The Board of County Commissioners of Brevard County, Florida, met in special/workshop session on July 12, 1999, at 9:05 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, and Sue Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox. Absent was: *Commissioner Helen Voltz.

ANNOUNCEMENT

Chairman Scarborough advised Commissioner Voltz will be late; and suggested Commissioners sit in the audience for the presentation. Commissioner Higgs stated since the workshop is for the Board to have dialogue with Lane Kendig, it will be difficult to sit in the audience and ask him questions. Chairman Scarborough stated Commissioners would be seated for the formal presentation and return to their usual seats for discussion. He inquired if the Board is going to take questions from the audience.

Commissioner Carlson stated the Board should talk to Mr. Kendig first; and if there is public input, it should be after the Board has completed its issues since the purpose of the workshop is to discuss information from Mr. Kendig. She stated the Board is considering performance standards because of the Oleander power plant and the current Code not being sufficient to address the public interest; however, it is not discussing power plants today, but will discuss performance based zoning using performance standards. She stated the Board will look at the Code and not at one industry; and no discussion on the power plant is expected this afternoon.

*Commissioner Voltz's presence was noted at this time.

DISCUSSION, RE: PERFORMANCE ZONING STANDARDS

Lane Kendig, President of Lane Kendig, Inc., advised the County currently has performance standards in its Code, but most of those are 20 to 30 years outdated; and some of them were copied from the 1953 Chicago Zoning Ordinance, which was the first ordinance in the country to have industrial performance standards. He stated the industrial uses as proposed are going to be mostly permitted uses in all the districts in which they are permitted; and the districts were expanded to allow high-quality industry to occur in BU-1 and BU-2. He stated the performance standards are generally related to the district in which they will occur, so the loosest standards are in the heavy industrial district and the tightest standards are in the commercial district. Mr. Kendig advised currently there are about 70 different industries in various industrial districts; they are going to pull that down to seven industrial classifications; and most industrial uses will be classified as industry or manufacturing. He noted the truly heavy industries that have a lot of exterior operations that are visible, noisy and not contained in a building are identified and separated; warehousing and terminal type uses that have a lot of truck traffic are separated; and they used the North American Industrial Classification System,which has some 17,000 different industries as identifiers, so the County will be able to track them very easily. Mr. Kendig advised they broadened the locations in which industries can occur; they are permitted in BU-1 and BU-2; and most of the industries are able to locate in any district assuming they meet the performance standards of that district. He stated 41% of the 70 uses today are restricted only to IU-1 and 54% are permitted only in one district; in some cases it is IU and in other cases limited industrial use; so the proposed ordinance is more open to industry.

Mr. Kendig advised performance standards are designed primarily to protect residential neighborhoods; a confusing term in the ordinance is "permitted with conditions"; it is a conditional use process that goes to public hearing; but there is another definition of a permitted use that does not go to public hearing to determine whether it meets the standards or not. He stated if the use meets the conditions, it is permitted, and if it does not, it is not permitted; so it is a black and white decision. He stated BU-1 has strong protective standards that ensure the use is consistent with other BU-1 uses; heavy industrial use is expected to have the dirtiest industries so the standards are looser; and both industrial districts have a perimeter and stricter standards on the exterior where they would be exposed to other zoning categories or highways, than they have in the interior of the district. He recommended the Board modify the term "permitted with conditions" throughout the ordinance, as there was a lot of confusion; and suggested the Board use "limited use" or "special use" so everybody can distinguish it from conditional use. He noted they have not made that change in the draft text, but are suggesting it because it is confusing.

Mr. Kendig advised most industrial uses will be permitted in the commercial and industrial districts if they meet the performance standards; performance standards are designed to control the intensity or nuisance potential of the use; and there is a hierarchy from the least compatible to the most compatible with residential neighborhoods. He stated the performance hierarchy deals with two sets of criteria; one set is varied by district and includes standards for noise, odor, vibration, hours of operation, scale of buildings, exterior use such as storage, truck use, access to roads, and building materials; and there are some common standards that do not vary or vary only slightly from district to district such as air quality, water quality, radiation, heat and humidity, lighting, and hazardous materials, which are regulated on a totally performance basis for any district. He advised buffer yards have been introduced to make a transition between industrial use and a residential district or major highway; the idea is when they reach those borders they need to be more protective; and landscaping standards were altered so that in the commercial district they are the same as exist today, but the heavy industrial district against a residential district has a larger and more intensive buffer yard to protect those residential areas. He noted they added a fringe around the edge of the district wherever it abuts residential or highway in the two industrial districts; and it is a higher level of standard than in the interior of the park because very few people go into the interior of an industrial park unless they work there or are delivering goods.

Mr. Kendig advised they looked at noise from two different perspectives; in the business district, if the use is completely contained within a building and a person can walk by and not hear the machinery, then it is compatible; and the measurement is taken on the outside of the building to determine whether the equipment inside is making noise that is disturbing. He stated in the more heavy industrial districts, measuring noise is done at the property line of the business or in the case of businesses that are up against residential property, at the inside of the buffer yard so the buffer yard provides additional noise dissipation; and that is designed to protect residential land uses.

Mr. Kendig advised they will be recommending changes to the odor standards, but basically odors range from undetectable to a level that is a nuisance; they have been trying to obtain some of the standards that have been cited, and found a new replacement standard by the American Industrial Hygiene Association; so they will be using that as the numerical standard for odor thresholds. He stated there are two measurements of odor; one where the average person can detect an odor but cannot tell what it is, and the other where they can say that is a paper mill or a chemical that is sweet, sour, etc. He stated they would be regulating a percentage of the odor threshold; there is a bell curve around the average condition; the odor threshold is intended to detect the average condition; and the Board needs to talk about the numbers that will be used. He noted they also introduced the human element, and suggested a two-part test. He stated if the County receives a complaint that there is a nuisance associated with a particular use with regard to odor, it would send a board out there as well as staff technician to take odor measurements and calibrate those against the odor thresholds; the board would say if it is a nuisance, a problem, or it exceeds the odor thresholds; then it would have to be corrected; but if the board says it is not a problem odor, they would be able to go higher up before they would have to take corrective action.

Mr. Kendig advised the lowest vibration is permitted in the business district and the highest in the industrial district; the current Ordinance has a fixed level of vibration; the literature indicates there are three different levels of vibration; and the most damaging vibration is the one that can physically damage a nearby structure, goes all the time, and shakes the ground. He stated the less damaging is called an impact and is not steady; and lastly there are vibrations that occur once a day such as blasting in a mining situation. He stated the rarer the vibration, the higher the level that can be accepted; and that is built into the standards.

Mr. Kendig advised operating hours are daytime only in the business district and unlimited in the industrial district; because some businesses have peaking problems with a rush to get something done and then tail off to normal operation, they have provisions for overtime to allow the Board, if someone says they have to run continuously at night but are looking for a new building and wants to continue to operate until the new building is available, to allow the business to continue. He stated as to scale of buildings, small is permitted in business districts, moderate in planned industrial, and large in industrial categories; exterior storage is prohibited in business districts and planned business park; some is permitted in planned industrial park; and it goes to a maximum in IU-1. Mr. Kendig advised truck limits in the business, business park, and planned industrial park are limited by the size of the trucks; trucks are unlimited in size in the industrial districts, but there are some night time operations limited for those uses that are on the exterior. He stated there is a requirement that the size of the trucks be calibrated to the capacity of the road; so if a County road has six inches of asphalt and someone is going to exceed the maximum State load limits, it would want to make sure the road is not going to disintegrate under that kind of load; and the County will be given an opportunity to evaluate that. Mr. Kendig advised building materials are subjective; the Board may want to further discuss that issue; in the business districts, business park, and two planned districts, it would probably want high-quality buildings, equal in quality to the buildings that would normally be built there; therefore, they are recommending stricter standards in those districts.

Mr. Kendig advised they went round and round with several agencies on State and federal standards for air quality, water quality, radiation, and hazardous materials; they tried to look at ways to make them more stringent, but the demands on staff to interpret those were too high; so they went back to the State and federal standards. He stated lighting is an area-wide item; it is one standard they recommend be adopted for all districts; it is easily controlled, regulated, and investigated; and it is basically a no-cost item in terms of engineering and design because all lighting manufacturers provide the service if their lights are purchased.

Mr. Kendig advised there will be some nonconforming uses created by the regulations; the implication for those existing uses is important; they are looking at that from several perspectives; and one is mandating a buffer yard be installed where possible for existing industry that abuts a residential area and wants to expand its use. He noted they may not physically be able to put in a buffer yard that would be required by the ordinance, but they should put in the maximum they can achieve; and that is going to be a factor where buildings, loading areas, and other things sit, and how much room they have, but they can erect a wall and put in some degree of landscaping. He stated they will be asked to come as close as possible to the standards of the ordinance; the ordinance would normally restrict how much plant material can be put into a given space; and staff would be allowed to put a little more in there recognizing the trees would be a little more crowded, but trying to get the maximum buffer possible. He advised the other thing is a use that is nonconforming be given a vehicle for petitioning the Board to become a conditional use; in that process a public hearing would be held; and at that time the Board would try to bring that use as close into conformity as possible with the district standards and impose whatever types of things would be appropriate. He noted a use that historically has been a good neighbor and does not have a lot of heavy trucks or night time operations could be made a use with specific conditions; and the conditions would be they cannot have refrigerator trucks running all night, no delivery trucks staying overnight with engines running, and a series of things to ensure that whatever practices made that use a good neighbor would continue. He stated if the use was a problem to the neighborhood, they have not changed the basics of the nonconforming section, which is to continue until it goes away. He noted that is the last item, and he is open for questions.

Commissioner Carlson advised as the population increases so do the residential and business densities, pushing differing land uses closer together; and two recent examples are the Oleander power plant planning to build in an industrial area in close proximity to residential areas, and the fire at Yorke Doliner giving off possible toxic fumes that drifted over the Herons Landing residential community where they had to be evacuated. She stated businesses with high impacts on their surroundings with dust, noise, odors, light, traffic, and waste production need to be farther away from residential areas and low impact business areas; and the purpose of looking at standards today is to broaden the area where low impact businesses can be located. She stated low impact businesses should not be forced into high impact zones just because of their industrial classifications. Commissioner Carlson advised another purpose is to better quantify the impact criteria and design it to attract the type of businesses the Board wants in Brevard County, i.e. no chemical plants or nuclear waste disposal sites. She stated there was a lot of negative input from the business community which was disappointing to her; it is not fair to discredit the consultant the Board has chosen before the process starts; and the rush is in response to the public outcry over the proposed Oleander project as well as other permit requests. She stated the public is telling the Board there is something wrong with zoning that would allow heavy industry and residential areas to be so close together; the effort has just started and will take some time to complete, but it is still a worthwhile effort; and the Board needs to keep an open mind.

Commissioner Carlson inquired what other things are grouped under the NAICS Code, and will waste recycling be included; with Mr. Kendig responding the three digit classification is waste management and remedial service, including solid waste, hazardous waste, and other waste collections and waste treatment, various landfills and material recovery. Commissioner Carlson inquired if it considers cement and scrap metal recycling; with Mr. Kendig responding yes, NAICS goes down to a six digit code; if people have concerns about specific industries, staff has a copy of it; and they pulled out certain uses and excluded them from certain places. Commissioner Carlson inquired what is Mr. Kendig's experience in other counties or cities with waste disposal in terms of condition; with Mr. Kendig responding it depends on the community; in Illinois the State took the power away from local governments and put it with EPA for a while; then it gave it back but pulled it out of zoning and created a special siting authority. He stated it varies from state to state on how they address it; it is usually the least popular of uses in every situation; and it is almost always a conditional use requiring public hearings.

Commissioner Carlson advised page 6, Section 4, says, "The following performance standards shall apply to all industrial uses. General performance standards, under A, Airborne Emissions, states, All emissions shall be as permitted by the State of Florida in the BU-1 and BU-2 districts. Some types of emissions are prohibited." She stated throughout the entire document there is nothing pertaining to particulate in terms of dust, which is not an emission, or how to handle that within the Code because dust is a major factor and can cross property lines. She inquired how would the Board deal with that; with Mr. Kendig responding most of the emitters will have to meet particulate standards; the dust standards use the buffer yards to be catchers of dust; buffer yards are very good at intercepting particulate matter; and activities that are entirely within a building do not have many dust problems. Commissioner Carlson inquired how would they control cement dust from a cement processing plant that has been encroached upon by residential neighborhoods, and dust intrudes on traffic patterns and goes through the residential and commercial neighborhoods; with Mr. Kendig responding they can have a dust standard that would deal with it; and it is mainly an operational standard to continually wet the materials that are producing dust so they do not create dust. Commissioner Carlson advised of a cement plant off U.S. 1 in industrial zoning that can be seen from a residential yard and sends a coating of dust all over the property; and inquired how would the County alleviate those kinds of problems other than to say to industrial users they cannot be there any more. Mr. Kendig advised that is a policy issue the Board has to give staff guidance on; there are some communities that take a look at some kinds of nonconformity and say they are so bad they have to go away; and the legal answer to that is any use that is so much of a problem that it is classified as a nuisance has no right to exist. He stated there is an old U.S. Supreme Court case regarding a brickyard in a residential neighborhood; they shut it down; and the court said that use was so obnoxious in a residential neighborhood that it had no right to exist even under the Common Law before there was zoning. He stated a use does not have a right to be a nuisance under the American Legal System; the Board could go through the use table in the nonconformity section, and if it is in close proximity to residential and is a nuisance, it can be shut down or amortized over a period of years. He stated there are communities that use amortization with billboards and signage; some communities used it for uses; it is not a pleasant thing to do; and the Board needs to give staff guidance as to what level, outside of zoning, it should undertake to close down nuisances.

Commissioner Voltz advised if the Commission or City Council allowed a cement plant to be on the border of residential property, that is not the fault of the business owner; that is the fault of the governmental entity that allowed it to happen; the business should not take the brunt for that; it should be the elected officials who allowed it to happen; and inquired how would the Board go to the residents and say it is sorry but the Board before us let it happen; with Mr. Kendig responding it is very difficult, but the Board has to decide what is in the best interest of the public. Commissioner Voltz inquired if the Board would have a legal stand in court; with Mr. Kendig responding yes, it is clear in the literature of Supreme Court cases that if it is a nuisance, it does not have a right to exist. He stated if a use has become a nuisance because of sloppy operation or because residential uses were allowed to encroach, that is the ultimate end game; that is why they put in a minimum buffer yard requirement saying if a cement plant wants to add a new piece of equipment, it has to get a permit from the County and put the maximum buffer on their property to protect the neighbors from dust. Commissioner Voltz stated that is better than closing them down and telling them they are out of business. Mr. Kendig stated they could be told, because they can contain dust, they have to sprinkle and do a series of other things; they can take a lot of steps to contain that nuisance; and that is preferable and gets rid of the nuisance. He stated if it does not get rid of the nuisance, the Board has to go to the next step. He stated the use would probably become nonconforming under the ordinance because it does not have the buffer yards; it can come back and become conforming by coming to the Board and going through a conditional use process; and during that process, the neighbors with a problem would have an opportunity to comment. He advised they tried to give the Board some tools to balance the impacts, require buffer yards, require bigger buffer yards for bigger nuisances, and have a mechanism where a landowner who wanted to be conforming and a good neighbor could remove himself from the nonconforming status by doing certain things that meet the test of the Board's wisdom.

Commissioner Carlson advised Section 4.H. states, "All uses shall comply with State and federal standards. Any use that is required to submit a federal risk management plan shall submit the same to the County at the time of site plan approval. The County shall review the site plan in light of minimizing risk to neighbors. The County may impose design conditions to maximize protection of the health and safety. No such use shall be permitted in the BU-1 and BU-2 districts." She stated whatever the use is, the Emergency Management people should be fully aware of it and understand what the potential risks are to neighboring uses. She inquired if that is the intent of the paragraph; with Mr. Kendig responding that is one of two intents; Emergency Services need to know if there are hazardous materials because they will be called on the scene if a spill or accident occurred. He stated the second aspect is to give the Planning staff and the Board the opportunity to look at the site plan to evaluate what the spill situation would be, and if it has a residential area in the vicinity, to move certain facilities away from the residential area and put a building between them so if there is a spill the building will act as a dam to contain the substances involved. He stated the Board is gaining access to site planning of the use in response to the potential hazard as well as the normal things it would do in the site planning process.

Commissioner Voltz inquired if the County complies with all State and federal standards; with Planning and Zoning Director Mel Scott responding yes, it has to; but what Mr. Kendig is suggesting is an additional oversight to make site plan recommendations.

Commissioner O'Brien advised the fire departments must know what is in the building in order to respond appropriately; that is where the County has been lax; in some of the cities people have to post signs by the front doors saying what is inside the building; and although it is not a requirement to say what it is, a triangle should be posted on the front door. Commissioner Voltz noted all trucks carrying hazardous waste have to have it. Commissioner O'Brien stated it is not required in Brevard County. Commissioner Carlson stated it is a good idea; if there is something in close proximity to residential and business areas, the ordinance should protect the interest of the residents; and they should be made aware of evacuation procedures and routes. Mr. Kendig stated that is the intent of locating hazardous material industries in the interior of an industrial park where an accident could be contained in the park.

Commissioner Carlson inquired if an industrial use creates truck traffic, does the ordinance need to guard against routing them through school sections and residential neighborhoods; with Mr. Kendig responding the next stage is to deal with either selective use or some level of criteria that if they exceed those levels they would be given so many years to correct the problem. Commissioner Carlson inquired what if a conditional use permit was applied for and never used, then 20 years later the owner decides to use it, which does not go through public scrutiny; with Mr. Kendig responding CUP's should not be allowed to continue unused for more than a normal amount of time it would take someone to get the use in operation. Commissioner Carlson inquired what is a normal amount of time; with Mr. Kendig responding a year to two years; and noted if they cannot get it going in two years, they are speculating, and it should revert. Commissioner Carlson recommended language putting a time limit on the use of CUP's be included in the ordinance. Commissioner Carlson stated page 17, Section 15.A through E, talks about standards for industrial conditional uses and negative and positive criteria, and states in part, "The importance of the use to the County shall be evaluated. If the use produces materials or products that are important to the County or other industries or businesses in the County, this shall be a positive factor for issuing a conditional use permit. If the products or materials are primarily for export, this shall be a negative consideration." She stated the Cape could not conform to that standard because it exports payloads; there are a lot of products that are exported; it is a big part of the County's economic development; so it needs to look at exports as a positive potential and not a negative consideration. She stated everything Harris, Grumman, Collins, etc. do fits in that category; the Board needs to target industries it is interested in and hope to get clean industries, and define that industry better in terms of applying negative or positive considerations to any of them. She noted the whole section needs to be reworked. Mr. Kendig advised page 4, heavy industry is a conditional use only in IU district; it is permitted in IU-1; warehousing and trucking is another conditional use in a Planned Industrial Park; and all the waste disposal uses are conditional uses; but those are the only three uses that are conditional and the set of standards only applies to those. He stated he assumes most of the industries Commissioner Carlson mentioned as being good would never fall into that category so they would never be evaluated. Commissioner Carlson stated further down it talks about tax impact study and potential positive impact to the community due to the tax base, etc.; she agrees that all those things should be weighed under the conditional use process; but she did not know how to take the negative on the export side; and if there was an application in IU-1 where all they would do is export, that could be considered a negative factor. Mr. Kendig stated a paper mill would be a heavy industrial use that would probably export all its product; the Board needs to look at what really is a conditional use, and evaluate whether the criteria is too harsh or not; but that is one that could go either way. He stated before it is discarded, the Board should make sure it is an inappropriate standard for the uses that have been given the conditional use mark. Commissioner Carlson stated B says, "The relative creation of jobs for the level of pollution shall be considered"; and inquired if Mr. Kendig experienced where they have weighed the amount of pollution with the number of jobs and what was the outcome; with Mr. Kendig responding the County is in an attainment area in terms of air quality; as it continues to grow, it is going to push closer to the non-attainment status; and what he is saying is if someone comes in to use a large chunk of the pure air and only give 20 jobs, the Board can say no, it would rather have 40 industries that would use little chunks of the air and provide 10,000 jobs. He noted that is the philosophy behind that item.

Commissioner Voltz advised page 3, Additional Work, says, "We are still seeking the measurement material on odor. It turns out that documents cited by APA for odor measurement are long out of print. We are trying to find a recent reference." She inquired if there is no recent reference on odor; with Mr. Kendig responding zoning ordinances are perpetually copied; people have copied that section from the Chicago Zoning Ordinance of 1953 for decades; unfortunately APA, when it did its report on that, did not check to see if the reference was available; and when he checked he found even the organization doing it had not been under that name for 20 years. He stated they have located the odor threshold cited in the slides and will be giving staff language that changes that and puts it in tune with the 1987 document published in 1997 by the American Industrial Hygiene Association. Commissioner Carlson inquired if it covers dust; with Mr. Kendig responding no.

Commissioner Voltz requested an explanation of the statement, "There should be no greater than 10 dBA for a day/night noise limit"; with Mr. Kendig responding the day/night noise level is a 24-hour noise measurement; if they are emitting 65 decibels in the day time, at night there will be a 10 decibel penalty so it would measure at 75 decibels at night. Commissioner Voltz inquired what is the penalty; with Mr. Kendig responding the County would add 10 decibels to any noise that occurs at night; and the reason for that is noise at night disturbs sleep. Commissioner Carlson inquired if it is because the air is still, background noise is reduced, and sound carries more at night; with Mr. Kendig responding that is another way to look at it, but the reason the day/night noise level occurred was for airports, because people did not like noises at night which may have been more tolerable during the day.

Commissioner Voltz advised page 5, Section 3.B. says, "Odor is a two-part standard. In the first test, a panel of five shall be appointed by the Board of County Commissioners to visit the site and determine if the occupying use is emitting an odor that is considered by the panel to be offensive to adjoining uses." She stated it seems that the County is now going to have odor police; it is absolutely ridiculous; a staff person could go out there and say whether it stinks or not; and for the County to appoint a panel is bizarre. She inquired if the County has odor standards; with Mr. Kendig responding it has some odor standards. Mr. Kendig advised the reason for the panel is because odor is highly subjective; and some people do not mind certain odors next door, while others find most odors extremely offensive; and they have a bell curve from people who are insensitive to odor to people who are super sensitive to odor.

Chairman Scarborough stated restaurants emit odor to make people hungry; they can smell the steak as they go by so they will come in; it is a form of marketing; Mr. Kendig is saying that is okay because it is a pleasant odor; but if someone drives by the County landfill, what is pleasant and what is not is subjective. He stated the thresholds need to consider pleasant and unpleasant odors. Discussion ensued on odors being offensive to some people and not to others, and appealing odors. Mr. Kendig advised the first thing the County will do is require a business to certify it is not going to violate the odor standards before it is given a building permit. He stated the standard is designed so once the County gets a complaint, it has a qualitative factor to say it meets the odor threshold and should be abated, but it is a nice odor and not a problem in the neighborhood; and instead of sending one staff person, they felt five people would have a better opportunity to fairly evaluate that. He stated if the Board does not want to use that mechanism, that is fine; but they thought it gave extra flexibility in enforcement that the County would not have if it just used the numbers. Chairman Scarborough stated it should be said in the positive rather than negative; if people can show the odor they are emitting is pleasant as opposed to obnoxious, then they do not have a problem; and how that would be done is by the people in the neighborhood saying they do not mind the smell of a bakery or they mind another type of odor. Mr. Kendig stated that is in essence what the odor standard intends to do; and they had to make sure that they do not open the door to someone emitting an odor over the threshold and the County having to enforce it after the fact. Chairman Scarborough stated he has been involved in local government over 20 years and it is rare that odor becomes an issue; so the Board does not have to create a committee for it as it probably would not be called upon. Commissioner Higgs stated the standard needs to be very strong. Chairman Scarborough stated there can be a standard. Commissioner Voltz stated there should not be odor police. Commissioner Higgs stated odor can be a very offensive thing; and Chairman Scarborough stated an objective standard would be the way to do it. Commissioner Voltz stated the Board can determine what businesses it does not want; and it does not want something like a pulpwood factory. Commissioner Higgs stated if they controlled their odor and did their processing in such a way that the odor was contained, she would not have a problem with it.

Commissioner Voltz advised of a lady who claimed trucks moving on the property in front of her house caused her house to crack and caused particulate matter in the area. She stated the County has vibration standards; the Code says it will enforce that, but it does not have the equipment to do it; the County spent $5,000 or $10,000 to have a person check on the home; it came back negative; and there was no problem even though the lady's house is cracked and dust is on her window sills. She noted it was obvious there was a problem, but it could not be proven. She inquired what kind of vibration standards will be created and what type of equipment will the County have to buy. Mr. Kendig advised the County has to buy equipment or contract with someone who has the equipment; in the County he worked for, they hired someone from Chicago who had equipment to do the tests; and it was cheaper than buying it and training existing staff to use something they may use once every three or four years.

Commissioner Voltz read Item D, Hours of Operation, "Occasional overtime operation shall be permitted provided this shall not occur for more than two days per month or 12 days per year, and does not involve more than four hours per day." She stated that does not allow someone to put in an extra shift because it is only four hours a day; and that needs to be changed because there are a lot of companies that do 24-hour shift work. Mr. Kendig advised the limitation is for those companies going into BU-1 and BU-2 districts; and a company that knows it is going to operate two shifts should not located in those districts. Commissioner Voltz stated it does not allow them to say they have to do a huge job that will take six months and need extra shifts to complete it. Mr. Kendig stated a company that is looking at that kind of production schedule should not be in BU-1 or BU-2. Commissioner Voltz stated that would say if they are in BU-1, the County does not want them to grow; and if they do, they have to move out; with Mr. Kendig responding today they cannot locate in BU-1 or BU-2 at all.

Chairman Scarborough inquired what is the harm of having shifts next to a super Wal-Mart that operates 24 hours a day. He stated people would not notice a shift change; and to write it in the ordinance is dropping performance. Mr. Kendig stated he has not looked at residential districts or commercial districts, but if it went that way in its entirety, it would limit location to stores that are open 24 hours a day. Chairman Scarborough stated there is a propensity to move to longer hours with a lot of the stores; a lot of people work at the Space Center and come back from strange shifts; and it is convenient for them to be able to shop. He stated Brevard County does not have a historical type of community of evening hours and morning hours; people work different shifts and sleep during the day; so the Board has to think not only historically but how the world is emerging. Mr. Kendig advised a lot of people are concerned with night-time operations; if they want to operate 24 hours a day, they have to get a conditional use permit and take care of the neighborhood; the Board has to decide where it will be; and what he tried to do with the paragraph is give the Board some flexibility over a straight time limit.

He stated the time limits were set up so that companies that went into the most sensitive zones had the strictest time limits; and industry should be able to do some planning and look at those regulations and say they hope to grow and have second shift operations in a couple of years and will not locate in BU-1. He stated the ordinance allows people a lot of latitude of where to locate, which shifts to have, and responsibility for the consequences of their initial decision.

Commissioner Voltz advised the proposal limits floor area and height of building; the County has height restrictions and buffer yard restrictions; and inquired if this would be a taking issue if the County requires all those things and the person cannot get a building on the property; with Mr. Knox responding the Board can regulate things like that without worrying about takings as long as it is not stopping all reasonable use of the property. Commissioner Voltz inquired why floor area is being limited; with Mr. Kendig responding it is to make sure in a commercial district the building is not totally out of scale with the normal commercial buildings and the residential community around it. He stated many communities tried to define neighborhood shopping from regional shopping; regional shopping has big buildings; and it never worked. He stated a furniture store can be in a 10,000 or 40,000 square-foot building; same with a food store and almost any other store; so what performance standards do is look at the scale it should be by where it is located; and if it is in a neighborhood, it should make it neighborhood scale; and if it is regional, it should make it a regional scale. Commissioner Voltz inquired if the size of the property has nothing to do with it; with Mr. Kendig responding if his house was on an 8,000 square-foot lot, he would not want a 200,000 square-foot building next to it. Commissioner Voltz stated the Code and Comprehensive Plan would not allow that; with Mr. Kendig noting there is residential next to industrial now. Commissioner Voltz inquired if a person has a 20-acre parcel, what square footage would he be limited to; and would it be based on the size of the parcel; with Mr. Kendig responding the maximum size of a building in BU-1 is 20,000 square feet or roughly half an acre if they want to put up a single building; but if he had a 20-acre parcel, he would subdivide it. He stated there are not many 20-acre parcels where someone would put up a single building; a ten-acre shopping center has outparcels for food stores on it; most are chopped up into little properties; and that is the way the world works. He stated a 20-acre parcel does not limit the owner to one 20,000 square-foot building; he can subdivide off a lot, put up a 20,000 square-foot industrial building, and take the rest and make it into a car lot or anything else that is allowed in commercial. Commissioner Voltz inquired if they have to do it and have no choice; with Mr. Kendig responding yes.

Commissioner Voltz stated Section 4.D. says, "All uses shall ensure that no impacts heat, humidity, or steam, are measurable at the property line to a height of 30 feet." She stated if they have stacks that go 100 feet or 60 feet or 200 feet up then it should not affect anything because the County is going to only measure 30 feet. Mr. Kendig stated that is basically out of the current Ordinance and eventually the practical difficulties of trying to measure humidity or heat 100 feet up in the air poses real problems on how to do it. Commissioner Voltz stated page 7, Item K, says, "All industrial uses shall meet point and non-point water quality standards, discharge standards, or any pretreatment requirements." She inquired if the County is doing that now; with Ms. Busacca responding yes. Commissioner Voltz inquired if page 10, lighting standards, is different than what the County currently has; with Mr. Kendig responding he did not find anything in the County Code on lighting. Zoning Official Rick Enos advised there is a standard in Section 62-2257, but it is problematic. Commissioner Voltz advised B, C and D talk about 0.2 foot candles, 50-foot candles, 400 watts, and luminaries; and requested a comparison of what that means. Mr. Kendig responded the Commission Room is probably 30-foot candles; a new gas station that glows in the dark is 100-foot candles under canopy; some new car lots have gone to that level of lumination; and operating standards are about 120-foot candles. Commissioner Voltz inquired what would 0.2 look like; with Mr. Kendig responding dark.

Commissioner Voltz advised the buffer yards item says, "Buffer yards shall not be located on any portion of an existing or dedicated public or private street or right-of-way or drainage." She inquired, if a person has a business that abuts some property that has been designated as environmentally sensitive, and there are a lot of trees around it, is this item saying they cannot use that as a buffer and they have to put a buffer on their own property even though nothing is going to ever be there. Mr. Kendig stated the buffer yards are required against residential lands; he does not know how an environmentally sensitive area would be zoned under the Code; but it would probably not be zoned residential. Commissioner Voltz stated page 13, first paragraph says, "A developer may develop a buffer of opacity specified using their own mix of buffer with landscape material and structure." She inquired what that means; with Mr. Kendig responding he supplied staff with a computer model that allows the County to vary the elements in a buffer yard any way it wants to, as long as they meet the table on the prior page that says they have to have a .3 opacity which means 30% of the object is screened. Commissioner Voltz advised page 13 says, "Surety shall be required for the cost of the buffer yard as part of the final plat approval process." She inquired if there is a surety requirement for anything else; with Ms. Busacca responding the County requires surety bonds for various construction projects. She stated the Board debated landscape bonds, and there is some bonding permitted in landscaping. Commissioner Voltz stated page 17, Standards for Industrial Conditional Uses, has issues that EDC deals with; and inquired if there is something staff will do to work it out with EDC. Mr. Kendig advised a number of uses were identified on page 4 as heavy industry in the industrial district, warehousing and trucking in planned industrial district, and waste disposal uses in IU-1 district that are conditional uses; for those three uses, the Board will make the decision on whether that use is going to be permitted; and EDC will have to coordinate with the Board to make sure they are not bringing in something the Board will reject.

Commissioner Carlson inquired what was EDC's input on those standards; with Mr. Kendig responding they were uneasy and felt stricter standards would drive development from the County; however, that is a strange philosophy because communities that are most demanding seem to have the most success, such as the Research Triangle in North Carolina. He described some of the stringent standards on floor area, building exterior, retention, etc.; and noted hi-tech industries do not want to be next door to a falling apart metal barn.

Commissioner Voltz stated some of the provisions are good and things the Board needs to look at, but there are a lot of things that are questionable; there is no need to rush it; the whole Code does not need to be turned upside down just because it is 30 or 40 years old; and the real problem is Code Enforcement. She stated if industry is allowed in BU-1 and BU-2 and decides to get sloppy, it will become a Code Enforcement issue, but they are already there and the neighbors have not had a say because it was taken out of the realm of public hearings. She stated if heavy industry is on the border of residential property, the Comprehensive Plan needs to be reviewed; existing businesses need to be addressed; the Board has to be responsible and look at what it is going to do to the community, environment, and economy; and the Board needs to be more cautious.

The meeting recessed at 11:09 a.m., and reconvened at 11:29 a.m.

Commissioner O'Brien commented staff has to have it ready for the LPA by Monday, but he is not sure they want to travel at the speed of light with the proposal. Chairman Scarborough requested Commissioners ask specific questions, then discuss the process. Commissioner O'Brien stated he would prefer to hear the public before lunch.

Commissioner Higgs inquired where would power plants fit in Section I; with Mr. Kendig responding there are a few things that should be corrected on that page; utilities 22 should be in the industry category and the last line and a half starting with "research and development" under heavy industry should be removed because that is in office research. Commissioner Higgs inquired if the Board decided to put certain industries under conditional uses such as pulpwood factories, has it been worked that way; with Mr. Kendig responding heavy industry is a conditional use; paper mills are not conditional uses in IU, but have to meet the standards of IU-1; those are not going to meet odor standards and would fail to meet the standards of the proposed code and not be permitted. He stated on the other hand, a specialty paper place that makes small batches of paper may be permitted and meet the standards of a permitted use because it has the appropriate equipment to reduce odor; but if the Board wants to make heavy industry a conditional use everywhere, it would change the IU-1 designation to C.

Commissioner Carlson requested Mr. Kendig discuss the evolution of the utility business and why it could go in industrial and not in heavy industrial; with Mr. Kendig responding there are all sorts of utilities including water, gas, and electricity; the two main power plants in Brevard County are classic smoke stack utilities that burn heavy industrial grade fuel oils with lots of emissions; and all new plants are forced to be much cleaner because there is better technology. He stated as deregulation came on, utilities could not afford to build large plants that operated only for short periods of time, so they started building peaking plants that were turned on during peak load periods and turned off the rest of the time. He stated it is easier to build several peaking plants and distribute them around the grid than to build a very large facility at one site in the grid; and that seems to be the evolution of where utilities are going. He stated the Air Quality Act had a dramatic impact on all the electric utility generators in terms of what emissions they had; the peaking plants are easier to clean than full-scale plants because they can operate on different fuel sources and different equipment; they do not generate steam with heat and then electricity; and they generate electricity direct from the power source.

Commissioner Higgs advised in the IU description, the building materials specify no metal-sided buildings under IU, but there is no restriction in IU-1; and inquired why is that recommended; with Mr. Kendig responding on the exterior of an IU or IU-1 district they are seen by people driving by or from an abutting residential district; metal-sided buildings are generally not attractive; and if the Board wants to send an image as a good place for business to locate, it would want the world to see attractive businesses. He noted industry wants to be in the nicest neighborhoods; if they are going to make a major investment, particularly in hi-tech, they do not want to build metal-sided buildings, be next to them, or have the possibility of one coming in next to them; so he tried to limit those to the interior of heavy industrial areas. Commissioner Higgs inquired if it is the same sort of issue as limiting the size of buildings in PIP to get the scale of the park more compatible with surrounding areas; with Mr. Kendig responding yes.

Chairman Scarborough advised there are 31 speaker cards; and inquired if the Board wants to hear all of them before lunch; with Commissioner O'Brien responding the Board could take public comments until 12:15 p.m. then take an hour for lunch.

Public Comments

Craig Bock stated he distributed to each Commissioner Lane Kendig's industrial performance standards from June 4 to July 6, 1999; after the last meeting a representative of a big industry said he had been working with Mr. Kendig; and the size of the buildings in IU-1 went from less than 60,000 square feet to 200,000 square feet, and fuel tanker truck shipment requirements and other categories were changed. He stated there was an increase in decibels by 10; the outskirts of the building is now the property line; and asked Mr. Kendig what transpired during that month to cause the major changes.

Mr. Kendig advised he spent a lot of time talking to staff, reviewing the numbers, and listening to a lot of comments pro and con; and the last time he was here he tried to respond to those comments as best he could to get the proposal as close to ready for adoption as possible.

Mr. Bock commented something that increased 3-1/2 times its original size had to be affected by something. He stated many people were troubled by Commissioner Carlson's instructions that this was not a power plant issue, so they left. He advised plants that capture steam are combined cycle and more efficient; those that do not are simple cycle and less efficient, 38% as opposed to 58%; and they use more water to knock down emissions. He stated the people said they wanted the right to have input; Commissioner Carlson called for a moratorium so people could have input; and this proposal takes away public input. He noted Mr. Kendig came on strongly in portions of the proposal; Section 15 relating to major polluting industries, must weigh the benefits with the negatives; the Cape had a poisonous plume go across Brevard County, but it was not asked to close because it is needed; and many business leaders separate themselves from major polluters. Mr. Bock stated he is in favor of straightening things out and working against major polluters that would bring Brevard County to non-attainment; they are troubled by the fact that seven months later it is not done; Mel Scott told him his job was to implement whatever Mr. Kendig gives him; they have not seen what they thought was a direction of the Board to take the things they brought up and incorporate them into the proposed ordinance; and now it seems too late. He noted that is very troubling and has given him a bitter taste of government. He stated seven months later there is no CUP; they originally cried out for help; and there are good suggestions about wetting down dust and particulate, but it is using natural resources. He stated Section 15 should include a CUP for water users of 100,000 gallons a day or more, and for those that impact property values and surrounding areas, so there can be public input.

Robert Hicks advised he has been a contractor in Brevard County since 1961 and a Butler Manufacturing dealer since 1968; as research and development made improvements in electronics, it also made improvements in the construction industry; Butler does a lot of research and development on its products; and the pictures will show that metal panels are used in all types of buildings. He stated a major improvement in metal panels is the use of a special coating on the exterior; Butler warrants its panels against blisters, peeling, chipping, and flaking for 20 years; some panels are flat and some have stucco finishes; and they are high-efficiency panels, some as high as R-30 which is equivalent to ten inches of fiberglass. Mr. Hicks advised construction costs, maintenance costs, and thermo-efficiency are some of the reasons for selection of materials used on buildings; metal panels are extensively used for those reasons, especially on larger and taller buildings; and Brevard County has numerous facilities in all types of zoning categories with metal panels. He stated metal panels have been used widely on roofs; new schools along with the School Board building next door have that situation; and inquired if metal panels are good enough for those facilities, why are they not good enough for walls. He presented pictures of tilt slab buildings; noted there are numerous tilt slab buildings throughout Brevard County, such as Home Depot, HealthFirst, and the new Cocoa Post Office; and stated he cannot understand why they are being limited. Mr. Hicks advised with limited rail service, most goods come in by truck and are shipped out by truck; and inquired why is the ordinance limiting the size of trucks. He stated the proposal is dated July 6, but he did not receive it until July 8, 1999, so he does not know how the Board can intelligently discuss it today. He stated it is too restrictive; Sea Ray Boats, Inc. could not come close to complying with it as far as size and height of buildings, operating hours, exterior storage, open-sided buildings, truck limits, metal siding, tilt siding, and odor; and noted Sea Ray would be run out of town if EPA was not controlling the odor from that plant.

Commissioner Voltz inquired what would the proposal do to Mr. Hick's business; with Mr. Hicks responding if metal siding is limited, it would kill his business.

Ann Stacer, President of Port St. John Homeowners Association, stated she did not receive a copy of the new code until ten minutes before the meeting; she did not have time to do more than scan it; and there are a lot of issues. She stated a new code is needed; and Mr. Kendig did a lot of good work, but where will the County be if it cannot enforce the codes. She advised several years ago Code Enforcement was stripped of its officers except for a few; they are not allowed to be proactive and cannot do anything about something they see that is wrong unless someone calls it in; and unless the Board can find the money to fund a sufficient number of Code Enforcement officers, it will have a set of standards it cannot enforce.

David Armstrong, representing the Home Builders and Contractors, stated they question the seriousness of the Board to change a 40-year plan in just a matter of weeks, as there are a lot of unanswered questions, whether it be Code Enforcement, reduced lighting which would cause more vandalism and theft, new industry, cost to new industry, etc. He stated the proposal would require a 400-foot buffer zone around an industrial park; for every 100 feet of the 400 feet, they would lose an acre; and they cannot put a dollar amount on it because they have not had the time to look at that or what it will cost industry to move into Brevard County. He stated another concern is conformance; industry pays a large portion of the taxes in Brevard County; and inquired how would the Board like to have buildings that are usually on a three-year term to refinance and tell the lender they are nonconforming. He stated there is a lender in the audience who will tell the Board those banks will not do business with them. Mr. Armstrong inquired how would insurance agents look at a person who owns nonconforming buildings; and stated it concerns him as an owner of industrial property, as he may lose tenants who want to grow. He stated no dollar figure has been put on any of the proposed changes; no one knows where it is going; and that is not good for the County. He inquired if a concrete plant is next to residential, who was there first; if a developer chooses to put a subdivision close to an airport and the airport was in existence, why should the airport be penalized; and if a concrete plant was next to a development, people buying homes knew about it and probably got a better price, so should they shut down the plant or come to the Board for a decision. Mr. Armstrong stated hours of operation being limited is a concern; tele-marketers do not hurt anyone and can work around the clock; and if the Board takes an attitude toward limiting growth, where will the County be. He recommended the Board extend the proposal for four to six months, or put a time limit on it so they would have an effective means of measuring what they are going into. He stated the turmoil it could cause may be greater than adding to the existing Code without changing it.

Muriel Considine requested the Board take into consideration that a proposed industry is being considered within half a mile of her home and a mile of a thousand homes, and that the residents were there first.

Tom Berringer stated Mr. Kendig has come up with things that are relative and not relative to problems in the County, so the Board should take out things that are not relative and consider the things that are relative. He stated they had much to say about pollution, truck traffic, and water usage that were factual; they heard many facts from the community; and heavy industry can be a downfall, but the Board does not need to administer all those things to every industry. He stated Brevard County is already in a bad situation with pollution, traffic, and everything involved in any kind of industry; so heavy industry that wants to come to the County should be able to participate in rules and regulations that are already in place. He stated Forest Lakes has a lot of pollution from I-95, SR 520 and SR 524, but pollution from heavy industry, particularly a power plant is different; it is worse than what they get from cars; and they need the Board to support them and do what benefits the people who were there first.

John Richardson advised the original list of 70 industries was reduced to 7; the new listing does not talk about utility, but talks about manufacturing; and the new facility is going to manufacture electricity to be exported. He stated page 6, Section 4.H. Hazardous Materials, states, "Any use that is required to submit a federal risk management plan shall submit the same to the County at the time of site plan approval"; but it should be submitted prior to site plan approval. He stated Section 15, Standards for Industrial Conditional Uses, Section A, says, "If the product or materials are primarily for export. . ."; that is what the new facility will do; it is not needed in Brevard County or Florida; but it could be constructed here strictly for export up the East Coast.

Attorney Leonard Spielvogel, representing Constellation Power, that nobody is supposed to speak about today, advised the Board needs to spend a lot of time on nonconforming uses, because what is being proposed today, unless it is radically revised and studied to a great extent, will create a lot of nonconforming uses and put a lot of people out of business like Hicks Construction. He stated Mr. Hicks did not know about this matter; there are a lot of people working for a living who do not have time to read the documents; and the Board needs to get the message to them in a better fashion. He advised Mr. Kendig spoke to the EDC at a luncheon; a question was put to him as to whether or not there was a real problem because he did a flyover and mentioned he found a lot of residential right up to industrial; and his answer was no, he did not see a lot of residential right up to industrial today, but he saw the potential of a problem and there is a lot in the Comprehensive Plan that has residential butting up to industrial. He stated the Board could spend less dollars and less staff time if it would amend the Comprehensive Plan and put something between industrial and residential so it does not have the future calamity of a conflict. He noted it would be the way to practice preventive medicine rather than tell people they have ten or fifteen years and then they will be amortized out of business. He stated that would mean for the next ten years nobody will improve their places of business because they will be out of business after a period of years; and that is not the solution because a lot of people will be hurt, and that is not fair. Mr. Spielvogel inquired if an industry meets all the criteria of Section 4, General Performance Standards, Section 5, District Performance Standards, why would it be designated a conditional use and not a permitted use. He stated a paper mill coming to Brevard County is the parade of horribles; and if the County adopts standards for various things, it would not get paper mills unless they can come up with a new way of doing paper that does not smell or have an impact. He stated they are fighting the stereotypes with Oleander; everybody has a picture of what it will be; when they talk about metal siding, they are not thinking about what Butler buildings look like today, but rather what they looked like 30 years ago; and they need to overcome that prejudice.

Bob Wellen, representing Brevard County Manufacturers Association, advised the Association which represents a good part of the business community is not here to throw rocks; and its primary purpose is to see that prudent action is taken, and that the Board not rush to judgment or do anything that may be a knee-jerk reaction at a later time. He recommended the Board look at all sides of the issue and consider impacts on existing manufacturers, and realize the manufacturing community produces some of the highest paying jobs in the County and supports many other service industries. He stated whatever the Board's decision is, he would suggest it give some thought to the issue.

Robert Jensen, Government Affairs Chairman of Melbourne/Palm Bay Area Chamber of Commerce, stated there has been a lot of vocalism by citizens; they do not want power plants, and now it appears they do not want performance based standards; and he is not sure where they are coming from, but it points to the confusion that exists. He stated performance based zoning speaks to issues that are coming down the pike; it appears there is an agenda on existing businesses and a plan to work against those businesses; and if they are amortized, there will be a big decline. He stated he heard they are not to criticize Mr. Kendig, but they need to check out where Mr. Kendig has been and the places his policies have been implemented. He noted they have done a little of that thus far, and it has not been good; and recommended the Board appoint someone, neither pro or con, to do the research; and if it does not, it will be missing an important part of the process of how has it worked elsewhere. Mr. Jensen stated no place in the United States has it been implemented on a countywide basis; and it has all been in upscale residential communities. He stated it was pointed out that the Research Triangle is a prototype for performance standards; the reason companies go there is because they are given incentives of free land, not because of wonderful restrictive zoning; and it looks nice, but that is not why they go there. He stated someone who had to leave left this question, "Have you compared the standards with zoning standards of other counties we are competing against for space-related business?"; that is extremely important; there are competitors in Alabama, California, and Texas; and if Brevard County makes itself extremely restrictive, it is going to lose. He requested the Board give those things consideration; noted the Chamber represents about 2,000 businesses in the County; and stated if they could all be here, they would agree to what has been said on the business side.

The meeting recessed for lunch at 12:17 p.m., and reconvened at 1:15 p.m.

Marjorie Derrick stated one issue Mr. Kendig failed to address is protection of migratory birds and bats from stack emissions; and while his recommendation to limit vertical heat and humidity to 30 feet may be helpful, it does not solve the problem. She stated the People for Ethical Treatment of Animals Organization in the last decade, documented the deaths of thousands of birds and bats in Exxon stacks and oil fields in several states; the problem is so bad the stacks were plugged with their bodies which had to be removed with pressure hoses; and it is not just a case of flyover problems. Ms. Derrick stated in addition to the millions of birds that fly through here on the Atlantic Coastal Migratory Bird Track annually, there are nine species of bats, two of which are visitors and seven residential; stacks come with a variety of technology; Oleander is not the only one; it is one of a spectrum; and Exxon's record shows that it is an attractive and dangerous hazard to birds and bats because they represent cave-like shelters. She advised Brevard County is host to several national wildlife refuges, Pelican Island, Merritt Island, Archie Carr, Canaveral National Seashore, etc.; it is essential that protection for birds and bats be a requirement for any industry with a stack in the County; protective devices do exist; and Exxon was forced to apply one of them which solved the problem. She requested protection requirements be set in place ahead of time to be in conformity with technology, because if the Board does not do it and there are problems, they would not be in violation of any ordinance and it would take years to force change like it did with Exxon.

Mike Stallings advised he agrees with Mr. Spielvogel who suggested the Board go slow on the new standards; they are good standards and are needed for the next forty years; but there are problems that need to be worked out. He stated Mr. Spielvogel suggested fixing the existing Code before jumping into the new code, and he agrees with that; the Board could add to the current Ordinances that power plants not covered by the Power Plant Siting Act should be made to conform to those standards by Brevard County through local ordinances if not covered at the State level; and any business requesting a permit that has potential to use over 100,000 gallons of water a day should be subject to conditional use review. Mr. Stallings advised Brevard County is in a water control area of St. Johns River Water Management District; so the Board needs to look at those industries that will use a lot of water. He stated Mr. Spielvogel said a lot of misinformation was put out, and he agrees; Mr. Spielvogel pointed out Oleander would not put out a visible exhaust plume like Florida Power & Light Company; but he has not disclosed that Oleander would put out over 100 tons a year of nitric oxide which is a key component of the ozone that hurt people with lung and cardiopulmonary problems. He noted Mr. Spielvogel stated competition will force Florida Power & Light Company to change; the implication is Oleander will be a competition to Florida Power & Light Company; but he did not say that a peaking plant which sells its power for over $5,000 a megawatt is no competition to a base plant such as Florida Power & Light Company that sells its power for $550 a megawatt. Mr. Stallings stated Oleander plans to use most of or all the gas available from Florida Gas Transmission pipeline; if they are able to do that, it would make it harder to force Florida Power & Light Company to switch to gas because there will not be any gas; so actually Oleander, rather than being competition and forcing Florida Power & Light Company to upgrade, would prevent it from upgrading. He noted Mr. Kendig said no industry has a right to be a nuisance; and inquired if they could be forced to close or change and if it has anything to do with the performance standards; with Mr. Kendig responding it is a general law.

Maureen Rupe advised she is concerned with the changes from June 4 to July 6, and feels somewhat apprehensive about the proposal dragging on a long time because it tends to be less restrictive every time it comes back to the Board, and they end up with something like what is happening on the landscaping and land clearing Ordinances. She stated performance zoning is necessary; it has been 40 years; and it is not working as it stands now. She stated industry was not always there first; in Port St. John residential is being flanked all the way around by a large industrial park; there is one exit on Fay Boulevard with no left turn to U.S. 1, so trucks have to pull into the median and the residential area. She stated the other exit is on Curtis Boulevard; and they have to go up to get to Grissom Parkway. Ms. Rupe inquired if there is any restriction on the total truck traffic, and are trucks included in the noise standards. She inquired how many trucks can come out of Fay Boulevard and Curtis Boulevard. She stated vegetative buffers are only effective in ten years because they are small when planted; and there should be limits on water usage and building sizes.

Douglas Sphar, representing Turtle Coast Group of the Sierra Club, advised they provided Commissioners and staff with copies of their revised proposal for a tighter air standard for new industry, and based their proposal on discussions with Howard Rose, the Department of Environmental Protection Director of Air Management Program and his senior staff. He stated Brevard County has many unique natural attributes; the County derives great economic value from those natural resources; and their proposal is to protect resources. He stated Mr. Kendig talked about attainment status of Brevard County regarding air pollution; when Congress established the Clean Air Act, areas like Brevard County that still had healthy air were allowed to have additional incremental amounts of pollution in order to sustain a level of economic growth; as Mr. Kendig pointed out, it can be parceled out in little pieces or in one big piece; and the Sierra proposal is to put screening criteria on new major polluting industries that come into Brevard County in such a way that if they come in and are allowed to impact the increment and consume part of it, when the increment gets consumed, industrial development comes to a halt. He suggested looking for a long-term sustainable future of clean high-tech industry, and put some type of filtering or gate-keeping criteria on major polluters that want to come into Brevard County. He recommended divvying it out in small pieces so future generations can capitalize on the remaining air pollution increment. He stated they do not want a proposal that will put a burden on the County as far as staff increase and hiring experts; the Sierra proposal capitalizes on analyses and data products from Department of Environmental Protection because major polluters, by Title 40 of the Code of Federal Regulations, have to identify themselves to Department of Environmental Protection, go through political hoops, and present certain data which are public records; and the County staff can get access to those to evaluate them. He stated the Sierra Club hopes the County will consider its proposal or a similar standard for inclusion in the performance zoning code; the proposal does not impact existing industries or polluting industries; and it basically puts a gate-keeping function on new industries that come in the category of major polluters.

Commissioner Carlson inquired if Mr. Sphar has a copy of Title 40; with Mr. Sphar responding the County should have that Code of Federal Regulations; and he can give her a website with all the Codes of Federal Regulations. Commissioner Carlson requested Mr. Sphar give the exact description to Mr. Knox so he can find it and provide the Board with copies. Mr. Sphar stated Title 40's name is Protection of the Environment, and is the implementing regulations for the Clean Air Act which establishes EPA, etc. County Attorney Scott Knox requested Mr. Sphar provide him with the numbers.

Jan Moody, representing Dalehurst Homeowners Association, stated she is a lifelong resident of Brevard County; lived in a house within two miles of the proposed power plant for 22 years; spends a lot of time outdoors; and owns a business. She stated she came to the meeting for answers and has not received any; there was discussion about offensive odor being taken to a higher up, but not who the higher up is or how long it will take to fix it; and no explanation was given of what exactly is the best approach. She stated she heard the plant would use 1.9 million gallons of water per day; and inquired where will the water come from, and can the Board guarantee it will not affect the St. Johns River, will not make any type of odor, and that her family will not have breathing or medical problems from it. She stated the Codes have to be addressed; the old Codes are what allowed Sea Ray to operate in the County; the fiberglass odor is so strong from Sea Ray that her children constantly complain about it whenever they drive in that area; and inquired if the Board wants Brevard County to become a pollutant area. Ms. Moody stated there are too many unanswered issues; and inquired how can the Board let a huge plant that could emit 100,000 tons of pollutants into the air go forward without answering everything. She again asked if anyone can guarantee that her family will not be affected from any pollutants by the proposed plant.

Sharon Burridge advised any industry that emits large amounts of pollutants, uses large amounts of water, and requires large amounts of truck traffic needs to have a conditional use permit; and requested the Board adopt Section 15 and add it to the existing Code. She stated she came from the Galapagos Islands where the sky is blue and there is no smog on the horizon; the astronauts in space said how polluted the world is; and this is a small step the Board can take to curtail pollution. She noted it would not be giving up anything but 12 jobs; and requested the Board choose things for the betterment of the County. She stated she does not want to put people out of business or builders who use metal buildings, but the air counts and the water counts, and they matter to her.

Roger Heinig advised Mr. Kendig's draft proposal addresses a long list of problems that Brevard County does not have, and it fails to address a short list of problems that it does have; it may be a good starting point for a comprehensive review of the development planning Ordinance, but it will be quite some time before there are solutions to the real problems using the results of Mr. Kendig's work. He stated Commissioner Carlson pointed out the problem that brought everyone here today; the Board needs to target the kinds of businesses it wants to attract, and discourage those it does not want; and it must ensure industrial growth is consistent with the broad interest of the public. He stated the State of Florida has a processing place for one particular industry; that is called the Florida Power Plant Siting Act; page 2 of the handout he gave the Board gives the legislative intent to seek courses of action that will fully balance the increasing demands for electrical power plant locations and operations with the broad interest of the public; and the State felt absent such an act, that balance would not take place. He stated page 3 pre-empts local government authority over the siting of certain power plants and ensures such facilities are in the public interest; the Act is limited to steam and solar plants; it is optional for plants of less than 75 megawatts; so plants of other than steam and solar or less than 75 megawatts is left to the counties as the responsible organization for determining the public interest. Mr. Heinig advised Brevard County has more than its fair share of the State's power plants; the land area is 2% and the population is 3% of the State; so it should have 2 to 3% of the power plants in the State; however, it has almost 5%, which is twice the fair share, and the proposed Oleander plant will bring that to 7%. He stated if it was only one plant, he would not be here, but there has been a change in the ownership of the OUC site; the new owners paid $235 a megawatt for 40- year old junk; and comparing that to the $238 a megawatt Constellation plans to spend building a new plant in West Cocoa, will show that the people who bought OUC spent almost as much money for old junk as the new plant; and the only reason they would spend that much money is that they have plans for that site. He stated the Williams Company Buccaneer pipeline from Tampa Bay to Brevard County is intended to supply 12 power plants; there are other possibilities on the horizon; unfortunately the current law encourages simple cycle peaking plants which are low efficiency and high polluters; and those simple cycle plants will not displace plants like the existing Florida Power & Light Company plant. He stated it will burn more fuel to get the same amount of electricity; the Oleander plant will be 8% less efficient than the existing Florida Power & Light Company plant; Florida Power & Light Company's fuel bill is almost $100 million a year; so every 1% in efficiency is a million dollars. He stated that is not a competitive situation; it is not going to displace that plant; the County needs low pollution, high efficiency, combined cycle plants; and for that reason he recommends the Board adopt the proposal on the last page of the handout and begin the steps today to put an ordinance in place.

E. M. Loyless advised the reason the Power Plant Siting Act includes a determination of need is to balance the need for power plants because power plants go into the regulated utilities rate base and customers have to pay for them. He stated an independent power plant such as the one discussed today would not be in the rate base; all the money will be at Constellation's risk; and that is the reason that plant is not subject to the Power Plant Siting Act. He stated if Brevard County needs to change something, performance based zoning is a wonderful idea; he is not from Brevard County and will not presume to tell the Board whether it does or does not need it; but he will accept Mr. Kendig's thoughts that any problems are in the future. He stated the proposed ordinance has some problems; speakers said it is too restrictive and not restrictive enough, and they do not know what the impacts will be; so he would urge the Board not to rush into it until it knows the effect of it.

Richard Zwolak, Environmental Consultant with Golder Associates, advised the noise regulations have an important role in the establishment of comprehensive land development regulations; they are tools to be used in maximizing compatibility between industrial and other land uses; they go a long way in providing compatibility between commercial and residential as well; however, they need to be standards that are very carefully considered. He stated the Board needs to ensure it gets benefit from the regulations without undue burden on businesses that need to comply with them. Mr. Zwolak stated the noise minimum standards for business are 45 decibels and 55 to 65 for industrial; and a textbook called Noise and Vibration Control characterizes 44 decibels as bird chirping and 55 decibels as noise emitted from a standard residential air handler at 15 feet from the noise source. He stated he monitored noise in the parking lot this morning, the lobby during the break, and in the Commission Room; the parking lot noise was 58 decibels, lobby was 64 decibels, and the Commission Room was 61 decibels; and that should give the Board an idea of the types of noise levels it is talking about. Mr. Zwolak noted 45 to 65 decibels are too low; he has examples of standards from DeBary, Lee County, and EPA Office of Noise Abatement and Controls Guidelines for Environmental Noise; the standards they propose are 55 decibels for night time noise, 55 to 66 dBA for day time noise depending on the jurisdiction, 60 and 70 for commercial during the night and 65 to 72 during the day; and it varies for industrial uses. He noted EPA recommends 70 decibels and DeBary and Lee County recommend 75 decibels. He stated those noise standards instituted by local governments provided the benefit the community sought and maximized the compatibility on a noise basis without being an undue burden on business; and presented copies of the Ordinances and Regulations to the Board.

Janice Eide stated her concerns are the same as before; and inquired if anyone received a report back on property values around power plants; with Commissioner Carlson responding she received it but did not bring it to the meeting; however, Ms. Eide can get a copy at her office after the meeting. Ms. Eide stated she owns ten acres in the area, and it is a big concern to her because she put her life's savings into that property. She described the violations caused by the Cocoa Auto Auction across the street with parking, loading and unloading on the sides of Cox Road; and stated if that small business cannot be controlled, a big power plant is going to do what it wants to do when it gets in. She inquired why overtime was paid to remove the signs on Cox Road, and why Cox Road is not allowed to have no parking signs; described the mess left behind on Tuesday mornings after the Monday night auto auctions, and the problems with lights and noise; and requested ordinances regulating lights and noise.

Mary Beasom inquired if Brevard County wants performance zoning, and is it good for the County. She stated Mr. Kendig's plan has good points, but she would support amending the existing Zoning Code to strengthen it according to today's needs. She stated a strong zoning code will attract good business; a stable zoning code will encourage strong business development; however, if the Board acts in haste, it could repent in leisure. She stated the proposal needs to be well thought out; she agrees with adopting Section 15 into the existing Code; it will not do away with manufacturing; but she is not sure performance zoning is what the County needs.

Dorothy Amstadt stated she supports odor standards; and described the problems they experienced with the terrible odor from the medical waste incinerator, and the experience of her friend with the odors from Sea Ray Boats, Inc. She stated performance standards need to be done as soon as possible because of heavy pollution having a tremendous impact on the health of children; and advised of a nine-year old child in Port St. John diagnosed with having a stroke, tumors, or massive brain infection which is abnormal for a young person. She indicated people who smoke voluntarily accept pollution, but they do not voluntarily accept pollution from industry and are opposed to it. She stated as Brevard County gets more polluting industries, the high-quality business will not be interested in coming to the County; and advised of companies that did not transfer to Brevard County because of the odors from the medical waste incinerator. Ms. Amstadt advised Mr. Kendig said no one has a right to be a nuisance; that includes pollution; nobody has a right to have anything that deliberately harms someone else; and the Board needs to keep in mind there is new technology. She stated she gave Chairman Scarborough the article about fuel-celled future electric plants people can have in their homes; all the expensive things before too long will become obsolete; and requested the Board consider those things. She suggested, when a lot of people show up at a meeting, they be allowed to make their comments first so the Board understands their concerns.

Norma King advised it was stated that the County could adopt an ordinance prohibiting federal credits being transferred to Brevard County which would cut down on industrial pollution; and inquired how do those credits work; with Mr. Kendig responding the Federal Air Pollution Standards permit pollution credits to be sold; that allowed industries in the Midwest to continue using new facilities with high-sulfur coal by buying clean air from other places that were not approaching air quality standards; and the Board can prohibit that from being transferred into Brevard County. He noted somewhere between the first memo and the memo discussed today, that fell out; and it should go back in. He noted Mr. Knox may want to ask for a legal opinion on that. Commissioner Carlson inquired how would the County find out if a power plant wanted to come in and had those credits; with Mr. Kendig responding it could find out from the State because they would be exceeding the State's normal regulations and would have to tell the State they bought credits and can use them. Ms. King requested the Board use 20/20 vision of what the County will look like in the year 2020.

Marlene Waters stated she was disturbed about the serious reduction in some of the performance standards but more importantly the actual elimination of the three main things the public was concerned about--air emissions, water usage, and truck traffic. She stated the air standards say State regulations; mentioned an article in the Orlando Sentinel about the State's lakes, including Fox Lake, Lake Poinsett, and areas of the St. Johns River which would not be cleaned; and stated since the State has not done a good job keeping lakes from pollution, she has to assume it is not doing so great with air quality. She stated a major source of pollution that will also use massive quantities of water, as well as create a lot of heavy truck traffic, should be a conditional use because the public has a right to know about it. Ms. Waters stated Section 15 Standards for Conditional Uses, were exactly what the County was looking for; she heard the County has been historically unsuccessful with conditional use permits; and inquired if that is because it did not have a way to measure positives and negatives. She stated she faxed the Commissioners a suggestion on the water usage; if the potential water usage is over 100,000 gallons per day using a once-through technology when another more efficient technology is possible, it should be given a negative consideration. She stated Brevard County is in a water resource caution area; the St. Johns River Water Management District recommended local governments enact stricter regulations on water usage; and most business people would not disagree that water is an important issue. Ms. Waters advised she faxed another note to the Commissioners stating anything that has the ability to use that much water should undergo a conditional use review; and since the Codes lack descriptions of light industrial and heavy industrial, she added those. She stated that is all the public is asking for; they do not want to get business people in an uproar; the performance zoning is a good idea; it takes a lot more time to do; and she appreciates the Board addressing the original intent.

Roseann McWilliams, representing the Home Builders and Contractors Association as its President, stated she is here as a taxpayer concerned about the decision to make radical changes to the Zoning Code without further research and more public involvement. She stated the Codes have been in place for 40 years; there are things that can be improved; performance based zoning is to protect users from negative impacts of other users; and in order for it to be successful, it would be necessary to have carefully written standards that are reasonable, specific, measurable, and enforceable. She stated it would be counterproductive to rush the process; and requested the time line be extended beyond what is being proposed to allow time for a cost analysis of the impact the new requirements will have on new and existing businesses, and industries seeking relocation or expansion. Ms. McWilliams stated more time should be spent on the details, educating and soliciting input, and determining what equipment and manpower would be required to enforce the standards, etc. She noted last week there was an overwhelming majority of speakers who supported extension of time to review the performance standards; she also heard about the failure of other plans drafted by Mr. Kendig that were not pleasing communities which adopted them; and requested due diligence be performed to determine the accuracy of the results. She stated she is concerned about taking away the voice of the people by eliminating public hearings and about the health and future of Florida; sensible growth is maintainable; but adopting a plan that would deter healthy growth and prevent future businesses from relocating to Brevard County is not good. She recommended the Board consider updating the current Code versus adopting performance based zoning.

Bob Waters reiterated Mr. Zwolak's statements on decibels; stated most of the people are afraid of changes; several people gave good ideas on what to do; and the Board should look at performance based zoning but go slowly because it has the business community that does not know what to do. He noted residents are scare of it too; but some action is needed. He stated Marlene Waters and Roger Heinig had good ideas along with some other people; and the Board should do something as quickly as possible.

The meeting recessed at 2:09 p.m., and reconvened at 2:21 p.m.

Board Comments

Commissioner O'Brien recommended staff review Ms. Water's suggestion about natural resources and water consumption. He stated BCMA had a long list of questions, most of which were answered; however, the most important question was how do the proposed standards compare to the current zoning standards. He stated he is not afraid to change the way the County does business, but he is afraid of needlessly putting the entire concept on a fast track. He stated it is an important issue; the Board must slow down and know exactly what it is doing and why it is doing it; and it must think that the ordinance, in a finished context, will benefit the citizens and businesses of the County. He advised the consultant has worked hard with staff to bring back language he felt was close to appropriate; he does not live here, but does this for a living; the Commissioners live here and may want to fine tune his ideas to fit the community; and the ideas brought forward should be brought back to the Board by staff in wording it can understand. Commissioner O'Brien stated the Board needs to wait and find out how Mr. Kendig will define particulate, dust, etc. in order to look at various industries; the ordinance will be in place for everybody from Scottsmoor to Sebastian; to the west there are large farms, east is the beach community, and in the middle is everybody else; and everybody thinks differently from each other, so the ordinance has to be comprehensive enough so everyone can benefit from it and not be stymied or hurt by it. He stated cities may have Code Enforcement Officers who find violations; the Board does not want to do that, and waits for complaints; Merritt Island is the largest unincorporated city in the southeast United States, but the Board cannot pass an ordinance to satisfy Merritt Island's needs, it has to pass an ordinance to satisfy the needs of the entire County; and it has to be just and fair to all.

Commissioner Voltz advised a number of people mentioned the cost to the County, residents, and businesses, now and in the future; and that is something the Board needs to consider. She stated someone said another power plant is not needed; and cautioned the Board to look at what happened in New York last week. She stated the Comprehensive Plan Future Land Use Element regarding issues with residential abutting industrial properties needs to be amended; the Board needs to look carefully at standards of those communities competing for the space-related businesses in the United States and compare them with its standards; and it cannot guarantee there will not be odor, health problems, etc. She stated she has been on SR 528 many times and never smelled anything; but she toured the Sea Ray plant and inside needs standards because it is very bad and people will get sick in the future. Commissioner Voltz recommended the Board check on the Power Plant Siting Act to determine if it can use those standards from here forward; she is not against odor standards, but is against odor police; and the Board needs to prohibit pollution credits to ensure they do not come to Brevard County. She stated someone said local government should restrict water use; she has not heard that from St. Johns River Water Management District or received a mandate from them; everyone knows they need to conserve water usage; but she has not heard anything on it. She stated the biggest issue is the time; the Board needs a lot of time to put the whole thing together and do it properly; there are some very good standards in the proposal, but there are things that are questionable, especially the cost; and the Board needs to look very closely at what it will cost the County, because if it does not, it will not be serving its constituents properly.

Chairman Scarborough recommended the County Attorney return with an explanation of the information received from Mr. Heinig regarding the exemption of single cycle plants from State regulations, even though the dual cycle is a more efficient operation. He stated he is not saying everything Mr. Kendig brought to the Board should be adopted; it needs to be studied in detail; the Board has historically dealt with transitional zoning; at one time multifamily residential zoning was placed between residential and commercial or industrial; and people preferred doctors' offices and florists to cars, parties, and a different lifestyle. He noted performance standards would have resolved those problems. He mentioned an example of a barber in Port St. John, people not wanting zoning change but not minding the activity, and the lady who canned orange marmalade, noting those are cases that indicate a merging into a new society where the small businessman uses the internet for his business. He stated with the baby boomers maturing, many will retire in Brevard County; and there will be a rapid growth of those people who are very smart and affluent who will start businesses; and it would be nice to have those businesses that are not offensive to neighbors that can move into vacant stores. He related a story about Silicon Valley providing the capacity for people to create their own companies; and noted perhaps the person who will create jobs is now employed at the Space Center or Harris, and with friendly performance standards could start a business and move into a less expensive facility that sat vacant for years. Chairman Scarborough stated it was unfortunate that the power plant issue and performance standards were linked because it confused people; performance based zoning is a good thing to address; if there are problems with a certain portion of it, the Board does not have to adopt it at this time; if it does not want to deal with existing businesses; it can make it for future businesses; and it can come back and address problem areas not addressed in the initial ordinance. He stated it will be the greatest economic engine the Board can create; rather than discouraging industry, the County will be known as one of the most dynamic counties in the country; and it can occur with less stupidity.

Commissioner Carlson advised the power plant and performance based zoning issues have meshed together; at this point the Board realizes that performance based zoning is not going to be something that evolves by the August 12, 1999 moratorium deadline based on the direction the Board is going; and the issues that were raised today, such as water conservation and the Power Plant Siting Act need to be addressed. She inquired if the Board is going to address those and get answers from staff, does it want to bring the power plant back as an agenda item to put it to bed by either placing additional conditions, not placing additional conditions, whatever; and find out what it should do about it after it gets Mr. Knox's perspective on the legal side of some of the initiatives the people in the audience presented today. She inquired what the Board wants to do. Commissioner Voltz advised all those issues should be brought up at the time they go through the permitting process; it should come back to the Board to review what they are going to do and what the Board would want them to do as far as setting standards; there is no reason to do it now; and it should be brought back as an agenda item. Commissioner Carlson inquired if the Board took Section 15, and as it progressed in the performance based zoning and wanted to adopt the standards for industrial conditional uses, would it be appropriate to take those five items and use the power plant as an example, add up the pluses and minuses and see where it stands, so the Board will know it has given it the best attention it could, and have Mr. Kendig's supervision over that, to see if the standards really work in terms of weighing the cost benefit of the project.

County Attorney Scott Knox advised if Commissioner Carlson is talking about using performance standards prepared by Mr. Kendig as a trial to see how it would work out as applied to the power plant, it would be okay as long as it is experimental and not regulatory. He stated the moratorium is still in effect; and there is time to get some land development regulations in place or at least start the process to address the power plant issue because that was the basis for the original moratorium. He stated the Board asked him to research the applicability of the Power Plant Siting Act; and he can do that and have an answer fairly quickly so the Board will know where it is going with that and the consumptive use issue.

Commissioner Voltz inquired if that will not apply only to the power plant and would apply to any futuristic use; with Mr. Knox responding the original basis for the moratorium was because the Board did not have regulations in place and wanted to consider adopting regulations that would impact the power plant; and theoretically, it is now the new focus that could conceivably be applied to Oleander as well.

Chairman Scarborough inquired if the Board could adopt the same siting requirements used by the State or something similar, answer the power plant issue then continue on a separate course on the performance standards; with Mr. Knox responding that is a possibility, but before it does that, it needs to understand what it will be adopting; and he has not reviewed it yet. Chairman Scarborough inquired when can Mr. Knox have a report for the Board; with Mr. Knox responding next week.

Commissioner Voltz inquired if there is someone on staff who can do an economic or cost analysis of what the standards will cost the County; with County Manager Tom Jenkins responding he does not have an economist on staff. Commissioner Voltz inquired if EDC does; with Mr. Jenkins responding he does not think so, and more than likely it would have to be a university or someone on a contractual basis. Commissioner Voltz stated she would like to do that because it is important for the community to have that information.

Chairman Scarborough inquired how will the Board know the economic impact; with Commissioner Voltz responding before it adopts anything, it needs to get a cost analysis because it is going to be a Code Enforcement issue. Chairman Scarborough stated that is one of the more baffling comments he has heard; with Commissioner Voltz inquiring why. Chairman Scarborough stated to some extent the performance standards liberalize and open up industrial opportunities; it is extremely revolutionary and evolving with what is happening in society with the computer age, Internet, and other things; and gave examples of his clients who are retired and who did airport designs and created a computer financial software package, noting they could bring businesses to Brevard County. He mentioned how Amazon sold books on the Internet and is now larger than bookstores; and noted a person who thinks in those terms may want to move to Brevard County because of friendly performance zoning and being a great place to live. He stated he could not put a dollar amount on that. Commissioner Voltz stated staff can estimate what it will cost the County for Code Enforcement staff, equipment, etc. Chairman Scarborough stated to determine the internal cost the Board needs to know what plan it will enact. Commissioner O'Brien stated that can be done; and Commissioner Voltz stated there is a way to figure out what it will cost the County to build a bigger bureaucracy. Commissioner Higgs stated if the County is going to do a cost analysis, it also needs to know the economic impact of not establishing standards that would improve the quality of life and quality of businesses. Commissioner Voltz stated Chairman Scarborough said it cannot be done; and inquired how Commissioner Higgs would do it.

Commissioner Higgs responded both of them would be difficult to do, but those numbers should be run both ways if there is an economist to do that. She stated whether that would sway the Board on how it will go, she is not sure; but the Board needs to move forward and establish standards which are important for business and residential uses. She stated it is frustrating to have wonderful ideas of what is good and right to do, yet as the Board gets into discussions, it gets stymied. She stated the Board has been hassling over plans and things; if it keeps hassling over them, some good ideas may arise, but nothing will get done; some people said the Board is moving too fast, and others said it is moving too slow; and the Board needs to make a decision, establish standards that are good for everybody, and do it conscientiously with the best information it can get.

Commissioner O'Brien recommended the Florida Power Plant Siting Act be sent to the Legislative Delegation with a letter from the Chairman requesting they look at it and do something about it. Chairman Scarborough stated the single cycle seems to be exempt from the Act, yet the dual cycle is more efficient; and there is a disincentive for the more efficient plant because of the way the legislation is written.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to direct staff to prepare a letter for the Chairman's signature to the Brevard Legislative Delegation requesting it review the Florida Power Plant Siting Act. Motion carried and ordered unanimously.

Commissioner O'Brien recommended staff respond to all the questions of the BCMA in writing, send copies to each Commissioner, and invite the President of the Brevard County Manufacturers Association for discussions when all the answers are developed. He further recommended EDC scrutinize Section 15 as proposed; and stated they are not all bad, but some of the proposals may be deleterious to the economy of Brevard County. He stated the Board and staff should continue the effort to create performance based zoning standards; and the more time and effort working the verbiage, etc. that go into it, something good will evolve separate from the power plant issue. Commissioner O'Brien stated he does not want to adopt performance standards just to limit one power plant; he wants to go into it so other industries can come to the County knowing the doors are open to clean industry that meet the criteria and that the criteria is not overly restrictive. He stated he is not in a hurry to push it through and make big mistakes in the process.

Commissioner Higgs stated she does not think the Board will make a lot of mistakes if it moves forward conscientiously; it can take different parts and implement them as it goes; it does not have to adopt all of it; but it should move forward. She stated she wants fair standards for everybody who will be coming into an industrial situation in Brevard County; the process has identified some gaps that need to be closed; and she wants to move forward with the time frame established by the Board and adopt parts of it if not the whole thing.

Chairman Scarborough stated he would prefer to move forward with performance based zoning that reaches a primary consensus based on the document; the EDC talked about continuing it, but he told them one of the problems with continuing anything is before long people get tired and six months later they lose focus and are not interested. He stated since they are studying it and reading it now, there is a need to move to a base document; and it can move from the base document to more difficult things over a period of time. He stated not adversely affecting quality of life and property values is performance zoning; independent of that is another dialogue on power plant pollution; and they are not related issues.

Commissioner Carlson stated she has not been on the Board long enough to lose focus on any given issue, so that is a positive; but she agrees that as long as there are issues, the Board should take its time or at least put those aside and keep going and not lose focus on the rest. Commissioner Voltz stated not one person in the audience today suggested moving on; everyone asked what is the hurry; the Board will be making a big mistake by pushing it on; it is a huge issue; there is no knowledge of what it will do to the County; and the Board does not know if it will be good or bad. She stated to move it through would be a mistake.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct staff to move forward and take the ordinance to the LPA, and set the Board schedule to entertain the ordinance prior to August 12, 1999. Motion carried and ordered; Commissioners O'Brien and Voltz voted nay.

Mr. Kendig requested clarification on a couple of issues. He stated he heard whether some of the problems could be corrected through the Land Use Plan; the way to mitigate or transition is to put a transitional district in between residential and industrial; and sometimes it works and sometimes it does not make sense. He stated what he is suggesting in the proposal is that the buffer yard be the transition; and the larger the difference in use, the bigger the buffer yard. He stated two other issues are water and air pollution; he would like to give the Board a threshold at which it would go into a conditional use permit; however, staff spent a whole day with Department of Environmental Protection and came back saying the only way to let the County do that is by spending a couple of million dollars to hire a big staff and take the whole thing over. He noted they will try tomorrow to find out if there is a middle ground on that; but he would like a sense from the Board, before they go farther, if it wants thresholds on air and water if they can find a way to do it with Department of Environmental Protection's cooperation and input.

Commissioner Higgs stated she heard Department of Environmental Protection indicated the County does not have the ability, without a long-standing program, to move into that area; but if the Board can establish a better standard, she would be interested in that. She stated if staff comes up with more information that indicates the Board can do that in a reasonable manner, she wants to try it.

Mr. Kendig stated people seem to read the standards as new standards; but what he is suggesting is at some threshold, short of full State approval, it becomes a conditional use. He stated it is not whether the Board is going to seek to impose different standards; he heard that at some level of pollutant, it wants to be the one making the decision; and that is not a decision on how they are going to pollute. He stated another question is whether the Board wants it in Brevard County; that is what the conditional use permit decision was intended to give the Board; so if there is something they should explore with Department of Environmental Protection, they need to be told to do that and will do it tomorrow as best they can. He stated if the Board is not interested in doing that, it can let the State standards go and operate on a performance basis.

Chairman Scarborough stated there are a lot of issues; the Board will not end up with anything like it is now; there are going to be some things that are going to be expanded and some totally deleted; and inquired if the advertising was fairly open so the Board has the latitude to change the ordinance. He stated he does not want to move forward with something people are not comfortable with; but he would like to create a basis to come back and identify additional elements in time. He stated there are elements that have questions such as dust and particulate. Mr. Kendig stated the ones he tried to pick out were the ones he heard several different stories on and where there is a lot of confusion; there seems to be a lot of worry about making existing businesses nonconforming; one thing they added after the last visit was a deemed conformity section which was specifically intended to take what may be a very large number of non-conformities, bring it down to a very narrow set, and get rid of that problem. He noted all planning consultants he knows put that into ordinances where there is potential for a lot of non-conformities, so it is a well tested strategy and gets rid of the worry about mortgages. He explained their work with the City of Milwaukee on a similar issue. Mr. Kendig stated his observation about single cycle and less efficient plants is that even through a regular power plant is more efficient, it takes hours to start up and shut down; peaking plants start immediately and can run efficiently and be shut off immediately; the cost differential is why they are going to peaking power plants; no one can afford to build enough capacity to be able to transfer it around the nation; and the question is are there certain classes, or NICS Codes now, or a certain level of pollutant where the Board wants to trigger more review on its part. He stated they need to get a handle on what level the Board wants something forced into the conditional use process without making every person go through that process. He requested direction whether they should explore thresholds or spend more time going through the use list, pulling uses out, and putting them into the conditional use category.

Commissioner Higgs stated the use may not be the criteria; what they need to know is the standards; and if it meets the standards, then it is okay in that zoning classification. She stated changes of zoning will still go through the process, so it is not saying there is no public input; the way the public has participated in the zoning process up to now has not changed; and she wants fair good quality standards that can work across the board. She stated it will give the business community the knowledge that it can move forward; it will give the homeowner who moves next to an industrial property knowledge of what can go there; and a person who wants to put a business in will know the criteria that has to be met.

Commissioner Carlson inquired if Mr. Kendig suggested future power plants be conditional uses or leave them in industrial without a conditional use and let them be permitted uses; with Mr. Kendig responding he would prefer some threshold; a nuclear power plant can easily be a conditional use; and he was trying to get a sense of any uses that are problems for the Board.

Chairman Scarborough stated Mr. Kendig should give the Board a list of what people have seen as "super nasties" because a lot of those things they do not know about because they are not here right now. Commissioner Carlson stated it would help to get over the stereotype everyone has in mind regarding "nasties" such as dirty power plants of years past; what the Board is dealing with now is not the same thing; so it needs to get over that and needs Mr. Kendig's assistance with that. Chairman Scarborough recommended Mr. Kendig provide a list of undesirable uses to the Board.

Upon motion and vote, the meeting adjourned at 3:14 p.m.

ATTEST:

TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)