea gravel and rock on top of that so that the water would run through the ground into the groundwater; if seawalls are constructed properly and put in deep enough, the backwashed sand will not float away either; so the erosion taking place under the seawall is something that used to occur in the older seawall designs. He noted the newer designs using geotextiles and back-filters produce almost no erosion of that matter; they can be used for a seawall built to a height that a good swale could be built directly behind the wall or within two feet of the seawall; and the first inch of rain could be captured there with the fertilizers, pesticides, other silt runoff, and anything else which may be headed for the canal. Commissioner O'Brien stated the slope is approximately 3:1, which means the velocity of water traveling down the backyard increases speed rapidly, taking with it the silt and soil into the canal; that is why the canal is only two feet today; to use old information about seawall construction today may be inappropriate; and the Board is trying to tell people it does not want them to have a seawall and wants them to plant native vegetation in their backyard which may or may not work in preventing erosion of their backyard. He noted the testimony this morning is that people who had vegetation in their yards have already lost a couple of feet of their backyard into the canal, causing the requirement of further dredging in the future as well as presently; he does not like the concept that the Board is starting to tell people that they bought some beautiful property on a private canal, but it does not want the people to be able to see it because the County wants them to plant trees, shrubs, and bushes along their backyard; and it is a dead-end canal, the water quality is degraded, and it is not going to change. Commissioner O'Brien stated putting up a seawall and lowering the loading of nutrients in the canal via a swale in a backyard is probably the best thing the Board could do to help the water quality in the canal; there is not enough thread in the State of Florida to sew a child back together if he or she falls on coquina rock; granite rock is not immediately available in Florida; and the Board should change its Ordinance and needs to look at people's private property rights along a canal or river. He noted the Board has a responsibility to the environment and to look at reality; reality says that the quality of water in the canal is really bad and is going to stay bad until it rains and brings in more nutrients; there is a long list of things the Board needs to review; and it is unjust and unfair for the residents who want to put up a seawall along a private canal. Commissioner O'Brien stated the residents are not worried about the wave action against the seawall scouring out the bottom, huge wakes, and the erosion that occurs along the river; every canal is a no- wake zone once one reaches the mouth of the canal; the seawalls along Sykes Creek do not experience any scouring, even though from the "S" curve south to the Humpback Bridge is 25 m.p.h.; there are some pretty big waves along there; and the damage to the seawalls is minimal and most of those walls are very old.

Commissioner Carlson stated she agrees with potentially looking at the Ordinance when it comes to private canals and seawalls; based on what she has seen with Mr. Bouvier's seawall, it needs to be a much higher standard; if the County wants to stop the things that are going into the canal, there needs to be a better standard; and the Board needs to review the Ordinance as there are too many other people who can come behind Mr. Bouvier and put up a similar type of wall that does not effectively protect their property. She noted if mangroves are put in an area such as the canal, they can invite wildlife and fish; and she is not sure, based on silting and everything else that the private canals create, that it is going to last forever. Commissioner O'Brien noted with the oxygen depletion in the water and green algae growing on the bottom, the fish will not go in there; that is the reality of it; after all the canals on Merritt Island were dredged, many of them had much cleaner and clearer water; and if the proposed canal is dredged, the residents may get a higher quality of water. He stated concerning seawall construction, the Board discussed it approximately two years ago, including some of the Codes and how seawalls should be built; there is a new seawall that is a corrugated recycled plastic about one-half inch thick; because of the way it is designed, much like a coffer dam, with wave deflection and reflection off of that kind of wall, generally the frequency will cancel itself out within seven feet of the wall; so there is no reflective wave of any velocity continuing on any amount of distance when using that kind of construction. Commissioner O'Brien stated the wood walls are not bad, but not permanent; the Board can review construction techniques as well; it also needs to look at the Ordinance; and he has some recommendations that he would like to discuss.

Commissioner Higgs inquired are the waters Class III; with Ms. Coles responding affirmatively. Commissioner Higgs noted these are waters of the State; with Ms. Coles responding the waters are considered by the State to be Class III waters and because they are connected, they are waters of the State. Commissioner Higgs noted when one says it is a private canal, it is the ownership of the bottom land and not the ownership of the water; with Ms. Coles responding affirmatively. Commissioner Higgs stated the people of the State of Florida own the water, but the people who abut these canals may own the bottom; with Ms. Coles responding that is her understanding. Commissioner Higgs stated in the middle of the river, the people of the State of Florida own the bottom land as well as the water; with Ms. Coles responding that is correct. Commissioner Higgs noted the County is talking about water that is owned by the people of Florida, while the bottom is owned by the private property owner; erosion occurs in these abutting lands from water, both from the land and from the water; with Ms. Coles responding affirmatively. Ms. Coles stated there are both of the scenarios happening in the canal currently. Commissioner Higgs stated private property owners who would be concerned about their property would do certain things on the upland portion as potentially they might do something on the edge of the water; with Ms. Coles responding yes. Commissioner Higgs noted if someone slowed down the water through systems of swales or other devices, they would be protecting their property as well; both Ms. Coles and Conrad White are into the natural resources and protection of those elements; and inquired what value is there biologically of having plants abutting the waters of the State on these private canals.

Natural Resources Management Director Conrad White responded there are several issues, including the stabilization that the roots provide for the soil, which slows down sedimentation in the canal; there is the uptake of nutrients as the stormwater travels off the upland area into the canal; the natural vegetation provides points of attachment for many organisms which, in turn, attract larger organisms into the system; it provides some service to the food web that exists in the Indian River Lagoon; and if natural vegetation is provided, it is increasing water quality in the general area.

Commissioner Higgs stated a healthy system in a private canal could be provided if, along the abutting properties, one were to be careful about what came into it as well as what was abutting in terms of vegetation on the waterway. Mr. White noted the intent of the Ordinance is to encourage alternative methods besides seawalls so that one can enhance the water quality within the canals that is typically poor. Commissioner Higgs stated the Ordinance could be perfected, potentially enhanced, and needs to be applied universally; it is not fatally flawed; there are some things the Board could do to improve it, but in this case, the applicant does not qualify for a seawall; the Board should not grant the appeal, but should hold to the Ordinance and look at it in terms of ways that it could be enhanced; and the fundamental principle is that native vegetation abutting canals is being regulated because it is a public water body and it is the Board's job to protect that public water body. She noted the County has a decent Ordinance; it needs to be applied universally; if there is failure to abide by the Code, the County needs to deal with it in the proper context; and if there are other instances where people have not abided by the Code, the County has a system by which Code Enforcement goes forward. Commissioner Higgs stated the Board may need to think about that as well and to be more proactive in its enforcement of the Codes instead of reactive to complaints; it is a fundamental issue that the Board needs to review; and where there have been violations of the Code is not necessarily a problem with the Code being wrong, but a problem that the County has not been proactive in its enforcement.

Commissioner O'Brien inquired does any of the native vegetation have a life span; with Mr. White responding yes, and it depends on the vegetation. Mr. White stated cord grass has a life span of approximately three to five years for individual plants; mangroves can exists for many years; and he has seen mangroves on Sanibel Island that are approximately 25 inches in diameter. Commissioner O'Brien inquired are there any mangroves in Brevard County that might be 25 years old; with Mr. White responding the system around Tortoise Island has a lot of white mangroves that have existed for many years. Commissioner O'Brien inquired if these kind of plants stabilize the soil and other things, and does a seawall as well stabilize the soil; with Mr. White responding affirmatively. Commissioner O'Brien stated whatever habitat existed prior to Mr. Bouvier's seawall being put in is still there; nothing has dynamically changed; the seawall is holding back Mr. Bouvier's property from eroding into the canal, which would hurt the quality of water in the canal; and inquired what dynamically has changed to harm the water quality of the canal. Mr. White responded in the case of Mr. Bouvier's property, he does not necessarily see any change immediately overnight. Commissioner O'Brien noted he agrees with Mr. White; but if Mr. Bouvier had mangroves present and cut them down, that would be a different story; that is the point he is trying to make; Mr. Bouvier did no harm to anything by putting in a seawall; and he may have had a very positive affect on the quality of the water of the canal by putting the seawall in. He stated the Board encourages the public to enhance the environment of the canals; here the Board is not encouraging, but ordering it; the Code is not fatally flawed, but it is flawed; it starts stripping away some property rights that a lot of people who live here should have returned to them; and freedom is a very important word that sometimes the Board has a tendency to forget in making codes, laws, and regulations every two weeks. Commissioner O'Brien stated the Board should review changes to its Code and other problems it has in reality rather than an idealistic matter that does not help.

Kent Cady stated he has lived on his property for approximately four years now; it is completely covered with vegetation and is probably one of the only lots in the area that does not have a seawall; he has had continual erosion; and he has continued to maintain the vegetation, but it has not stopped the erosion or any of the problems on his lot. He noted he has the original trees, tall grasses, and small oak trees; all of those types of plants are still in position; they have not stopped any of the problems; and there is very little boat traffic on the canal.

He stated the issue of erosion happening from boat traffic is very negligible; and most of the erosion that is happening in the neighborhood is due to runoff, rain, and the dirt itself not being held back because it is not properly seawalled.

Jim Eagan, Executive Director of Marine Resources Council, stated he likes the Code the way it presently is; there are a number of things in there which protect the homeowner; they are not there to protect the natural environment; and if someone has native vegetation on their shoreline and they still are sustaining serious erosion, there are provisions there to do some kind of further stabilization. He noted it is very important that the stabilization be native; a lawn running down into the water body is a disaster for the homeowner, as well as the water body, primarily because the slope is wrong and it is sending the water; there is fertilization going into the water creating algae blooms; and putting a seawall in its place creates problems for the neighbors as well. Mr. Eagan noted when the little bit of boat traffic comes down, the natural shoreline is sloped and the wake breaks against it; it hits vegetation and dissipates it; a seawalled area encourages the energy to cause more problems; and runoff water does not stop at the seawall magically. He stated it actively undermines the seawall; there are places right next to the seawall where the sediment is depressed; it is all from runoff that is rushing through and then actively undermining the seawall; and a seawall is a very short-lived structure. He noted native vegetation on the shoreline is self-replicating; it will keep reproducing; mangroves of 15 to 25 years old are relatively common; the last thing he would tell someone is to put in a seawall if they wanted to protect their shoreline; and the first thing would be even if a person already has native vegetation, it can be increased better with buttonwood or mangroves. Mr. Eagan stated there is desirable shoreline vegetation that is attractive and flowering; it does not have to block one's view; the way the Code is set, if someone has non-native vegetation, it is encouraging them to go to native vegetation before they can request armoring; and if individuals ask for armoring, the Code encourages them to go with rock. He noted rock has more natural slope and allows planting into the rock; such planting is going to be the thing that makes the difference; the rock is only going to help stabilize the plants; and the plants are ultimately going make the difference. He stated a sloping lawn going to a seawall is very undesirable; it means an attractive property in one's eyes next to an unattractive water body; it is actively mucking in the water bodies due to tremendous fertilization and pesticides; and native vegetation does not require any of those things. Mr. Eagan noted the most ideal thing to tell a person who is suffering erosion is to get rid of the grass on the water's edge, get the desirable shoreline species, and create a swale or berm to intercept the water running off from other areas; the Code encourages that; and requested the Board not change a good tool because a homeowner accidentally got ripped off by a contractor who probably should have known better.

Commissioner Carlson inquired is there any way to stop erosion behind a seawall on the property side of the seawall, even in the new modern way of doing seawalls. Mr. Eagan responded the newest seawalls are better than the older ones in that they are better at staying around longer; nature does not ever go in and put something in like this; straight up and down is already an unstable situation; and the best seawalls now will last longer than the old seawalls.

He stated with a seawall, there is water flowing in from behind; it is going to drain right down next to the seawall; there is wave action happening on the other side; and when the wave hits, it does not just reverberate back and cannot send energy upward, so it sends energy downward and has a tendency to undermine. Mr. Eagan stated if a seawall is well done, someone will get a lot of life out of it; but it will not stop the runoff from coming in and will undermine itself as it is not a stable system; within three years, a well planted rock revetment looks like a natural shoreline; and there is no reason why that rock will not be there 100 years from now as it will be the natural vegetation that will replicate itself and take over. He noted when there was nothing else but the Lagoon and natural tributaries, all the shorelines were well vegetated and stable; and it was only people's need to have a view that removed the stabilizing vegetation that created the erosion and problems. He stated he has been working with stabilizing techniques for approximately six or seven years; he pioneered a technique for planting mangroves that gives about a 600% greater chance of survival over traditional techniques; and he works with shoreline issues every day, very often at the request of homeowners and homeowner groups. Mr. Eagan stated the MRC is not a traditional environmental group where it is always looking to go against something; it sees this as an issue where it can protect the homeowner, the shoreline, and the quality of water; and the Code can do all of these things.

Commissioner O'Brien noted putting in a swale behind a seawall captures the runoff; it is in the Code; it also captures the pesticides; and it improves the water quality within a canal by using a seawall, although the County would want to encourage natural vegetation. He stated people appreciate the natural beauty of the vegetation; a seawall is desirable; and it also has some positive factors. Mr. Eagan noted as far as the point Commissioner O'Brien made about the desirability of seawalls, what was desirable was the swale and not the seawall; he has never seen any environmental benefits to seawalls; there is going to be a lot less undercutting of the seawalls in a canal; but part of the reason for it is due to a tremendous amount of sedimentation going on as well because of fertilizers creating muck and things of that nature. He stated there are lawns against seawalls that go up and down in places; the low areas are places where the water is actively being channeled down underneath the seawall; and it is eroding away the sediment from the person's property. Commissioner O'Brien noted Mr. Eagan is correct with the older seawalls; but the newer seawalls prevent that kind of erosion. Mr. Eagan responded the newer seawalls discourage the erosion, but it still happens.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to continue the public hearing to consider appeal by Maurice and Carolyn Bouvier to general seawall provisions to April 16, 2002 to allow the County Attorney to return with statement of intent to amend the Ordinance Section 62-3666 (1)(b), to insert word "or" after "continued", put period after "subsection (4)"; and delete remainder; in Section 62-3666(1)(c), change 75% to 60%, and add "or within a subdivision created before this Section was effective"; in Section 62-3666(1)(e), insert "unless there is a threat to existing structure" after "existing shoreline"; and address how seawall replacements can be done. Motion carried and ordered; Commissioners Higgs and Carlson voted nay.

Commissioner Carlson requested if an ordinance comes back that the Indian River Lagoon Advisory Committee review it. Chairman Scarborough stated this will be a substantial change; and it needs to be discussed fully. Commissioner Higgs noted it would go to the Local Planning Agency (LPA) as well.

RECOGNITION, RE: JEFFERSON MIDDLE SCHOOL STUDENT GOVERNMENT

Chairman Scarborough recognized the Jefferson Middle School Student Government representatives and Dr. Larry Malta.

The meeting recessed at 10:58 a.m. and reconvened at 11:14 a.m.

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

Carmine Ferraro, Chairman of Port St. John Dependent Special District Governing Board, stated such Board was formed in 1996 to act as a local elected advisory board to the County's planning and zoning matters for Port St. John and allow the residents in local forum to discuss their concerns and be part of this important process; at the time of formation, the southern boundary was established along Bridge Road; due to the growth and construction of the new interchange, Exit 77C, Bridge Road does not include the 40 acres+ of commercial land located along both sides of the Port St. John Parkway; and the Governing Board was recently made aware that there was a rezoning issue along the Parkway when a resident contacted him and inquired why such Board was not hearing the matter locally. He noted he informed the residents and others that it was not part of the official boundary; because it was the County's intent that all local zoning matters be heard by the Governing Board first in order to make recommendations to the Commissioners on planning and zoning matters and because the southern boundary does not include this commercial area, the Governing Board made a motion on February 13, 2002, to request a change of the existing boundaries to match the Port St. John municipal overlay in order that any planning and zoning matters along the Parkway could be officially heard by the Governing Board; such Board recognizes that Port St. John is considering whether or not to form a municipality and that the Governing Board could be dissolved as early as February, 2003; however, such Board strongly feels it has a duty to the people to serve in the capacity as elected. Mr. Ferraro requested the County Commission support the amendment.

David Arneson, President of Canaveral Groves Homeowners Association, expressed the Association's opposition to the proposal due to the southern boundary; and provided two maps to the Board, but not the Clerk. He stated the top map shows the outline for the Canaveral Groves Homeowners Association; there is a triangle on the northern boundary; the second map shows Port St. John; and on the southern boundary, he put an "x" on the portion of it which represents the triangle. He noted on March 9, 2001, he and Ann Coburn met with the Port St. John For Tomorrow group; Mr. Ferraro and Maureen Rupe were also present; they had a very honest and open discussion about the boundary issue; and they can agree that the northern triangle was originally intended to be left out of the Port St. John overlay. Mr. Arneson stated the group offered that if Canaveral Groves was able to come up with a legal description of the triangle that they would support removing that portion from the Port St. John area; the Association has a description of it; but in checking with Representative Randy Ball's staff, they indicate there is nothing that can be done in this Legislation Session. He noted if the northern triangle is retained as part of the County, Canaveral Groves has representation on the Advisory Board; and it would be better represented if that portion was retained by the County.

Pete Costello stated the area that has historically been known as Port St. John is a unique area; people from the area south, such as Sharpes and Williams Point, are proud to be from those areas; they want to become part of this new proposed city of Port St. John no more than Port St. John residents would like to become part of Titusville; and this is railroading.

Richard Mickle, Vice President of the Civic League of Port St. John, stated the boundary line being moved down would end by Camp Road; and it would be extended from Bridge Road to Camp Road to encompass the new Comprehensive Plan for possible incorporation of Port St. John.

Mr. Ferraro responded with the existing district boundary lines for the Dependent Special District, the southern boundary ends at Bridge Road, which is basically the last row of residential houses that exists on the southern boundary of Port St. John; the land directly adjacent to that was sold to Florida Forever; it is part of the preserved lands; however, there was retained by a developer some 40+ acres 600 feet in depth along the entire length of the southern and northern side of Port St. John Parkway; and the area the Governing Board has the concern about is a large commercial undeveloped area. He noted the motion that was made by the Governing Board was to match the Port St. John municipal overlay because the boundaries had already been established; such Board would like to include the 600 feet on the southern boundary of the Port St. John Parkway; the second map is the municipal overlay map; and the only boundary that would essentially change would be the southern boundary to Camp Road.

Mr. Mickle stated Mr. Ferraro is referring to a strip of land along Grissom Parkway; and inquired if the Governing Board goes with the Comprehensive Plan which goes down to Camp Road, will the Governing Board automatically include the people in Hardeeville, Frontenac, and Williams Point, and would such Board represent the individuals to the southern boundary. Chairman Scarborough responded yes, as the Governing Board would hear those zoning matters rather than the Planning and Zoning (P&Z) Board. Mr. Mickle noted the people who are down to the southern boundary would now have a representation that they did not ask for and possibly do not want; with Chairman Scarborough responding everything is possible. Mr. Mickle stated the individuals were not included in that District before; and most of them probably do not want to be included in the District now. Chairman Scarborough stated the Governing Board is only an advisory Board; and everything ultimately is heard by the County Commission irregardless.

Ann Coburn advised of her opposition to amending the boundaries of the Port St. John Dependent Special Governing Board to match the municipal overlay; stated the Governing Board is asking for jurisdiction on planning and zoning matters in the extended area; Port St. John is not yet a city; and in the event that it does become a city, the new official boundaries will automatically give the Governing Board jurisdiction over the extended area. She inquired what happens if the County Commission gives the Governing Board jurisdiction now and the issue of incorporation is voted down; stated actions such Board takes in the interim may not be in the best interest of other citizens in the communities of Hardeeville, Canaveral Groves, Frontenac, Williams Point, and Sharpes; and she does not trust the Governing Board to return jurisdiction to the Planning and Zoning Board. She noted the Governing Board has already broken their word to Canaveral Groves; they had a gentlemen's agreement to honor the historical borders of Canaveral Groves that were established in the 1960's when the subdivision originally known as Canaveral Groves Estates was platted; the Governing Board and Port St. John For Tomorrow, which have many of the same members, went back on the agreement and have determined that their southern municipal boundary will encroach into the borders of Canaveral Groves; and Canaveral Groves was not informed about it and found out after the Bill for incorporation had been passed. Ms. Coburn stated all planning and zoning matters for the extended area are currently handled by P&Z Board; the meetings are advertised; the Governing Board gets copies of the agenda; and if there is an item related to land in the extended area, it has the same opportunity that everyone else has, which is to speak at the meetings or write to the P&Z Board members and Commissioners. She noted she has watched the P&Z Board meetings on television; the P&Z Board members give a lot of consideration to comments from the public, just as the Commissioners do; and requested the County Commission deny the request.

Nicki Kisner advised of her opposition to the request; and stated she endorses the comments of Mr. Arneson and Ms. Coburn.

Maureen Rupe, representing Port St. John For Tomorrow, stated the Port St. John community overlay was done in 1994; the Port St. John Homeowners Association did it to protect itself and these were going to be the boundaries when it looked at becoming a city; it was approved at that time by the Canaveral Groves Homeowners Association; and it is true what was said about the triangle. She noted Port St. John For Tomorrow group has no qualms about the triangle; the Port St. John community overlay was taken by University of Central Florida (UCF) and used as the boundaries; and the piece of triangle was not included in the legal description; but the group did not have the money to have a legal description to cut the triangle out. She stated the group has always had a good relationship with Canaveral Groves Homeowners Association and it regrets what has happened; the group has had criticism due to the rezoning on Port St. John Parkway; and the group did not know about the rezoning. Ms. Rupe stated the Governing Board should have had a chance to look at the rezoning and offer recommendations; the rezoning item had gone to the P&Z Board; and Port St. John For Tomorrow is asking for a chance to be informed and provide comment.

Jill Rippon, representing Brentwood Heights and Williams Point, submitted a petition to the Board and Clerk containing signatures of individuals opposed to the request; and read a letter as follows: "We the people of Brentwood Drive and Williams Point do not want our property in the Port St. John Special District. We are content with the representation we receive from our County officials. The Port St. John Special District was behind the feasibility study that includes our properties and the boundaries of Port St. John becoming a city. We, the people affected in Precinct 92, were not permitted to vote on this feasibility study; therefore, confirming to us that the Port St. John Special District has only their own ambitions in mind and not the concerns of the people affected. We question the tactics of fear of annexation by Titusville given to the citizens of Port St. John. We read in the Statutes that annexation by a city must occur by a vote of the affected people. What about an unincorporated area such as Port St. John? Do they
have the right to, in essence, annex without a vote or the say of the people affected? It was by chance that we were made aware of this item on the agenda today. Please hear our cry and do not put us in the Port St. John Special District boundaries. We do not need nor want their representation. They have not asked for our input in the past nor present and we feel they will not act in our best interest in the future."

Patricia Bayer stated she lives in the Williams Point community; her husband, mother, brother and she co-own 130 acres of residential and business property in Williams Point; on the 2000 ballot, they were not allowed to vote on the Port St. John Feasibility Study since they live outside of the Port St. John Dependent Special District precinct; but now the Port St. John proposed city boundaries include surrounding communities; and there will be a vote on incorporation in November 2002. She noted the residents of Williams Point will not be able to vote since they are not in the Port St. John precinct; the Williams Point community is much older than Port St. John and named after real people with historical value; this proposal for a city should have never been entitled just Port St. John since they were including the surrounding communities; and the proposed city should not have a name until all voters within the boundaries have a chance to vote on whether they want to be a city of not. Ms. Bayer stated the feasibility study should have been entitled more than Port St. John to alert the surrounding communities of the incorporation; allowing the Port St. John Dependent Special District Governing Board to extend its boundaries now to include those voters who were not allowed to vote in 2000 is an illegal maneuver to fix the Governing Board's glaring mistake of leaving the other communities out from the beginning; and requested the County Commission oppose the request to extend the boundaries and remove the vote to incorporate until all voices are heard.

Randy Smith, representing Williams Point Industrial Park, stated the people in Williams Point are not allowed to vote because they do not live in the Port St. John area; they are disenfranchised and cannot do anything; the residents want Williams Point and are not trying to kill Port St. John; and they can do whatever they want to there, but leave Williams Point out of it. He noted the residents of Williams Point have retained Counsel and are going forward with litigation to stop this; the study was flawed; it was supposed to be an independent study; and funding for the study was given to UCF which gave it to a professor who owns property in Port St. John. Mr. Smith requested Williams Point be removed from the proposed boundary map; and stated the boundary needs to be drawn down past the Catholic Church.

Commissioner Higgs inquired when the vote occurs on developing the city of Port St. John in November 2002, will everybody who is potentially in that city get to vote? County Attorney Scott Knox responded the residents would be able to vote; the Governing Board is trying to extend the district boundaries for the Special District to incorporate the municipal overlay district; that does not mean that it is part of the area described in the Special Act that creates the referendum for the Charter; and the boundaries are determined in the Special Act. Chairman Scarborough stated if Port St. John becomes incorporated, the Special District ceases to exist as it becomes a part of the city. Attorney Knox stated the boundaries of what will become the city of Port St. John, assuming the referendum passes, are described in an act of the Legislature; it has nothing to do with the Special District; such District is something the County Commission created several years ago to provide advisory input on zoning decisions; and that is what the Governing Board is asking to expand.

Mr. Smith inquired can Williams Point be removed from the study as it is now; with Chairman Scarborough responding negatively. Chairman Scarborough stated the Legislature has designated what was going to be set forward as a potential city in November 2002; and he does not have any jurisdiction to do that. Mr. Smith inquired if 2,000 signatures will change anything. Chairman Scarborough responded he does not know if the Legislature will do it; the issue is that the County Commission does not have jurisdiction; the Commission funded a study that went to the Legislature; and the County Commission does not have the ability to create a city, and only the Florida Legislature can do that. He stated certain things were done; it has to go to the people to vote; and the people who will be in that city are the ones who get to vote. Mr. Smith advised of his opposition to the expansion request.

William Bender expressed his support for expansion of the boundaries of the Special District; stated much of the land surrounding the I-95 exchange is going to be commercialization and is possibly going to be industrial; the effects of this will have a direct impact on Port St. John and the surrounding communities; and it is important for the County Commission to get direct input from the citizens. He noted he would like the County Commission to consider the performance of the Governing Board in the past; it has made responsible recommendations; it has made recommendations on the best interest of the community, surrounding communities, and the County as a whole; and it would allow some of the other communities to have a voice, add diversity to the Governing Board, and include them in the decision-making process as the changes that are going to be occurring there will affect them directly. Mr. Bender stated the Governing Board has been a good tool and resource for the County Commission in making its decisions that come directly from the community and Special District.

Commissioner Colon inquired was it an oversight of the individuals who were part of the feasibility study of including Precinct 92. Mr. Ferraro responded the Governing Board had no say so one way or the other as to who would vote for the feasibility study; Supervisor of Elections Fred Galey set it up; the Governing Board was under the impression that everybody was going to vote that would be affected; and in terms of the Special District boundary, the Governing Board would like to have input over the 40 acres. He noted the Governing Board would be happy to wait until the outcome of incorporation; but there is an active developer who is doing things there; and that is the crux of this entire issue. Commissioner Colon stated the people of Port St. John have always been very sensitive on input and getting feedback from the community; but today she would be uncomfortable taking a vote on this issue; she is saddened by what is going on as it has brought two great communities to opposite ends; and suggested the item be tabled. Mr. Ferraro noted he is willing to go back to the Governing Board and ask if it would be willing to amend what it is asking the County Commission for; the main focus is not to have jurisdiction; if the other communities are happy with the issues coming before the P&Z Board, that is fine; and Port St. John would like to hear the matters relating to the Parkway commercial area.

Amy Tidd stated the Governing Board was taken to task for not addressing the issue that happened at the Port St. John Parkway; people asked the Governing Board why it was not involved; such Board was not notified by the County as it was not in the Governing Board's area; but if Port St. John becomes a city, the area would be in the city. She noted any change in zoning would affect Port St. John forever; the reason the Governing Board came to be was that zoning was being changed and it was not what the community wanted; the Governing Board is dealing with things that were there before it existed; and requested the Governing Board have a say in the proposed area, whether it be an approved boundary change or sending the issues that affect the Parkway to the Governing Board. Ms. Tidd stated everybody should have a vote; the Governing Board is an advisory board to the County; the municipal overlay was done in 1994; and there was never any opposition to it. She noted if the County Commission decides to change the boundaries to match, the Governing Board could be held as the zoning board until the city incorporates; there are two empty spots; and the County Commission could appoint people from the affected areas. She noted she would not want to include those communities without having their representation.

Fred Rippon advised of his opposition to the expansion request; stated he has lived in Cocoa since 1955 within one mile all inclusive of the area requested for annexation without a vote; he was originally in the Frontenac area across from the power plant, which is now part of the Special District of Port St. John; and Port St. John initially was the General Development Corporation (GDC). He noted if Port St. John wants to be that, it should be within the boundaries of what it initially started off to be; the discussion is that the overlay meets what is going before the State for election; the people of Port St. John were made aware that they could not be forcefully taken over by Titusville and could not have sewer stuffed down their throats without their vote; and the communities will forever be under the Governing Board's jurisdiction. Mr. Rippon stated the people of Sharpes, Williams Point, Hardeeville, Brentwood Heights, and other areas affected are now going to be part of the Governing Board and Special District of Port St. John; and the people would be better served by the County than Port St. John and its interest. He noted the other communities are now paying for Port St. John recreational facilities, but do not have any say over it; and all the communities are going to be like the Boston Tea Party, taxation without representation; Port St. John can have the west of Grissom Parkway in its Special District; and the communities he previously mentioned want to be left out and do not want to be forever under the Governing Board's control when it has not served those communities in its interests in the past. Mr. Rippon stated Port St. John has not asked the communities for their input and did not include them in the feasibility study; the Governing Board is trying to ramrod the city down the communities' throats; and such communities would be paying Port St. John's bills and not receiving near the services they get from the County at the present time.

Henry Bayer advised he is opposed to the request; when incorporation fails, the Governing Board will still have been given authority over the overlay area; it is something it never needed in the past and will retain; the communities were never able to vote on the surveys; and Port St. John wants to incorporate a much larger area. He noted the communities do not want to be under the Governing Board that they have never voted for the members of; adding two new members to a board of nine people is not fair; and if the new area is going to be established under a new board, there should be an election for a whole new board.

Chairman Scarborough suggested Mr. Ferraro call a meeting of the Port St. John Dependent Special District Governing Board in the Sunshine to discuss the boundaries; stated there appears to be very little concern about the property to the west; it is a matter of representation; and it is a subjective thing as much as an objective thing. He noted it is best not to take any action at this time to allow the Governing Board to proceed further; the Governing Board can come back to the Board with a counterproposal with much less expansion, as some people have indicated there would be less objections if expansion was to the west of the Grissom area and toward I-95; it needs to be discussed at a different day and time; and it would afford a greater opportunity for discussion if the Governing Board called a special meeting, the communities as a whole could discuss those things, and there would be less ambiguity when the issue comes back before the County Commission.

Mr. Ferraro advised that the next Governing Board meeting is at 6:00 p.m. on April 10, 2002 at the Port St. John Community Center.

REQUEST, RE: TIME EXTENSION TO COMPLY WITH CODE ENFORCEMENT SPECIAL
MASTER RULING

Roland Carlson stated the other day he had his permit taken and his temporary electricity shut off; the last time he appeared before the Board he requested an extension; even though it was in the hands of Housing and Urban Development (HUD), it refused to help him with construction on the house; and now he has lost 300 pounds of fish due to the electricity being shut off. He noted it costs him approximately $25 a day to run his power plant with the price of gas; he has had to cease to doing anything on the house; the permit was taken away because the County said the structure was unsound; but one structural engineer indicated the foundation supports the load. Mr. Carlson stated there is a slight difference in the foundation and the house on one end; but it was changed by leaving the I-beams underneath the house; another structural engineer print was made up; and the permit was going to take care of it by putting columns in the middle of the I-beams. He noted the permit was taken away without jurisdiction; the uplift of the house is good for 110 m.p.h. winds; the center of the house is tied down; but this is a matter of gripe rather than health, safety and welfare. Mr. Carlson stated Mr. Brown did this for spite as he did not look at the structural engineer report; Mr. Brown indicated the house was unsound; the report is supposed to be the final decision; and requested the Board review the matter, allow him to have his permit back, and get the power hooked up at the County's expense so that he can get his house finished. He noted he is spending money on gas that he should be putting into the house; and he only receives $545 per month.

Mr. Carlson stated the only person being harmed right now is him; and there has been no proof on any part that what he is doing is a danger to others.

J. B. Kenna, Programming and Planning, stated since the last meeting, staff had the opportunity to do an inspection of Mr. Carlson's home to see if he was eligible for assistance through the Rehabilitation, Repair and Replacement Program; staff denied Mr. Carlson's request; in order to be eligible for the Program, the dwelling must be owner-occupied; and Mr. Carlson has not resided in the home since he purchased the property. He noted it would cost over $15,000 to bring the house up to Code; in order to spend dollars on rehab and repair, the first thing that needs to be done is to bring the house up to Code; and even if Mr. Carlson had lived in the house, not complying with the Code would not meet the criteria as it would cost far in excess of the dollars that Mr. Carlson would be eligible for. Mr. Kenna stated there are other issues regarding sustainability; all impediments must be removed; for Mr. Carlson's ownership of the property, he must have the intent to be able to keep it for a certain period of time as the County liens the home if it does rehabs and repairs; and Mr. Carlson has a balloon payment due in 2004. He noted currently, Mr. Carlson's has a beacon score of zero; and the County is unable to qualify Mr. Carlson in that manner.

Chairman Scarborough inquired where does Mr. Carlson live; with Assistant County Manager Peggy Busacca responding on the property in question in a school bus. Ms. Busacca noted Mr. Carlson has several Code Enforcement violations, as well as the Building Code issue.

Mr. Carlson stated the Code Enforcement violations are immaterial right now; such violations are being taken care of; the main thing is how he is being violated; and the damage has already been done. He noted he is a litigator in law and knows what is just and proper; he stands to litigate right now; so no matter what decision is made by the Board, the damages have already been done; and right now he is trying to prevent any further damages.

Commissioner O'Brien stated Mr. Carlson needs to be reminded that he purchased the property less than one year ago; such property was purchased for $22,000; in three years, Mr. Carlson will have paid $7,668; and then he owes $18,000. He inquired can Mr. Carlson make that payment; with Mr. Carlson responding he has not been to the bank yet. Commissioner O'Brien inquired why; with Mr. Carlson responding because he has to go around to several banks and has been tied up with moving his stuff and coming back and forth to the meetings. Mr. Carlson stated he is indigent; in this country he has the right to live where he pleases; that is his pursuit of happiness; and inquired if the Board is going to get his electricity hooked back up and get his permit. Commissioner O'Brien stated the County has come to Mr. Carlson's aid by helping him with prescriptions and paying his permitting fees; and inquired at what point does the County stop paying Mr. Carlson so that he can live in a place that he cannot live at. Mr. Carlson inquired does Commissioner O'Brien have a problem with the taxes he has been paying throughout the years for that assistance; with Commissioner O'Brien responding yes, and the County does not owe Mr. Carlson a thing. Mr. Carlson stated he is not asking the Board to give him anything; but he is requesting the County restore the electricity that he needs for his livelihood; and he has a right to live on a piece of property without the Board telling him that he cannot do so.

County Manager Tom Jenkins requested staff explain why the temporary permit was removed. Ms. Busacca responded Mr. Carlson's home is currently located on an approximately four-foot tall foundation, which was put in place; a home that was constructed previously was moved to the foundation; the home is not the same size as the foundation; and the home is sitting on I-beams which lay across the foundation. She noted if the I-beams were to be removed, the home would literally go inside of the foundation because the home is smaller than the foundation; the Building Official inspected the home and found it to be unsafe based on the Code; Mr. Carlson was notified and the County gave him approximately three weeks to provide a plan to show how the home could be made structurally sound; and Mr. Carlson did not provide such plan. Ms. Busacca advised the building permit was terminated as there was no plan to bring the home into compliance; the electricity, which had previously been provided to allow for construction of the home and not for someone to be residing on the property, was then turned off; and Mr. Carlson has now done what he has the right to do, which is to appeal that decision through the Contractors Licensing Board. Mr. Carlson stated the Board has the jurisdiction to look at the paperwork; everybody in his case is lying; the paperwork is right; the structural engineer said the house and beams are sound; the site is in compliance; and this is unconstitutional.

Mr. Jenkins stated the Contractors Licensing Board has the authority to overturn any decisions made by the Building Official. Ms. Busacca advised Mr. Carlson has made the appeal; it was received by her Office, as well as by the Building Official; Mr. Carlson will be heard at the next Contractors Licensing Board meeting; and such Board will decide on that appeal.

Chairman Scarborough noted he does not know what else the County Commission can do today; and inquired if it ignores its rules, where does it stop ignoring rules and regulations and at what point do rules and regulations become totally irrelevant. Mr. Carlson stated when rules and regulations are irrelevant, then what was done is void constitutionally speaking. Chairman Scarborough stated he hopes the County can work this issue through with Mr. Carlson.

The Board acknowledged request by Roland Carlson for time extension to comply with Code Enforcement Special Master Ruling, but took no official action.

The meeting recessed at 12:19 p.m. and reconvened at 1:35 p.m.

PUBLIC HEARING, RE: VARIANCE REQUEST FROM THE VILLAGER CONDOMINIUM
HOMEOWNERS ASSOCIATION FOR PROHIBITED STRUCTURES AND ACTIVITIES
SEAWARD OF COASTAL SETBACK LINE

Chairman Scarborough called for the public hearing to consider variance request from The Villager Condominium Homeowners Association for prohibited structures and activities seaward of the Coastal Setback Line.

Chairman Scarborough stated this item has been heard before, but since the last meeting, there has been an additional memorandum from the County Attorney and information from the consultant; and requested the information be made available to the public in case there are questions or comments.

County Attorney Scott Knox stated the Board took an action that declared that the proposal being made by The Villager Condominium was not hardening for the purposes of the Comprehensive Plan; subsequent to that meeting, staff has had a chance to research in depth the Statutes and provisions of the Comprehensive Plan; he prepared a memorandum and distributed it to the Board members; and what staff discovered in reviewing the State law, Comprehensive Plan, and applicable Ordinances implementing the Plan is that the type of revetment that is being proposed by The Villager would, under State law and an existing Ordinance definition, constitute hardening. He noted one thing the Board may want to consider today is whether or not it wants to revisit the issue of the decision it made the last time; if it chooses to rescind that decision and proceed forward, the second thing it would be considering is whether or not the variance would be applicable or available to the applicant in this particular case; his research of the Ordinance and reading it in its totality indicates that the Ordinance, as it is currently written, prohibits this type of activity altogether; and there is no way that the Ordinance would allow any kind of variance. Attorney Knox stated basically the variance would not help The Villager because everything is determined from the Coastal Setback Line; the Board may have to consider today whether to determine if the Comprehensive Plan Policy dealing with hardening south of Patrick Air Force Base allows for emergency amendments, which is where the whole thing started; the issue was whether or not the language of Policy 4.1 was ambiguous; and if it is, was it the intent of the Board to allow emergency exceptions or was it not that intent. He noted if the Board decides that issue in favor of an interpretation that would allow emergency exceptions, then it has to determine whether the criteria set forth in Subpolicy E of Policy 4.1 are met; Policy 4.2 says the Board has to enforce the restrictions set forth in the Ordinances governing the Coastal Setback Line and Coastal Construction Control Line; the Ordinance prohibits any kind of activity in the area that is proposed by The Villager altogether; and if the Board were to decide that an emergency exception under the Comprehensive Plan is allowed and it meets all the criteria of the Plan, it would need to authorize staff to amend the Ordinance to allow for that kind of emergency action.

Tom Campbell, representing Coastal Planning and Engineering, stated he is present to update some of the information he provided the last time and answer specific questions that were posed to him by staff relative to the revised application; the application reviewed the last time took them through a revetment that was proposed at the forward section of the dune; the applicant has subsequently moved the structure into the dune and buried it a little bit further; and one question that was posed to him included does this still constitute an emergency. He noted the applicant found that the depth of the foundation was deeper than had been shown in the plans by physical investigation of the site; the question was does the prospect of a reasonably expected coastal storm still pose a danger to this building; and showed a slide presentation to the Board and audience to demonstrate some of the answers.

Mr. Campbell showed the original proposal; stated the revetment was proposed originally at the face of the dune; he thought the foundation was only a couple feet below the crown; and it turns out that the foundation of the original structure was somewhat deeper. He noted the new proposal shows the revetment in black; it is going to be buried now below the dune; it was allowed to happen because the foundation itself is lower; and the elevation of the bottom of the foundation is approximately eight and one-half feet. He stated he reviewed the storm profile projected by the State and where the supporting soil for the foundation would fall; it still appears that despite the fact that the foundation was deeper than originally thought, the building would still be in jeopardy from a 15-year storm; and there are still the same problems that existed the last time that the building was in jeopardy from a reasonably expected storm, even though somewhat less jeopardy than thought earlier. Mr. Campbell noted another question is would the structure be deemed necessary at this location; a structure is necessary to protect the foundation from a reasonably expected storm; and that is his conclusion on this analysis. He stated a question was raised whether or not the structure constitutes shore hardening; he has reviewed the State and County definitions; the County definition in the Land Development Regulations identifies the revetments as rigid and shore protection structures; and Florida Statutes, Chapter 161, defines coastal or shore protective structures as shore hardening structures. He stated the applicant identifies the proposed structure as a revetment system, which would put it in the categories of both the State and County definitions; and it is his opinion upon reviewing this structure that it is a form of coastal armoring and a shore hardening structure. Mr. Campbell stated he reviewed the Codes relative to both the variance and possible exemptions that the structure would qualify for; under the exemption, there was an engineering issue relative to whether or not the requirement for the structure was caused due to erosion or damage caused by erosion; in this case, that was indeed true that the structure is being required due to damage caused by erosion; therefore, it does not qualify for an exemption. He noted there is no exemption available to this structure; it does not fall outside of the rule for excluding this type of construction; he looked at another relative parameter that was cited in the Land Development Codes concerning if there was more than 25 feet of recession from 1972; and the Code says that this structure would not qualify for a variance. Mr. Campbell stated it turns out in the profiles of the adjacent monuments that the Department of Environmental Protection (DEP) keeps records of, that the recession since 1972 has been less than 25 feet; so the first criteria of the variance requirement would be since the base of the dune has not receded more than 25 feet since 1972, that it has been met; and it would be all right to grant the variance on that one issue. He noted another engineering issue is if the sand is maintained over the structure, it would not be injurious to adjacent properties; that is his determination; it is the second criteria which would possibly qualify the structure for a variance; the last criteria says that the application cannot exceed 25 feet from the setback line; and in this particular case, the proposed structure is further than 25 feet. Mr. Campbell stated it exceeds that maximum amount that a structure can be seaward of setback lines; therefore, it does not meet the last requirement, which is similar to what the County Attorney said and would not qualify for a variance under this Section. He noted Cheryl Miller is a marine biologist and ecologist from his Company; and she will discuss some of the aspects relative to the dune and dune erosion.

Cheryl Miller, representing Coastal Planning and Engineering, stated she is present to answer a few questions about a reconstructed dune and possible revegetation of the dune; these observations are from site photographs taken February 18, 2002; the nature of the dune itself and the existing dune vegetation is what the State considers critically eroded in that there is an unstable steep slope at the foredune, exposed root systems of the existing dune vegetation, existing narrow dune crest, and lack of the low cover of the pioneer plant species usually found at the foredune, including the vines and herbaceous plants that aid in the sand trapping at the foredune. She showed photographs to the Board and audience on which she based the observations, including the steep scarp face and exposed root systems; stated based on the photographs, the dominant dune species existing at the time are the stunted sea grape trees, sea oats, and other dune grasses, some stands of saw palmetto, and an exotic species known as beach nobka; and with any listed plant species, meaning federally listed or State listed and protected by federal or State law, an endangered plant species survey would have to be conducted. Ms. Miller noted if any such species were located, recommendations for their preservation would have to be made, including transplantation of the species; concerning dune revegetation, the newly constructed dune must have adequate sediment depths and elevations, and the use of low cover herbaceous plants, with a system such sea oats and other dune grasses as recommended; and for the surface of the dune, other vines such as dune sunflower and morning glory are locally recommended plants to aid in sand trapping and facilitate the establishment of the dune. She stated the use of locally adapted native plant species rather than exotic species is recommended; currently there are some exotic species; they can be easily replaced with native species; and herbaceous plant should be able to achieve full coverage within three growing seasons, provided that there is maintenance of any necessary replanting due to wind damage or human damage, etc. Ms. Miller noted replanting, watering, and nitrogen fertilization will aid in this establishment within three growing seasons; and once the surface is established, the dune and grasses can be augmented with shrubby plants and immature trees to reestablish the remnants of the dune crest.

Attorney Leonard Spielvogel, representing The Villager Condominium Association, stated he agrees with part of what was recently stated by Mr. Campbell; the County's Consultant recognizes and agrees that the building is in jeopardy; it has also been the Association's position; and it is the most important consideration before the Board. He noted after accepting that as the truth, it starts to go downhill and muddy as to what can be done; there are so many Ordinances affecting what he is here to talk about; he is impressed with the memorandum from the County Attorney; and it is like making one's way through a maze in order to get to a point where the Board can say it is going to be responsive to an emergency as it is its job and why the Board members were elected. He stated this is a true emergency and has been recognized by all parties; it is not a matter of how to prevent it from being corrected, but what to do to get it fixed; it may be that the Board will establish some precedent; and the Condominium is non-conforming and was built in 1973. He noted the building was legal when it was built and met County regulations; it does not have any pilings; it is unthinkable that a 13-story building would be built without pilings; but that was the knowledge back in 1973. Attorney Spielvogel stated if there are other similarly situated buildings, the Board is going to have to address them; there are ample recitations that private property needs to be protected; there is an obligation to protect private property; and the occupants of the Condominium had no knowledge of the nature of the foundation. He noted the County's Ordinance talks about the shoreline; the shoreline is used repeatedly; there has been discussion about hardening of the shoreline; and Florida Administrative Code, Chapter 62B-33, Definition 50 defines shoreline as, "A shoreline is the intersection of a specified plane of water with the beach. For example, the mean high water shoreline is the intersection of the plane of mean high water with the beach." He stated he interprets that to mean that it is where the water meets the beach; the Condominium is not operating at the shoreline; in reviewing all the language, it speaks about the shoreline; and the Condominium is some 80 feet west landward of the shoreline. Attorney Spielvogel stated when beach renourishment takes place the Condominium will be even further away from the shoreline; Section 62-407 includes damage caused by erosion; the Condominium does not have any damage caused by erosion; and it is trying to prevent damage to be caused by a storm event. He noted when damage does occur, it is going to be very serious because it may not be capable of being repaired; once the sand under the building is weakened, he does not know how to correct it; so far the experts have not told him that; and the Association is withdrawing its request for a variance. He noted the Association concluded that the variance does not apply to it; if it did, it does not afford it relief because of where it is located in relation to the Coastal Construction Control Line (CCCL); the Condominium was built before creation of the CCCL; it goes through the building; and the Condominium is sitting on the CCCL, but it is not to blame for that. Attorney Spielvogel advised the residents living in the building did not know about the CCCL; they assumed the Condominium received the blessing, protection, supervision, and surveillance of the governmental body; that is not an unreasonable assumption; so nobody checked about the CCCL or footings. He stated time is not on the Association's side; it is concerned about the storm season; is did not have a serious problem until November 2001 when there was a storm event; and he is not sure it was a 15-year storm event. He requested the Board acknowledge that the current situation at The Villager creates an emergency situation, and based on that emergency, that it qualifies for an exemption based on State Statute to the Comprehensive Plan requirements; it amend its current Coastal Construction Ordinance and insert a section that provides criteria for emergency exemptions; and it provide the Association today with a letter stating that it is compliance with County regulations so it can proceed with its permit application to DEP.

Commissioner Higgs inquired has the Association applied to the U.S. Fish and Wildlife Service for a permit or has it had conversation with it in regard to the status; with Attorney Spielvogel responded he has not, but someone may have.

Attorney Knox stated the Association has withdrawn the variance which leads back to what the Comprehensive Plan says; the Board has ruled that the proposal by The Villager is not hardening; testimony was heard today from the County's Engineer that it is his professional opinion that it is hardening; and assuming the Board rescinds the action it took the last time, it opens up the proceeding to determine whether or not the Comprehensive Plan will allow an emergency exception under Policy 4.1. He noted it goes back to the issue of ambiguity; it is his view that the Policy could be read in one of two ways, one of which is that is applies to emergency amendments to the Comprehensive Plan, or it could apply to an emergency as that term is defined in the Statute referenced in the Policy, meaning that it would provide an exception for emergencies; and what the Board would have to decide first is whether the Comprehensive Plan, Policy 4.1 allows emergency exceptions or not. Attorney Knox stated assuming that the Board decides that the emergency provisions in Policy 4.1 allow emergency exceptions and it believes that the Association meets the criteria of the Section, then the next issue is Section 4.2, which says the Board has to enforce the restrictions that already exist, as set forth in the Ordinance; the Board has been told today that its Ordinance does not allow this type of structure under the current proposal; assuming that the Comprehensive Plan allows emergency exceptions, the Board would have to authorize amendment to the Ordinance to allow for the same kind of emergency exceptions. He noted the letter the Board would send to DEP would set forth its actions today; assuming the Board were to say that the emergency exception is allowed in the Comprehensive Plan and that the Ordinance is authorized to be amended, the letter would say that the proposal made by The Villager is consistent with the Comprehensive Plan and the Board has authorized amendment to the Ordinance to allow emergency exceptions; during the period of time that was taking place, the Board would not enforce the Ordinance against this particular project; and if it is satisfactory to DEP, it would issue a permit.

Commissioner Higgs stated in the Statute where it talks about emergencies, it refers to Comprehensive Plan amendments; the definition of the emergency is talking about when Comprehensive Plan amendments can be made more than two times a year; Attorney Knox is saying the ambiguity would be in Policy 4.1C that the intent could have been that an emergency, as defined in here, would exempt the whole phrase of (C). Attorney Knox responded in Subsection E of Policy 4.1, it says, ". . . pursuant to Criteria C and D of this Policy"; (C) relates back to no new shoreline hardening south of Patrick Air Force Base, with the exception of emergency provisions as provided for in Florida Statutes; by referencing Criteria C in Subparagraph E, implicitly there was an emergency exception being referred to in Subparagraph C; and that is why it is ambiguous as the fact that implication may arise would lead one to believe that the emergency definition in the Statute is what is being referred to as opposed to the Comprehensive Plan amendment. Commissioner Higgs stated the definition of emergency in this context is only in the context of a Comprehensive Plan amendment; the logic that it could possibly mean a different kind of emergency is not consistent with the way she reads it. Attorney Knox noted that may be true, but his point is that it can be read the other way. Commissioner Higgs stated because of it coming from the Statute in regard to Comprehensive Plan amendments, it would be consistent to say it meant very simply that the Comprehensive Plan amendment process could be an emergency; and that would be how the Board would proceed from there.

Commissioner Colon provided copies of a letter from DEP; and read the letter, as follows: "The proposed protection structure with an improved restored dune system seaward of the existing condominium building only appears acceptable; however, the protection structure seaward of the condominium building may not be extended the sufficient distance south to prevent planking of the structure and provide adequate protection." She stated there are some things that DEP approves of and some things it does not; but it agrees that the existing habitable structure, which is the Condominium, has been determined to be an eligible structure which is vulnerable to high frequency coastal storm events and, consequently, qualifies for protection by coastal armoring in accordance with Sections 161.085, Florida Statutes and Rule 62B-33.0051, Florida Administrative Code. She noted the letter includes DEP's preliminary review of the Association's application; and such application is considered incomplete until a letter is received from Brevard County.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to rescind the Board's previous action of March 1, 2002 concerning The Villager Condominium and the shore hardening. Motion carried and ordered unanimously.

Commissioner Colon inquired if the Board is still along the same lines in accordance with Policy 4.1(C) of the Comprehensive Plan; stated it has also authorized granting an exception based on emergency conditions in accordance with Policy 4.1(E); and she wants to be able to make a motion based on the Board's last discussion and all the testimony and evidence received concerning Policy 4.1, which allows for exemptions to the Comprehensive Plan requirements based on an emergency situation.

Commissioner Higgs stated the letter from DEP talks about Mr. Thameseti's concerns and whether the applicant has demonstrated to DEP why the sheet pile wall could not be used.

Attorney Spielvogel responded the Association needs to get the letter from the Board in order to go to DEP; the Department has exercised some compassion by giving the Association a letter; the Association has not been to DEP formally; and it is a given that the Association will comply with the federal and State laws that require certain things, including turtle preservation and protection and justification proving to DEP that what the Association is suggesting as a method of curing this problem is the acceptable one. He noted the Association has not gotten through that yet; the letter from DEP is informal and subject to being revised; in order to put in a wall would require some pounding to get it into the ground; and the Association is concerned about compromising the foundation of the building. Commissioner Higgs stated the assumptions that were made about the foundation in place were different than they are today. Attorney Spielvogel advised that the Association will have the burden of satisfying the DEP as to that point; the DEP will then deal with U.S. Fish and Wildlife Service; the Association has to go through this process; and Engineer Jimmy Schilling will have to satisfy his counterpart at the DEP. He stated it is his understanding that the wall is one of the worst things one can put in on a beach as it has a scouring effect; it is not weakening the wave action, but having that action run up against the wall; the Association will have to meet the requirements; and it is asking for the opportunity to do so.

Jimmy Schilling, representing The Villager Condominium, stated the Florida Fish and Wildlife Conservation Commission's letter was faxed to him on Saturday morning; the DEP prepared its letter on March 29, 2002; so the agencies' communications are crossing and they have not talked to each other yet. He noted the County's consultant supported the Association that the wall is impractical; Brad Faucett, the geotechnical engineer, gave lengthy testimony previously about the impracticality of the wall; sheet piles would not support the massive amount of soil pressure that would have to be resisted if a wall was built; and the State has supported the Association on that issue as well. He stated going north from the building the State has realized that the Association could use a wall; it is probably what will be required if the Association protects the garages; south of the building the Association could use a wall to protect the swimming pool, but the State probably will not allow it nor protection for the building south of the swimming pool. Mr. Schilling noted when the Association dug up the foundations and found they were deeper, it allowed them to pull the revetment so far to the west and bury it so deep that based on all of the interaction they have had with turtle experts, it will have no adverse affect; the Association was glad to be able to make this change; it is his understanding that most turtles cannot dig deeper than one meter to lay an egg; and if the turtles were to come to the unstable toe of the bluff and dig down, which is going to move further east if nothing is done, they cannot find the rocks. He stated the turtles would have to dig down and tunnel to the west to hit the rocks as they exist now; the dirt that is left over from the excavation and displaced by the volume of the rock will be put back on the beach; so there will be rocks several feet from an elevation of six and one half feet up to elevation 20; and the Association has done everything it can to hopefully propose a structure that will have no adverse affect on the turtles. Mr. Schilling stated the east face of the rocks is an average of 134 feet from the mean high water line; the building wall is about 190 feet; the system is very deep in the ground; and it is the only permanent solution to the problem. He noted the soil pressures are so great under the building that there would be trouble designing a concrete wall to hold it; the problem would also exist on how to construct it; one would have to dig in the ground quite deep to install the wall; and it exposes the foundations to collapse into the excavation. He stated there may be a way to do it; but it is not practical to solve the problem with the wall; it reflects all the energy if it ever is exposed; and it violates every other rule that one has to comply with to get a permit. Mr. Schilling showed the planned view to the Board; stated it is his understanding that the State will make the Association reduce it; and with that exception, the Association will essentially have the structure as shown before the Board.

Commissioner Colon stated Florida Fish and Wildlife Fish Commission talks about the different deadlines it has and not allowing certain types of construction during a certain month due to the turtle season. Mr. Schilling noted it is going to be difficult to convince such Commission to let the Association continue the project after May 1, 2002 if the turtles come in; to the best of his knowledge, the turtles still have not come to Brevard County and are as far south as West Palm Beach; and it will depend on whether the turtles come into the area if the project will be allowed to continue. Commissioner Colon inquired how long does a project like this usually take; with Mr. Schilling responding three months. Commissioner Colon stated if the turtles are in the area, then the Association would have to stop construction; with Mr. Schilling responding the Association's window of opportunity is the month of April 2002 and it needs to get a letter of support from the Board.

Chairman Scarborough inquired is it feasible to have the project finished by the end of this month; with Mr. Schilling responding it is possible, especially given the fact that the project is going to have to be reduced to comply with the regulations the State is imposing on the Association. Mr. Schilling noted all the Association would concentrate on in the month of April 2002 is protecting the building; and it would not worry about anything else at this time.

Commissioner O'Brien stated if the turtles do not show up, then construction would not have to stop; it is a great big "if"; it is controlled by U.S. Fish and Wildlife and not necessarily by Brevard County; and he does not know if the Board should be traveling down this road in that conversation as it is not its conversation.

Commissioner Higgs stated in the letter from Dr. Trendell it says, "Although the applicant has agreed to place fill over the revetment, it is not clear if this fill will be maintained over the long term"; and inquired if Mr. Schilling has answered that question. Mr. Schilling responded it was covered in a letter and several other documents that were sent; Dr. Trendell probably has not had time to go through everything; but it has been discussed at length with Tony McNeal of DEP; and pounds of paperwork have been submitted to both agencies. Mr. Schilling stated the Board previously saw a slide presentation that showed historical data since 1972 at Monument R120 which is north of the Condominium; the worst erosion experienced until last year was further east; and it is the worst toe of slope erosion that has occurred since the records have been kept. He noted it is an unstable and unnatural condition; it will not stay like that; eventually either sand will wash in or the bluff will slip off; with all of the dirt the Association is going to save and put back over the rock, it will get past what will be normal, but not much past; and unless the whole County gets devastated, it will not see the rocks and will not have to worry about covering them up. Commissioner Higgs inquired if the Association made a commitment to DEP that it would maintain that profile. Mr. Schilling responded the Association is committed to keeping sand on the rocks; it is going to revegetate after the fill; and it is described in all of the documents that have been submitted to the County and State. Commissioner Higgs stated the County's Consultant talked about the use of the sand tubes as a method for securing the building and that was his recommendation; if the Board were to take the interpretation possible under Item C, it would require that it review Criteria 1 through 4 under Item E; it requires that the Association would use less structural alternatives, such as renourishment, dune restoration, and sand bag systems; and inquired is Mr. Schilling still contending that the sand bag system would not work. Mr. Schilling responded it would be a very temporary solution as the Consultant testified to; the sand bags are prone to damage; if they were ever exposed and required to do their job, floating debris or vandals could rip them open; and inquired what is the difference in a rock and a sand-filled tube. He noted if a turtle digs down to a sand-filled tube, he does not have anything to claw through the tubes; the Association is looking for a permanent solution and would hate to go through all the trouble, devastate the dune, replace it and replant it only to end up with a temporary solution that may not hold up in a terrific storm; and he does not see any advantage that a sand-filled tube will provide.

Commissioner Higgs noted that is assuming beach restoration does not occur. Mr. Schilling stated whether it occurs or not, the Association still needs permanent protection; and the Air Force cannot even keep sand on the beach and is going broke trying to.

Mike Arnold stated it would be a bad precedent to set to allow The Villager Condominium Homeowners Association to harden the coastline; it is not an emergency situation; the spring season is here when the ocean is at its calmest; and there are no northeastern winds. He noted hurricane season does not peak until October; there is plenty of time to review and consider the alternatives; temporary measures should be used for this situation; the beach renourishment is planned and eminent; and inquired are there any plans to address the dozens, if not hundreds, of other emergency requests that will come before the Board. Mr. Arnold stated once Pandora's box is opened, every condominium association could come to the Board and say they have an emergency situation and need to harden their coastline; there are not 72 miles of coastline for public use; Kennedy Space Center owns at least 20 miles of the coastline; and Patrick Air Force Base probably owns 10 miles. He noted once the shoreline is hardened, there is no going back; the coquina rock will not be removed in a year or two when the beaches have been renourished; and requested the Board consider the silent majority who do not make their opinions known. Mr. Arnold stated the vocal minority will be present this afternoon to tell the Board that they need this done; but it is not something that should be considered.

John Smith stated according to all the information available since December 2001, the issue has never been approached as a beach or shoreline situation; from day one it has been a foundation and subterranean issue; the Board has the authority to allow the Association to repair and add to its existing foundation to supply it with the stabilization reinforcement necessary; and the structure is non-conforming, does not fall within the Coastal Construction Setback Line, and is exempt. He noted the Comprehensive Plan issue is being seen as a secret agenda to do away with non-conforming structures on the beach; inquired if the Plan allows for no emergency pre-existing buildings, how can it be called a Comprehensive Plan; and it is a missed Comprehensive Plan.

Keron Deaton stated she owns property south of The Villager and is concerned about erosion; she is going to lose her motel if The Villager puts in the revetment and there is erosion south; she is one-foot from losing a deck; and once it slides it, there goes the motel. She noted her building is in danger; and it is 15 feet from the dune line.

Al King stated he has lived at The Villager for 25 years and did not know there was a foundation problem; requested the Board support The Villager's request to take care of the foundation problem; noted when The Villager was built, it met all Building Codes, including setback; and he has seen the dune work its way back. He stated the dune is now much closer than it was 25 years ago; since 1970, many stricter Building Codes have been established, probably for the good of the residents; erosion has been occurring for years; and erosion on the South Beaches has gotten worse since the jetty was built by the Corps of Engineers at Cape Canaveral many years ago, which helped create the problem that The Villager is in today.

Mr. King stated he is worried about the dune as it keeps moving closer to the building; the County and the State have approved the use of exposed rock revetment to protect their property; such revetment has been used on the Indialantic and Eau Gallie Causeways and Spessard Holland Golf Course; sand bags were used by the County for management of the golf courses many years ago; and such bags did not work. He noted the County Engineers came up with a plan for rock revetment on the Golf Course; it has been in existence for six or seven years and is still working; and there has not been any more erosion. Mr. King stated the State recognizes the need to protect private property; it allows permits to be issued if it is determined that private or public structures are vulnerable to damage from frequent coastal storms; The Villager's foundation is close to being in jeopardy; and Mr. Campbell also indicated this today and that the cone of influence from The Villager foundation is at a slope of 1:5 to protect the building. Mr. King stated it puts The Villager's weight-bearing cone of influence under the existing dune; 30 years ago when the building was built, the cone of influence was nothing near where the building and dunes are today; the dunes have moved to the building and caused the problem; and the residents are requesting the Board's approval to place rocks underground to protect the foundation. He noted protection of the cone of influence is critical to the building foundation; rocks are to be buried beneath the depth that turtles lay their eggs; the rocks will be buried and will not cause a disturbance to beach goers; and the dunes will be built back to match the existing dunes. He stated the rebuilt dune will be landscaped with vegetation; the north and south ends of the revetment will be turned back to eliminate erosion to next door neighbors; the rocks should never be exposed unless there is a severe storm on the beach; and if a severe storm is going to erode the dune that is going to be built back, then the whole beachfront is in trouble. Mr. King requested the Board's support.

Scott Smith stated he has been a resident of Indialantic for 40 years; the Condominium in question did not meet Code when it was built; it tilted into the ocean when it was first built; it was two years before individuals got around to shoring the building up; and it was a joke in Indialantic. He noted it was the ugliest, biggest building in Indialantic; it was called the leaning tower of Indialantic; the building was not very well designed if it starts to tilt and construction still continues; and the same thing that was done then to shore up the building when it was leaning into the ocean is what would be used today if there was a hurricane and the foundation started to go away. Mr. Smith stated the foundation is not the problem; the problem is that the building was built in the wrong place and is too close to the beach; this is not an emergency; and hurricanes are something one would expect, but hopes would not show up. He noted he does not know for a fact that there is going to be a hurricane this year and neither does anyone else; inquired how can this be constituted as an emergency; stated it is a lot more likely that turtles will show up again; and since he has been here for the past 40 years, he has had turtles show up, but has not had a hurricane every year. Mr. Smith stated relative to whether or not the County helps someone whose building is going to go into the ocean, he has a concern that his roof is going to blow away in the next hurricane; inquired does it mean that he should ask the Board for a variance to put concrete caps on his roof to hold it down; noted it is part of living here and the people know there are hurricanes; and if the residents of The Villager did not know about the building leaning into the ocean, then someone should have described to them what happens in a hurricane.

He noted this is a pre-emergency and not an emergency; if it were an emergency, there would be a hurricane outside right now; the proposed plan by The Villager would be a major impact to the beach and devastate the dune; and history has proven that the work done at Port Canaveral is what is affecting all of the beach at the present time. Mr. Smith inquired if it worked so poorly back then, why would the County allow the proposal by The Villager to go forward; stated it will affect adjacent properties; North Carolina has proven it and does not allow this type of activity any more; and he does not understand how a letter came from DEP already when the information has not been brought to the Department formally. He noted the proposal will not only hurt the people, but the animals and turtles as well; the Board would be setting a precedent if it supports the proposal; the whole shoreline would be nothing but a big concrete area; and if the building is in such poor shape that the foundation cannot stand up to a small hurricane, then it should be condemned.

Andy Wilson stated the turtles, blue heron, and dolphins keep coming back and do not mind The Villager being there; all the creatures that everyone is trying to protect do not mind the residents being there; and requested the Board allow the residents to continue to live where they are presently in peace and harmony.

Bud Stack stated his family settled here in the early and mid-30's; he has seen tremendous changes; it was shocking last November as he and his wife stood on the balcony and saw 25 to 30 surges, one after the other; each one of them came out of the northeast, through the dune line, and washed stairs away; and dunes crumbled and sea grapes were sucked into the sea. He noted if there are a number of surges similar to what he described, it will have the same effect as a hurricane in his opinion; every Fall there are a tremendous amount of northeasterly winds; the question of "if" should be directed to if there is going to be a beach renourishment; and it is much more certain that The Villager is going to be facing tremendous weather problems. Mr. Stack stated ambiguities in statutory construction are always strictly construed against the people who drafted it and in favor of the property owners or the people who had nothing to do with the drafting.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to allow additional time for Mr. Stack to finish his comments. Motion carried and ordered unanimously.

Mr. Stack stated it is the point of law that no lawyer who has ever handled statutory construction will dispute; the people who did not draft it have not made the mistake; the individuals who drafted it, even though they intended something, did not convey completely and fully enough to the innocent, non-active group what they really meant; and that is why the ambiguity is always resolved against the person who drafted it. He noted equity is fairness and balancing; the developers made a nice profit; the County also did well as it established a tax base of $250,000 a year; and the only victims are the people who are losing their beaches and threatened by losing their entire livelihood and investment. Mr. Stack stated the State law indicates that The Villager does not meet the current standard for hurricane resistance; the only question is whether the building is threatened by high-frequency storms; the County's consultant has responded yes to that; and The Villager meets both criteria. He noted common sense and compassion should rule the day; and if that applies in this case, then the Board will give The Villager the opportunity to save their livelihood and retirement home.

The meeting recessed at 3:00 p.m. and reconvened at 3:13 p.m.

*County Manager Tom Jenkins' absence was noted at this time.

Lee Harris, Associate Professor of Ocean Engineering at Florida Institute of Technology, stated he was called by Mr. Schilling to cover the ocean aspects; he reviewed the situation and advised Mr. Schilling on his design for the proposed rock revetment to provide protection for the foundation of the building; he would agree with Mr. Campbell on most all of the points that he presented; and The Villager is in an emergency. He noted the State of Florida has done a 15-year storm analysis and shows that the small level of storm would remove some of the soil that supports the foundation of the building; the structure is necessary to be protected as it is non-conforming and not on pilings; the soil support below the foundation cannot afford to be allowed to be attacked by wave action or eroded away; and on the definition of shore hardening, he has a slight difference with that presented by Mr. Campbell. He stated it has mostly to do with the term shoreline; Florida Administrative Code and Florida State Statutes do not define the term hardening, but they do armoring; he would take it to be the same thing; and this is not a shoreline hardening structure but a coastal armoring structure not out on the shoreline. Mr. Harris stated it is 80 feet or more away from the shoreline; the shoreline is out where the water meets the land; it is a good deal further seaward; and in reviewing the zero elevation, it is somewhere around 370 to 400 feet and the proposed location of the rock revetment is behind the existing dune line. He noted going from the toe that is 260 feet, the shoreline is over 100 feet; even the mean high water shoreline is about 80 to 100 feet further seaward; so The Villager is quite a bit landward from the shoreline and not doing shoreline hardening, but coastal armoring; and that is how it is permitted by the State of Florida. He stated he has also been responsible for responding to the items in the Comprehensive Plan, including Policy 4.1E, and insuring that anything that was designed and placed in the coast would have amenable effect on the coastal processes; the proposed system has been located as far landward as possible; they considered a vertical wall, but the soils experts say that if they penetrate the soil that is supporting the building, it could threaten the foundation of the building; and the sloped rock revetment as proposed located landward and buried beneath the sand will have no effect on the coastal processes as long as it remains buried. Mr. Harris noted the only time they expect it to become unburied is in the event of a major storm; if and when the beach nourishment project goes in, that is another plus and will help maintain the fact that it would stay buried; but he expects it to stay buried, except under a major storm, and to provide the needed protection to the foundation of the building; and he does not expect it to have any adverse effect on adjacent properties. He stated the design includes gentle curves landward at the north and south ends; and the gentle returns and slope also prevent reflection as there would be off of a seawall.

Jim Eagan, Executive Director of Marine Resources Council (MRC), stated dune structures are very unique systems; they are not a pile of sand with vegetation on them; they take hundreds of years to create; and it could even take longer at times. He noted the sedimentation process binds the sand grains much firmer together than would normally be the case if one were to pile some sand; there is a certain amount of chemical binding that takes place due to salt, calcium, and other activities that happen between the sand grains; the pressure of the waves and the way they are deposited help make the sand dunes particularly a valuable structure; and he fears that the proposed structure is not the equivalent of what was there historically. He stated piling the sand back on top of the rocks, even if they were vegetated, would not be able to recreate the unique structure that had been there to begin with; he has done some work on trying to grow vegetation on dunes and dune renourishment; it is a very difficult task at best; and a lot of sand is lost to wind events and things of that nature. Mr. Eagan noted it is very hot and difficult to get the vegetation to grow; three growing seasons would be needed for the vegetation to be established; the County would have to be lucky and not see significant storm events as the rocks would be exposed; and if the dunes could be rebuilt well, a new dune would be built in front of the existing dune to protect it and replace the historical amount of sand that would have been found on the beach. He stated if one cannot properly establish a dune there, he does not believe it can be established on top of the rocks either; the first time an erosion event happens there will be a bare rocky shoreline; there are other alternatives; and the residents of the building have been sold on a single alternative, which is unfortunate. Mr. Eagan advised there are other alternatives that minimize impacts to a much greater extent; the Consultant recommended the sand-filled tubes; in actual practice, these tubes have worked very effectively and have been used on the beaches before; and they provide more minimizing impacts. He stated he does not believe it is going to be possible for The Villager to get such an impacting project approved by everyone in such a short time frame; the turtles will show up at the latest in May 2002; there are some species of turtles that are already arriving on the beaches to the south; and it would be an extremely unusual event if they do not show up in May 2002. He noted The Villager is between a rock and hard place in terms of time; it is important that they choose an alternative that they are likely to get approved, including minimizing the impacts; the structure proposed by The Villager represents a major structure; and it is a whole new structure that would be non-conforming. Mr. Eagan stated it is one thing if The Villager had to repair the existing foundation; but they are projecting the foundation out at some great distance literally onto property beyond the dunes that they do not own; clearly there is a weakness to the existing design of the building; and he does not see this as an ideal condition by which to think about re-changing the Codes and protections for the shoreline. He noted alternatives need to be reviewed; sand renourishment is going to be an important help; and consideration should be given to adding sand to the toe of the dune and trying to establish it.

Sue Barrett stated the Association is requesting approval of a foundation stabilization project for a building built in 1972 or 1973; the project proposed is to protect an existing building built prior to the County's current laws requiring pilings of certain depth; the foundation is significantly different as demonstrated in the graphics received by the Board; and the Board has agreed that The Villager has an emergency. She noted something must be done to protect the foundation of a building that houses 90+ families; The Villager is requesting an opportunity to protect the foundation and the building; the building does not meet the current standards for hurricane resistance; and the foundation is subject to damage with violent storms which erode the current dunes. She stated the plan presented to the Board has some unique considerations; with regard to the public use of the beach, The Villager proposes an eight to ten-foot sand cover, which will cover the rock and maintain the natural appearance of the beach, as well as provide an adequate depth for the nesting of turtles; the residents are concerned about the public and the turtles; the dunes will be planted with additional greenery which will stabilize them well beyond their present state; and the proposed structure will provide for the protection of the dunes belonging to the neighbors. Ms. Barrett stated residents are environmentally conscious; she hopes they can convey that message; they are not asking the County, State, or federal government for monies to support the project; but it is asking for the opportunity to protect the building as it is an emergency. She noted she has heard that the residents should consider sand bags; they do not provide for the weight which is needed to counterbalance the weight of the foundation; requested the Board keep in mind that the building was built in the early 1970's, prior to the current Comprehensive Plan; and stated The Villager needs to be grandfathered under the laws or requirements of that period. She urged the Board to support The Villager's plan today as the emergency exists.

Hank Wilhide stated he owns a construction company in Brevard County; he has dealt with Tallahassee and the agencies here along the coast for as much as 20 years; he has installed many of the projects discussed, including vertical walls, backshore seals, geotextile tubes, and rock revetments; he has put sand on them and has done natural systems, such as vegetation; and the last project put in Brevard County was by him, which was a rock revetment of approximately 300 feet of shoreline. He noted it was completed in 1997 or 1998; such revetment is still covered with sand; with the sea oats and vegetation that were planted with the rock revetment, the dune has raised itself by the sea oats that have matured and grown; and they have trapped more sand. He stated there is more turtle nesting in this area; during his construction projects, there is a turtle monitoring group; such group was present every day to inspect for nests; and if nests existed, they could not be disturbed. Mr. Wilhide advised in some cases, the nests were removed; The Villager is not under such a time frame that the project could not be completed prior to the dense turtle population coming in for the upcoming season; right now it is at the early stage; and the project could get started and the turtle monitoring group could be present. He stated the sand over the rocks and a good revegetation plan can make the system work; the vertical walls work under certain conditions, but they cause erosion to the north properties; there are things that can be done to eliminate that; and there is toe scour protection where rock revetments are laid at the base of the vertical wall which breaks the impact of the waves. Mr. Wilhide reiterated he has installed the systems and seen them work; stated the revetments work; the people he has worked for in putting in the backshore seals have gone in for three, four and five-year revegetating plans; and every year there is a storm event, money would be spent to recover the sandbags or rock revetment and revegetate. He noted he has lost those people as clients as they have naturally established dunes where the dunes are at such a slope that the waves now roll up through the sea oats and roll back down without vertical impact.

Brad Faucett, representing Universal Engineering, stated he was hired by Mr. Schilling to do a series of soil borings and soil and foundation analysis of the building; as it is now, the foundations of the building are indeed stable; he has heard comments about the building being in sad shape; but it is not the foundation. He noted in his investigation he found no evidence of any previous remedial action, which was also alluded to; however, with the loss of soil around the foundation, it does not necessarily have to be under the foundation; but just around it will cause enough loss of confinement pressure that it would incur settlements to the structure and perhaps be more than the structure can tolerate.

Chairman Scarborough inquired if Mr. Faucett noticed any cracking in areas that would indicate recent settlement; with Mr. Faucett responding negatively. Mr. Faucett stated he did not do an in-depth inspection throughout the building, but did enough of an inspection to know that if there had been any recent significant settlement, he would have picked it up. Chairman Scarborough requested Mr. Faucett describe the first signs of a gradual loss of support. Mr. Faucett responded one would start to see cracking in the structure along the face of the structure and most noticeably the seaward face; it would be noticed throughout the building; there would be dips in floor slabs and balconies; and someone would start to notice it on the first floor. He stated the first floor slab is sitting on grade and soil; there would be cracking and settlement of it; if there were a storm event where the foundations begin to be exposed, the building should be evacuated completely; and the choices would be either to leave the building vacant or start repairs. Mr. Faucett stated the repairs would include underpinning and pumping grout in the soils around the foundations; it is major construction work on the beach; it would be an enormous devastation to the beach and a disaster; but it could be done. He noted the building would probably end up with a sorry patch on it; and the building could not be brought back to its full initial state.

Commissioner Colon inquired what is Mr. Faucett's expert opinion concerning a permanent foundation. Mr. Faucett responded there are two types of permanent fixes; one is a wall and installing it would be extremely difficult; the act of installing it would probably damage the building; and it leaves something such as a revetment of either rocks or sand bags. He stated his professional opinion is that the rock is better, a denser material and is not nearly as susceptible to being moved around by wave action because of its density and weight; sand bags are not really that much denser than the ocean water that is hitting them; they tend to have a little bit of floating action under heavy waves; they would be better than nothing; and rock revetment would be a lot better than sandbags. Commissioner Colon stated Mr. Campbell indicated that if the sand is maintained over the structure that the revetment would not be injurious to adjacent properties; and inquired what is Mr. Faucett's opinion. Mr. Faucett noted he agrees with Mr. Campbell; and turning the edges of the revetment instead of having a straight revetment tends to dissipate the wave action and lessen the impact on the neighbors.

Commissioner Higgs stated one of her concerns is the impact to the downstream properties; and inquired is there some impact on the neighbors. Mr. Faucett responded if someone has neighbors that have structures as far out as The Villager, they are under some danger if a storm event comes up.

George Wilson stated the biggest enemy is sand in the hour glass; time is running out; during the 45 years he has been here, he has never seen the erosion and devastation to the dunes as it presently exists; and the sand will be replenished at times when there is the southern winds. He noted he has a film that shows no sand on the beach; only the coquina existed; it was in front of the Royal Palms where he lives; and the crashing of tall condominiums into the ocean is going to have a definite economic impact. He noted it is the Board's obligation and responsibility to come up with the solution; no one fixes the roof while it is raining; and the Board needs to find the best solution and do something now.

Gerald Heyes, representing Sea Turtle Preservation Society, stated the Society is not against The Villager Condominium taking necessary steps to adequately protect its building; it is concerned about the use of rock revetment as such method has the greatest potential for negative long-term affect on the beach; the State recognizes that also; and read a statement from the State Rules and Procedures for Coastal Construction, as follows: "Sloped armoring, such as revetment or toe scour protection shall only be approved where it can be demonstrated that there is no other technically viable alternative or where there is no marine turtle habitat." He noted when the request for permit is filed, if DEP and FWCC can be convinced that rock revetment is the only procedure, then the Society will accept that; maintaining sand on the structure would be necessary; if the County approves the procedure, the Society would like to see a requirement placed on The Villager Condominium that it be responsible to maintain the sand and vegetation on the rock; and the Society is also concerned about precedent. Mr. Heyes stated if this is going to be handled through a Comprehensive Plan change, the Society would like to see it limited in some way, such as buildings prior to 1981 or buildings that might be considered non-conforming structures, so that it does not open the flood gates to all other buildings along the barrier island.

Richard Winn, representing Sierra Club, stated such Club has no opposition to The Villager restoring the foundation; however, it is concerned about the changes proposed to the Ordinance under the Comprehensive Plan. He noted the Club has taken a position over the years that it has allowed the South Florida walls, armoring, and revetment to continue; it continues at Daytona Beach; Sierra Club drew the line at Patrick Air Force Base (PAFB) during earlier Comprehensive Plan changes in Brevard County; and it gave up on everything above PAFB. He stated from Satellite Beach and Indialantic to the South Beaches, the Club wanted to protect the areas for the sea turtles; it is still the Club's position today; and requested the Board seek an open solution to the problem to satisfy The Villager and protect the sea turtles and the beaches, and place guarantees on the proposed solution. Mr. Winn further requested the Board draw the line and review the line the Sierra Club drew with the Comprehensive Plan and Ordinance; stated the Club would oppose any changes to the Plan that would alter or add to everyone else along the beaches coming in asking for the same emergency action; and if the Club saw this continuing, not only for The Villager, but all the way down, it would have to step in and look at the Comprehensive Plan. He requested the Board review the proposal, take a stance, and see if it can come up with an open solution that all parties are satisfied with.

Attorney Spielvogel stated if, for any reason, the area becomes disturbed, independent of something affecting the rest of the beach, The Villager will take care of it and cover it; and it just wants to be treated like everybody else on the beach. He noted his client has a problem; there is a uniqueness as The Villager was built years ago; it has certain problems and is non-conforming; and it would not be allowed to happen today. He stated there will be others coming before the Board in years to come; it will consider them on the merits and make a decision; the only thing that has been factual was Mr. Faucett saying he examined the foundation; there has been no change to it and no remedial action; and that is all that is significant. Attorney Spielvogel noted Mr. Eagan was concerned that the plant life on the dune may disappear; once The Villager replaces it, it will see to it that it stays and will take care of it; as it is going now, it is disappearing and falling off; and it will continue to do so until it is no more. He stated The Villager will stop that from happening with the Board's approval; The Villager is going to the DEP as it is the expert; there is language in the County's Code that defers to the DEP and recognizes its jurisdictional area; and requested the Board's consideration.

Commissioner Colon stated she would like to go forward in accordance with Coastal Policy 4.1C of the County's Comprehensive Plan; the Board has the authority to grant an exception based on emergency conditions in accordance with Policy 4.1E; and she would like to make a motion to that effect.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to grant an exception based on emergency conditions in accordance with Policy 4.1E of the Comprehensive Plan for The Villager Condominium.

Commissioner Higgs stated she does not believe that is the intent of the language in Policy 4.1C; the intent was that an emergency Comprehensive Plan amendment could be considered to allow any new shoreline hardening structures south of PAFB, so she cannot support the motion; when the Board starts to contemplate changes in shoreline hardening or coastline protection, it needs to contemplate that there are other buildings that will be in similar situations; and the Board has to be very careful about how it goes about this. She noted she cannot agree that the Board should look with confidence to the DEP; if she could look to it for protection and have any confidence in its decision-making, she would not see what she sees today in Miami Beach and Palm Beach where the entire shoreline is hardened; so she cannot look to DEP as the source of wisdom and protection for the public's beach. Commissioner Higgs stated it is the public's beach that the Board needs to be concerned with protecting; if the motion passes, the Board would look to the criteria in Section E of the Comprehensive Plan, Items 1-4; it should establish some very specific criteria in regard to the perpetual maintenance of the cover and public access, either through a bond or an MSBU, consistent with the United States Fish and Wildlife Service permit, and such that the properties on the north and south boundaries of The Villager property are not negatively impacted. She noted if the Board wants to assist in protecting The Villager, it needs to do so through a Comprehensive Plan amendment.

Chairman Scarborough stated this is a unique situation as The Villager Condominium was not built as it should have been since it was built some time ago; there needs to be some shoring up underneath the structure; it became less of a shoreline issue, which opens Pandora's box; and the information today, particularly from the County's consultant, leads the Board to believe that what has been proposed has an impact that would be like any revetment along the beach under certain circumstances. He noted the information that there could be some means of doing grouting underneath recently came before the Board; it is a means of going to the support of the structure and to firm up after some foundation failure has occurred; this leads him to believe that perhaps the Board has not been presented all of the options; and he is not sure that it has seen all that could be done to look more to the foundation and less to the shore action. Chairman Scarborough stated while the shore action adds some dynamics to it, it is something that could occur any place at any time.

Commissioner Carlson stated everybody is concerned about the future of The Villager, including the Board; if it is to decide that this is an emergency and an exception, it is still faced with the information that the County Attorney has put forth in Item 7 of his memorandum, which states that first the proposal must meet the Criteria of Policy 4.1.E, Paragraph 1 through 4; Policy 4.2 states, "Brevard County shall enforce restrictions associated with the Brevard Coastal Setback Line and the County Coastal Construction Line"; and the Coastal Setback and Control Line Ordinance No. 85-17 prohibits the proposed revetment outright in the absence of an ordinance amendment that would provide for the construction of emergency structures. She noted the County needs to review all the other things it has put in place and look at the repercussions of it; the pictures that were passed around of several other structures along the South Beaches presented a much more significant emergency; and The Breakers Condominium and Paradise Beach have tremendous damage along the whole shoreline. Commissioner Carlson noted she presumes those individuals are waiting for the Beach Renourishment Project. Commissioner Higgs noted The Breakers received sand last week. Commissioner Carlson stated it is devastating to see all of the people who are going to have the problem up through Satellite Beach. Chairman Scarborough stated the Board needs to ask itself is there something unique because of the problem and how does it deal with this uniqueness without opening it up; all of these people can make a similar argument that this could occur because it is occurring; and inquired if the Board does not move forward as Commissioner Colon says, how does it protect The Villager. Commissioner Higgs stated it is her understanding that the sand tube application that Mr. Caldwell suggested could be permitted under the Comprehensive Plan and Code.

*County Manager Tom Jenkins' presence was noted at this time.

Mr. White responded if the Board reviewed the Comprehensive Plan and decided that this was an emergency under Policy 4.1C, which moved it down to Item E.1., it appears that the type of sand tube construction could be permitted. Commissioner Higgs inquired what is Attorney Knox's opinion; with Attorney Knox responding it could be permitted. Attorney Knox advised the Board has an Ordinance that would prohibit this, so it would have to amend the Ordinance one way or the other before it is all over; and the Ordinance prevents any kind of activity proposed by The Villager, including the sand tubes. Commissioner Higgs inquired does she hear a difference of opinion between staff and the County Attorney that the sand tube provision is permitted under Item C, and is the sand tube system defined as hardening. Mr. White responded with vertical wood or concrete structures, rock revetment shall only be approved when less structural alternatives, such as beach renourishment, dune restoration, and sand bag systems have been determined not to be feasible; the County could go forward with a sand bag system under the Comprehensive Plan; but Attorney Knox indicated the Board would have to modify Ordinance No. 85-17. Commissioner Higgs noted it would be for the excavation to bury the sand tubes; with Mr. White responding affirmatively. Attorney Knox stated the Ordinance stops it; and the Board has to modify the Ordinance.

Commissioner Colon stated the ultimate decision will be DEP; such Department is willing to consider the issue, but needs a letter from the Board; time is of the essence; that is where the emergency comes in; and the emergency part and common sense are what the Board is talking about. She noted nobody here is God and no one knows what could happen in the next couple of months; each situation is different; reiterated there is an emergency situation before the Board; and it needs to make certain exceptions. She stated the Board needs to give The Villager a letter to go to DEP; such Department will scrutinize the application; the letter is not a guarantee to The Villager; but it gives them a fair chance of being heard at the State level. Commissioner Colon noted it would be a great injustice for the Board not to allow The Villager to leave with a letter today allowing them to be able to go forward and bring their case before DEP.

Commissioner Higgs stated the Board is not in a position to be able to punt to DEP; the Department has not demonstrated in other south Florida counties the protection of the beach system for the people and citizens of those counties; Brevard County has a law which says even if it makes an emergency, it still has to insure minimum adverse impacts to the natural beach and dune systems and adjacent properties, and that restoration and revegetation can be components of that, both landward and seaward, and the public access is not impeded concerning any protection that is allowed; the Board is not in a position to give The Villager a letter and let DEP decide; but it could decide today that a system, such as the sand tubes recommended by the Coastal Engineer, could be the course of action it would want to pursue in similar situations, with an amendment to its Code concerning excavation, and insure that the dune is perpetually maintained and the tubes are covered by some method of a bond or MSBU provision so that the public's beach and abutting properties are not detrimentally and adversely affected.

Chairman Carlson stated she understands Commissioner Colon's point in trying to do something because of the perspective that this is an emergency; but just sending a letter to DEP ignores the law that the Board has on the books today; she cannot support that because the law that is currently on the books has gone through hours of discussion in trying to come up with solutions that will protect everybody's interest; and by ignoring that, the Board ignores the basis of what it does at its meetings. She inquired where will it end if it ignores the law based on this issue that is construed to be an emergency, but not proven to be one.

Commissioner O'Brien stated this entire project has been to the Board as being a subterranean project, which would have a minimum adverse impact to the environment; when the Board wrote the law, it was not aware of new ideas and new concepts; being the governmental body, it must have enough elasticity to change its way of thinking when new concepts and ideas are brought forward; and it is not rocks piled up on the beach, would not stop the turtles from nesting, and would not be an eyesore to the public. He noted beach restoration should take place within one year, which would provide additional coverage and extend the beach further away; the structure in place would permanently protect the building from future damage; he does not perceive this as being something where the Board wants a Band-aid; and it is time to fix The Villager once and for all. Commissioner O'Brien stated it is unfair for the Board to ask the people to spend their money on something that is not permanent; sand bags become the same weight as the sand that surrounds them and also become elastic and change shape; therefore, they can also move; and this is a permanent structure buried deep in the sand and far below the rock revetment the County is used to seeing which would be up in the air and highly visible. He noted the concept is a new one; it is something the Board should approve; it is an emergency situation; and if the Board does not do something, it is acting irresponsibly. He stated the Board also needs to have compassion as part of its job, including for the ideas that are brought forth that are new and do not fit the pockets that were here many years ago that designed the first part of the Comprehensive Plan; reiterated that the situation is an emergency; something catastrophic and terrible could happen if a storm came through; and all the fingers would point toward the Board as taking no action or inappropriate action and not caring for the health, welfare, and safety of the public.

Commissioner Higgs stated the knowledge today is very different from the knowledge 30 years ago when the building was built; if the Board goes forward today with the boulder revetment plan, she sees very little chance of recovery for the beach; she sees it to be a very difficult way of potentially fixing it; and the Board could agree to an amendment to the coastal setback and excavation part of the Ordinance for the placing of the sand tubes in the location that needs to be in this case, and send a letter to DEP and give it the time schedule that the Board is going forward. She inquired can the Board deal with that as an emergency amendment to the Ordinance; with Attorney Knox responding affirmatively. Commissioner Higgs noted that would get into place a structure in the County Code that would allow the residents of The Villager to make a decision there; and the Board could also put into that portion of the Code a method by which to protect the beach, plantings, and abutting property owners.

Commissioner O'Brien stated having been a manufacturer himself with the sand tubes, he can state categorically that they failed dramatically at the Sandy Hook State Park in New Jersey; they also failed in North Carolina where some projects took place; once the sand tubes are subjected to water and wave action, they will start to move and their shape changes; and the objective with The Villager is to compact the soil behind the building, thereby keeping the ground beneath the building stable. He noted it cannot be stabilized using tubes filled with wet sand and expecting the tubes not to move as the geological pressures behind them force them to move and push them; if the tubes become exposed, they will move, slide around, and not stay in place; he has seen the failures himself; and it is not the route that The Villager should be forced to travel.

Commissioner Colon stated Mr. Campbell expressed concern that there is definitely jeopardy in the stabilization of the building; there are also concerns if a storm were to come; the community had an idea that the rocks would be exposed; but there are certain guidelines that can be taken to protect the neighbors. She noted Item 5.B. indicates that if sand is maintained over the structure, the revetment would not be injurious to adjacent properties and contrary to the public interest; all of the concerns have been addressed in Mr. Campbell's findings; the Board is willing to go forward to help The Villager; but the controversy has been what kind of foundation-rocks or sandbags. She stated at the last meeting she asked Mr. Campbell if the rocks or sandbags would be money well spent and a safety issue; Mr. Campbell said it would be rocks; Mr. Campbell is the County's consultant; and there are 100 families at risk. Commissioner Colon stated it is not simple having the people evicted; inquired where is the compassion; noted she is concerned about the sea turtles; but there has to be a balance. She noted the Board is not perfect; it put the laws and ordinances together; it is allowed to say there is a dilemma here and there needs to be a compromise; and she is more than willing to listen to the things that Commissioner Higgs has said to protect the community. She stated Commissioner Higgs is correct that the community needs to be protected; and she supports her fully in making sure that the community is protected. Commissioner Colon inquired has she misread anything in regard to what Mr. Campbell gave to the Board. Mr. Campbell responded it is correct that he has an opinion that the building is threatened by a storm that people can reasonably expect to occur; and some protection is needed to protect the foundation. Commissioner Higgs inquired did Mr. Campbell also recommend in his initial recommendation to the Board that there was an alternative other than rocks; with Mr. Campbell responding affirmatively. Mr. Campbell stated when the Comprehensive Plan is considered, it would necessitate, in its current form, going to an alternate structure other than the revetment, which would be a sand bag system or sand tube system that he recommended. Commissioner Higgs inquired with some degree of positive feeling that the County will get the renourishment project extended, would Mr. Campbell think that the sand tube system would stay in place and be shored up further by the renourishment project; with Mr. Campbell responding affirmatively. Mr. Campbell stated his suggestion considered the fact that a sand nourishment project was forthcoming; if that was determined not to be the case, he would have to reconsider his suggestion; the sand tube systems are temporary, but they can hold the line for a period of three to five years if they happen to be exposed; and if they are continually buried, they can last much longer, probably up to 10 years. Commissioner Higgs stated if the Board approved the sand bag system similar to the way The Villager is talking about doing the rocks, would it last the 10 years; with Mr. Campbell responding yes, if the sand bags were continually covered with sand.

Commissioner O'Brien stated there could be pressure against the bags moving laterally towards the ocean caused by the pressure of the building itself and geological pressures; the ground underneath moves all the time; sand bags can change shape from round, oval, and flat; and they can keep changing their form from being straight line to snake-like, which also puts unbearable pressure on the type of material used that has approximately a 500-lb. per square inch tensile strength, but is woven fabric covered mainly in vinyl. He noted it has a tendency to tear; the sandbags are doomed for failure; and the sales for the tube-like bags have dropped dramatically in the past five years as they do not work. He stated the rock revetment concept is a long-term solution; it is buried in sand and will not be visible to the public; it is low enough that if the sand were to erode even further, it would still be buried in the sand; and if the toe became exposed, he is certain that the homeowners would put sand back over the exposed part of the rock. Commissioner O'Brien stated the only concern would be if the rocks were totally exposed, the wave action off of that may cause further erosion of properties to the south; as long as they are covered with grass, that argument goes away; if it is covered in sand, then there is no argument; and if the rocks are buried deep enough and covered in a dune-like structure, it is a permanent fix that is more difficult to move laterally underground. He noted exposure could only occur with a severe storm, but it could be covered right back up afterwards as well; the rock revetment would not be exposed; therefore, the problem of deflective wave action and sideways erosion would not take place, according to all the testimony given. Commissioner O'Brien stated he does not know why the Board continues fighting this and trying to get back to the sand bags, which are nothing more than a temporary fix, and will not solve the long-term problem of trying to reinforce the foundation of the building.

Chairman Scarborough stated he appreciates what Commissioner Colon said that the Board creates the rules and needs to be cognizant of them; a compelling case could indicate that an emergency exists along the whole South Beaches; therefore, the Board would immediately evolve into an emergency action which would perpetuate a fundamental change; and as soon as it leaves the foundation issue of The Villager, it enters no man's land and is going to pull away from the Board. He noted there is nothing here of any scientific or engineering data that the County is doing anything to fundamentally touch the foundation; it is a shoreline issue; and that is his dilemma right now.

Chairman Scarborough called for a vote on the motion. Motion did not carry; Commissioners O'Brien and Colon voted aye, Commissioners Scarborough, Higgs, and Carlson voted nay.

Commissioner O'Brien stated this is an emergency issue; if other buildings have emergencies also, the Board needs to address them one at a time; it needs to revisit what it is doing; and it should help the public and preserve the beach at the same time. He noted the new methodology appears to work and would not harm the beach unless the rocks were totally exposed. Chairman Scarborough stated the problem is that the storm events discussed would expose the rocks.

Commissioner Carlson inquired based on Attorney Knox's dissertation and memorandum on all the different points and hoops that need to be jumped through based on existing law, is there any way that the Board can send a letter to DEP saying this was the discussion and outcome, and throw it into DEP's lap to make the decision. Attorney Knox responded after the Board's vote, no, as it ended the discussion; and the only thing it can do now is a Comprehensive Plan amendment. Commissioner Carlson inquired can the Board send a letter to DEP; with Attorney Knox responding it can send a letter saying what it did.

Chairman Scarborough stated Attorney Knox did not tell the Board before that it had to go to a Comprehensive Plan amendment; and he indicated the Board could proceed more rapidly this way with a change to the Ordinance. Attorney Knox noted he told the Board that if it interprets the Comprehensive Plan to allow an emergency exception, then it goes to step 2; and the Board voted not to interpret the Comprehensive Plan to have an emergency exception. Commissioner Higgs stated she was under the impression that the Board was saying that the sand tubes were not a violation of the hardening of the shoreline; and the discussion was that the sand tubes buried would be a violation of the Ordinance, but not of the Comprehensive Plan. Attorney Knox noted the Board cannot get there from here as it just decided that it cannot have hardening structures south of Patrick Air Force Base. Commissioner Higgs noted the discussion prior to the motion and voting on the motion was that both parties were in agreement that the sand tubes and an amendment to the Ordinance were not violations of the Comprehensive Plan.

Mr. White stated staff indicated if the Board issued this as an emergency under Item C and it moves to Item E, then sandbags could be put into place; however, the County Attorney has stated that the Board needs to move forward and amend the Ordinance to allow this to happen. Commissioner Higgs stated the confusion is if the sand tubes are a violation of the prohibition in Item C. Mr. White noted Item E.1. states, "Vertical wall or concrete structures and rock revetments shall only be approved when less structural alternatives, such as beach renourishment, dune restoration, and sandbag systems have been determined not to be feasible." Commissioner Carlson stated Commissioner Colon's motion was to send a letter to DEP saying there was an emergency and going past Item C. Commissioner Higgs noted when all the discussion began, staff was saying that the sandbag system was not a violation of the prohibitions that were present; it was also the discussion at the first meeting; and the sandbags were not prohibited under Item C. Mr. White stated if the Board decided that it was an emergency situation under Item C, according to the County Attorney, it could move to Item E. Commissioner Higgs noted she misunderstood what was said.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to reconsider the previous motion, to grant an exception based on emergency conditions in accordance with Policy 4.1E of the Comprehensive Plan for The Villager Condominium. Motion carried and ordered unanimously.

The meeting recessed at 4:37 p.m. and reconvened at 4:48 p.m.

Commissioner Higgs stated the Board should deny that motion and not pass it; in discussing the issue of whether or not the sandbags were acceptable under the current Comprehensive Plan, staff believes that the sand tube system would be acceptable under the Plan provisions and the Board would have to amend the Ordinance to allow the excavation; those components together, with the plan for beach renourishment will protect The Villager and the beach for the people of Brevard County; and while it is not a happy compromise for everyone, it does allow the citizens to protect the building and other citizens to continue to use the beach.

Chairman Scarborough stated Attorney Knox indicated that before the Board proceeded, it had to have a declaration that was an emergency. Attorney Knox stated the proposed tube system would not violate the Comprehensive Plan, so the Board does not have to go any further than what it has done so far; the only thing it would have to do is order the Ordinance to be amended; and it could be done as an emergency if it desires. Chairman Scarborough stated there is a motion before the Board for reconsideration; and inquired what does it want to do with this motion. Attorney Knox advised the motion that was made did not pass; it turned down the interpretation that said there was an emergency exception; staff does not believe the motion needs to be rescinded or reconsidered at this point as the Ordinance can be changed to allow the sand tube system; and such system will not violate the Comprehensive Plan as it is written.

Commissioner O'Brien stated the applicant has evidence that he would like to present to the Board concerning the tube-type sandbags and their inability to withstand the pressures; there were photographs taken in Vero Beach within the last two years; this kind of evidence may be important to the Board to show that what it is trying to do here may be inappropriate for The Villager; and it may want to rethink its position.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to allow the applicant to present the evidence concerning the sand tubes and the problems with them. Motion carried and ordered; Commissioners Scarborough and Carlson voted nay.

Dr. Lee Harris stated there are many different kinds of sand-filled containers; putting a large sand-filled tube out front is not necessarily going to give someone the protection they might want; and showed photographs to the Board and audience in July, 2001, following the placement of a sand-filled tube south of Fort Pierce Inlet. He noted within months from the last storm events that took place, the containers deflated, no longer protecting the uplands and erosion took place; if someone was protecting a wooden deck off the back of a small house, a sand-filled container system would be great; but The Villager is trying to protect the foundation of a 13-story building from getting undermined; and the residents cannot afford this type of situation. He stated if the Board were going to approve a sand-filled container system at this site, he would recommend it be moved further seaward so that if it did fail, there would be time to do something else before the building became in jeopardy; this is a better solution because The Villager is further landward; and it is not subject to a massive failure such as the example that he has shown here.

Commissioner Colon inquired what would be the difference between the rocks and sandbags if sandbags are considered hardening. Dr. Harris responded if the rocks and sandbags were in the same configuration in the dune structure, they would serve the same function and be the same; per the Florida Administrative Code, the sand-filled container systems, as well as the rock revetments, are all considered as hardening and coastal armoring; Chapter 62B.33 of such Code defines armoring as, "Armoring is a man-made structure designed to either prevent erosion of the upland property or to protect eligible structures from the effects of coastal wave and current action. Armoring includes certain rigid coastal structures, such as geotextile bags or tubes, seawalls, revetments, bulkheads, retaining walls, or similar structures, but does not include jetties or other construction which purpose is to add sand to the beach, and dune system to alter the natural coastal currents or stabilize the mouths of inlets." Dr. Harris stated based on his expert opinion, the sand-filled container systems give some level of protection; but the rock revetment is a much better choice here when looking at the foundation of a 13-story building; if the County were looking at the wood deck behind a home and it fell into the ocean, it could be rebuilt; but The Villager is a different situation and a special case. He noted it is a non-conforming use and a 13-story building not on pilings; and the foundation needs to be protected. Commissioner Colon stated the Board is willing to allow sand bags in the foundation, but not rocks; and inquired why would it not want to allow the rocks if both are considered to be armoring. Dr. Harris responded he does not know; if they occupy the same area of the beach, they are going to have essentially the same effect; if the same template is going to be filled with rocks, concrete or sand-filled containers, they are occupying the same area and are going to have the same effects on the shoreline; and sand-filled containers can be sloped. He stated such containers have a risk of puncture and tear by water-borne debris; he has designed sand-filled containers and authored papers on such containers that have lasted several years; one of his projects in Vero Beach has been in since 1988, but it has been buried in the sand and is further out from the building; and if there was a failure, there would be time to protect the building. Dr. Harris stated in The Villager's case, if sand-filled containers were put in, they should be moved further seaward so that if they did fail, there would still be time to protect the building before the foundation failed; his recommendation would be for the rock revetment because it can be located more landward than a sand-filled container; and there would still be protection of the building.

Commissioner O'Brien stated the motion is still on board declaring the emergency. Chairman Scarborough noted the Board does not need to take an affirmative action on this to proceed forward with the sand; with Attorney Knox responding that is correct. Attorney Knox stated the Board needs to amend the Ordinance; and no further action on the Comprehensive Plan is needed. Commissioner O'Brien stated the evidence presented confirmed what he said earlier; the sandbags fail and do so dramatically; to ask the residents of The Villager to put the sandbags in and then wish them luck is the wrong message to send out to anyone; and the cost alone is dramatic. He reiterated that the evidence before the Board shows that the sandbags fail; expert testimony was also given that they fail; the plan presented by The Villager is a good one; the rocks would be buried in sand and no one would see them; and there is nothing wrong with it and it is a good idea. He noted the idea of sandbags is a bad one; and the sandbags are caveman style and do not work.

Chairman Scarborough stated if this becomes something affecting the shoreline, it will fundamentally change the nature of the shoreline as the sand is removed; the sandbags and sand tubes are temporary; and it compels the County to keep the native natural environment to a greater extent. Commissioner O'Brien stated the Board could adopt the rock revetment system, which is way below the level of the sand; it is out of sight and out of mind; hopefully it stays that way; and if it ever becomes exposed, it indicates that there is something drastically wrong on the beaches. He noted if the groin was higher up and totally exposed, he would probably join Chairman Scarborough in the argument; the damage occurring to adjacent properties would definitely take place; but being buried in this manner, even below the elevation of minus 1-foot, simply adds to the strength of the building and protects it from any future erosion, plus rebuilding of the dune; and the applicant has a good idea and the plan works. Commissioner O'Brien stated on the County's books are plans from 1991 and 1998; this is 2002; a lot of things change across a period of 10 years; The Villager could meet all the requirements and the philosophy that it does not want the reflective water coming off of rocks to destroy the rest of the beach; and other individuals could follow the same plan.

Chairman Scarborough called for a vote on the previous motion made by Commissioner Colon and seconded by Commissioner O'Brien, to grant an exception based on emergency conditions in accordance with Policy 4.1E of the Comprehensive Plan for The Villager Condominium. Motion did not carry; Commissioners Colon and O'Brien voted aye, Commissioners Scarborough, Higgs, and Carlson voted nay.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct the County Attorney to bring back an emergency change to the Ordinance to allow excavation within the Coastal Construction Control Zone, as appropriately defined, for the placement of sand tubes for The Villager Condominium; language to provide that should The Villager choose to take that action, it would perpetually maintain cover over the sand tubes for public access and vegetation; vegetative coverage would be insured through a mechanism such as a bond or an MSBU and the system would protect properties to the north and south; and a letter could be sent to the Department of Environmental Protection, as soon as the appropriate Ordinance is adopted, advising that the Board finds a project of that nature in compliance, and providing a date.

Chairman Scarborough stated Commissioner Higgs used the language sand tubes; there are also sandbags; and inquired is sand tubes the only option Commissioner Higgs wants to use. Commissioner Higgs stated she does not know what the technical term is; and perhaps it could be refined.

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

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to declare that an emergency exists for The Villager Condominium so that the Ordinance can go forward.

Commissioner O'Brien inquired is the letter being sent to DEP going to include that an emergency exists for The Villager; with Commissioner Higgs responding affirmatively.

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

The meeting recessed at 5:05 p.m. and reconvened at 5:15 p.m.

DISCUSSION, RE: AGENDA ITEMS TO BE RESCHEDULED

Chairman Scarborough requested the County Manager advise which agenda items do not have to be discussed today and can be rescheduled to another meeting.

County Manager Tom Jenkins stated Items V.A., VI.A.1., VI.F.6., and VI.F.7. do not have to be heard today; and staff will reschedule such items on another agenda to accommodate the individuals.

The Board directed staff to reschedule Item V.A., Options for Reviewing Proposed Charter Amendments; Item VI.A.1., Addendum to Agreement with City of Cocoa for Permitting and Inspection of Oleander Power Plant; Item VI.F.6., Request by Doug Riehl for Waiver of Fees for Vested Rights Application; and Item VI.F.7., Request for Amendment to Article XIV, Land Use Regulations for Islands, Chapter 62, Land Development Regulations, Section 62-4805, on another agenda to accommodate the individuals.

PUBLIC HEARING, RE: ORDINANCE RELATING TO SLEEPING IN PUBLIC PLACES

Chairman Scarborough called for the public hearing to consider an ordinance relating to sleeping in public places.

George McLeod, representing Avon-By-The-Sea Residents Association, requested the Board support the proposed ordinance; stated he lives in the incorporated area of Brevard County; he would like to have the same protection under the law that the municipalities have; and the municipalities, including Cape Canaveral to Satellite Beach, have an Ordinance in place that states effectively what the Board has written.

Chairman Scarborough stated James Kenna advised him that the County could not criminalize homelessness and could not do certain things unless it had alternatives; and requested staff reiterate such information.

James Kenna, Housing and Human Services, stated in response to the Board's request, staff sought input from the Commission on Mental Health and Community Solutions and Friends of Brevard's Homeless; both groups indicated unanimous opposition to the ordinance, as drafted, and encouraged the Board to continue to seek service-based solutions in lieu of an enforcement-based approach; in the Commission on Mental Health report, they refer to Pottinger vs. the City of Miami, in which the City implemented a similar Ordinance which was shown to restrict the civil rights of the homeless for living in public; and the City was forced to pay $600,000 in compensation to the homeless. He noted the report further indicates that homelessness and the problems associated with it will not be resolved through the ordinance alone, but it requires broad community support to work together for long-term permanent solutions; and in the State of Florida, a similar Ordinance was challenged successfully in the City of Miami.

Chairman Scarborough stated Mr. Kenna indicated to him that the ordinance is acceptable if there is a place for the homeless to go, but they cannot just be criminalized and shuffled from one jurisdiction to another. Mr. Kenna noted that is correct; what staff got from the report and research was that it got settled after it went to the 11th Circuit U.S. Court of Appeals in Atlanta and came back down to Miami to be settled; if someone is displaced who was living in public, they need to be provided with an alternative solution; there are some other states that have engaged in similar ordinances; and although some have been upheld, the lion's share indicated there needed to be some other type of support alternative for homeless persons who are displaced for just living in public.

Commissioner Carlson inquired is there a State working group called the Florida Coalition for the Homeless. Mr. Kenna responded the Florida Coalition for the Homeless has a State working group, specifically working with local communities which are considering similar no camping ordinances to provide guidance in research and literature on how to handle that; the Florida Coalition for the Homeless provides similar guidance to what the County is presently doing through the Continuum of Care and the Local Homeless Coalition responsibilities where they develop the Continuum of Care that was presented to the Board on October 18, 2001 at the homeless workshop, which outlines the need for certain things, including services, additional emergency shelter beds, and additional permanent and transitional housing beds; and Brevard County, through the Continuum of Care, has been awarded approximately $1.5 million to start working on building some permanent and transitional housing. Mr. Kenna stated staff recently submitted a couple of grants to the State of Florida requesting service dollars to expand some transitional housing and emergency shelter beds.

Chairman Scarborough noted Mr. Kenna mentioned to him that the County wants to make sure it is in concert with the municipalities. Mr. Kenna responded that is correct; if all the municipalities in the County are not on the same page of music, the homeless could be forced into those municipalities that do not have the ordinance; and it would increase the burden on their service structure. Chairman Scarborough inquired if Mr. Kenna has contacted the municipalities on what the County is doing; with Mr. Kenna responding staff did not coordinate the ordinance. Mr. Kenna noted there are a few municipalities working with Friends of the Homeless; and it is certainly an issue that could be considered further.

Mr. McLeod stated to his knowledge the ordinance was not designed to attack homeless people and was designed to deal with camping out in public areas where there are no facilities and all the attendant problems that go with it. He noted the County has public areas that are for the benefit of everybody; and those areas largely become unusable because of what transpires when camping and sleeping are allowed, such as on the beaches.

Commissioner O'Brien stated the issue did not start out being an anti-homeless ordinance; the intent is the confinement of sleeping in public places, including shelters, campgrounds, and recreation areas, which have the facilities that homeless people could go to; the Board may want to amend some of its park rules to include if someone is homeless, there could be no charge to camp there; and this is not strictly a homeless issue. He noted it is about people who are inconsiderate to the people who live along the beaches; some parks had problems, such as Hoo-Hoo Park; and he supports the ordinance and addressing some of the other solutions to the problems for the homeless at a separate time.

Freda Schildroth, representing National Alliance for the Mentally Ill (NAMI) Space Coast, Inc. and Commission on Mental Health and Community Solutions (CMHCS), stated the CMHCS met on January 11, 2002, discussed the impact of the ordinance, and decided unanimously that the proposed ordinance does not address the problem effectively; and recommended that the Board not adopt the amended ordinance as written. She noted in a letter to the Board on January 28, 2002, the Chairman of CMHCS said, "Homelessness and the problems associated with it will not be solved through the amending of an ordinance alone. It will require an entire community, public and private, to work together to provide positive and permanent solutions to benefit these children and adults who are homeless in Brevard County. Permanent solutions to homelessness must address its fundamental causes, the inability to pay for housing, the shortage of affordable housing, and the additional need for treatment for people suffering with disabilities. Homelessness affects not only the very poor, but also the working and the middle class Americans. New policies that address the underlying fundamental causes of homelessness must coincide with specific prevention policies to stem its rising tide." Ms. Schildroth stated there are 2,095 homeless people in Brevard County; 607 of the 2,095 homeless have a mental illness; 515 have a substance abuse problem; and with the possibility of placing 2,095 homeless people in jail because they are homeless and have no place to sleep other than public property, overcrowding at the jail will reach a crisis proportion. She noted the Brevard County jail was built in 1987 and has 384 cells; each cell is 8 feet by 10 feet and designed to hold a single inmate; in the year 2001, average daily population in the jail was 1,146 inmates; and in the Jail System Recommendations Report dated March, 2002, the projected daily inmate population for this year is 1,237 inmates, with 990 of those having a substance abuse problem and 136 with a mental health issue, including dementia and Alzheimer's patients. Ms. Schildroth stated projected year 2002 population reflects a total of 111 inmates, with no substance abuse or mental health problems; Brevard County has a problem; changing the ordinance is not taking of the problem; and there is a failure of some fundamental systems in the State. She noted there are going to be continued problems until a solution is found; requested the Board not add to the distress of the homeless by creating additional financial burdens to them or to law enforcement; stated the County must find a way to solve the problems of the homeless population; and it will pay now or pay later. She stated many individuals in Brevard County are just a few paychecks away from homelessness; and requested the Board do the right thing for all the people it serves.

Rosemary Windler, representing Friends of the Homeless, stated while the ordinance may not be targeted at the homeless, it would definitely affect the homeless people she works with; she works at Comprehensive Health Care in Melbourne as a housing case manager; and many of the clients have spent nights in public places. She noted many of the clients have no income; some are on SSI which pays about $545 a month; that is their only income; and several of the landlords that she works with try to help the homeless, but most of them charge at least $400 a month and most of them are just within a few dollars of being homeless. She stated many of the homeless spend time on park benches and public places; when a client is on SSI and if they are arrested and incarcerated, the Social Security Administration has to be informed; after the individual has been in jail or incarcerated for 30 days, they lose their SSI; so when they come out of jail they are in a much worse situation than when they started. Ms. Windler noted sometimes it can take months for that to be reinstated for the individual; during that period they have nothing, and once again, they are homeless and would be subject to arrest and subject to living in public places again; and it is an endless cycle for these people. She stated the County would best spend its money on trying to find short and long-term transitional housing, such as in-patient drug and alcohol rehabilitation; most of the homeless people have these problems; one of the things that has been discussed is the behavior of these individuals on the beach; but there are already laws in place concerning urinating and defecating in public, and people causing a disturbance.

Ellen Grogan, representing Daily Bread, stated the Daily Bread is a soup kitchen, which feeds approximately 275 homeless and working poor every day of the year in Melbourne; she is well aware of the problems that the homeless and working poor have; the proposed ordinance would be harmful to the homeless; and read a statement from the National Coalition for the Homeless and National Law Center on Homelessness and Poverty Report, as follows: "The passage of laws that target behaviors associated with the State of being homeless, such as sleeping, bathing, sitting, cooking, lying down, urinating, or storing personal belongings in public spaces are unconstitutional because collectively, they target people based on their housing status, not for behaviors that, in and of themselves, are criminal. These laws and practices are designed to criminalize homelessness, without mentioning the words homeless or housing, because they target behaviors most likely to be conducted by people experiencing homelessness. This report will demonstrate that people experiencing homelessness are targeted in a discriminatory manner for conducting what is generally considered private behavior in public spaces because they lack the privacy housing or even sheltering in which to conduct them." Ms. Grogan requested the Board not adopt the proposed ordinance as it is; stated the homeless are already struggling; the Daily Bread helps them; and the ordinance would be an undue burden when the County is trying to help people out of homelessness. She noted many communities are partnering with agencies to help the homeless out of that situation.

Mary Kay Kantz urged the Board not to enact the proposed ordinance; stated it flies in the face of what Brevard County is about; the County is a diverse community, which makes it a rich and exciting place to live; and it is a faith community. She noted Brevard County is also a community of the 21st century; there are communities that look backward and do not try to struggle with the issues; and it is a wonderful thing, whatever the outcome in any particular issue is, that the issues are faced to come up with a better community. She stated as an attorney, her experience and belief is that when counties have legislation and it does not conform to the vision of the community, such community ends up with bad law, perhaps unenforceable and unconstitutional; it ends up with more problems than they started with; counties are mandated to take care of the poorest of the poor; it is not an option; and it needs to be done. Ms. Kantz stated a 21st century community will say, "Let's not take the easy way out. Let's not do little piecemeal bits of legislation that hit here and there. Let's face it and deal with it, work through it." She noted the County needs to deal with the situation in a compassionate and enlightened way for the benefit of the community; and urged the Board to keep that in mind as it reviews the ordinance.

Kathleen Tibbetts, representing Daily Bread, stated adopting the ordinance would be a big mistake; it does not accomplish anything and does not address the problem of homelessness; such ordinance affects homeless people more than anybody else; and rather than just creating another law that will not help the situation, the County needs to address some of the problems, such as more housing. She noted until the Board does that, it does not make any sense to come up with a law like this because it is criminalizing homelessness; and urged the Board not to adopt the ordinance.

John Emmick stated he lives next door to the Northwinds Ministry, which is a soup kitchen; he deals with the people that are shoved into Avon-by-the Sea, from Cape Canaveral, Cocoa Beach, and places like that that have an ordinance that prohibits the so-called homeless from living on their beach; and since he lives in close proximity to the soup kitchen, he has had the opportunity over the last couple of years to run his own study and note what type of individuals the homeless are. He noted there are two types-those that are indigent or homeless that have fallen on bad times; some of them have children and some have come to Brevard County from up north; the other type live on the beach in the environment that the County is trying to protect; and they like to drink, smoke pot, urinate on the beach, molest the women, and use profanity. Mr. Emmick stated this is what the residents of Avon-by-the-Sea are putting up with; he supports taking care of the homeless; but the hard core homeless that the deputies know on a first-name basis are the ones that the residents are trying to keep off of the beach. He noted approximately six months ago he opened his front door to let his dog out and a homeless person was sleeping on his doorstep; the Avon-by-the-Sea residents are only trying to keep the homeless out of that particular area; and requested the Board support the proposed ordinance.

Chairman Scarborough stated when the Board adopts an ordinance, it does not pass it only for Avon-by-the-Sea; and it is not a problem with the ordinance as long as there is the capacity to offer alternatives. Mr. Kenna noted there is good literature on how Broward County and Miami-Dade dealt with the issue; and based on what staff learned and the report it provided to the Board, what appears to be the key to a no camping or no sleeping in public places ordinance is that there is the mechanism to provide alternative services or shelters to those individuals.

Mr. Kenna stated in the report there is some clear differentiation between just the status of being homeless or the condition of being homeless and engaging in criminal behavior. Chairman Scarborough inquired if the Board continued the public hearing and asked staff to work on the ordinance further, when could the ordinance come back to the Board to enact it, without facing a lawsuit or criticism for violating the constitutional rights.

Housing and Human Services Director Gay Williams stated staff is saying to the Board that some of the things that need to be in place are not in place; but the positive aspect is that the County has taken a proactive approach to resolve the issue of homelessness; and some things have begun to be in place so that the County could provide what is necessary, which is the safe zones and a place where people can congregate and do the life essentials. Chairman Scarborough inquired when is the County at a point that an ordinance, such as this, could be adopted where the individuals who work with Daily Bread could say it is appropriate now. Ms. Williams responded when the County is able to garner sufficient funds to implement all of the measures that would allow it to have the adequate places to put or refer people, and to say these are the places it can do; and the County is putting in place a seamless system that would allow it to have the information that could point out those things. Chairman Scarborough noted Ms. Williams is telling him where the County is; he has also heard that it is not where it needs to be to enact the ordinance; people want to know where the County goes from here concerning both sides of the issue; and inquired when will the County have a definition of what the Board must do concerning funding, time, and other things, and does it know at this juncture when it will have those answers if it does not have them today. Ms. Williams responded the funding, time, etc. are all issues that need to be addressed.

Commissioner O'Brien stated some of the comments made earlier were that people with dementia or Alzheimers could also be homeless; he does not believe that people with those diseases would be arrested instead of putting them back into the care that they must have walked away from; Brevard County has an Alzheimers Foundation to which individuals can be referred; and the County needs to find solutions to its homeless problems. He noted the Board directed staff and various groups to form the coalition and go forward; a comment was made that some people stay or sleep in a public place because they choose to do so; that is a choice they make; and when that starts to occur, they infringe upon the right of those who are not homeless or not mentally ill and do not have those problems. Commissioner O'Brien stated he did not know that incarceration for homelessness is 30 days or longer; he cannot imagine those individuals losing their SSI; they might be in jail overnight or a couple of days until they see a judge; and he cannot think of anyone or any case where someone was arrested for being homeless and spent more than 30 days in jail. He noted the laws are in place concerning urinating and defecating in public; the problem is that someone has to be caught in the act; the deputy has to be right there and see it occurring in order to arrest the person; and it is a serious problem. He stated there are facilities at public parks that are not being used; the trees are being used instead; the County has worked very hard to provide alternatives; the Veterans Homeless Center is located in Melbourne; and there are other homeless centers throughout Brevard County. He noted more centers are needed; the County is working toward that goal; and God bless the good people who volunteer their time and hours to feed the poor, try to put clothes on their backs, and take care of them. Commissioner O'Brien stated the County has to look at what problems are being caused by people who are not necessarily homeless, but people who have chosen to go to the beach, hang around, drink beer, throw up on someone's steps, and fall in their front yard; and an ordinance such as this would help. He noted if the Board does not want to go forward with the ordinance, it has done a disservice to a lot of people, especially Avon-by-the-Sea, who have had a severe problem; Brevard County partners with many rehabilitation groups and homeless groups as well; partying down and doing certain things in public may be an acceptable culture some place else, but is totally and absolutely unacceptable in Brevard County; and this ordinance is very direct and says, "The prohibition of sleeping or camping on public beaches or in vehicles between the hours of 10:00 p.m. and 5:00 a.m.; the confinement of sleeping in public places; two public places designated for those purposes, including shelters, campgrounds, and recreation areas, subject to compliance with any applicable rules and regulations relating to the facilities." Commissioner O'Brien stated the Board can change its rules concerning some of its parks for the homeless and say there is no charge; there is a campground there and the homeless could camp there; and there are also bathrooms where they could take a shower. He noted another portion of the ordinances says, "The prohibition of sleeping in vehicles between 10:00 p.m. and 5:00 a.m., unless a person is experiencing emergency conditions, which may include nearly falling asleep at the wheel, provided that person pulls into a parking area or other public place off a road, street, or other vehicle thoroughfare for public safety." He stated this has very little to do with homelessness and has more to do with a gang of thugs who are visiting certain places along the beaches and parks; these people are not homeless; they desire to be out on the beach, get drunk or drugged up, and hang around; and the effect they have upon the people who live there and the visitors that go there is very detrimental. Commissioner O'Brien stated the ordinance is part of the solution; if a deputy knows a person is homeless, he or she is not going to arrest them, but ask that they move elsewhere; the deputy needs a tool he or she can use to remove those people from the beach who are causing problems; and without this tool, the deputy can take no action, which has been the problem all along. He noted the Sheriff worked with the County Attorney to help write the ordinance; and he indicated what was needed as a tool to take care of some of the people that the Sheriff's Office has to arrest.

Commissioner Carlson inquired does the work that the Florida Coalition for the Homeless at the State level include a model ordinance and is it addressing homelessness as a lifestyle for those who prefer to be homeless. Mr. Kenna responded there are individuals who are homeless by choice; he does not know if the Florida Coalition for the Homeless is looking at a specific policy to be drafted Statewide or if it is a component of its research; and staff can find out that information. Commissioner Carlson inquired do the Ordinances in Miami-Dade and Broward Counties address the issues of homelessness as a lifestyle versus homelessness as a need of aid. Mr. Kenna responded he does not know the language of such Ordinances, but they have worked through them through the court systems to get them to a place where they are functional and have been upheld. Attorney Knox advised the ordinance that the Board has was upheld by the courts; it was based on two cases; the difficulty Miami-Dade had was it enforced its Ordinance by arresting people and destroying their personal property.

Commissioner Higgs inquired was the problem in Miami-Dade the comprehensiveness of the Ordinance; stated the proposed ordinance is extremely comprehensive in the places that it will not allow people to be; and inquired if the Board were to adopt an ordinance that said no camping on the beach between certain hours, would it be a problem. Mr. Kenna stated staff is not arguing the defensibility of the ordinance; and it is only providing the information it has on the repercussions of Miami-Dade County enacting a similar ordinance.

Commissioner O'Brien stated Attorney Knox indicated that the specific ordinance before the Board has passed through two court tests. Chairman Scarborough stated it is not the ordinance; Miami-Dade agreed to provide two safe zones where a homeless person could congregate and conduct essential life-sustaining activities; a county cannot move a person from one place to another; and it has to have a place within the community. He noted rather than each municipality having an ordinance, it would be wise to have one big plan for the entire County; there could be one place in the north end and another place in the south end, which would meet the requirements; and the Board could use the ordinance that is before it. Chairman Scarborough inquired what are the County's steps from this point to having those requirements evolve in Dade County. Commissioner O'Brien stated Attorney Knox indicated that the Board could move forward with the proposed ordinance as it has passed court tests; and requested Attorney Knox provide clarification for the Board. Attorney Knox stated the ordinance as drafted is based on two Ordinances that were upheld in Hawaii and California; however, Miami-Dade was told by a court to provide safe zones for the homeless in order to allow the Ordinance to be enforced in other areas; that is why there is a provision in the proposed ordinance that provides for exemptions for areas designated by the County or shelters set up by the County; and to be absolutely safe, the County needs to have areas where the homeless can go. Chairman Scarborough noted there is the legal side and the humanitarian side.

Chairman Scarborough stated an appropriate motion would be to ask staff to proceed to determine how the County can have an effective ordinance that will meet the humanitarian and legal concerns; the County may be able to reach out to the charitable and religious community; it may be interested in seeing these things evolve as a matter of mission statements within individual organizations; and staff needs to define these so the County could get partners.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to direct staff to proceed to determine how to have an effective ordinance relating to sleeping in public places that will meet the humanitarian and legal concerns, and return to the Board in 30 days. Motion carried and ordered unanimously.

Commissioner Carlson stated the County needs to address the issue in Miami and find out how it defined its safe zones; and what partnerships it has put together. Chairman Scarborough stated it may be helpful for someone to make a trip to Miami. Commissioner Colon stated she is willing to make the trip to Miami.

The Board authorized Commissioner Colon to go to Miami to see how the City has defined safe zones and what partnerships it has put together.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE ALLOWING
STORAGE OF ROAD MAINTENANCE EQUIPMENT ON PRIVATE PROPERTY

Motion by Commissioner Carlson, seconded by Commissioner Colon, to grant permission to advertise public hearing to consider ordinance allowing storage of road maintenance equipment necessary to maintain abutting roads on private property in West Canaveral Groves. Motion carried and ordered unanimously.

LEGISLATIVE INTENT, RE: DELETING PROHIBITION OF ARR REZONING REQUESTS
WITHIN THE 25-YEAR FLOODPLAIN

Motion by Commissioner Higgs, seconded by Commissioner Colon, to affirm the legislative intent of deleting the prohibition of ARR rezoning requests within the 25-year floodplain; and direct staff to advertise a public hearing to consider an amendment to accomplish this. Motion carried and ordered unanimously.

CREATION OF FLAG LOTS, RE: CITY POINT ROAD

Chairman Scarborough stated there are no technical problems with the item.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve creation of six additional flag lots out of a parent parcel located on City Point Road in Cocoa.

Jim Mellone, Jr., representing Mid-Point Construction, stated he lives on City Point Road; his Company also has houses presently under construction; and inquired about the shared access on what is completed or permitted.

Land Development Director Bruce Moia responded the County does not plan on someone having to go back and alter what is already existing and only what is proposed.

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

REQUEST FROM HENRY LEQUEAR, RE: WAIVER OF EASEMENT REQUIREMENTS

Commissioner Higgs inquired if the lots will not be able to be further divided, what is that based on; with Land Development Director Bruce Moia responding the only way the lots can be further divided is if the applicant came back for another waiver from the Board. Mr. Moia stated staff would request that should the item be approved, that the Board have its action recorded and limit the 20-acre parcel Mr. Lequear owns to four lots of a minimum of five acres; and limit the easement in question to only five additional access for building permits. Commissioner Higgs noted there was reference for a change in the zoning. Mr. Moia stated Mr. Lequear mentioned he was going to pursue agricultural rezoning; but if the Board action is recorded, the Board could limit further subdivision; when somebody tries to sell a subdivided lot, it will show up in the title search; therefore, the buyer will not come to the Board requesting some kind of relief and will be fully aware if it is recorded.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve a request by Henry Lequear for waiver of easement requirement in Section 62-102(b)(2), (8) and (9), to allow more than two accesses over the same easement, with staff stipulating it will be recorded limiting the parent parcel owned by Mr. Lequear to four lots of a minimum of five acres and limiting the easement to only five additional accesses for building permits. Motion carried and ordered unanimously.

LEGISLATIVE INTENT, RE: CONTRACTORS AS HOME OCCUPATIONS

George Morissette stated he has been before the Board previously trying to get a home occupational license for contractors; Mel Scott prepared a report; and he would like to move forward with an occupational license.

Chairman Scarborough stated the County goes for legislative intent, permission to advertise for public hearing, and then a public hearing is held; and it is in the initial step right now.

Mr. Morissette inquired what purpose does it serve for him or any contractor not to be able to have their occupational license at their home; stated they have mailboxes and use their phone and fax at home; nothing is changing; and there are many people with occupational licenses elsewhere that have trucks, trailers, and other things in their yard. He noted whether he has a home occupational license or not, he is not allowed to store equipment in his yard; and requested the Board support allowing home occupational licenses for contractors.

Commissioner Higgs stated she is not going to support such home occupational licenses; there are appropriate home occupations; she believes the home occupational license for contractors is inappropriate; and it would open up a situation that is not likely to be positive.

Commissioner Carlson requested staff do a short historical perspective on why there may not be support on the Board concerning this issue.

Planning and Zoning Director Mel Scott stated in the past there have been problems relating to Code Enforcement activities for contractors at residences; and reintroducing contractors in the neighborhoods may pose a Code Enforcement problem due to things that may start to occur at residences that are contrary to the Code.

Commissioner Colon stated she does not supports contractors as home occupations.

The Board considered the report concerning contractors as home occupations; but took no action.

WAIVER REQUEST AND BINDING DEVELOPMENT AGREEMENT WITH THE VIERA
COMPANY, RE: VIERA PROMENADE

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Binding Development Agreement with The Viera Company for Viera Promenade, providing for waivers to certain Code requirements. Motion carried and ordered unanimously. (See page
for Agreement.)

WAIVER REQUEST FROM THE VIERA COMPANY, RE: VEGETATIVE BUFFER TRACT
IN VIERA NORTH PUD AND VIERA CENTRAL PUD

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve waiver to Section 62-2883 (d), eliminating the requirement for a 15-foot vegetative buffer tract on all subdivision development within the Viera North PUD, east of I-95, and Viera Central PUD, west of I-95. Motion carried and ordered unanimously.

WAIVER REQUEST FROM THE VIERA COMPANY, RE: SECTION 62-2889, BERM AND
WALL TO FINAL ELEVATION OF I-95 FOR SUMMER LAKES AND SONOMA
SUBDIVISIONS

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve waiver request from The Viera Company to Section 62-2889, allowing a berm and subdivision wall to be built to a height not to exceed 16 feet above the final elevation of I-95. Motion carried and ordered unanimously.

PERMISSION TO NEGOTIATE WITH WASTE MANAGEMENT, RE: SOLID WASTE
COLLECTION AGREEMENT

Ed Palmer advised of his support for Waste Management and its current Contract; stated the Company does a fantastic job; not only does it have great rates, but its workers are courteous; and it has a good schedule and dependable service. He noted Waste Management does a tremendous amount of effort for Brevard County, in general; it also works with Keep Brevard Beautiful (KBB), Trash Bash, parades, and other events in the County; and Waste Management works great, is not broken, and does not need to be fixed by getting somebody else.

Mel Broom stated he supports Waste Management's negotiations for solid waste collection for Brevard County; his experience with such Company began many years ago when it took over the services in Palm Bay; prior to Waste Management coming in, the City had deplorable service, lousy equipment, and no good schedule for pick-up; and after Waste Management took over, the service improved tremendously. He noted the Company is not only a service provider, but an outstanding community citizen; its contributions to worthwhile community projects are unsurpassed; Waste Management is a stable Company that handles its responsibilities in a professional and proficient manner; and it has a good experienced workforce. Mr. Broom stated as the Mayor of Palm Bay from 1993 to 1996, he had the pleasure of working with Waste Management and cleaning up after major storms; and it always exceeded what was required under its Contract.

Rita Smith, representing Palm Bay Jaycees, expressed her support for Waste Management Incorporated; stated she has been an active member of the Palm Bay Jaycees for nine years; the Jaycees are an organization of young adults between the ages of 21 and 40 who acquire and develop management and leadership skills by organizing and running civic and social projects for the betterment of the community and its residents; and one business that has consistently and loyally came to the Jaycees assistance is Waste Management. She noted if there were any doubts in the Board's mind as to the dedication and commitment Waste Management has to the betterment of the community, she can assure it that all of these doubts can be put aside; apart from providing a vital service, the Company is truly a part of the community and are a shining example of how a Company that cares does business; and expressed appreciation to Waste Management for everything it has done for the Palm Bay Jaycees and Brevard County.

Commissioner Colon stated Ms. Smith's husband is a star now; there was a baby who was lost in Melbourne; and Joe Smith did not give up his search and found the baby boy the next day.

Bob Bolin, Mayor of Satellite Beach, stated Waste Management is an exemplary business; Brevard County should be very proud of the Company's services; and read quotes, as follows: "If it is not broken, do not try to fix it"; "You get only what you pay for"; "Oh what fools we mortals be"; and "The grass always looks greener on the other side of the fence until you get there." He recommended and encouraged the Board to negotiate with Waste Management, a very favorable waste collection agreement.

George Vanderhall stated everyone creates garbage; Waste Management has a proven track record of service and is proactive; the Company is an excellent business partner; and it gives back to the community. He noted Waste Management is an excellent local government partner; it is a functional equal opportunity employer with diversity; he spoke with key staff people who work with Waste Management; and everything he has heard has been good. He stated the Company also participates with scholarships; and thanked the Board for keeping a good thing here among good people.

Joe Mullins stated 20 years ago he was involved in privatizing the City of Melbourne's garbage collection; it was one of the best moves the City ever made; the City employees who went to work for Waste Management were very pleased; and the Company does a tremendous job and looks out for its employees. He noted he does not know of any non-profit organization in Brevard County that does not get help from Waste Management; he hopes the Board has successful negotiations with such Company; he highly endorses them; and the Crown Heights Civic Association appreciates Waste Management's service and has no complaints.

Commissioner Higgs stated the Board has had the Contract with Waste Management for 14 years; the Company has provided a wonderful service and she has no complaints; but it is time that the County look at going out to bid, test the market to see what is out there, and move forward. She noted this is a public Contract; and it is appropriate at some point in time that the County go out to bid.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to grant permission for Solid Waste Management Department to negotiate with Waste Management for a five-year extension of the Solid Waste Collection Agreement.

Chairman Scarborough stated he appreciates what Commissioner Higgs is saying; but sometimes he has seen individuals get hurt as there have been horrible cases with maintenance of landscape with County contracts; sometimes it can be a nightmare as the company does not have the capacity to do the work; and the County has the ability to know who it is dealing with. He noted it is conceivable if the contract negotiations would break down and the County would not like it, that it needs to look elsewhere; but it can be a horrific problem if the County gets into something that is bad; and he will support the motion.

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

APPOINTMENT, RE: 9-1-1 COORDINATOR

Motion by Commissioner Higgs, seconded by Commissioner Colon, to appoint Stephen F. O'Connor as Brevard County 9-1-1 Coordinator who is responsible for the coordination of all agencies that participate in the 9-1-1 Program on behalf of the Board. Motion carried and ordered unanimously.

ACCEPTANCE, RE: REVENUE MONITORING REPORT FOR QUARTER ENDED
DECEMBER 31, 2001

Motion by Commissioner Higgs, seconded by Commissioner Colon, to accept the Revenue Monitoring Report for the quarter that ended December 31, 2001. Motion carried and ordered unanimously.

REQUEST FOR WAIVER OF FEES, RE: SPACE COAST MARINE INSTITUTE

Motion by Commissioner Higgs, seconded by Commissioner Colon, to waive development review fees for Space Coast Marine Institute. Motion carried and ordered unanimously.

REQUEST BY SIERRA CLUB, RE: FEE WAIVER

Mary Sphar, representing the Sierra Club, stated the Club has to appeal by Section 62-507 the interpretation of the wetlands policies if it wants to get some resolution; the Sierra Club tried talking to staff, but did not come to an agreement; County Attorney Scott Knox sent a letter to the Club's attorney that the appropriate way of handling this was to do an appeal under Section 62-507; and unfortunately, it costs $1,000. She noted all the Sierra Club wants is to have a better County; it wants the wetlands policies enforced; and requested the Board waive the $1,000 fee as the Club has nothing in mind but the public interest of Brevard County.

Commissioner O'Brien expressed concern that if the Board waives fees for the Sierra Club in this case, that any other non-profit could do the same thing if they disagreed with the County's policies; and stated they would all start getting a free ride.

Ms. Sphar stated the Sierra Club tried to do this by way of the site plan appeal which costs nothing; that is an easy way to go as there is no paperwork involved; Section 62-507 appeal is a lot of work; and it is not fun, but a last resort. Commissioner O'Brien reiterated if the Board starts waiving fees for these types of appeals, then it has to do it for everybody else that comes along as well; and he cannot support waiving the fees.

Commissioner Higgs stated in light of the fact that this is a non-profit group asking the Board to review a policy, it is appropriate to waive the fees.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to waive $1,000 fee as requested by Sierra Club Turtle Coast Group for appeal to an administrative interpretation. Motion carried and ordered; Commissioner O'Brien voted nay.

ACCEPTANCE OF DEEDS FROM WILLIAM B. FERRELL, SR. AND LAWRENCE M. LITUS,
P.A., TRUSTEE, RE: EXTENSION OF WASHINGTONIA DRIVE

Commissioner Carlson stated this item was an acceptance of right-of-way for the extension of Washingtonia Drive, which is a north-south frontage road that is on the west side of I-95; given the concerns the Board has had with traffic issues on Wickham Road, the County needs another road that is on the west side of I-95, if it can find one; and this moves the County towards having a road that may someday connect with Pineda Causeway, once it goes across I-95. She noted in the item it shows that there is a piece of property called Lee Williams property that is still out there; and requested staff look into the possibility of getting additional right-of-way or something, and see if there is some negotiation.

Assistant County Manager Peggy Busacca advised staff is currently working on it; there are two property owners, the Williams and the Dudas; and staff is in discussions with both parties.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to accept Deeds from William B. Ferrell, Sr. and Lawrence M. Litus, P.A. Trustee for future extension of Washingtonia Drive. Motion carried and ordered unanimously. (See pages for Deeds.)

PUBLIC COMMENT, RE: BILLBOARDS

Barbara Jagrowski, representing League of Women Voters and Scenic America, Florida Chapter, stated unable to stop beautification efforts on the local level by communities wanting to rid themselves of litter on a stick, the billboard industry has turned to Tallahassee; the billboard lobby's enormous clout in the capitol city is illustrated in a transparent effort to benefit the industry by robbing local governments of the authority to regulate roadways; the scheme would prove costly to the taxpayers and the landscape; and it comes as no surprise to learn that the Florida Legislature has played a stellar role in helping the big boys and giving the raspberry to everybody else. She noted money buys a lot of things in Tallahassee, not the least of which is legislation favorable to those who fork over what are euphemistically known as campaign contributions; people need to watch for the in-kind contributions in the form of great big beautiful campaign billboards plastered all over the State as the election year rolls on; and one of the most deceptive laws of all, however, is going to cost every city and county government in the State millions unless they are bullied into watching their communities be run over with ugly billboards. Ms. Jagrowski stated House Bill 715, now on the Governor's desk, gives the outdoor advertising industry carte blanche to keep its billboards, in effect any size or style, up indefinitely; furthermore, the industry is consistently inconsistent at valuing their signs; for federal income tax purposes, the industry fully depreciates the signs in five years; and for local property tax purposes, the industry often claims that billboards are personal property not subject to real property taxes at all, or at most, they use the cost of construction at $20,000 to $40,000 for the prices. She noted for compensation purposes for the removal, the industry believes that each sign is an independent business that will generate income for 20 or 30 years for which they want to be compensated; in view of this travesty, she urges the Board and public to call two people and have them call two people exponentially; and call the Governor at 1-850-488-4441 to express their outrage and to ask the Governor to veto House Bill 715. Ms. Jagrowski requested everyone make the telephone call now; stated if the Governor does not veto the Bill by Thursday, it becomes law; and if this should happen, she hopes that Brevard County taxes the industry at the amount that the billboard industry claims that they are worth for removal and not at the ridiculously low price that the industry is currently being taxed.

PUBLIC COMMENT, RE: CONSTITUTIONAL RIGHTS

B. B. Nelson, President of Citizens for Constitutional Property Rights (CCPR), stated he is a real estate broker, but has the County at heart; the developments he has done he is proud of; some issues are coming up before the Board without being on the agenda; motions are being made without the public being provided the information or given the chance to discuss the issues or debate them; and the Sierra Club item is a good example.

Chairman Scarborough advised that such item was on the agenda; with Mr. Nelson responding he inadvertently missed it. Mr. Nelson stated some items are slipping through at the last minutes; and urged the Board to be careful with it and other things it is doing without giving the public a chance to work on certain things. He noted the Billboard Act is clearly complying with the Fifth Amendment of the United States Constitution; there is a price to pay to take away a billboard, a McDonald's, a house, someone's clothes, etc.; suggested the Board review the Bill of Rights prior to each of its meetings; and stated all of the elected officials should do the same. He stated there are too many cases where the Constitution is being abused by elected officials; the Board can violate the Constitution left and right and nobody does anything about it, unless the people raise a bunch of money and go to court; and urged the Board to review the Bill of Rights and Constitution. Mr. Nelson stated if the Board wants the CCPR to show it the many cases where it has violated the Constitution, it can do so; such group is working on it this year; a judge will be speaking to the group on September 15, 2002; and the CCPR is going to be digging deeper and deeper into the issue. He urged the Board to pay attention to this because in many cases, elected government officials are violating individuals' Constitutional rights; the CCPR is going to defend them, just as the Board should be doing; and the Board needs to pay attention to them more than it has been in the past. Mr. Nelson stated the taking of billboards is a property; taking the right to lease a billboard site is taking the rights of the citizens to invest; some of the Commissioners have encouraged the Governor to veto this Bill, as it did the last time; and it is on the Governor's desk and he hopes it will be signed. He noted if the Board is going to take citizens' property, it must abide by the Fifth Amendment and all the Amendments of the Constitution; it applies to everyone; and that is the only defense that the citizens have from government taking everything away from them.

PUBLIC COMMENT, RE: PERMISSION TO BUILD ON FLAG LOT

Gomer Mitchell stated December 4, 2001, he applied for a flag lot on property he owns; on February 6, 2002, he received conditional approval; he met all those approvals, except one, which is to build his home; and he would like to be able to start building his home tomorrow. He noted he faxed information to the Board to let it know what he has gone through in the last four months.

Assistant County Manager Peggy Busacca stated Mr. Mitchell's case is fairly intricate; staff has agendaed the item for April 16, 2002; it includes easements, lot splits, and non-conforming uses; and she does not know the particulars of the building permit, but understands that Mr. Mitchell is trying to subdivide some land. Mr. Mitchell stated he did not want to wait until April 16, 2002, as he has waited four months already.

Commissioner Carlson stated she talked to Mr. Mitchell on the telephone; however, the issue is very complex; and she cannot say that all the rest of the Board members can sift through all the complexity right now at the end of a very long day. She noted the Board has not been briefed on this issue.

Chairman Scarborough stated the Commissioners receive information and briefings from staff beforehand; he wishes the Board could accommodate Mr. Mitchell this evening; but unfortunately, it had so much to do today and could not accommodate everything. Mr. Mitchell stated maybe he can get the issue resolved before April 16, 2002; with Chairman Scarborough responding hopefully.

WARRANT LIST

Upon motion and vote, the meeting adjourned at 6:55 p.m.

ATTEST: __________________________________
TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

____________________
SCOTT ELLIS, CLERK

(S E A L)