The Board of County Commissioners of Brevard County, Florida, met in special session on March 9, 1995, at 5:04 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Commissioner Truman Scarborough.

Commissioner Ellis led the assembly in the Pledge of Allegiance.

PUBLIC HEARING, RE: VIERA DEVELOPMENT PROPOSAL

Chairman Higgs stated when the public hearing was continued, public comments were not anticipated; and the Board will follow the agenda with no public comments tonight.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to allow public comment.

Commissioner Ellis requested the comments be limited to three minutes.

Chairman Higgs explained the procedure to address the Board.

Attorney Leonard Spielvogel stated at the conclusion of the last public meeting, it was their understanding no further public comment would be taken; and in light of the decision of the Board, he would request an opportunity to respond to questions from the public. Chairman Higgs advised it is appropriate for the applicant to respond; and the Board will allow ten minutes for response.

Chairman Higgs called for a vote on the motion to allow public comment. Motion carried and ordered unanimously.

Planner II Mike Konefal outlined the history of the Viera project. He advised all recommending bodies have recommended approval of the projects, subject to certain conditions. He advised a document has been prepared by the applicant and staff in response to the questions asked at the public hearings on October 19, and 20, 1994; and it is available. He advised the meetings were continued to November 16, 1994; but due to Tropical Storm Gordon, the meeting was postponed. He advised of workshops held since November 16, 1994. He noted the proposed Development Order has been revised and 20 conditions were considered for revision at the workshops. He outlined the four options facing the Board as follows: (1) approve the project as presented, (2) approve the project with changes, (3) continue the meeting to another date, or (4) deny the project. He delineated five issues still requiring discussion prior to a decision on this matter as follows: (1) protection of the St. Johns River, (2) waiver of Viera Company to institute judicial action related to road improvements, (3) overall vesting period of the project, (4) specific vesting for the regional mall, and (5) implications of the Impact Fee Ordinance. He advised of the extensive review process over the past year and a half. He summarized the Viera proposal.

Leonard Spielvogel advised of the items pending from the October 19, and 20, 1995 public hearings regarding the Viera West DRI. He stated all previous exhibits are made part of the continuing record; the witnesses remain sworn; and additional rebuttal exhibits have been submitted.

Jack Glatting, Glatting Jackson Kercher Anglin Lopez Rinehart, General Planning Consultant, outlined the process of the second DRI; and advised of the advantages of the DRI. He advised of the agencies which have reviewed the DRI; and expressed hope that the few remaining issues can be resolved this evening.

Perry Reader, Executive Vice President, The Viera Company, expressed hope that tonight will be the beginning of the next stage of the process. He advised of the need for jobs and quality growth in the County; and stated The Viera Company wants to help. He noted Viera is an opportunity for diversity and to set a standard. He advised the community supports Viera and wants it to happen now.

Bruce Jones, 3900 Lost Tree Court, Titusville, owner and operator of Support Construction, expressed support for the Viera development.

William Ferrell, 1 Stockton Drive, Merritt Island, stated he is an appraiser and consultant, and represents other property interests. He expressed support for the Viera project; and outlined his reasons.

Billy Joe Brewer, 1635 Coquina Drive, Merritt Island, General Manager of Watson Paving, stated he represents 100 workers; and expressed support for the Viera Project.

Tony Romano, 5390 Wild Cinnamon Drive, Melbourne, Owner of Tropic Air of Florida, advised he has done work with The Viera Company; he employs 30 people; and they all support this project.

Gerald Ackley, 2370 Golf Vista Boulevard, Rockledge, advised of his experiences with The Viera Company as a homeowner; and expressed support for the project.

Bob Stuhlmiller, 1500 F Atlantic Street, Melbourne Beach, representing several South Brevard developers, expressed support for the Viera project.

Gordon Masterson, 607 Riverside Drive, Melbourne Beach, advised of his experiences working with A. Duda & Sons to build Indian River Colony Club; and noted he is in the process of building further development. He expressed support for The Viera Company and the project.

Thad Altman, 361 Kilmarnock Place, Melbourne, advised the DRI process results in better development. He expressed concern about lack of bicycle-pedestrian facilities; and advised the development should meet the standards of the Comprehensive Plan. He submitted (1) a letter from Jeff Peters, former Chairman of the Bicycle Advisory Committee, advising of the importance of having paved, widened shoulders and separate pedestrian facilities, (2) the minutes of a 1990 Pedestrian and Bicycle Advisory Committee meeting where Viera committed to having the facilities, (3) a memo from the Florida Bicycle Pedestrian Coordinator outlining the advantages of bike lanes, and (4) a map pointing out the deficiencies in Murrell Road. He expressed support for the Viera DRI.

Commissioner Scarborough inquired if this was addressed in the Development Order; with Mr. Altman responding he does not know, but the concern has been raised to The Viera Company, and commitments were made. He noted the Development Order will have to be consistent with the Comprehensive Plan.

Glenda Busick, 3500 Harlock Road, Melbourne, expressed concern about the added burden the Viera development will create. She stated her concerns relate to impact fees, impact fee credits, and greenbelt zoning. She read into the record staff's statement concerning impact fees on new construction. She advised of concerns relating to road deficiencies. She expressed concern that impact fees on new construction are too low. She requested no impact fee credits be allowed for the Viera development. She explained her concerns relating to greenbelt zoning; and suggested a taxing method. She requested the Board look out for the taxpayers.

Andy Root, 840 Gray Road, Cocoa, expressed concern that a good development is receiving bad press based on half-truths and lack of knowledge of the facts. He advised of problems in the work force of the County. He expressed support for the Viera project.

Jack Glatting advised the bicycle path is covered in the original Development Order under condition 51; and a full plan complying with condition 51 will be submitted prior to beginning Phase 1.B. He noted the issue of impact fees has been discussed thoroughly in response to prior questions raised at public meetings; they pay over $26 million in impact fees; and the revenues generated by the gas tax money and the impact fees more than pay for Viera's impacts to the local road system. He advised Viera has agreed to provide land, fully construct and fully equip two fire stations. He advised the solid waste system is currently funded. He noted they are not seeking impact fee credits; they are paying impact fees; and the Board determines where the impact fees go. He advised condition 2 addresses when property will transition from agricultural assessment to a different assessment; and all other questions have been addressed in the conditions of the Development Order.

Chairman Higgs inquired if any part of the Development Order complies with the bicycle pedestrian policies in the Comprehensive Plan. Mr. Konefal responded the policies in the Development Order are more stringent than the policies in the Comprehensive Plan; and Engineering Director Susan Hann concurred.

Thad Altman advised what is included in a development orders means nothing unless it is brought to fruition. He read the pertinent section of the Development Plan; and inquired if the Board has seen the master plan, and does it include the listed factors. He expressed doubt that the standards have been met that were intended.

Mason Blake, Corporate Counsel of The Viera Company, advised the development is not to Phase 1.B yet. Commissioner Ellis noted they do not have to build them all ahead of time. Ms. Hann advised the development has not gotten to that phase yet; staff has recognized some of the concerns Mr. Altman raised; and The Viera Company recognizes there are areas that need to be addressed. She explained how the construction of the roads has been done to meet the design standards as a four-lane facility.

Thomas McCarthy, Director of Land Development for The Viera Company, addressed Mr. Altman's concerns relating to bike lanes on Murrell Road and Viera Boulevard.

Commissioner O'Brien read aloud from page 42 of the draft; and advised the standards will have to be met.

Chairman Higgs advised one of the issues raised was in regard to the Board through the Development Order being able to abolish credits; and inquired can the Board indicate that it will not provide any credits and what is the process one must go through to have an impact fee credit established. County Attorney Scott Knox advised there is a Florida Statute which requires the developer to receive the benefit of any impact fee credits that would be available under the current Ordinance; and Viera would have to apply, just as anyone else would. Chairman Higgs inquired if impact fee credits have to go through a public hearing process; with Ms. Hann advising impact fee credit requests go through a technical review by staff which makes recommendations to the Technical Advisory Committee, and they then come to the Board for approval. Chairman Higgs inquired if in the Development Order, the Board may not say that this applicant may not have impact fee credits; and that would be at the discretion of the Board at the time the applications come in. Mr. Knox advised it is not necessarily at the discretion of the Board; and it would have to be consistent with the Ordinance. Commissioner Cook stated according to the Development Order if there is a conflict between the applicant and the Board, it goes to conflict resolution. Growth Management Director Gary Ridenour stated with regard to fire stations, the East Central Florida Planning Council would act as mediator. Chairman Higgs clarified Mr. Knox's statement. Commissioner O'Brien stated condition 61 addresses some of Ms. Busick's questions; and read aloud the condition. He stated the Board is being told there is a conflict, but in order to attain that the Board has to amend the conflict in section 61 and parts of section 8.

Chairman Higgs inquired about road impact fees. Mr. Ridenour advised there is no dispute resolution process for road impact fees; but there is to be an agreement within twelve months between the Board and the applicant dealing with impact fee credits. He explained the purpose of the dispute resolution process; and advised the dispute would got either to the East Central Florida Regional Planning Council or a comparable process acceptable to both parties. Chairman Higgs inquired if there is language about the impact fee credits for transportation; with Mr. Ridenour responding condition 48 on page 41. Chairman Higgs read condition 48. Mr. Ridenour advised condition 47 also addresses impact fee credits for roadways in terms of the agreement.

Chairman Higgs inquired about the greenbelt law. Mr. Knox advised the use of the property determines whether you qualify for greenbelting; certain technical presumptions are built into the law; and explained the process. He advised Viera has agreed to waive the greenbelt right for a unit or segment, once a site plan is approved for that unit or segment of development. Chairman Higgs inquired if anyone having a piece of agricultural property that they have rezoned can continue to be taxed as an agricultural property if they apply, and they are continuing to use it as agricultural, so this applicant will be handled the same as everyone else with the preclusion in the development order that if they submit a site plan, they will become whatever the site plan is.

Commissioner O'Brien inquired if it would be a site plan for one structure at a time or a phase. Mr. Konefal explained the language; and advised the site plans vary from individual to larger parcels. Commissioner O'Brien provided an example.

Commissioner Cook requested the language in the memorandum be included in section 8. Commissioner Scarborough inquired if the Board is eliminating credit for anything internally; and stated Chapter 380.06(16)(D), F.S., states this does not apply to internal on site facilities required by local regulation. Mr. Ridenour stated the key to the statement is local regulations; and explained the meaning. He noted the concern of staff was for fire stations because in the impact fee for emergency services there is an implication that no on site facilities shall be provided for credits. Commissioner Cook expressed concern about impact fee credits in general. Mr. Blake requested this be addressed when the Board gets to the Development Order because he has not had an opportunity to review the memorandum yet.

Chairman Higgs advised she is hesitant to proceed with voting on the items without a full discussion of the issues which are unresolved. She stated the issues to be discussed are the vesting issue, and the St. Johns issue in Item 29.B. She stated in Item 29.B she would like to include language to say that any development by the applicant of lands owned or controlled directly or indirectly by the applicant, any parent company or subsidiary and lands west of the DRI in the one to ten-year floodplain, at greater than one unit per five acres will be deemed a substantial deviation to this Development Order, and requested the date be changed from 2000 to 1998 as the date St. Johns or the County would be requested to move forward. Mr. Glatting inquired if Chairman Higgs means gross density; with Chairman Higgs responding she was referring to the existing Comprehensive Plan. Mr. Glatting advised the numbers in the Plan are gross density numbers.

Mr. Spielvogel agreed it is important to get the issues out and discuss them.

Commissioner Ellis stated this ties the DRI to development outside the DRI. Chairman Higgs stated her concern is the impacts on the St. Johns River; the applicant indicated no intent to develop there and support for preservation of the St. Johns; and if they move beyond the area that is specified, it will be a substantial deviation to the Development Order and require all the review processes. Commissioner Ellis requested clarification, noting the St. Johns River is five miles from the edge of the DRI. Chairman Higgs stated there are indications of westward movement on the maps, and she is trying to preserve the St. Johns River. Discussion ensued on what constitutes a substantial deviation and the review process which would be triggered.

Mr. Spielvogel advised if Viera moves outside the DRI, it would be a substantial deviation, even without any obligation at this point to make it a substantial deviation. He stated they are before the Board to bring approximately 5,000 acres into the initial DRI; and that is what makes it a substantial deviation. He stated if Viera moves into that five-mile distance closer to the St. Johns River, it will have to come to the Board with a substantial deviation. Chairman Higgs stated all she is doing is stating it clearly and changing the date to 1998, if there is not a St. Johns River Protection Plan. Mr. Spielvogel outlined what Viera has agreed to in terms of petitioning the State for a St. Johns River Protection Plan; and stated if they move into that area, that is a substantial deviation according to the law. Mr. Spielvogel noted when there is a Florida Statute which mandates, he has a problem with reiterating that; and explained his rationale. Mr. Knox advised if the Statute was repealed, but the provision was included in the Development Order, it would be a substantial deviation. He noted he is not certain it is a substantial deviation if you bring an additional piece of development and add it to the DRI; there are certain thresholds that have to be met; and that is an issue.

Commissioner O'Brien expressed concerns with elements of the DRI. He explained his concern with page 8, item 11 relating to mitigation of wetlands and completion of the project. Mr. Reader responded if in doing the first part, wetlands are impacted, then the impact will be resolved and the mitigation created at that time; but if they do not impact until later in the project, then they will not create the wetlands in advance. He stated it is fix as you go. Commissioner O'Brien advised of a previous incident in the County where mitigation did not take place until five years after the damage was done. He explained his concern with item 43.a on page 34 relating to intersection improvements at project entrances; and inquired what happens if there is an intersection on a street that goes through. He advised of his concern on page 32 relating to a 30-day time period for review by an agency, with acceptance assumed if there is no response within 30 days. He expressed concern with the inserted paragraph on page 33 relating to road improvements; and suggested revising the sentence to end with the word "improvements." Chairman Higgs noted those are the phrases the County Attorney wished to have amended. Mr. Knox advised revised language has been submitted; and it is significantly different. Commissioner O'Brien expressed concerns about wording on pages 10 and 11 which refers to east when he believes the intent to be west.

Commissioner Cook outlined the minimum requirements he would look for in order to support the project; and distributed a written list. He stated the first requirement relates to school impacts; and requested clarification on page 24. He stated on page 49, section 61, he would like to strike "if requested by the Board." He stated Viera has agreed to plug the Sawmill Grade Canal at a point between Cocoa Ranch Office and the intersection with Stadium Boulevard. He noted there has been agreement on waiver of rights. He expressed concern about vesting; and stated it should be limited to ten years, and additional years of vesting can be provided annually through the capital improvement programming process. He expressed concerns about impact fee credits.

Commissioner Scarborough noted many of his concerns have already been addressed. He expressed concern about the comments from DCA that the establishment of the new town on the amended site plan means the County has made the decision to direct future development to this area; and advised of the impacts. He inquired if there is a way to state that it is not the Board's intent to direct development from the rest of the County. Mr. Knox stated he thought DCA backed down on that position. Commissioner Scarborough stated DCA advised it applies only to unincorporated areas so that leaves Merritt Island, for example, vulnerable to this interpretation. Mr. Knox advised the Board can include language to address the concern. Commissioner Scarborough expressed concern about activities between the development and the river being under lax guidelines; stated he is uneasy about the overall concept of how the river is handled; and the County Attorney has advised the County can address the concept of water movement from the project to the river.

Chairman Higgs inquired if Commissioner Scarborough has language to suggest; with Commissioner Scarborough responding no, but emphasized the need for monitoring to the river.

Chairman Higgs advised of issues raised by Leroy Wright concerning monitoring and recycling of water on the golf course.

The meeting recessed at 6:41 p.m. and reconvened at 7:05 p.m.

Jack Glatting advised the applicant has answers for all the questions which were raised; and he would prefer to take those through the Development Order process.

Commissioner Cook expressed desire to put out his concerns and get a response; and noted some of the items are in the Development Order and some are not.

Mr. Glatting stated the only question relative to the Comprehensive Plan was Commissioner Scarborough's comment regarding not directing growth to Viera at the detriment of growth to other areas; and he has no problem adding language to that effect.

Chairman Higgs advised there is reluctance to proceed on action on the Comprehensive Plan changes and the zoning until there has been discussion on the issues. The Board reached consensus to proceed with discussion of the issues.

Mr. Glatting stated the first issue is vesting. Cheryl Stuart, Attorney with Hopping Green Sams & Smith, was sworn in. She emphasized the issue of vesting is critical to the viability of the project. She noted she submitted a letter in response to Mr. Holley's memo. She advised Gregory Carey will deal with the impact of the shortened vesting; Christopher Stack will address tax issues; and Henry Fishkind will address the impact of shortened vesting on the marketability of the project.

Greg Carey, Underwriter with Smith Barney, was sworn in. He outlined his background and experience. He described the problems if the projected build out does not coincide with the vesting. He stated financing ten-year bonds a projected build out of twenty years places more than a double burden on the homeowners and commercial residents in the development, which would make the development not economically competitive. He advised of problems with Community Development District bonds, which are usually non-rated. He noted adding the extra layer of vesting that is shorter than the projected build out of the development, it could only be financed to that level; and the project would not be economically viable. He advised it is a grave concern; and no other CDD has had to face that possibility.

Commissioner O'Brien inquired how do you finance bonds for a projected ten years and then acquire new bonds later on as the project heads toward build out; and described an example. Mr. Carey advised that is fine on certain facilities; that is the way the Viera East District was done; but a facility such as the interchange could not be amortized over a short period without doubling the benefit assessment; and people could not afford it. He described the problems involved with the interchange which is a common facility and has to be built as an entirety; and advised the money cannot be borrowed in phases. He stated if there is only vesting for ten years, he can only borrow for ten years.

Commissioner Scarborough noted not all CDD's are associated with DRI's where vesting is part of the project; and inquired how does that work. Ms. Stuart explained the process. Commissioner Scarborough stated build out is market driven; there are weaknesses in the market which will probably adversely affect projects; and if absorption is build out, that is something no one can ever know. Mr. Carey advised that is a credit risk the market assesses and the bond buyers understand. He explained how vesting overlays the issue.

Commissioner O'Brien stated if bonding for an intersection is for 20 years, the risk of those who buy the bonds is at the end of 20 years there will not be the patchwork to pay it off; the bond money goes to the Viera District which would be responsible for the imposition of assessments; and inquired what happens if the money is not there in fifteen years. Mr. Carey explained the benefit assessment is levied annually on a level debt service basis; if there is a down spiral in property values, people will not pay their taxes, and there will be tax sales; the underlying credit is whether someone will buy the property at the tax sale; and if they do not, the bond holder is out of luck. Mr. Carey explained a default scenario. Ms. Stuart advised there is a reasonable expectation to build out this project and amortize this debt; shortening the vesting period is taking an unprecedented step; and the market will have to value the unusual circumstance. She described other CDD experiences. Commissioner O'Brien stated the County would never become responsible for default on the bond; with Ms. Stuart and Mr. Carey responding that is correct. Commissioner O'Brien stated there would be no risk to taxpayers outside of the DRI area; with Ms. Stuart agreeing. Mr. Carey stated he is not sure the bonds could be sold because of the unusual nature.

Commissioner Cook noted both sides have financial advisors; and read the memo from Mr. Holley. Mr. Carey stated CDD financing is a highly unique type of financing; and the comments of the Government Financial Advisory apply to normal type County financing, but not to Community Development Districts. He noted he knows of no CDD financings that Mr. Holley has participated in; and Mr. Holley does not address having a double benefit assessment on a property which affects the underpinnings of the whole transaction. He stated the memo does not consider the economic ability of the developer to sell his product to the market.

Christopher Stack, Bond Counsel with Whitman Breed Abbott & Morgan, was sworn in. He advised he serves as bond counsel to the Viera East CDD as well as twelve other special taxing districts and community development districts in Florida; and has worked with these types of districts for the past thirteen years. He advised of his review of aspects of the Viera plan; the value added for The Viera Company is to provide tax exempt financing for some of the infrastructure; and so his role is critical as a component of the overall improvement plan. He explained the tax exemption for community development district bonds is predicated on whether the developer is able to develop and sell the property benefitted by the improvements to members of the general public with reasonable speed and diligence. He stated Mr. Fishkind will address the feasibility of marketing bonds that do not have that tax exemption. He advised of restrictions imposed on tax exempt bonds for municipal issuers by the Internal Revenue Code of 1986. He noted if there is an issue whether the infrastructure is ultimately enjoyed by members of the public or whether that development stops, it could cast serious doubts on the ability of the initial financing to qualify for tax exempt financing.

Commissioner O'Brien stated the Board is only discussing the impact upon bond capability and problems that would be created by shortened vesting. Mr. Stack stated the tax exemption gets into the broader issue as to assessments and who benefits from the improvements that are proposed to be financed; and if further development of the area is in question because of governmental approvals or obstacles, the issue is haunted about whether this is being done in compliance with the Code and whether the property will ultimately be sold, improved and developed. He explained what would happen with a shorter vesting period. Commissioner O'Brien inquired what does it have to do with tax exemption; with Mr. Stack responding if there is some question about whether the property will be developed and sold, you do not have tax exemption because the bonds are only benefitting the developer instead of the ultimate user of the property.

Commissioner Ellis advised this is the same problem the County has with selling the Savannahs Golf Course; it was paid for through a sales tax bond by Brevard County; and if the County sells the golf course, then the sales tax bond is no longer tax exempt because the course is no longer owned by a public entity. He explained it is the same situation with the CDD.

Ms. Stuart stated CDD debt is issued in a tax free basis; and the tax free bonds must comply with the Internal Revenue Code. She stated the shortened vesting period will impact this; it raises the issue of taxation because to be a tax exempt debt, you must be able to sell the property that is to be benefitted by the facility, such as the interchange; and you must be able to say that the property has reasonable expectations of being able to be sold with all due speed and diligence. She stated the problem with the shortened vesting period is the validity of the underlying assessment and the ability to issue that debt on a tax free basis is called into question. Commissioner Ellis stated there is a perception of risk; with Ms. Stuart responding yes, in addition. Chairman Higgs stated it is not just perception of risk; it is the benefitting properties as opposed to any perception of risk. Ms. Stuart stated in many cases the infrastructure that benefits all of the lands includes lands that would be outside the shortened vesting period; and if those lands are not vested, how can she assess them or issue debt for them.

Mr. Knox requested Mr. Stack repeat the standard as far as the tax consequences are concerned. Mr. Stack advised the criteria is there has to be evidence that the developer will sell the property that is benefitted from those improvements with reasonable speed and diligence. Mr. Knox inquired if the property in question is the actual developed property that is going to be sold for lots or commercial development or whatever the case may be; with Mr. Stack responding that is correct. Mr. Knox stated the concern is there would be no guarantee of being able to sell beyond the ten years. Mr. Stack advised if the property is not developed, it is unlikely it will be sold. Mr. Knox stated the assumption is predicated upon the fact that nothing else can happen with the remainder of the property. Ms. Stuart stated the issue is the infrastructure is being built that presumes development beyond the ten years because the facilities have been oversized. Mr. Knox stated that is predicated on the densities and the intensity of use that is in the Development Order; and at the end of ten years if build out has not been reached and there are lands to be developed, there are still other potential uses that would exist. Ms. Stuart advised it could not be developed and would have no value. Mr. Knox inquired how does Ms. Stuart know that will be the case; with Ms. Stuart providing with an example. Mr. Knox inquired if the assessments at the outset on all the properties would be predicated upon the eventual use under the Development Order; with Ms. Stuart responding yes. Mr. Knox conceded that does make a difference.

Commissioner Ellis explained the risk of only being vested through ten years. Commissioner Cook stated in his proposal that only happens if adequate funding is not available to cover the off site impacts; and he is concerned about burdening future Boards and taxpayers with huge off site impacts. He noted the vesting does not stop at ten years if they meet the standard that is in the proposal. Commissioner Ellis stated what you would want your off site impacts to be held up on would be building permits and not zoning; the language in the Development Order would be if the off site impacts were not being mitigated, then you would not issue the building permits; and building permits and vesting are two completely different things. Commissioner Cook advised of his concern about the off site impacts; and stated if it is tied to the capital improvement program, the County will have a mechanism to insure there is adequate funding to cover those types of impacts.

Mr. Blake advised Viera has a five-year projection; if it cannot be funded, Viera would stop; and if it stops, it is not going to be a Palm Bay situation or at level of service F. He stated building permits is the key rather than vesting because vesting brings in additional issues.

Hank Fishkind, President of Fishkind & Associates, stated building permits are what the Development Order and concurrency address; and vesting is a tool to do what you want to do. He displayed a diagram; and explained the vesting problem as it relates to the financing. He explained how the vesting problem would affect the development. He stated developers who are willing to buy the land are willing to accept market risk; but most buyers are not willing to accept political risk. He noted the unusual nature of the vesting condition will not be helpful to sales. He noted the County does not have large planned development along Interstate 95 to offer to potential buyers; and that is what developers are looking for.

Commissioner Cook indicated he will have to yield to the Financial Advisor's advice; and ten years is reasonable. He reiterated his concern about burdening future Boards and future taxpayers; and stated this will assure the infrastructure funding is available at the time that it is needed. He explained his rationale.

Commissioner Ellis inquired how vesting of the zoning insure anything. Commissioner Cook stated the proposal will insure the funding is available before they can go beyond the ten-year vesting for the additional five years. Commissioner Ellis inquired how can you assure the funding is available upfront to get the project underway. Commissioner Cook stated they will get the first ten years vested. Commissioner Ellis inquired if you are doing master stormwater plans and I-95 interchanges, and you only have ten years vesting, how can you spread that burden out tying it to the zoning. Commissioner Cook reiterated a ten-year vesting is not unreasonable although it is not what the applicant wants; but he is not prepared to vest for twenty-one years. Commissioner Ellis inquired what does the vesting of the zoning have to do with that because even if you reach the ten-year vesting and find you have a deficiency, the only option would be to downzone density in the residential areas; and if they continue to build at the downzoned density, it still contributes to the problem. He stated the way to address that would be to stop building permits until the deficiencies are corrected. Commissioner Cook noted future Boards could look at that; and reiterated his concern with twenty-one year vesting. Commissioner Ellis suggested putting language in the Development Order to stop construction when the deficiencies are reached rather than downzoning. Commissioner Cook reiterated his position relating to vesting. Commissioner Ellis stated he understands tying to the CIP, but does not understand tying the zoning rather than the building permit; with Commissioner Cook responding it is a better mechanism to do what he wants to accomplish. Commissioner Ellis expressed concern about going to DCA in ten years to downzone based on what is in the ground over the first ten years.

Commissioner Scarborough advised he received letters from Mr. Konefal and Mr. Blake relating to automatic extensions; and inquired if there has been agreement. Mr. Knox advised in his view of the Florida Statutes, there is an automatic three years, and then between the years three and five, it is presumed to not be a substantial deviation. Commissioner Scarborough inquired about the discrepancy of twelve years of vesting for Viera East but bond issues for twenty years. Mr. Blake advised as long as full build out is provided, the term of the bond issue is irrelevant; and what he needs is the opportunity to create the tax base that he told the bond buyer he will have repaying the debt. Commissioner Scarborough stated the slower build out creates the problem; with Mr. Blake advising the problem is the inability to reasonably represent to a sophisticated buyer that the tax base will be there at the end of twenty years.

Commissioner Cook inquired if Mr. Blake disagrees with the conclusions of the Financial Advisor; with Mr. Blake responding he disagrees because he has the people who are selling his bonds, telling him they cannot sell them. Mr. Blake advised he will have to sign at the bond closing certifying that he reasonably expects to complete the full development in a expeditious manner; if he only has the assurance he can sell half the development, he cannot sign that certificate; and that creates concerns. He stated the issue is fundamental to the ability to make the project work.

Commissioner Scarborough advised of other community development districts in the County; and inquired about Baytree. Mr. Blake stated he cannot provide any details because it is in litigation; but there are still valuable lots there that someone will buy, and the tax base to pay the bond issue should be there. Discussion ensued on the Baytree development. Growth Management Director Gary Ridenour advised there is nowhere in the provision that calls for the County to automatically downzone at the end of the vesting period; and before any downzoning is done, the Board would have to go through the Comprehensive Plan amendment process, so the applicant would have some protection.

Commissioner Ellis stated that is no guarantee; and advised of other downzonings in the County. Mr. Ridenour noted his point was the Board would have to go through the Comprehensive Plan amendment process before downzoning. Commissioner Ellis noted the Board has been through that process with other properties and changed them; the guarantee that they will stay has been removed; and people are subject to the whims of the Board, so people have risked millions of dollars on a political whim rather than a legally binding contract. Commissioner Cook stated that is not an accurate portrayal; the Board could vest for 50 years; but things do change. Commissioner Cook reiterated the Financial Advisor has informed the Board that vesting is one of many considerations that bond investors make, and not the only consideration. He noted to imply that it is killing the project for the Board to put reasonable vesting on the project is not in line with what the Board is being told by its own Financial Advisor. Commissioner Ellis stated the longer the project goes, the more risk it involves. Commissioner Cook stated if the Board wants to insulate this project against risk, it can do that, but investors do have a certain amount of risk. Discussion ensued on levels of risk.

Mr. Blake read aloud from Mr. Holley's memo; and advised Mr. Holley did not say it was unreasonable for it to be less than the proposed build out, he said if it is reasonable, maybe it could be shorter. Mr. Blake stated he is not disagreeing with Mr. Holley; and explained why Viera is asking for a twenty-one year vesting. He suggested discussing the other issues and then return to the vesting issue.

Chairman Higgs stated Mr. Holley outlined the issues that affect the bond sales of a CDD; vesting is one of the issues; and the Board can consider that; however, the ability to finance the project is the developer's problem. She stated the issue she wants to deal with is how long should the vesting period be in relationship to the County's ability to predict whether it can pay for the infrastructure.

Commissioner Cook stated his concern was the CIP and the funding mechanism. Commissioner O'Brien requested time to digest the information he received tonight.

The meeting recessed at 8:14 p.m. and reconvened at 8:34 p.m.

Chairman Higgs described condition 41; and inquired what are the consequences. Mr. Knox explained the ramifications of condition 41, which is the waiver of lawsuit provision. He read aloud the additional language; and explained the implications. Chairman Higgs stated if the County reaches moratorium, then a future Board cannot be forced to make the improvements, as long as it is not arbitrary or capricious. Mr. Knox advised that is correct unless the Board has designated that improvement somewhere else as being a priority item. Chairman Higgs read aloud condition 51 relating to downzoning; and inquired about the consequences. Mr. Knox explained the ramifications. Chairman Higgs inquired if absolute vesting for a specified period would not be absolute vesting under this language; with Mr. Knox responding not if there is a substantial change in conditions, which is left to the discretion of the Board to determine. Chairman Higgs stated the Board is protected from being compelled to provide improvements to the off-site infrastructure; her concern is the Board being able to fund the off-site impacts; and she is comfortable with the conditions.

Commissioner Cook noted he does not know how someone can be compelled to give up their right to sue. Mr. Knox advised they are not being compelled; and they are waiving the right to sue. Commissioner Cook inquired if that was stricken from the Development Order in the future, would the rest of the Order remain in effect. Mr. Knox advised the Development Order will act as an agreement. Commissioner Cook inquired if any future legal action could make this invalid; with Mr. Knox advising he cannot guarantee anything because the courts can do anything they want. Commissioner Cook stated he is uncomfortable with this.

Commissioner Ellis read aloud portions of condition 41. He stated the safeguard is in the building permit, not the zoning; and provisions relating to the building permit are included. He advised if there is a moratorium, the County does not downzone, it stops issuing building permits. Mr. Knox advised that is what the condition provides for. Commissioner Ellis noted he understands Commissioner Cook's concerns; but the provision should be enough if there is a deficiency. Commissioner Cook noted while the provision is enough for Commissioner Ellis, he has greater concerns.

Commissioner O'Brien advised one Commissioner wants twenty-one years vesting; another Commissioner wants ten years vesting; and inquired if Mr. Blake would consider fifteen years vesting with the additional five years from the CIP process, which would be a total of twenty years to cover the bond.

Commissioner Cook inquired if the applicant gets an additional three years automatically even if they get ten years vesting; with Mr. Knox advising vesting and build out are different issues, but provisions can be made for the automatic extension. Commissioner Cook advised his scenario is for thirteen years.

Commissioner O'Brien noted the tie between the vesting and the bond; and advised the applicant will have to demonstrate that the project is viable for twenty years. He explained fifteen years vesting with another five years under the CIP process is a twenty-year process; and if the project is where Viera desires it to be at fifteen years, there should be no problem.

Mr. Blake advised he will study it and see if there is some way it could be structured; but he cannot say yes today.

Commissioner O'Brien advised the twenty-one year vesting is troublesome to the Board.

Commissioner Ellis inquired is there a justification the Board needs to have for the portions of the DRI it does not approve. Mr. Knox outlined the options. Commissioner Ellis inquired what happens if the Board approves with changes which are unacceptable to the applicant; with Mr. Knox responding the applicant has the right to appeal to the Governor and Cabinet. Commissioner Ellis inquired what would be the case made for denying or not denying the vesting. Mr. Knox noted he cannot speak for the applicant as far as why it should be approved; but if the Board wanted to go with ten years, he would have to make the same case Commissioner Cook made, along with the evidence presented by the opposition. Commissioner Ellis noted the Board does not have a history before it to determine vesting on other projects; and inquired what would be the issue in court if Viera could show other projects have been vested for the term of the build out and this is an exception. Mr. Knox stated there is nothing in the Florida Statutes that requires the Board to vest for the period of build out; and if the Board believes it should be less than build out, the Statutes allow the Board to do that; and explained the appeal process.

Mr. Blake advised the fifteen-year plus five years scenario will not work; and Mr. Carey explained why it will not work. Commissioner O'Brien advised the Board can stop construction anyhow if there are impacts on traffic, etc. Mr. Carey stated that is within the CDD's control and is something the market can accept. Ms. Stuart stated there are known and normal risks which are market risks; but the shortened vesting is an unusual risk, and denies the certainty of those out year units that benefit from the facilities. Chairman Higgs noted the project could come to a halt at any time if there are insufficient funds to fund the infrastructure; with Ms. Stuart advising that is the normal statutory language. Commissioner Ellis stated there has to be justification to stop; and it cannot be a political decision. Betsy Bowman, Attorney with Hopping Green Sams & Smith, advised the language in the Development Order is verbatim from the DRI Statutes; and it is the normal language the bond market is used to in Florida. Commissioner Cook inquired if what Commissioner Higgs said is not necessarily correct. Chairman Higgs stated what Ms. Bowman is saying is the County could stop development, but the language is the normal language that is expected; with Ms. Bowman advising that is correct. Mr. Carey advised the language is something the market has gotten comfortable with; but this is an extraordinary event which will cast a cloud of uncertainty. Commissioner Ellis advised building permits can be stopped, but once the infrastructure is in place, construction could start again. Chairman Higgs advised nothing will compel the County to put the infrastructure in. Commissioner Cook noted it is subject to challenge; with Chairman Higgs advising the applicant has waived the right to sue. Commissioner Ellis noted the developer has the option to put the infrastructure in at his own expense; and once the infrastructure is in place, construction may begin again. He advised that is not the case in downzoning; and explained the consequences of downzoning. Commissioner Cook inquired if the applicant is agreeing not to take the County to court; with Ms. Bowman responding yes, but the applicant retains the development rights to start again once the necessary improvements are made. Ms. Stuart advised the development rights give the value to the land that support the assessments that are the fundamental security for the issue.

Commissioner Scarborough inquired if any of the issues get credit enhancement; with Ms. Stuart responding rarely. Mr. Carey advised after five or six years if the development is going well, there is the possibility of getting credit enhancement, but not at this level of development. Commissioner Scarborough inquired is there a way to waive the automatic extension of three to five years provided by the Florida Statutes, so it is an absolute twenty years. Mr. Blake stated the extension under the DRI Statute relates to the timing of the phasing, providing for an extension, and it is unrelated to the vesting. Mr. Knox advised statutorily Mr. Blake is correct; however, every Development Order ties vesting to build out. Ms. Bowman explained the difference in extension of build out dates and extension of other provisions such as vesting; and stated the same are not treated legally in the same manner. Mr. Knox advised the two could be tied together; with Ms. Bowman responding a developer could propose amendments but the presumption would be different for the two types of amendments; and the applicant has not proposed that.

Chairman Higgs inquired if the applicant wishes to proceed with other issues; with Mr. Blake responding affirmatively. Commissioners O'Brien and Cook expressed support for proceeding to other issues.

Chairman Higgs requested staff address the issues contained in the memorandum from Leroy Wright.

Surface Water Improvement Director Ron Jones advised of the three items dealing with stormwater management in the letter from Mr. Wright. He advised the existing permitting system with the St. Johns River Water Management District and the County require what Mr. Wright suggests regarding post development peak discharge rates; and staff feels the regulations are adequate. He advised of Mr. Wright's suggestion regarding water sampling. He stated staff has worked with the applicant regarding the monitoring program on the east side of I-95; as development goes forward on the west side of I-95, the applicant will be meeting with the St. Johns River Water Management District and the County to review the proposed monitoring; and while staff wishes to set parameters for the samplings, it is not suggesting a change in the language of the Development Order.

Chairman Higgs inquired about addition of another sampling point that the County would do; with Mr. Jones responding the County can sample at any time; and there will be more stations and locations. Natural Resources Management Director Lisa Barr advised of the standard procedures adopted by the Environmental Protection Agency as well as the State regarding samples; and stated staff will be reviewing the quality control date which is submitted and will validate the sampling. She questioned the necessity of having staff duplicate that process. Chairman Higgs inquired how would the County know those things are in place and the standards are met if the applicant is generating all the data. Mr. Jones advised staff can accompany the applicant on every sample excursion, if that is what Mr. Wright was looking for. Hassan Kamal, Engineer with B.S.E. Consultants, Inc., advised of the monitoring program for DRI east of I-95 which meets all the requirements Ms. Barr mentioned. Chairman Higgs inquired if the applicant does the sampling; with Mr. Kamal responding it is done by a State certified laboratory. Chairman Higgs noted an additional monitoring event that took in the two-inch rainfall is not part of the protocol. Mr. Jones explained the monitoring that has been done to date; and stated staff has talked with the applicant regarding event specific sampling, but could not recommend a two-inch rainfall event. He advised of proposals to rework the monitoring system to include the additional acreage.

Mr. Jones advised the third item in the letter related to containment/reuse of all golf course runoff; and the applicant intends to use reuse from the effluent from the treatment plants, which is a better use with respect to the golf course. Commissioner Cook inquired if it would be possible to retain 100%; with Mr. Jones responding on a golf course with a lot of water traps, it would be possible in a lot of instances. Mr. Jones advised the existing requirements of the permitting for golf courses is no different than commercial or residential sites. Chairman Higgs inquired what is going to come off the development and where is it going to go; with Mr. Jones explaining the current permitting requirements. Chairman Higgs inquired if the legal positive outfall is the canals going to the St. Johns River; with Mr. Jones responding affirmatively. Mr. Jones advised it is anticipated the treatment efficiency will be substantially higher than required because of the system design. Chairman Higgs inquired if there would be value in the establishment of additional buffers to the St. Johns River to filter the sheetflow. Mr. Jones explained the current system; and advised there is not a lot of sheetflow at this time.

Commissioner O'Brien stated the letter from B.S.E. Consultants, Inc. answers the golf course issue; the golf course will be more than six miles from the St. Johns River; and there is no other golf course in the County that is further from a river. He read aloud from the letter; and advised it is obvious there is no problem.

Commissioner Cook inquired if Chairman Higgs' concern was with the canals going directly to the river; with Chairman Higgs responding yes; and described her concerns. Chairman Higgs noted Commissioner Scarborough is not comfortable with the protections for the St. Johns River. Commissioner Scarborough stated Mr. Jones has language which will address his concerns.

Ms. Barr stated there were two issues, wetland impacts and buffers; she referred to a report prepared for the East Central Florida Regional Planning Council by the University of Florida which established different buffers based upon habitat quality and species protection; and the recommendation was a buffer 322 feet from the ordinary high water line. She recommended language be incorporated into the Development Order to make it consistent with the Surface Water Protection Ordinance, such that until a comprehensive management plan is established for the St. Johns River System, there shall be a 325-foot shoreline protection buffer extending landward from the ordinary high water line or safe upland line, as determined by the Bureau of Survey and Mapping of the Florida Department of Environmental Protection, whichever line the applicant prefers.

Commissioner Cook inquired if Ms. Barr generated the language this evening; with Ms. Barr responding affirmatively.

Commissioner Ellis inquired if it would have to be imposed Countywide; with Ms. Barr responding no. Commissioner Ellis inquired if it will stand in court if it is not imposed Countywide; with Mr. Knox responding the test will be whether it is rationally related to the impact of the development; and the answer probably is yes. Commissioner Ellis noted the buffer will be in the area that is not part of the DRI. Mr. Knox advised the DRI cannot be considered in isolation as it impacts property owned by the developer outside the DRI. Commissioner Ellis inquired how the buffer can be imposed in one area and not up and down the river; with Commissioner Cook responding because it may have an impact on the river by virtue of the canals. Commissioner Ellis inquired how the impact of the DRI is less because of the buffer; with Chairman Higgs responding the buffer is a recommendation of the East Central Florida Regional Planning Council. Commissioner Cook inquired if the applicant has a problem with this; with Mr. Kamal responding the development is in excess of five miles from the St. Johns River and the golf course in excess of six miles; there is no rational relationship between the project and that kind of buffer; and as water leaves the project, all required class standards are being met well before it gets to the river.

Chairman Higgs stated Commissioner Scarborough expressed a lack of comfort with the prior language; and inquired if the proposed language is acceptable. Commissioner Scarborough inquired about other language; with Mr. Jones responding under condition 31 language was added to require that any proposed modifications to the primary conveyance canals located outside of the DRI boundaries that convey stormwater from the Viera DRI shall be submitted to the County and St. Johns River Water Management District for review prior to construction. Mr. Jones explained the rationale for the new language. Commissioner Scarborough inquired if Mr. Jones is suggesting a change to the language; with Mr. Jones responding if the Board wishes to tighten it more, it could add "review and approved prior to construction."

Commissioner Ellis inquired what is the stormwater benefit for this project of the 322-foot buffer. Mr. Jones responded for the property that would sheetflow across any buffered system, there would be a stormwater and habitat preservation benefit. Commissioner Ellis inquired if the intent is to sheetflow across the buffer; with Mr. Jones responding at this time the discharge from the Viera DRI would be made through the existing canal systems which are directly discharging into the river. Commissioner Ellis inquired if the effect of the buffer would be to plug 322 feet of each canal and sheetflow over the property; with Mr. Jones responding no. Commissioner Ellis inquired what is the benefit of the buffer on the stormwater discharge of this development; with Mr. Jones responding none for the DRI. Commissioner Ellis expressed concerns about establishing a buffer on only one portion of the river. Chairman Higgs stated the language said until comprehensive management plan was established for the entire river, the 322 feet would be established as a buffer. Commissioner Ellis inquired how that effects facilities that are already there, such as the Melbourne Water Plant, Lake Washington Park, and the development at Lake Poinsett. Chairman Higgs advised those would have to be grandfathered in. Ms. Barr advised along the Lake Washington area there is an existing 200-foot buffer. Commissioner Ellis inquired if it is at the ordinary high water line and has it been mapped; with Ms. Barr responding yes. Commissioner Ellis inquired about the area in question; with Ms. Barr responding it is Class 3 water, so there is only an existing 50-foot buffer based on current County Code. She noted the question was is there any scientific data to increase or enhance the buffer; and that is what she provided. Commissioner Ellis inquired what is allowed within the buffer; with Ms. Barr responding passive recreation, hunting, fishing, access provisions, and agriculture, if it is an existing land use. Commissioner Ellis inquired if the Board is looking for a 322-foot building setback; with Ms. Barr responding that is the effect of the language. Commissioner Ellis inquired if you would have to revegetate; with Ms. Barr responding no.

Mr. Kamal reiterated through the DRI, regional impacts are being considered; the system as designed is meeting all regional requirements for water quality onsite without any additional buffers; and he fails to see the relationship between the buffer and the project.

Chairman Higgs stated the DRI process was designed to protect significant regional resources such as the St. Johns River. She stated Commissioner Scarborough expressed discomfort with the language she proposed; and inquired if the proposed language is more in line with what he was talking about. Commissioner Scarborough stated the language Mr. Jones proposed satisfies his concern, but may not satisfy the concerns of others. He expressed concerns about property under control of the same owner being used to handle the water quality problems, and possible harm to the St. Johns River. He stated there will be better control if the County has control over the drainage system between the two locations. Chairman Higgs inquired if Commissioner Scarborough is comfortable with Mr. Jones' language; with Commissioner Scarborough responding affirmatively. Mr. Jones stated the requirements will provide for assurance that there will not be any activities undertaken in the downstream systems; and the buffer issue is a separate issue.

Chairman Higgs inquired if the language she proposed is acceptable. Mr. Glatting responded there are questions about the technical wording, but they do not change the substance; and outlined requested changes. Chairman Higgs inquired if the changes include changing the year to 1998; with Mr. Glatting responding the applicant regards that as a joining in the petition for request which does not require action on the part of the applicant.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve the language proposed by Commissioner Higgs relating to condition 29B, as amended by the applicant. Motion carried and ordered unanimously.

Discussion ensued on the procedure to consider the issues. Chairman Higgs advised the Board will consider this issue by issue to reach consensus, and then vote on the Development Order in its entirety.

Chairman Higgs inquired if anyone wishes to make a motion on the buffer issues; with no response heard.

Mr. Glatting advised there has been an exchange of letters between The Viera Corporation and the County to address the Sawmill Grade Canal which Commissioner Cook expressed concern about; Viera is not part of the problem that has created that issue; but it does have the ability to contribute to its solution. He stated the letters speak to that issue; and the agreement is outside the DRI.

Commissioner Cook stated he has seen the letters; and inquired if the applicant has a problem with incorporating it into the DRI. Mr. Glatting indicated he would prefer not to have it in the DRI; and a commitment has already been put in writing. Commissioner Cook inquired if it would have a negative impact to have it in the Development Order; with Mr. Blake responding from a legal perspective, it is not related to the Development Order. Mr. Kamal advised language has been added to address that on page 19 as follows: The master drainage plan shall also address existing canal system within the Viera DRI and provide for the replacement of those canals by the master stormwater management system. He stated the intent is to show those canals are being phased out.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve the language under condition 31 proposed by Mr. Jones requiring that any proposed modifications to the primary conveyance canals located outside of the DRI boundaries that convey stormwater from the Viera DRI shall be submitted to the County and St. Johns River Water Management District for review and approval prior to construction. Motion carried and ordered unanimously.

Chairman Higgs read aloud the proposed language for Criterion J of Future Land Use Policy 1.9 relating to the new town. Mr. Glatting advised the applicant recommends approval.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve proposed language for Criterion J of Future Land Use Policy 1.9 relating to the new town. Motion carried and ordered unanimously.

Mr. Glatting noted the last sentence which provides that Brevard County will always support additional development elsewhere in the County wherever appropriate may cause DCA some concern.

Commissioner Scarborough suggested deleting the word "always." Commissioner O'Brien suggested leaving it as is, and if DCA has a problem, it will come back. Commissioner Cook expressed support for leaving it as is.

Ms. Bowman suggested adding the wording "where appropriate under Chapter 163" to indicate the County intends to follow the law. Mr. Ridenour noted the first sentence is probably sufficient. Commissioner Cook recommended leaving the language as is and moving forward.

Commissioner Ellis inquired if there is a way to word the buffer issue so that it would be treated as a building setback. Ms. Barr stated it can be changed to a 325-foot development setback. Commissioner Ellis stated he is looking for a building setback that will not affect any of the present uses. Ms. Barr stated the Surface Water Protection Ordinance only allows existing activities at the time of passage of the Ordinance, passive recreation, hunting, fishing, fish and wildlife management, open space, nature trails, and similar uses; and development within the buffer is limited to structures for water access such as docks, boat ramps, and pervious walkways. Commissioner Ellis inquired how the buffer could be put in; with Ms. Barr responding by modifying condition 29 to include as part of Commissioner Higgs' proposed changes. Commissioner Ellis inquired if that is the appropriate place to include it; with Chairman Higgs responding yes.

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to approve language to provide for a 325-foot development setback.

Commissioner Ellis stated nothing is going to be built that close to the ordinary high water line; and the language reinforces what is going to be done.

Mr. Glatting advised his client does not own that land. Commissioner Ellis inquired if this is a matter of corporate titles; with Mr. Glatting responding affirmatively. Mr. Reader stated he cannot advise if there are any things the setback would have an immediate impact on; and before he could agree, he would need to know that. Commissioner Ellis requested the information be provided at the next meeting; and the issue can be held until that information is provided.

Commissioner Scarborough expressed interest in touching on all the issues that were outlined by staff. Chairman Higgs stated the Board has done 1 and 3 and needs to go back to 2 which is the language in condition 41 to which the applicant has agreed.

Commissioner O'Brien suggested the language be revised to "However the applicant shall have the same rights that other property owners in the County may have to institute an action to challenge arbitrary and capricious activities of the County that are in violation of County general Comprehensive Plan priorities, Countywide Ordinances, and County regulations . . . ." He stated the addition of the word "County" and change from "or" to "and" will address Commissioner Cook's concerns and protect the County. Commissioner Cook concurred with the revised wording; and stated this is broad wording and does not insulate the County. Chairman Higgs inquired what does the "and" do; with Commissioner O'Brien responding it prevents it from being disjunctive; and the word "or" makes it broad while the word "and" ties it all together. Commissioner Cook stated this is a major component of the plan; and he just received it. Chairman Higgs inquired what is the effect of "and" and does it protect the County further; with Mr. Knox responding all three conditions would have to be met instead of just one; and it limits it to County regulations as opposed to any other regulations.

Ms. Bowman stated the applicant has no problem with adding the word "County", but would have a practical concern about changing the "or" to "and" because in some instances the County policy may only be contained in the Comprehensive Plan, and all three conditions could be fulfilled.

Commissioner O'Brien advised the objective is not to have Viera sue the County. Ms. Bowman noted it may nullify the effect of the provision because if there is a Comprehensive Plan policy which establishes a priority for funding that is being arbitrarily and capriciously violated but there is no regulation setting that priority, Viera could not sue the County. She noted that is not the concern that Mr. Knox expressed to her earlier that is being addressed. Commissioner Cook noted arbitrary and capricious are broad terms and subject to interpretation; and it does not stop filing a lawsuit. Chairman Higgs inquired if this gives the County protection; with Mr. Knox advising the term "arbitrary and capricious" has definite legal meaning. Discussion ensued. Chairman Higgs expressed support for the inclusion of this language in condition 41, and whether it is sufficient to deal with the concern about vesting is irrelevant to the support of this language. She inquired if anyone objects to the language with the inclusion of the word "and."

Commissioner Ellis stated he does not know of Ordinances or regulations that in themselves are planning, designing, and funding regulations. Chairman Higgs noted that is not where the "and" is. Commissioner O'Brien noted that is now; and ten years from now, it might be different. Commissioner Cook stated if the Board is coming back, he would prefer to leave this open.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to table consideration of language for condition 41 to the next meeting on the Viera issue.

Commissioner O'Brien stated this will give the applicant time to look this over. Commissioner Cook noted there could be implications the Board does not see.

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

Commissioner Scarborough stated the regional mall is an unresolved item; to allow vesting of the regional mall is giving this property owner the paper right to have the mall to the exclusion of others; and therefore that is separate from the other vesting issues. Mr. Glatting advised the inclusion of the regional mall into the concept for the Viera community is an essential part of the master planning for the community; but Viera does not have an exclusive franchise on the mall. He noted regional malls have been approved across the street from each other in Tampa and in North Seminole County; and this condition does not have the effect of one project excluding another project which will come forward in the future. Commissioner Scarborough inquired if it would be appropriate to include "the vesting would be removed if it results in the loss of development rights for another regional /mall in Brevard County." Mr. Glatting advised specific language has been offered which would put the regional mall at risk of divesting at the end of the second phase of development. Commissioner Scarborough stated he does not mind Viera having the right, but not to the exclusion of something else happening; and he does not want it to be a political decision rather than a market decision. Mr. Glatting advised of the factors which determine where regional malls go. Commissioner Scarborough stated there is no danger in putting the language in because it would have vesting. Mr. Blake noted he explained at the last meeting that there are a lot of paper malls around. Mr. Glatting advised there are 16 paper malls in Orange County. Mr. Blake expressed concern about being divested because of paper malls.

Commissioner Ellis inquired who would divest Viera of the mall; with Mr. Blake responding DCA. Commissioner Ellis stated the County would vest a certain zoning; the intent would be to use that property for a regional mall; and inquired who could divest. He stated in the County there are acceptable land uses, so if a large mall is being built on an acceptable land use, he does not think the County would be the one to divest. Mr. Blake stated State action would force divesting. Commissioner Scarborough advised of his experience with paper capacity with sewer plants; and expressed dissatisfaction with jamming the system with paper. Mr. Blake advised Viera tried to address that problem; and if Viera does not build a mall in Phase 2, it is subject to divestment by the County. Commissioner Ellis inquired how the County would divest a regional mall when the County only addresses land uses. Chairman Higgs stated it would come out of the Development Order at that point. Mr. Blake stated the DRI would be amended; a regional mall is a categorical use in the DRI; and if the wording is removed, it takes away the right to build the mall under Chapter 380, F.S. Commissioner Ellis inquired if the language is removed, and Viera wishes to put the mall in, will it have to come back through the Development Order to have it inserted; with Mr. Blake responding yes, it is an automatic substantial deviation. Commissioner Scarborough stated he would like it vested subject to divesting. Discussion ensued on the issue.

Commissioner Scarborough stated this is not what he wants; he would like to see Viera vested for the full extent of the vesting period; but if their vesting would preclude a mall from coming in, then it would be divested to allow the other mall to occur. Chairman Higgs inquired if it would be at a date; with Commissioner Scarborough responding upon the event; and provided an example. Mr. Knox suggested divesting is not what the Board is looking for; and the issue is who gets there to put the mall up first. Commissioner Scarborough stated he does not want two paper malls either. Mr. Knox suggested tying it to a building permit. Commissioner Scarborough requested the County Attorney meet with Mr. Glatting to come up with something for the next meeting. Chairman Higgs inquired if someone could immediately get the mall; with Commissioner Scarborough responding he does not want paper to own rights to things and stop other things from happening. Chairman Higgs inquired if the Board is going to tell the applicant that they cannot expect for any period of time to possess the paper rights. Commissioner Scarborough stated he would like to have them vest; and building permit may be where this should go. Chairman Higgs inquired if it happens tomorrow, would she get to build her mall. Commissioner Scarborough described the situation with the sewer plants; and inquired why should somebody own a right to develop.

Mr. Glatting advised the applicant went to a great extent to establish internal consistency within the DRI so there is the right amount of land use for employment, retail, etc. to match the residential population; and the regional mall is the only exception. He stated they have only 50% of the internal Viera market for the regional mall, and it would be dependent on external markets to support that.

Commissioner Cook stated he has no problem with Viera building a mall; but there are outstanding issues. He stated the Board does not want one paper mall divesting another paper mall; and language could be developed so it is whoever comes to the table with the money first. He stated there could be as many malls as the market could take. Mr. Blake advised Viera has never objected to the market, and will continue to work with Mr. Knox to develop acceptable language.

Mr. Ridenour advised another regional mall would mean another DRI process; if they are just a regional mall, they may have a shorter fuse on when they are going to build; and if that becomes a reality, then language could be developed to divest this mall, if that is necessary. He noted the DRI process will look at the feasibility of the regional mall. Mr. Blake agreed any regional mall will involve a DRI.

Discussion ensued on whether to continue discussion.

The meeting recessed at 10:07 p.m. and reconvened at 10:29 p.m.

Commissioner O'Brien inquired about upcoming meetings; with Mr. Jenkins advising of upcoming meetings. Commissioner O'Brien suggested addressing the questions at the workshop and then holding the DRI hearing at 5:01 p.m. Discussion ensued on the schedule. Consensus was reached to continue the meeting to March 13, 1995 at 5:01 p.m., if necessary.

Mr. Glatting stated Commissioner Cook suggested deletion of "if requested by the Board" on page 49 of the Development Order; and the applicant has no objection.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve deletion of "if requested by the Board" on page 49 of the Development Order. Motion carried and ordered unanimously.

Mr. Glatting stated Commissioner O'Brien had a question relating to east and west on page 10; and they have been very careful to designate east of I-95 where it is a condition of the existing Order. Commissioner O'Brien stated he has no further problem.

Ms. Barr advised Commissioner O'Brien had a concern about the phrase "in advance or concurrently with County acceptance of the completion of the construction project" on page 8 under condition 11; staff proposes changing the language to "any losses of viable wetlands shall be mitigated in advance of or concurrently with the wetland impacts. Mitigation shall occur through restoration, creation . . ."; and that will make it consistent with existing language.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve language in condition 11 such that "any losses of viable wetlands shall be mitigated in advance of or concurrently with the wetland impacts. Mitigation shall occur through restoration, creation . . . ." Motion carried and ordered unanimously.

Mr. Glatting advised it is the applicant's interpretation that there are adequate provisions for School Board notification; language has been worked out with and accepted by the School Board; and they would like to continue the existing wording. He noted this is included in condition 37.

Harold Bistline, Attorney for the School Board, stated the language was worked out and the School Board approved it. He expressed a preference for resolving the issue at this time so he will not have to return Monday.

Commissioner Cook expressed concern that if the mitigation could not be resolved, this had a six-month provision; and advised twelve months is more reasonable. He stated within twelve months the County would stop issuing permits for residential units if the impact had not been met. He noted his concern about the impact of the development.

Chairman Higgs inquired if the School Board would object to that language; with Mr. Bistline responding no. Mr. Bistline advised he wants to have this settled; Commissioner Cook recommended a language change; he was satisfied with the existing language; but he would not object to the change. He noted his interest is in having this settled so he can report to the School Board that whatever transpires with the development, the School Board is covered.

Commissioner Cook stated this is a stronger provision with regard to the impact to the schools. Commissioner O'Brien inquired why is it stronger. Mr. Knox inquired if the East Central Florida Regional Planning Council mediation process is binding or voluntary. Ms. Bowman responded she does not believe it is binding; however it will be in the applicant's best interest to reach agreement if development is stopped. Chairman Higgs stated this gives the Board some involvement in the process and gives it some teeth.

Mr. Spielvogel stated it is a matter of reaching an element of fairness in representing the applicant's position and not feeling every prerogative is being taken away; and to stop the development if the applicant does not reach a conclusion that is satisfactory to the other party does not mean the negotiation is on a level field. He stated if they go to the East Central Florida Regional Planning Council for mediation, they will do it in good faith; and when he hears everything that is going on, he feels as though he is coming before the Board for the first time; but the applicant has been here developing this project for a number of years. He expressed concern that the applicant is not being shown respect and there is a presumption the applicant is going to do the wrong thing. He noted the applicant will be coming back before the Board a number of times; and if the Board is saying the applicant is in trouble unless he can reach an agreement, then it is impossible to negotiate.

Commissioner Cook noted he intended no disrespect; his responsibility is to protect the interests of all the people; and his concern was that the mitigation is not binding and could go on and on, with no mechanism to stop the permits until the impacts can be addressed.

Chairman Higgs suggested using the word "may" instead of "shall." She noted she shares the concerns about moving forward.

Mr. Spielvogel advised the applicant negotiated this with the School Board, and some degree of respect should be shown to that elected body; this is within the School Board's area of responsibility; and he is concerned about a clause that would shut down development if the applicant does not agree with the School Board. He noted the pressure which could be put upon the School Board to make unreasonable demands on the applicant because of this language could put the development in a bind. He noted both sides have to think about the worst things that can happen; and the School Board accepted this language.

Commissioner Ellis expressed concerns about the language. He stated there would be no need for the School Board to negotiate; and the School Board could refuse to build the schools and insist the applicant build the schools. Commissioner Cook noted these are major impacts that will have to be dealt with at some time; and this gives the opportunity to address that, if necessary. Commissioner Ellis advised it does not give the Board the ability to address this, but it gives that ability to the School Board. Chairman Higgs noted it gives the Board the option with the use of the word "may."

Commissioner O'Brien inquired if Commissioner Cook would agree that it would be more fair to drive it into binding arbitration at the end of twelve months.

Mr. Bistline advised he could not agree to binding arbitration; the School Board has not addressed that issue; and it is drastic. He noted he understands Commissioner Cook's concerns; the School Board wants to insure adequate school facilities are available; and it agreed to the language that is in the document. He stated he would like to have this issue settled, so the School Board knows what this is going to provide.

Mr. Glatting stated changing the word "shall" to "may" which would provide the Board some oversight would be acceptable to the applicant.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve condition 37 with the word "shall" changed to "may."

Commissioner O'Brien expressed concern about using the word "may." Commissioner Cook inquired if Commissioner O'Brien prefers "shall." Commissioner Cook advised the original language was "shall." Commissioner O'Brien expressed support for the word "may"; and explained his concerns. Mr. Knox stated it brings up the same moratorium issues that were discussed up to this point in time and adds a new wrinkle to the waiver language; but with the word "may", something can be worked out. He noted the "shall" puts the Board in a position of imposing a moratorium, so a waiver would definitely be needed, while the "may" allows flexibility. Chairman Higgs inquired if the language is "shall" does that mean it would be the School Board instead of the Board of County Commissioners imposing a moratorium; with Mr. Knox responding yes. Mr. Knox advised if the language is "shall", it gives the School Board unbridled authority to do whatever it wishes to do, and would put the Board in the position of imposing the sanctions, which is not good.

Mr. Bistline suggested inserting Commissioner Cook's language on page 24, paragraph 37; and described the process that would result. Discussion ensued on the process. Commissioner Cook stated he has no problem inserting that there. Mr. Knox advised he has a concern with putting it where Mr. Bistline is suggesting because that will put the Board into the position of making a decision that it is going to withhold building permits before there is a chance to mediate; and he would prefer to see mediation first, knowing the Board could come back and withhold the building permits. Mr. Bistline agreed that is fine. Commissioner Cook stated that is the intent. Discussion ensued on where to put the language; with consensus reached to put it at the end.

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

Mr. Glatting stated Commissioner O'Brien had a question about condition 41 on page 32 relative to requiring some decision in a 30-day period of time from government agencies. He noted they are required to model and monitor on an annual basis; and they are attempting to have that provision such that it fits into the County's budgeting process. He stated there are a number of agencies involved; and the applicant would like to maintain the period of time to be able to coincide with the budgeting process. He noted the developer could be held up from proceeding if an agency chose not to act.

Commissioner O'Brien expressed concern about an agency responding in 30 days. Mr. Glatting reiterated it goes through the monitoring and modeling on an annual basis. Commissioner O'Brien stated the explanation is acceptable; and recommended moving forward.

Commissioner Cook read aloud a memo regarding credits concerning impact fee credits. Mr. Glatting advised as long as what Mr. Ridenour said before is what everyone understands, he has no objection.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve wording in Section 7 such that impact fee credits are not provided for internal or on site facilities required by local regulations or for any off site facilities to the extent that such facilities are necessary to provide safe and adequate services to the development.

Commissioner Ellis stated the impact fees currently address road, jail and fire; and inquired if this would apply impact fee credits for roads; with Mr. Ridenour responding affirmatively. Commissioner Scarborough advised this is just repeating the Statute.

Chairman Higgs inquired if there is any problem inserting the language; with Mr. Knox responding no.

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

Chairman Higgs advised the outstanding issues before the Board considers the Comprehensive Plan amendments are the buffer issue, the vesting issue, and the regional mall.

Mr. Reader advised the applicant has tried to find a successful compromise; and there are no issues still on the table on which compromise cannot be reached; but if Viera cannot finance the project by selling bonds, it will have to look at another alternative type of development. He stated a decision is needed on the vesting issue because it will cast what is done from here forward.

Chairman Higgs stated the applicant would either discuss with the County Attorney or staff to see if there are any other ways to do this; and if there are none, the Board will vote.

Mr. Reader advised of problems in the bond market trying to sell bonds which include different items; and the twenty-year vesting is needed on the project in order to move forward to get the financing.

Chairman Higgs noted the Board understands that position; but it has to look at condition 41 and paragraph 6 regarding those issues of how the project stops to see if that provides the comfort. She stated there is new language to review.

Commissioner Cook stated he does not blame Viera for not giving up anything it does not have to; and everyone will have a couple of days to look at the issue. Commissioner Ellis noted vesting started at 26 years; it has gone to 20 or 21; and that is rock bottom. He stated if the Board approves less than 21 years, it better be right because if it is wrong, the whole thing will fall apart, and millions of dollars will be lost. Commissioner Cook noted the reverse is also true, and the taxpayers would be burdened with impacts. Discussion ensued on the issue. Commissioner Cook stated based on what the County's financial advisor is saying, he cannot believe this is the end of the world for the development. Commissioner Ellis noted Mr. Holley admits he has never worked with an issue like this before. Commissioner Cook stated he wants to negotiate the best deal for the public. Commissioner Ellis noted he disagrees on what is the best deal for the public.

Commissioner Scarborough suggested the issue be deferred. Chairman Higgs noted the Board cannot resolve the issue at this point.

Chairman Higgs stated the regional mall issue is still outstanding; and the applicant is going to work with the County Attorney on that language.

Mr. Ridenour advised of the memorandum from Mr. Konefal dated March 8, 1995 relating to potential impact fee changes which deals with what will happen if the Board repeals impact fees or if a future Board reinstates them. Mr. Glatting indicated the language is acceptable to the applicant.

Commissioner O'Brien advised of the difficulties the Board is experiencing dealing with the technical issues.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to continue the public hearing to 5:01 p.m. on March 13, 1995. Motion carried and ordered unanimously.

The meeting recessed at 11:12 p.m.

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

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