December 5, 2000

MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS BREVARD COUNTY, FLORIDA December 5, 2000

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 5, 2000, at 9:02 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Sue Carlson, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Francis Falotico, Our Lady of Grace Church, Palm Bay, Florida.

Commissioner Randy O'Brien led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve the Minutes of September 26, 2000 Regular Meeting and November 2, 2000 Zoning Meeting. Motion carried and ordered unanimously.

REPORT, RE: AGENDA ITEMS

County Manager Tom Jenkins advised Walkabout Community Development District canceled its request, so Item IV.C. can be withdrawn from the Agenda. He stated additional information was provided at the last minute from the other party regarding Item III.A.4.; and recommended it be moved from the Consent Agenda to Section VII.

REPORT, RE: EAST CENTRAL FLORIDA REGIONAL PLANNING COUNCIL REPORT

Commissioner Higgs advised the East Central Florida Regional Planning Council in the last six months has been working on a regional study in conjunction with all the County Commissions, as well as the Regional Chamber of Commerce; they would like to come before the Board to discuss it at the next meeting; and since she and Commissioner Scarborough serve on the Regional Planning Council, it would be appropriate to put it on the Agenda under both of their names.

Commissioner Scarborough inquired if it will be done first thing in the morning; with Commissioner Higgs responding she will put it under Unfinished Business since the Board had discussions about it before, and ask the Chairman for a time certain. Commissioner Scarborough stated it would be nice to have a time certain, as representatives from the Chamber as well as the Council will probably come to the meeting.

REPORT, RE: CHRISTMAS PARADES

Commissioner Colon reminded everyone there will be holiday parades in Melbourne and Palm Bay; and stated it would be nice to see everyone out there.

Chairman Carlson advised Suntree is having a parade at 10:00 a.m. on Saturday, and Melbourne is having a light parade on the same day in the evening.

REPORT, RE: APPOINTMENT TO FLORIDA ASSOCIATION OF COUNTIES BOARD

Chairman Carlson advised the Florida Association of Counties requested the vacancy on the Board of Directors left by former Commissioner Helen Voltz be filled; and she would be happy to complete the two-year term which expires in 2002.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to appoint Commissioner Sue Carlson to serve on the Florida Association of Counties Board of Directors for the remaining term of former Commissioner Helen Voltz. Motion carried and ordered unanimously.

REPORT, RE: LIAISON APPOINTMENTS

Chairman Carlson made the following liaison appointments:

Commissioner Truman Scarborough:

Commissioner Randy O'Brien:

Commissioner Nancy Higgs:

Commissioner Sue Carlson:

Commissioner Jackie Colon:

REPORT, RE: FDOT WORKSHOP ON COAST-TO-COAST RAILWAY

Chairman Carlson advised of a letter from Florida Department of Transportation (FDOT) inviting the Board to participate in one of two workshops to explore the feasibility of the new coast-to-coast railway connecting St. Petersburg to Port Canaveral with service to Tampa, Lakeland, and Orlando. She stated there will be two workshops; and inquired if the Board has an interest to appoint someone from the Board to attend the workshop.

Commissioner Scarborough stated he would be glad to go; and inquired when will it take place; with Chairman Carlson responding on December 11, 2000 in Orlando. Commissioner Scarborough stated any Commissioner who wants to go should be able to go, as the railway has a broad interest. Chairman Carlson stated that is fine.

Commissioner O'Brien suggested the MPO representative attend the meeting and staff alert the cities as they should send someone as well. He stated one part of the railway is to Port Canaveral; it is not the high-speed rail, but an ordinary railroad; and the people at High Point should be watching this project very closely.

Chairman Carlson advised the December 11, 2000 meeting is from 4:30 p.m. to 7:00 p.m. at the Sheridan Four Points in Orlando and the December 13, 2000 workshop is at Tampa Union Station from 6:00 p.m. to 8:00 p.m.; and if anyone wants more information they can call her office or County staff.

RESOLUTION, RE: COMMENDING LEONA McKINNEY

Commissioner Scarborough read aloud a resolution commending Leona McKinney, SCAT's North Operations Supervisor, for 24 years of dedication and hard work.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution commending Leona McKinney for 25 years of dedication and hard work to Space Coast Area Transit, its customers, and Brevard County; and wishing her good health and happiness during her retirement. Motion carried and ordered unanimously. (See page
for Resolution No. 2000-347.)

Commissioner Scarborough presented the Resolution to Ms. McKinney.

RESOLUTION, RE: PROCLAIMING INTERNATIONAL VOLUNTEER DAY

Commissioner Higgs read aloud a resolution proclaiming December 5, 2000 as International Volunteer Day in Brevard County.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt Resolution proclaiming December 5, 2000 as International Volunteer Day in Brevard County, and requesting others to recognize the commitment of volunteers who give so much to the community, and encourage others to join them in their efforts. Motion carried and ordered unanimously. (See page for Resolution No. 2000-348.)

Commissioner Higgs presented the Resolution to Mona Ray, Volunteer Coordinator with Court Alternatives Department, who thanked the Board for recognizing volunteers, recognized their partners Brevard Association of Alternative Management, United Way, Junior League of North and Central Brevard, and Retired Senior Volunteer Program, and requested they introduce themselves.

Deborah Kelly, Director of RSVP, advised they recruit seniors for non-profit and government agencies and have over 1,500 volunteers and 100 stations in Brevard County. Teresa McGraw, Director of United Way Volunteer Center, thanked the Board for recognizing the importance of volunteerism and helping to promote it throughout the year. Sharon Wise, President of a nonprofit group, advised they work with Hope Clinic in Melbourne. Doris Davidson, Management Consultant, advised she works with all the groups in volunteer management. Vi Cable, Volunteer Coordinator for the State Attorney's Office, noted they have over 100 volunteers at the present time. Mona Ray, Coordinator of BRAVE, stated it is a pleasure working with all the volunteers.

Commissioner Higgs advised the holiday season talks about giving; there is nothing more important than the gift of the volunteers who give their time to the community; and it is amazing what is accomplished through their work. She stated it also gives back to them and expands their understanding of people. Ms. Ray stated it is a win/win situation; they pledged to partner with Points of Light Foundation and United Way to promote 2001 as international year of the volunteer; and encouraged those not volunteering to get involved.

Chairman Carlson advised the Board appreciates all that volunteers do.

Commissioner Scarborough advised people can give money or time; it is more enriching to give time, not only to the volunteer but the person being helped because it is a personal effort. He stated many people would like to volunteer, but do not know where the opportunities are; and inquired if there is a phone number they could call. Teresa McGraw stated United Way Volunteer Center entered into an agreement with Helpline Brevard which is for anyone needing assistance in Brevard County; they will be giving out information on volunteer opportunities; and the phone number is 632-6688. Ms. Ray stated they can call Paulette at 633-2031 if they wish to volunteer as there are so many opportunities.

Commissioner O'Brien advised he saw a poster on volunteer work two or three years ago; and if anyone can find it, he will have it framed and hung in the lobby of the Merritt Island Service Complex where a lot of people go in and out for tags, fishing licenses, etc. Ms. Ray stated Points of Light are making available posters and plaques they can use.

REPORT, RE: COMPREHENSIVE STRATEGY PLAN

Chairman Carlson advised she invited J. B. Kenna and Teresa Ponchek with Together in Partnership, to give the Board a status report.

Teresa Ponchek, Chair of Together in Partnership, advised the Commissioners should have received a copy of their interim report; the Committee formed by the Board met for 15 months, twice a month; and the commitment from all the agencies has been tremendous. She stated they looked at organizations from birth into the elderly population and received input from all parts of the community to come up with a comprehensive strategy plan; and to do that, they needed money, and were able to get public and private funding from Health First, Wuesthoff Hospital, Brevard Workforce, CBO, the Board of County Commissioners, and local law enforcement block grant. She stated with the funding, they were able to evaluate the data obtained and come up with a good report; they have end products that will help the County in a lot of different areas; Crisis Services is working on developing a resource assessment mapping component which will be able to print out maps showing where services are so people who need them can get them; and it will be available at the Helpline which people can call 24 hours a day to get referrals and retain their privacy. Ms. Ponchek stated United Way has been assisting in data development; and the Public Defender's Office, Circles of Care, School System, and Department of Juvenile Justice have given in-kind services by providing office space, copy work, telephones, fax machines, etc. to help the process move forward. She advised it is a community working together; they had three community workshops which had about a hundred average participation; and the community has been involved, not just the professionals. She stated they identified family management and early school failure as the primary risks in Brevard County associated with delinquency, violence, substance abuse, dropouts and teen pregnancies; and family management includes child abuse and neglect, violence in the home, and lack of or poor parenting skills. She stated early school failure relates to early truancy and youth not ready for kindergarten; they had an outside consultant evaluate the report; and they feel they are on target and gathering good data. She noted the data decisions are not based on what they think, but on information from the community that those are issues they need to deal with. Ms. Ponchek stated now they will work on the implementation plan for the next three to five years, programming where they want to go with that, and helping the Board know where the money needs to go to attack the problems so everyone in Brevard County has a safe and healthy environment. She stated the pins that say Together in Partnership are for the Commissioners to wear and show their support; and requested recognition of some of the Committee members present. The Board applauded the members. She stated the group is committed to the process; at the first work day there was energy in the room and it has not stopped; it is going and growing; and they want to continue working together, and will update the Board on their progress.

Chairman Carlson stated the interim plan is eye-opening; they did a tremendous job; and she looks forward to the final product.

CONTRACT WITH THE VIERA COMPANY, RE: IMPROVEMENTS IN VIERA, TRACT E-2,
BENNINGTON SUBDIVISION

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to execute Contract with The Viera Company, guaranteeing improvements in Viera, Tract E-2, Bennington Subdivision. Motion carried and ordered unanimously. (See page for Contract.)

PERMISSION TO PREPARE ORDINANCE, RE: ESTABLISHING FINE FOR OVERNIGHT
CAMPING ALONG SR 528 CAUSEWAY

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to authorize staff to prepare an ordinance establishing a fine for overnight camping along the SR 528 Causeway. Motion carried and ordered unanimously.

PERMISSION TO BID, AWARD BID, AND EXECUTE WAIVER OF RELEASE, RE:
REMOVAL AND REPLACEMENT OF SPRINKLERS AT GOVERNMENT CENTER

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to grant permission to bid removal and replacement of sprinklers at the Government Center in Viera, award the bid to the lowest qualified bidder, and authorize the Chairman to execute the Waiver of Release. Motion carried and ordered unanimously. (See page for Waiver of Release.)

APPROVAL, RE: LIBRARY SYSTEM COLLECTION DEVELOPMENT PLAN

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve the revised Library System Collection Development Plan. Motion carried and ordered unanimously.

CHANGE ORDER NO. 2 WITH DIXON ELECTRIC COMPANY, INC., RE: ATHLETIC FIELD
LIGHTING AT ROCKLEDGE PARK

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Change Order No. 2 with Dixon Electric Company, Inc., for athletic field lighting at Rockledge Park, increasing contract price by $5,880 for replacement of a 40-foot concrete pole and relocation of a 40-foot service pole to the south. Motion carried and ordered unanimously. (See page for Change Order No. 2.)

SUPPORT FOR FLORIDA TRANSIT ASSOCIATION'S STATEWIDE BUS PROGRAM
EARMARK REQUEST, AND REQUEST FOR FUNDS, RE: FY 2002 FEDERAL
TRANSIT ADMINISTRATION ALLOCATION, AND FUNDS TO REPLACE BUSES

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to support the Florida Transit Association's Statewide Bus Program Earmark Request in FY 2002 Federal Transit Administration Budget Allocation, and request allocation of $2,500,000 in Federal Transit Funds to Space Coast Area Transit (SCAT) for replacement of six buses. Motion carried and ordered unanimously.

APPROVAL, RE: FY 2001 CERTIFICATIONS AND ASSURANCES FOR FEDERAL
TRANSIT ADMINISTRATION GRANTS

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve and authorize the Chairman to sign the FY 2001 Certifications and Assurances for Federal Transit Administration grants. Motion carried and ordered unanimously.

LEASE AGREEMENT WITH BAREFOOT BAY RECREATION DISTRICT, RE: OFFICE
SPACE FOR CUSTOMER SERVICE OPERATIONS

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to execute Lease Agreement with Barefoot Bay Recreation District for office space for Customer Service Operations of the Barefoot Bay Water and Sewer System at $57,522.50 for the entire five years. Motion carried and ordered unanimously. (See page for Lease Agreement.)

TASK ORDER 97-18 WITH HDR ENGINEERING, INC., RE: PERMIT RENEWAL FOR
SARNO ROAD LANDFILL

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to execute Task Order No. 97-18 with HDR Engineering, Inc. to provide engineering services for a Master Plan for Sarno Road Class III Landfill, incorporating the expansion areas, and updating and modifying the Landfill's operating permit to reflect any changes in Chapter 62-701, Florida Administrative Code, that are relevant to the facilities and any changes made to the operating plan as part of the master planning process at a cost not to exceed $330,000. Motion carried and ordered unanimously. (See page for Task Order 97-18.)

TASK ORDER NO. 00-04 WITH S2Li, RE: EXPANSION OF CENTRAL DISPOSAL FACILITY

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to execute Task Order No. 00-04 with S2Li, Inc. to provide intensive geotechnical and hydrogeological investigation of expansion property for the Solid Waste Central Disposal Facility and prepare a foundation analysis at a cost not to exceed $361,277. Motion carried and ordered unanimously. (See page for Task Order No. 00-04.)

WAIVER OF BID AND AWARD OF QUOTE #Q-5-01-10, RE: PHARMACEUTICALS
AND CONTROLLED DRUGS

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to waive bid requirements and award quote to Sunbelt Medical at base year cost of $44,343, with one year renewal option for pharmaceuticals and controlled drugs for Public Safety; and reject low quotes from Emergency Medical Products for pharmaceuticals, and Emergency Medical Products, Brownings, and Parke Medical for controlled drugs. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve the bills and budget changes. Motion carried and ordered unanimously. (See page for List of Bills.)

PUBLIC HEARING, RE: ORDINANCE EXPANDING POWERS OF NORTH MERRITT
ISLAND DEPENDENT SPECIAL DISTRICT

Chairman Carlson called for the public hearing to consider an ordinance expanding the powers of the North Merritt Island Dependent Special District.

There being no objections heard, motion was made by Commissioner O'Brien, seconded by Commissioner Scarborough, to adopt Ordinance amending Ordinance No. 98-64, relating to the North Merritt Island Dependent Special District; specifically amending Section 14, Effective Date, by revising the sunset provisions to continue the existence of the North Merritt Island Dependent Special District; specifically amending Section 5, Powers, Functions and Duties, by adding review authority for issues referred by the Board of County Commissioners; providing for a non-repealer provision; providing for severability and an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 2000-59.)

PUBLIC HEARING, RE: ORDINANCE TRANSFERRING APPEALS OF ADMINISTRATIVE
INTERPRETATION FROM BOARD OF ADJUSTMENT TO BOARD OF COUNTY COM-
MISSIONERS

Chairman Carlson called for the public hearing to consider an ordinance transferring appeals of administrative interpretation from the Board of Adjustment to the Board of County Commissioners.

Attorney Richard Torpy advised one of the most protected powers is the separation of powers; and legislatures make laws, others interpret them, and there are rights of appeal of those interpretations. He stated he has been in front of many administrative boards; the policies change with newly-elected officials, so staff looks at a law that may be vague or ambiguous and tries to determine what the intent of the governing body was; and those decisions never go to the Board of Adjustment unless the person who asked to apply the law disagrees with the administrative interpretation. He stated the Board of Adjustment is an independent non-elected board; there is no Commissioner who is not lobbied by somebody or some group that has a special interest; and Commissioners are political when trying to sort out the needs, goals, and whims of everyone in the community, which is not a good thing when trying to interpret an existing law that is vague or ambiguous. He stated the Board should have someone independent to review decisions; in this case it is the Board of Adjustment; that type of board makes decisions on administrative appeals in every county and city in the State; and the reason most governments have them is because they are independent and not subject to the changing whims of the community. He noted there have been decisions made by the Board of Adjustment that the Board of County Commissioners was not happy with. Mr. Torpy stated one of the reasons the Presidential Election is so important is because the next President will appoint one or more members to the Supreme Court, which will impact policy and interpretation of law in the country for decades; this Board has the same authority in Brevard County with its Board of Adjustment; it appoints the members and can appoint new ones if it does not like what they do; but the Board should let them be independent, and in the wake of a controversy or dispute over a vague and ambiguous law, let them listen to both sides, be objective, and determine what the law means. He stated the Board can also change the law if it is ambiguous; that is how laws are purified in the country; and the legislatures make laws and the judiciary or independent bodies look at them to determine what the legislatures meant. He stated it will have a chilling effect on the citizens knowing if they do not agree with the administrator who is interpreting the law, whose job it is to enforce the Board's policy, they would have to come to the Board of County Commissioners. He stated it is not just a simple change; the Board is changing the way government has run since the beginning of this country; administrative appeals are made to the Board of Adjustment because it has the time to listen; and inquired if he was an aggrieved citizen who did not agree with the interpretation of the law, would the Board have time to listen to all the issues or would he be restricted to five minutes. He stated there are other options besides taking the power away from the Board of Adjustment; they have done a good job for years; and if the Board does not like what they are doing, it should make the laws clear or replace the members, but not change the law.

Commissioner Higgs advised Mr. Torpy stated he is not here on behalf of a client; and inquired if he has a case that will be going before the Board of Adjustment on an appeal; with Mr. Torpy responding yes. Commissioner Higgs stated Mr. Torpy has a vested interest in the Board of Adjustment hearing his case. Mr. Torpy stated he is not here on behalf of any client; he is an attorney who is constantly before the Board of Adjustment; and he has an interest because it is a dramatic change in policy.

Commissioner Scarborough advised his report says the Board of Adjustment hears only one or two appeals per year, so the significance of having a lot of appeals is not there; it plays a minor function in the whole gamut of things; however, Mr. Torpy said he is before that board once a month. Mr. Torpy stated he does not know how many appeals the Board hears; most of his cases are to adjust laws for special exceptions; but the significance of this change is that the Board of Adjustment is an independent body.

Chairman Carlson requested staff advise the Board what started the process. Commissioner Higgs requested the number of appeals heard this year or in recent years. Planning and Zoning Director Mel Scott advised the Board of Adjustment traditionally hears one or two appeals of administrative interpretations each year; and its other function is to hear requests for variances, typically pertaining to setbacks. Chairman Carlson advised there was a conflict in the Code; and the Board of County Commissioners puts the Code in place, so it should have the final authority to determine whether or not the interpretation is what the Board anticipated the Code to be. Mr. Scott stated if that is the train of thought, then the Board would be in favor of the change. He stated the Board establishes ordinances and understands the history and intent; Mr. Torpy made the statement that the judiciary acts to purify laws; and in this instance, the Circuit Court could act if the Board of County Commissioners gave a decision that was opposite of what the applicant wanted.

Commissioner O'Brien requested examples of appeals that have come in over the past three years; with Mr. Scott responding there was an outdoor amusement and entertainment facility for a race track shown in IU zoning classification as a permitted use; and it was his interpretation that a conditional use permit (CUP) would be required due to the provision in the Code that says the most stringent shall apply. He stated the Board of Adjustment heard that appeal and decided the use should enjoy the permitted status that is in the zoning classification, and allowed the use to move forward for site plan approval. Mr. Scott advised another application is for an adult entertainment establishment that is nonconforming; it has certain enjoyments under the Code in that status; it is allowed to serve beer and wine; and the applicant wants to serve alcohol. He stated he made the interpretation that by moving to full alcohol service it would be an expansion of the nonconforming use; and that interpretation is being challenged. Commissioner O'Brien inquired if the appeal would go to the Board of Adjustment; with Mr. Scott responding that is how the Code is currently set up.

Commissioner Higgs stated there are various parts of the Code that handle appeals in different ways; and inquired if staff can give the Board information on what part of the Code goes to the Board of Adjustment and what part has an appeal directly to the Board of County Commissioners or another body.

County Attorney Scott Knox advised zoning decisions, interpretations, variances, and special exceptions go to the Board of Adjustment; there are different kinds of appeals that go to the Board of County Commissioners; and the Board can set them out by ordinance in terms of who has authority over what appeals. He stated the thinking behind shifting the administrative appeals to the Board of County Commissioners is that the Zoning Official interprets the Zoning Code adopted by the Board of County Commissioners; and staff felt the Board of County Commissioners would know what its intent was and should make the final decisions as opposed to the Board of Adjustment, which has no history and no involvement in how ordinances are adopted. Commissioner Higgs stated various parts of the Code have different methods of appeal; interpretation of various land development aspects are brought to the Board of County Commissioners directly; the Zoning Code provisions are brought to the Zoning Official, then appealed in a different way; so the change before the Board is not a dramatic change and is simply a different way of doing appeals.

Commissioner O'Brien inquired, if a land development appeal on wetlands comes to the Board of County Commissioners, and the Board has a political hard line about preserving wetlands, and someone else feels wetlands are useless, would that decision process be a fair appraisal. He stated the Board of Adjustment has an innocuous non-political view of the topics while the Board of County Commissioners has a set of biases based on political beliefs; and inquired if the Board of Adjustment would have the same biases.

Chairman Carlson stated the Board of County Commissioners has to be a little bias if an issue has potential impact on the community; Mr. Scott made a determination that the race track could have some impact on the community and a CUP would be warranted; and if it came to the Board, it may have said no, let it have permitted use. She stated when it comes to community impacts and health and safety issues, if there is a conflict in the Code with two parts saying different things, the Board owes the community the benefit of the doubt to look at it.

Commissioner Colon advised Commissioners are faced with the issue of bias every time they make decisions about how they feel about certain issues; she cannot support it because she likes the check and balance; however, it does not take away from the fact that the Board of County Commissioners is the governing board that deals with the community daily and should make the decisions on quality of life issues. She stated she feels uncomfortable taking away something that has been there before.

Commissioner O'Brien inquired if appeals are brought to the Board of County Commissioners, does it want to hear presentations about structures, etc. or make rulings on its Code provisions that may be in conflict and keep strictly to that topic. He stated if the Board plans to do that, it should be included in the ordinance that it will only discuss the rules and not the projects. Commissioner Higgs stated the Board should try to determine what the law is supposed to mean, but because it will come to the Board in its application, she does not think it can detach the project. Commissioner O'Brien inquired how will continuity in decision-making be attained if the Board interprets a rule one way and if it does not like a project, interprets the same rule another way; with County Attorney Scott Knox responding the way to do that is to maintain a written log of decisions made by the Board; and that will become the interpretation that will apply to a particular provision unless the Board reverses it by legislation. He stated all the Board will do is interpret what the law is; and it will look at a project, like the race track, and decide whether it was a permitted use or conditional use and what was the Board's intent when it adopted the Ordinance. He stated the race track being a project of public interest may sway the Board to go with a CUP; somebody has to make that choice; and it was the Zoning Official and Board of Adjustment that made that choice, not the Board of County Commissioners. Commissioner O'Brien inquired if there is a need to come to the Board.

Commissioner Scarborough stated if the Board acts arbitrarily, the applicant still has recourse to the courts; if it would take another meeting every month, it may be impossible for the Board of County Commissioners to undertake the task; however, it is an occasional event once or twice a year, so it can afford the parties the time and opportunity to come back with rebuttal in the end like it does with zoning items. He stated he understands the separation of powers; the Board has not removed that; the court system reviews the Board's decisions on zoning issues; and it can do the same for appeals. He stated if the Board ends up in that posture, at least it responded to things of magnitude like the race track; it needs to vote on what its intent was; and if the law is not within the intent of the Board, then it has to change the law. He stated the Board has a responsibility to step forward and define its intent; and if it becomes too political, the issue could go to the court system. Commissioner Scarborough stated the Board has to take actual situations and apply the rules and intent; if there is no possible way to construe the intent, then it could be challenged in the courts; so the Board has not denied anyone's right to review its actions, yet it is being responsible when major decisions are required.

Commissioner Colon stated she understands where the Board is coming from, but feels it is more comfortable for the community to know there is a process that has balance. She stated
she does not feel strongly about it because Commissioners have made some good arguments to bring it back to the Board, but she would not support it based on having that balance.

Commissioner Higgs stated the change suggested is consistent with what the Board does in a number of different areas; the administrative decision of the site plan for Oleander Power Plant's appeal came to the Board; it looked at the laws and site plan; and while it disagreed on the application, it did review what the laws were; so she does not see a radical departure from what the Board does in other areas. She stated it is an opportunity to review and not an end of citizens' rights.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending portions of Article II, Division 4, specifically Section 62-211, Generally; Section 62-218, Judicial Review of Decisions, Rehearing of Appeal by Board; deleting portions of Article II, Division 4, specifically Section 62-214, Appeal Procedure; Section 62-615, Effect of Appeal; Section 62-216, Powers (1) and (2); and Section 62-217, Required Vote; and creating Article II, Division 6, Appeals; Section 62-301, Appeal Procedure; Section 62-302, Effect of Appeal; Section 62-303, Powers of Board of County Commissioners hearing appeals; and Section 62-304, Required Vote, to shift authority to hear appeals of administrative officials' decisions or interpretations from the Board of Adjustment to the Board of County Commissioners; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida.

Commissioner O'Brien stated he will vote for the motion; Mr. Torpy made an excellent argument, and Commissioners Scarborough and Higgs balanced that argument; the responsibility has to stop somewhere, and it should be in a quasi-judicial manner; so it should come before the Board of County Commissioners. He stated there should be a policy on the process of hearing appeals, if there will be time limits, etc., as he does not want the Board to have to review the entire project for two or three hours. He stated it is an appeal of the law, so it has already been heard and evidence presented; the Board can review the tape or read the transcript so it will know what evidence was presented; and recommended the County Attorney develop the process that will be used for appeals so the person appealing knows in writing what that process is, what has to be provided, and what to expect. He inquired if Commissioner Higgs would amend the motion to include a policy; with Commissioner Higgs responding she would prefer it be a separate motion.

Chairman Carlson called for a vote on the motion. Motion carried and ordered; Commissioner Colon voted nay. (See page for Ordinance No. 2000-60.)

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to direct the County Attorney and County staff to develop procedures to be used in handling administrative appeals to the Board of County Commissioners. Motion carried and ordered unanimously.

Mr. Scott advised the effective date of the Ordinance needs to be considered; and the Board needs to determine if it desires to have the change effective upon being filed with the State within ten days of adoption or after the appeals that have already been accepted are heard.

Commissioner Scarborough inquired what cases would be affected; with Mr. Scott responding they have two applications that have been accepted prior to this date; and the Board of Adjustment is scheduled to hear those cases on December 20, 2000. Commissioner Scarborough inquired what are the cases; with Mr. Scott responding one case is the nonconforming adult entertainment establishment that currently has beer and wine and wants to expand to full alcohol, which he ruled as an expansion of a nonconforming use; and the other is renting of jet skis along the Indian River. He stated renting of merchandise in that classification is allowed; but his interpretation is they are renting jet skis and launching and receiving from the dock, and would need a CUP for a marina to conduct that activity.

Chairman Carlson stated the language in the November 29, 2000 letter says, "After the date of adoption of this ordinance, the County Commission shall hear all administrative appeals and the Board of Adjustment shall have no jurisdiction or authority to hear such appeals"; and inquired if staff is saying if the Board wants to hear those two cases, it would want the effective date prior to December 20, 2000. Mr. Scott stated if it is the Board's desire to hear those, staff will insert a provision into the effective date portion of the Ordinance.

Commissioner O'Brien stated the applicants have been in the appeal process already, and have an idea of what the process is and how to form the appeal; the process is to appear before the Board of Adjustment and make a case, so they plan accordingly; and if the ordinance is passed and the effective date is within ten days, they would have to appear before the Board of County Commissioners, which is a different avenue. He stated he is not sure if those people already in the process should not finish out in that process and any new appeals should come before the Board of County Commissioners.

Chairman Carlson inquired if there is a motion to include or exclude the language.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to include the language, "After the date of adoption of this ordinance, the County Commission shall hear all administrative appeals and the Board of Adjustment shall have no jurisdiction or authority to hear such appeals" in the Ordinance.

Commissioner Higgs stated the effective date will be when it is filed with the Secretary of State if the motion passes.

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

The meeting recessed at 10:00 a.m., and reconvened at 10:16 a.m.

REPORT, RE: NEUTERING OF COMPANION ANIMALS

Chairman Carlson advised the Board requested statistics on the number of animals delivered to shelters, number of adopted animals, number of animals euthanized, and the County Attorney's opinion on how to interpret Florida Statutes, Section 823.15(2), which establishes the method for carrying out sterilization prior to adoption, specifically the sufficient deposit portion of that Statute. She stated the Board also asked how the statistics affected the budget, which has increased substantially over the last seven years as predicted by the 1993 Survey. She stated they had meetings in October and November organized by Melinda Buschor with SPCA to try and build a consensus on some of the issues; and her office received at least 2,000 letters from individuals supporting sterilization prior to adoption. She stated the SPCA put out a letter to the Board, which said, "To the Brevard County Commissioners. Dear Commissioners: Knowing that there are far too many dogs and cats born in this County for the citizens to adopt and care for, and that this number will continue to increase year after year, I respectfully request that you vote to require by County ordinance that all dogs and cats adopted from an animal shelter be sterilized by a licensed veterinarian before being released from any shelter in this County." "NO EXCEPTIONS." She stated some individuals took it upon themselves to get additional signatures in their neighborhoods; she has a box of the letters showing their support for sterilization before release; and that is significant because it shows support from a lot of people in the community. She requested Dr. Ward lead the Board through what has been discussed so far, summarize the options, and advise of anything else he wants to point out.

Animal Services and Enforcement Director Dr. Joe Ward advised overpopulation of companion animals is an enormous problem worldwide; only a small percentage of those animals are in permanent loving homes; and the rest roam freely, suffer from abuse, deprivation, disease, and hunger, or are killed either purposely or accidentally. He stated dogs and cats are considered throw-away items much like paper coffee cups; the reasons for such waste are many and varied; and if fewer dogs and cats are produced each year, there would be fewer dogs and cats suffering abuse and neglect. He stated to effectively address the pet population problems in Brevard County requires commitment of County government and citizens; neutering all animals before they leave any County shelter is one of the many steps that could be taken to insure success; and any attempt to reduce the overpopulation of companion animals should be viewed as a single step in a long walk. Dr. Ward stated the subject before the Board is a first step, because it only affect a small percentage of the total reproducing population of companion animals; and the Board may choose to change the Ordinance to achieve results, or establish a clinic at the south shelter to sterilize all animals adopted from the South and Central facilities. He stated sterilizing animals from shelters as part of a program that attacks all facets of overpopulation could result in a leveling off of the problems and eventual reduction of funds spent to combat difficulties. He stated a group of citizens have come together to provide recommendations to the Board regarding companion animal problems; and in addition to the neutering information, he provided information to the Board regarding legislation pending at the State level, noting it does not require action or discussion at this time. He noted he is confident the group of citizens will discuss it in the future and provide recommendations to the Board; however, the matter before the Board for action today is whether to require animals leaving County animal shelters be spayed or neutered prior to release from the shelter. Dr. Ward advised the options are to do nothing, adopt an ordinance that stipulates that all animals leaving shelters will be spayed or neutered prior to release, or one that reflects the State law that requires the neutering of animals prior to release from shelters with the exception that some animals can be released under an agreement that within 30 days they would be neutered.

Chairman Carlson requested Assistant County Attorney Cliff Repperger, who wrote the memorandum dated October 19, 2000, go over the interpretation of the Florida Statutes for the Board.

Assistant County Attorney Cliff Repperger advised the Legislature passed a law, as a means of reducing unwanted puppies and kittens, that requires sterilization of animals adopted from either public or private animal adoption facilities, and provides that local government should make provisions for sterilization by either requiring that animals are sterilized prior to their release or allowing adopters to sign a contract with the facility that will require them to get the animal sterilized within 30 days and make a deposit that insures they will do that. He stated his conclusion is that the Florida Statutes require both options be available, and that sterilization should be provided by either option; and that allows facilities, whether public or private, to have both options so that a private facility that does not have funds to retain a private veterinary staff can engage in contracts with adopters to get the sterilization done later. He noted it helps to foster sterilization of animals.

Chairman Carlson advised from briefings, meetings, and input she received, she feels there is consensus from all the people who are interested in this issue that all sheltered animals should be spayed or neutered before adoption when medically possible; but the real issue is what the proper age of altering an animal is, whether four to six months or less than 12 weeks. She stated she would like to put some ideas out; the first is that the County should write an ordinance that abides by State law providing the options outlined by the County Attorney's interpretation of the law; the second is to consider establishing a clinic in South Brevard at a one-time cost of approximately $50,000, using mid-year dollars, and the operating expenses could be partially covered by adoption fees in the south end; and the third idea is to allow Ms. Gunde to continue to search for property in Central Brevard. Chairman Carlson advised Ms. Gunde cannot build a new clinic on the current property; she has the money to build a clinic, but has a problem with the land the County gave to her, so she is searching for land; and the Board should allow her to do that because she worked hard to collect the dollars to try and build a better facility with a clinic.

Clara Gunde, representing Central Brevard Humane Society, advised Central and South Brevard have been faced with receiving the vast majority of animals coming into shelters; and the graph she gave the Board shows the difference between the numbers being received by the SPCA and the County shelter in Titusville. She stated no one is more dedicated to spaying and neutering than the Central Brevard Humane Society; they are the oldest Humane group and have chosen to address the issue in concert with the veterinarians in the community; and they have followed the guidance and professionalism of the veterinarians in dealing with this issue. She stated they feel the veterinarians are the ones who should decide how each specific animal should be handled, because there is a great deal of variance in the animals they receive; some animals come to them in wonderful condition; other animals come in desperate condition; and if it is mandatory that animals be spayed or neutered prior to finding a good home, many of them would be euthanized because they would not have the chance to be saved. Ms. Gunde stated their agency works diligently to find lifetime homes for the animals; and they strive every day to look out for the best interest of the adopter and the animal, which may or may not have an obvious physical problem that needs to be corrected prior to facing the stress of a surgical procedure like spaying and neutering. She advised animals with heart worms, tumors, and other problems deserve a chance; and they found people who were able to afford veterinary costs and continued with the care then spayed or neutered the animal. She stated they are interested in addressing the problem of overpopulation because it is a many-faceted problem; there is no one solution; and it has to be addressed from an educational standpoint and with a strong spay and neuter policy that has a humane element to allow saving animals with problems. She stated the graph shows that the number of animals they are grappling with are tremendous compared to any other facility; and urged the Board to put a sterilization facility in the south shelter, which it will own and operate, to address a large part of the problem, and supplement that with increased funds for education. She commended Dr. Ward, noting since he has been on board they have addressed the issue in cooperation with the County's Animal Services Department; they have billboards and pamphlets and are doing educational work in the community, including an anti-bite prevention program; and urged the Board to look at the problem with a many-faceted approach.

Chairman Carlson inquired if the pink portion of the graph is for Central and South Brevard; with Ms. Gunde responding affirmatively.

Dr. Brad Newman, President of the Brevard County Veterinary Medical Association, advised the Association was asked to draft a policy statement on how it felt about a proposed ordinance; he sent a copy ahead so the Board would have it; and read it into the record as follows: "We did not feel the County should be able to dictate policy at any shelter or veterinary hospital not run by the County for early spays and neuters; however, it is a laudable goal of all shelters to humanely spay and neuter all animals leaving said shelters when possible to decrease inadvertent litters. We define humanely spay and neutering as being performed on animals pronounced free of upper respiratory and congenital problems by a veterinarian and kept in quarantine to prevent animals potentially incubating infectious diseases from being anesthetized. Early spaying and neutering has been shown to result in delayed physeal closure and decreased size of external genitalia. It has not been shown to cause any adverse effects in the short term; however, few long term studies have been done. Animals not from shelters should be spayed and neutered on the advice of the individual veterinarian." Dr. Newman stated, in addition to that policy statement, he wants to make it clear that in no way is the Brevard County Veterinary Medical Association opposed to spays or neuters; they admire and respect the people who are working very hard on that issue; it is a tough situation for people who run shelters; and they have the utmost respect for all those people. He stated the part that the Brevard County veterinarians have trouble with is the "no exceptions"; and they believe there should be exceptions, and that the final decision as to the appropriateness of spays and neuters should be made by a licensed veterinarian using his/her education, training, and clinical experience to make the final determinations. Dr. Newman advised some sponsors of the ordinance will say it is an issue of early spay and neuter and what age the animal should be; there are some veterinarians who will deem an animal too young to undergo the rigors of anesthesia and surgery; however, some animals need medical treatment prior to undergoing surgery; and the 30 days in the Florida Statutes allow those animals to get the proper medical treatment then have the surgery done. He stated the best assessment for this issue is made by an individual veterinarian on a case-by-case basis, not a blanket statement that every animal should be done with no exceptions. He stated they are not attorneys, but in reading the Florida Statute, it reaffirms the veterinary role in determining at what age and what time animals should be done; Subsection (b) of that Statute says, "Upon request of a licensed veterinarian, and for a valid reason, the shelter or animal control agency shall extend the time limit within which the animal must be sterilized." He stated they believe the State respects the veterinarian's decisions; and requested the Board do the same in its decision making.

Sherri Wanda, representing the Society for the Prevention of Cruelty to Animals (SPCA), stated she would like to preempt her statement to address some of the things said by Dr. Newman and Clara Gunde. She stated the small amount of animals that would need to be treated for illnesses or different conditions could be fostered; there are other programs that are acceptable and used nationwide for situations like that; animals are not placed into homes for permanent adoption if they are ill; so they are fostered while they go through treatment. She stated what they are asking the Board to do is about progress; and it is about searching around the State and country to find programs that work to reduce overpopulation of animals, and implementing those programs. She stated of the 18,951 animals brought to the shelters this past year, 13,176 were killed for lack of homes; that deplorable mess could begin to be rectified by mandating neuter at adoption at all shelters; research has shown areas with such progressive programs have a decrease in the number of animals in shelters and in animal-related problems; and it makes sense since they adopt only 4,744 animals annually. Ms. Wanda stated if 25%, which is 1,185, are left un-sterilized and breed, the shelters would be re-populated by their offsprings; experts say the major component of any adoption program must be neuter at adoption; and if shelters are not practicing that, they are contributing to the pet overpopulation problem. She stated with the cost of compliance, phone calls, letters, home visits and other enforcement tactics being so high, the alternative should be simple; eliminate the problem by not allowing non-neutered animals to be adopted; that approach is a step forward; and if the County had implemented a neuter at adoption policy five years ago, it would be reaping the benefits of lower intake and euthanasia rates now. Ms. Wanda stated the money could be spent on innovative plans, including education, partnered with well-structured programs which would ultimately make a difference instead of playing catch-up with the ever-increasing number of animals coming through their doors. She requested the Board not continue the current practice of backwards sheltering; and require neuter at adoption, which would be a wise decision and the right decision for Brevard County.

Renee Wallace, SPCA of North Brevard Clinic Manager, advised coming from a critical care background of 12 years at the animal emergency clinic in Rockledge, and having to deal with animals that were brought in from Brevard County Animal Services and through other non-caring owners who let them run loose, makes her think why they would release animals that were not spayed or neutered to people taking the animals from the shelters and expect them to get their responsibilities fulfilled within 30 days. She stated it is a crime to have those animals leave the shelters un-spayed and un-neutered; and it is important to get that done because she has watched animals come in injured and maimed that had to be put to sleep, which are not the ones that go through the shelters and are euthanized. She stated they all care about the animals; she heard different options at the last meeting that were very good; but the Board needs to take the first step today. She stated surrounding counties all have it implemented already; and inquired why Brevard County has not taken that step.

Joyce Phillips, SPCA, advised she is speaking for the 13,176 animals that were killed; one option was to leave things as they are and allow animals to continue to be adopted from County shelters that are not spayed or neutered; the tremendous response from the ad in the paper are from people who understand the pet overpopulation problem and want their elected representatives to do something about it; they want animals sterilized before they leave the County shelters; and requested the Board not drop the issue because of the legalities involved. She stated the Board can dictate policy to shelters that accept County money; many other counties spay and neuter their animals; they do not have an ordinance requiring it, they just do it because it is the right thing to do; and the North Animal Care Center spays and neuters animals and do not have an ordinance requiring it. She stated it is the right thing to do; any shelter that accepts taxpayers money should be responsive to the wishes of the taxpayers; and the taxpayers want the animals neutered before they leave the shelters. Ms. Phillips stated she has no objection over the clinic in South Brevard, but does not want this issue delayed over money for the clinic; for five years SPCA has spayed and neutered every cat and dog that left their facility; they did not have a clinic or veterinarian on staff, but they took the animals to other clinics and local veterinarians and got the job done; and if they can do it, anybody can.

Deborah Copeland, Board of Directors of SPCA, advised millions of animals are killed in the nation's shelters annually; in most areas more are going to be killed this year than last year; overpopulation is a product of ignorance and indifference; and only innovative and aggressive community proactive programs offer the promise of breaking that vicious cycle. She stated if they profess to be humane organizations and their charters bind them to prevent cruelty to animals whenever possible, then there is no excuse for not ensuring that every animal is sterilized, because any animal adopted and not sterilized represents their failure to fulfill their mission. She stated it is easy to hold the other guy responsible, the back yard breeder, irresponsible owner, pet stores, kennels, breeders, etc.; but in this case they are more responsible and should be held more accountable because they know the problem and see it every day in the faces of those animals that are killed while in their care. She stated they also know the solution and have the mandate to act; and they have an obligation to ensure their shelter policies never ever add to the crises. Ms. Copeland stated the Board will hear reasons why mandatory sterilization cannot be done, monetary issues, health issues, early age spay/neuter concerns, logistical problems, and attorney's opinions; all those issues have been addressed by the SPCA; and they have experts with 20 to 30 years of experience in the field of early age spay/neuter, such as Dr. Leo Lieberman, Dr. Marvin Mackey, and Dr. Tom Lane who would be happy to come to Brevard County and share their expertise. She stated health issues should not be an issue; there should be no compromising the health and safety of the animals; only healthy vaccinated animals should be adopted; and if an animal is suitable for adoption, it is suitable for surgery. She stated the foster programs will meet the needs; logistical problems can be overcome; and the SPCA knows that because they sent all their animals out for sterilization for five years. Ms. Copeland stated the SPCA has offered in the past and extends its hand again today to offer their surgical services to Central and South shelters; and monetary issues never go away, but prioritizing the important issues, which is stopping the cycle of overpopulation, gave them focus to gain more support from their friends and supporters. She stated this should be a simple issue today; the Board should require sterilizing shelter animals; and it will never stop the slaughter of animals if it continues to allocate 95% of the resources to treat symptoms instead of devoting more resources to the factors that cause the problem.

Deborah Williams, Coordinator of the Feral Cat Network, advised the organization is currently involved in fostering and adopting homeless cats and kittens; she was told the ordinance would have no effect on their operations; she read and re-read the proposals and recommendations only to come to no concrete conclusion as to their part in it; however, the Network supports the sterilization of shelter cats as well as foster cats which they adopt into new homes. She stated if there are any clauses requiring regulation in the area of animal rescue, they ask those directly affected have a voice in the design of such laws. She stated there is a vast stray feral cat population in South Brevard that is causing problems; and they have not been able to get down there to do their work.

Elena Pernas-Giz, Central Brevard Humane Society, stated the staff at the Society chose to dedicate their lives to reducing the pet overpopulation problem in Brevard County; there is nothing they want more than to decrease the number of animals that come through their doors; but they have grave concerns about the mandatory no exception spay and neuter provision for every animal that leaves their shelter. She stated shelter animals have been subjected to great physical stress, whether it is a long period of abandonment, neglect, or trauma of being in a kennel with a large number of unfamiliar animals; they adopt puppies and kittens from 8 to 12 weeks of age; and they have more fragile immune systems and are more susceptible to medical complications. She stated at the Humane Society, they are lucky because they have a community of veterinary professionals who volunteer their surgical services to them; they defer to their judgment in deciding which animals are medically fit for surgery before adoption; and urged the Board to leave that critical decision in the hands of the veterinarians. Ms. Pernas-Giz stated plans are underway for an expanded shelter with a spay and neuter clinic; they are committed to make things better every day; they are on the phone daily to make sure the spay and neuter agreements are upheld; and foster care is a viable option, but it is not the answer to the thousands of animals in the south and central shelters. She stated as humane workers, they want to protect and save animals; and requested the Humane Society be allowed to continue that in the manner which they have done for over 30 years under the guidance of the veterinary community.

Mary Kofil, SPCA, stated the possibility of a clinic in South Brevard is exciting news; and if the central shelter is building a new building, she would like to see the south clinic do their animals while waiting for the new building. She stated she heard about the high number of animals in Central and South Brevard; and if they start spaying and neutering now, those numbers will come down. She thanked County staff for their hard work and the Board for entertaining them today; and stated they look forward to the goal of reducing the number of animals in the community and will step forward to do their part.

Susan Canada stated it is a difficult issue to address because all sides have valid points; but if the Board decides to mandate spay and neuter before animals are released, instead of taking away from the Central shelter's building fund, the County should put in the spay and neuter clinic in the South shelter. She suggested the clinic also be available for the elderly and low- income persons who cannot afford to spay or neuter their pets.

Melinda Buschor advised it is important to sterilize every animal that comes out of the shelters because they reproduce; she has seen a tremendous amount of young animals spayed and neutered that bounce back a lot quicker than adult animals; the County can mandate what a shelter does; and if it is going to spend the money to have a spay and neuter clinic in the South shelter, it should step up to the plate and say every animal needs to be spayed or neutered.

Chairman Carlson stated the statistics of 4,744 animals adopted, 13,176 euthanized, and 1,882 returned to owners do not add up to 18,951; and inquired if Dr. Ward can review it to find the discrepancy; with Dr. Ward responding there are carryover animals which tend to change the numbers.

Wendy Keighley stated she is a 17-year volunteer for Central Brevard Humane Society and operates the bite prevention safety program; she takes her dog to area schools and discuss spay and neuter and how important that is; and hopefully the students will tell their parents they need to spay or neuter their pets. She stated this is not a perfect world and not full of fuzzy puppies and kittens; and advised of a kitten that fell in a bucket of tar at a construction site, went to foster care, was treated by two veterinarians, and was not at a medical state in its life where it could be spayed or neutered; but it is now neutered and has gone to a loving home. She stated that is an example of animals that come in that are not immediately able to be sterilized for medical reasons; the average person who has a cat or dog and thinks they should multiply are also adding to the overpopulation problem; it is not just shelter animals that are not spayed or neutered; and there are many people who have dogs with AKC papers they can breed that are not addressed in the ordinance. She stated she works for area veterinarians and see many people who think they can multiply their personal animals with no thought of how that is going to overpopulate the shelters in the future; pet stores are selling puppy mill animals at a horrendously expensive price; and a lot of the time they are also defective puppies. She stated that is not being addressed at this time, but they do affect the number of animals that come into the shelters because there will never be enough homes for all of them; and requested the Board consider that not all animals can be neutered at an early age for medical reasons.

Commissioner Scarborough stated when there are a lot of problems, they try to solve the problem that is simplest to start with; there is a successful program by the SPCA in stopping the overpopulation; and it would be appropriate to find a way to help Ms. Gunde with her new facility in Central Brevard which will include a clinic. He stated he does not know how far the Board can go with an ordinance; but there will be many people asking why it walked away from it today if it does not take action.

Commissioner Colon advised the Board has to figure out how it will fund the program; she was told about a veterinarian in the North end coming to the Central area if he was kept on full time; it would cost about $30,000; but Chairman Carlson talked about the clinic at $50,000 plus staffing and equipment. She stated it will be a Band-aid approach; the Board has to do something and cannot keep doing what it is doing now; it is important to take action today; it is a hard decision; but she hopes the community can compromise. She stated they are educated and intelligent enough not to neuter an animal that is not ready; foster homes are available for those animals; she spoke to Debbie about having the Brevard Legislative Delegation make it easier for counties to take it one step further; and she will support either the clinic or having a full-time veterinarian to attack the problem as soon as possible.

Commissioner Higgs inquired if Mr. Knox reviewed the County Attorney's opinion on spay and neutering before an animal leaves the shelter; with County Attorney Scott Knox responding yes, and he believes it requires both options. He stated the State law is self-executing even if the County does not adopt an ordinance; under that law the shelters have the option to do mandatory spay and neutering or contract; however, the law has a major loophole as people can sign the contract and forfeit the deposit, but it does not say what happens if they do not spay or neuter the animal. He stated if the Board is going to implement a program requiring spaying and neutering under either alternative, there should be something in the ordinance to make it clear if they do not follow through on the contract, they have violated the ordinance. Commissioner Higgs stated today's action would direct an ordinance be prepared and advertised, so that can be included in the proposed ordinance. She stated the Board can move forward and adopt the State law as is, put it in an ordinance with appropriate enforcement provisions, provide a clinic in the south area, and fund that through the General Fund initially, and recapture the capital and operational costs as pets are adopted and the deposits that may or may not be mandated by the State law. She stated if the deposit is at a sufficiently high level to discourage people from adopting pets that are not spayed or neutered, that may close a piece of the puzzle; and if the Board had a policy that was consistent, it would be doing the best it can do. She stated there should be appropriate fees so that the cost to spay or neuter animals at the shelters is recovered.

Commissioner O'Brien inquired what is the annual budget for Animal Enforcement Services; with Dr. Ward responding $2.29 million this year. Commissioner O'Brien inquired how many employees work for Animal Services; with Dr. Ward responding 37. Commissioner O'Brien inquired if all the positions are filled; with Dr. Ward responding there are seven positions being advertised that are not filled. Commissioner O'Brien inquired how long have they been vacant; with Dr. Ward responding it varies with the position; two are new positions this year; and the others were recently made available. Commissioner O'Brien stated there should be surplus revenue in the budget from not filling the positions. County Manager Tom Jenkins stated funding Animal Services is a constant catch-up situation; and revenues from license tags are not sufficient, so they are in a catch-up mode most of the time. Commissioner O'Brien inquired if 44 positions were budgeted; with Dr. Ward responding 37 positions were budgeted. Mr. Jenkins stated the budget is based on a projection of revenues that they do not necessarily receive; the Board has supplemented animal services for the past two years because tag sales are not sufficient; and they keep reducing the projection, but still operate on a projection which they are not achieving. Commissioner O'Brien inquired what is the number of animals, all types of animals, that are captured by Animal Services employees and brought to the shelters; with Dr. Ward responding he does not have that number, but can get that for the Board. Commissioner O'Brien inquired how many miles per year are put on each truck; with Dr. Ward responding about 35,000 miles per year per truck. Commissioner O'Brien stated funding the clinic in South Brevard is important; the Board should also look at new or expanded facilities for the Central Shelter; and if it is going to spay and neuter animals, there should be a procedure so the animals are not released before they heal. He stated the Board should be adamant that any animal released from the shelters should be spayed or neutered.

Commissioner Scarborough stated page 2 of the memorandum talks about breeding capacity; 4,000 cats and dogs could be 20,000 the next year; it increases in geometric proportions; and the number of pets that can be produced far exceeds the demand for pets. He stated creating the problem involves more cost; euthanizing large numbers of pets is not cheap or fun; some counties have a policy of complete sterilization; and people operating those shelters operate under that policy like the SPCA. Commissioner Scarborough stated the Board has Contracts with Central and South Brevard Humane Societies; outside of any State law, the Board can affect changes it wishes in those Contracts to bring about desired results, particularly if it is funding the function; and he heard the SPCA say it will assist. He suggested the Contracts be examined so they can move forward as a team to handle the problem that once cured will be humane and tax sensitive; and recommended that be included in the motion. Commissioner Scarborough recommended the Board look at a cooperative effort with Ms. Gunde and work together to help her make it happen without overly burdening her operation.

Chairman Carlson inquired if the policy with the North Shelter is to spay and neuter when medically possible, and it is left up to the veterinarians to decide; with Dr. Ward responding yes. Chairman Carlson stated that has been the consensus of all the people who spoke today; they all support spay and neutering before adoption when medically possible because some animals may not be medically able to be neutered at the time of adoption; and inquired if those animals are held until they are medically able to go through the surgery; with Dr. Ward responding they attempt to correct situations prior to disposing of animals; if it is correctable, the veterinarian will do that and they will take the time that is necessary. He stated the proposed language in the ordinance provided with the package has a caveat that such procedures be certified by a registered veterinarian.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct the County Attorney to advertise a public hearing to consider an ordinance amending the Animal Enforcement Ordinance to incorporate State laws relating to sterilization of animals adopted from shelters, including enforcement provisions; propose a deposit sufficient to discourage people from not having animals sterilized; establish a spay/neuter clinic in South Brevard funded initially through the mid-year General Fund, and try to recapture some of the capital and operational costs through pet adoption fees; and work with the operators of animal shelters to clarify their Contract language so that animals adopted from shelters will be spayed or neutered, except when medically impossible.

Commissioner O'Brien advised he received correspondence that some people who rescue and bring animals back to health will be charged a fee for inspections; that would stop a much needed service; and they are concerned that the County will enter their homes to do inspections. Dr. Ward advised that was not part of the package; it was an attempt to bring the Board up to date on what is going on at the State level in terms of proposed breeding laws; and there was no language that requires rescuers to pay any kind of fee. Commissioner O'Brien inquired what is being proposed for breeders; with Chairman Carlson responding that is a different topic.

Commissioner Colon advised another concern is people in the community who cannot afford to take their pets to veterinarians, such as the elderly who are struggling to make ends meet and would like to have their pets sterilized; and inquired if there is a way to make it possible several times a year for those people to have their pets spayed or neutered. Chairman Carlson stated that is a good idea; and staff could study it and bring back alternatives to incorporate in a policy.

Commissioner Higgs stated various organizations assist people in that situation; and the SPCA has a program, so there is no need for a study. Chairman Carlson stated there is a "Nickel and Neuter" program. Commissioner O'Brien requested Ms. Kofil explain the program; with Chairman Carlson responding she would like to take action on the motion first.

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

Chairman Carlson requested Ms. Kofil explain the program and transportation issues for those in low-income brackets and senior citizens who would like to have their pets sterilized. Mary Kofil, SPCA of North Brevard, stated they have been talking to representatives from Meals on Wheels who go into homes and could identify people who may have pets that do not have vaccinations or are not spayed or neutered; and they are at the early stages of trying to identify those people. Ms. Kofil stated they could contact those people, transport the animals to their clinic, do what is necessary, and get the animals back to the owners; they have everything that is necessary; and it is an outreach for the elderly and disabled citizens to help them with animal care. She stated they also had the "Nickel and Neuter" program where they provide neutering of male cats for a nickel a cat; and they did 136 cats that day.

Commissioner Colon stated what she is referring to is taking it one step further by going out into the community and letting people know what is available. She stated she will be having town meetings, and would like to work with the shelter operators to bring that information to the community. Ms. Kofil stated they would be glad to do that.

Chairman Carlson suggested Commissioner Colon meet with the SPCA to find out what is missing and bring it back under an Agenda item for the Board to discuss and get staff's input at a later date. She stated she appreciates the hard work everyone has put in on this issue; there is a consensus to support sterilization before adoption; and hopefully the community will see results from the Board's actions today.

PUBLIC HEARING, RE: DETERMINATION OF VESTED RIGHTS FOR HARDY
MANAGEMENT COMPANY, INC. AND BRENT WILLIAMS

Chairman Carlson called for the public hearing to consider a determination of vested rights for Hardy Management Company, Inc. and Brent Williams.

Attorney John Soileau, representing Brent Williams, stated there are two applicants; and inquired if they each have ten minutes, since the item was combined because of the similarity of the issues, and he does not want to take up Jack Kirschenbaum's time. Chairman Carlson advised each applicant will have ten minutes. Mr. Soileau advised they are requesting vested rights determination under Section 62-507; Section 62-507(d) states, "The criteria to be considered when reviewing a vested rights determination are: (1) there is an act or omission of the County; (2) the property owner acts in good faith reliance on the County's act or omission; and (3) the property owner substantially changes position based upon or in reliance upon the act or omission of the County to the extent that the obligation or expense of the change of position of the owner would be highly unjust or inequitable to destroy the right acquired." He noted he wanted the Board to have those in mind while it goes through the sequence of facts that occurred regarding the property. Mr. Soileau advised he has three witnesses who will present their recollections of what happened; in 1992, Brevard County issued a driveway permit to the property owner, Mr. Weibelt, a copy of which is in the Board's packet; and he is here to testify that he pulled the permit, and someone came out and inspected the work and told him it was fine. He stated the driveway was constructed with a culvert and drive surface on the location; it was there for eight years, and continued to be there until they filed this request; and following the filing of the request, Brevard County Road and Bridge went out and destroyed the driveway and put a pile of dirt in its place. He stated the driveway in question has been physically removed since they filed the request for vested rights that is before the Board today. Mr. Soileau advised the County acknowledges that in 1992 the permit was "issued erroneously"; and that serves as one of the acts or omissions of the County and one of the components of the vested rights request. He stated when his client Brent Williams approached the property, he was advised by the seller that there was a permit for the driveway; he drove onto the property across the then existing driveway, then went to the Government Center with an engineer to determine the specifics of the driveway and how it could be used. He stated Mr. Williams met with Bill Osborne, an employee of the County; and Mr. Williams will provide testimony to the Board that the meeting was specifically to confirm that the access to the property was sufficient for Mr. Williams' intended use, and at the meeting no one advised him he could not use the driveway or that the driveway permit was issued in error. He stated there was discussion about exactly how the access to the property would be--right in/right out; and both sides acknowledge that there was discussion to that effect. Mr. Soileau stated based upon the driveway permit being issued erroneously and the meeting with Mr. Osborne, his client went forward and purchased the property; and he did exactly what he was supposed to do, and that is talk to County officials and verify the circumstances to be true regarding the property. He stated Mr. Williams then purchased the property and expended funds on surveying and development, consulting and assistance, taxes and mortgages; and at this time, there is no access to the property and no dedicated road that abuts it except for the road that the driveway went to. He requested the three witnesses be sworn in and Mr. Williams be allowed to testify. Chairman Carlson granted permission for the testimony of the witnesses.

Mr. Soileau asked Brent Williams if he was the current owner of the property that is subject to the vested rights determination, did he meet with Mr. Osborne, and what was the purpose of the meeting; with Brent Williams responding he is the owner of the property; and prior to purchasing the property he met with Bill Osborne, a Brevard County employee, to verify that it was a valid driveway and that it could be used for his purposes. Mr. Soileau requested Mr. Williams recount the discussion that ensued when he met with Mr. Osborne. Mr. Williams advised he will try to recall exactly what transpired; stated the discussion was about the driveway and how it could be used; and he requested if the driveway could be moved and thought that it could be moved. He stated he was told at that time that the only thing that would be allowed is a right onto the property and a right off the property; and that would be the only driveway that would be viable. Mr. Soileau inquired if Mr. Osborne told Mr. Williams there is a problem with the driveway and he could not enter the road and the permit was issued erroneously; with Mr. Williams responding never.

Mr. Soileau called Scott Glaubitz to testify; asked if he was present at the meeting Mr. Williams testified about; and to recount what was discussed with Mr. Osborne at that meeting. Scott Glaubitz advised they asked about the driveway access to the property; he asked for full access, and Mr. Osborne said no; he knew that answer would be no; and they asked if they could have right in and right out, and were told that they could, but that if it was possible it was desirous to move the driveway as far west as possible. He stated that was the essence of the entire conversation. Mr. Soileau inquired if Mr. Glaubitz recalled any indication that it was an improper driveway and should not have been permitted; with Mr. Glaubitz responding no.

Mr. Soileau advised the Board has a map in its packet; there is no other access to the property with destruction of the driveway; and the County has taken the position that it did not mean to issue a permit, after confirming it to the purchaser before he bought the property, then saying no, he cannot have the driveway in that place. He stated a situation has been created that caused the owner of the property to be frustrated in its use; he has no ability to get to his property in anyway from the Pineda Causeway; and the property does not touch Roberts Road. He stated it is essentially a landlocked property; and that is also true of the next applicant who owns the neighboring property and who also was going to use the driveway that has been destroyed. Mr. Soileau advised under the vested rights criteria, it is clear the County made a mistake; it admitted it made a mistake in issuing the driveway permit; the County may not agree with the testimony the Board just heard, but that testimony indicated that again a mistake was made and someone did not tell the owners they could not use the driveway, and in fact, in their view, confirmed that the driveway could be used. He stated there was reliance upon that and a change in position, a very detrimental change when the property was purchased for $250,000 following the meeting with Mr. Osborne. Mr. Soileau stated it can be rectified by the County granting the request for a vested rights determination; and he would ask, if the Board does that, County staff be directed to permit the reconstruction of the driveway, which was destroyed before they could get to this juncture and determine exactly who has what rights. He stated it is a nightmare for all parties involved that can be avoided by providing vested rights; and if there are any questions, he would be happy to answer them.

County Attorney Scott Knox inquired if Mr. Williams had a closing on the property; with Brent Williams responding yes. Mr. Knox inquired if Mr. Williams was represented by a title company or if there was a title company involved; with Mr. Williams responding there was a title company involved. Mr. Knox inquired if a title search was involved; with Mr. Williams responding yes. Mr. Knox inquired if the title search reflected a legal description with the words, "limited access" on it; with Mr. Williams responding not that he is aware of. Mr. Knox inquired if Mr. Williams saw a legal description with "limited access" on it; with Mr. Willliams responding no.

Commissioner Higgs inquired if Mr. Williams is representing that he did not know, as a purchaser, that the right-of-way for the property he purchased was sold to Florida Department of Transportation, creating a limited access situation; with Mr. Williams responding that did not seem to have a bearing because he felt there was a valid permit, and he double checked it to make sure that it was a valid driveway prior to purchasing the property. Commissioner Higgs inquired if Mr. Williams was aware that the right-of-way was sold to Department of Transportation regardless of any driveway or anything else; with Mr. Williams responding not at that juncture. Commissioner Higgs inquired when did Mr. Williams become aware of it; with Mr. Williams responding when this issue began and the response received from Henry Minneboo.

Chairman Carlson inquired if Mr. Williams knew when the driveway was permitted that the actual expiration was 60 days later; with Mr. Williams responding no, he was not aware of that, and he was told by numerous people that usually driveways are not completed until after construction has been done. Chairman Carlson requested Mel Scott explain the policy on driveway permits and expiration of same; with Planning and Zoning Director Mel Scott responding Policy 86-70 of the County Code, entitled Driveways, states, "If a driveway is necessary to provide access to the property, no certificates of occupancy can be obtained until the owner in Criteria 3 agrees to complete construction of the driveway within 60 days from the date the permit is issued. Failure to complete the construction within 60 days constitutes noncompliance with the permit." Mr. Scott stated the permit had conditions for the construction which were not followed, such as laying of concrete and installation of the culvert. Chairman Carlson inquired if there was no driveway 60 days after it was permitted; with Mr. Scott responding not per the conditions of the permit.

Commissioner Higgs stated Mr. Glauvitz stated he did not believe he could get an unlimited driveway, but maybe a right in/right out; and inquired why did he think that; with Mr. Glauvitz responding because the location of the driveway is in the striped gore area of the on ramp and off ramp of the Pineda Causeway, so a person traveling north on U.S. 1 who took the off ramp to go westbound would actually have to turn across the gore area to have a full access. Commissioner Higgs inquired if that would create a dangerous situation in his opinion; with Mr. Glauvitz responding yes. Commissioner Higgs inquired if people could be hurt; with Mr. Glauvitz responding sure.

Chairman Carlson advised since Mr. Osborne's testimony was in question, he should be allowed to make his statement for the record.

Permitting and Enforcement Director Bill Osborne advised he had a preliminary discussion with Mr. Glauvitz and his client regarding the driveway at that location; during the discussion, if he can recall correctly since it has been some years ago, he had some concern and was unsure whether it was a Brevard County right-of-way or Department of Transportation's right-of-way because of the close proximity to the interchange; and during the discussion about the driveway, he made the statement that if a driveway were to be considered at that location, it would be a right in/right out. He stated there was no commitment or promise made for a driveway; the issue was "if" a driveway were to be considered, it would be right in/right out; and that is basically what he recalls of the discussion.

Commissioner Colon inquired if she could get feedback from staff regarding how dangerous the entire situation is and how relevant it is to what is being discussed so the citizens can realize the magnitude of the situation.

Assistant Public Works Director Ed Washburn advised there may exist a driveway of that nature somewhere in the State or close proximity, but he has not seen any; it is a big safety issue; and there should be no driveway there at all.

Commissioner Scarborough stated the map shows a splitting of the lanes; they are actually looking at being in the split that goes to the off ramp; he has never seen right in/right out or anything on an off ramp; and inquired if something like it came up, would the State be concerned about it since it is State Road 404. Mr. Washburn advised the State gave the County that small section to maintain, but he is certain Department of Transportation would be concerned about it.

Chairman Carlson inquired would it limit the County in the overall Pineda extension project if it allowed the driveway to occur, given it has limited access; with Mr. Washburn responding he does not know the answer to that question, but whether or not the Pineda extension goes on to I-95, it is still a very dangerous situation to allow any access, be it right turn only or anything at that location.

Mr. Knox inquired if Department of Transportation (DOT) would have to approve any kind of an access at this point; with Mr. Washburn responding he cannot say what DOT would do, but they may say they purchased the property for limited access, and there will be no access. Mr. Knox inquired if DOT would have to waive its limited access policies; with Mr. Washburn responding he does not know if they can.

Commissioner O'Brien stated Mr. Washburn mentioned he has not seen anything like it before, but on Courtenay Parkway, at the intersection of SR 528, is Furman Road that is so close to the off ramp of SR 3 onto SR 528 that access has been denied for anyone who wants to build back in that area; and that is why there is a battle about using Via Dela Reina for access to the new Pulte Homes development; so there is precedent set with Furman Road being refused access. He stated a document dated April 10, 1970 says, "right-of-way limited access"; it is on the record; and if the property owners did not see that, then he does not know what to say. He stated having access at that point would be extremely dangerous for anyone coming in or utilizing that driveway; and he cannot participate in putting someone's life in jeopardy by having an access at that point.

Commissioner Higgs inquired if Mr. Osborne served as the head of the Traffic Engineering Department for Brevard County, how long did he serve, and what were his responsibilities. Mr. Osborne stated he was the Director of Traffic Engineering for approximately five years. Commissioner Higgs inquired in that position, did Mr. Osborne deal with safety of roadways and access issues; with Mr. Osborne responding yes, daily. Commissioner Higgs inquired if it is Mr. Osborne's opinion that a driveway in the location represented in the documents the applicant submitted would be safe or dangerous; with Mr. Osborne responding it would be a dangerous situation; that was one of his concerns at the time, and why he was concerned about whose right-of-way it was. He stated if it is a DOT right-of-way, it may be a limited access; and because it was so close to the on ramp, he made the statement, "if a driveway were to be considered." Commissioner Higgs stated the vested rights Ordinance says, "The following criteria shall be considered when reviewing a vested rights determination, provided that such determination does not create eminent peril to public safety or general welfare of the surrounding residents"; and inquired if Mr. Osborne believes there would be a dangerous situation and public safety would be jeopardized by a driveway at that location; with Mr. Osborne responding yes.

Attorney Jack Kirschenbaum, representing Hardy Management Company, Inc., presented a copy of the Agenda Report on the matter which was prepared by Mr. Scott and Mr. Jenkins' Office as Exhibit #1. He stated page 4 of the Agenda package is a good picture and graphic depiction of what they are seeking; Hardy Management is Lumber 84 Company which is like a Home Depot specializing in lumber; they purchased the 4.18 acres in 1992; and when they purchased the property in December, Mr. Weibelt, the seller, provided them with a copy of the driveway permit he received. He stated in his reading of the 60 days provision in the Driveway Ordinance, it does not seem to say that the permit expires; it says certain things will happen, but it does not say the permit will expire; and there is nothing on the permit that says it expires in 60 days unless the driveway is completed. He stated it would seem there must be some affirmative duty on the part of the County at some point to take action that says that expired, particularly in this case where adjacent property owner Mr. Williams talked to folks in the Building Department, and they did not tell him that the driveway permit had expired; so all of those are actions of the County that they were justified in relying on. Mr. Kirschenbaum advised Hardy Management purchased the property for Lumber 84; it is adjacent to the railroad; there is no access there; on the south and east there is no access; but for the driveway being available on the north side, Hardy Management would not have purchased the property because it literally has no access. He stated it is a worthless piece of property; and Mr. Moore is here from Hardy Management to testify what Lumber 84 is and why the property would be worthless without the access. He stated the County Attorney asked about a title search; the deed to DOT, which was part of a condemnation lawsuit settlement, does not seem to appear in their title work because it granted out a portion of the property; and what was remaining was the legal description of the remainder of the property, so a title search of that did not show the deed to the DOT which was marked "limited access". He stated limited access does not say no access; and only those familiar with condemnation would be familiar with that. Mr. Kirschenbaum stated he would like the Board to consider the issue of vested rights before it looks at where the driveway should be; if both property owners are entitled to vested rights, they urge that the staff work with them to move the driveway at the westernmost point of the property so that it would be placed before the road splits and be outside the danger zone where the curve begins and where the road splits and where people would be accelerating to get onto U.S. 1. Mr. Kirschenbaum stated one driveway is better than two; and they also believe it should be a right in and a right out and not a full service all directional access. He stated the clincher is at one point the County believed it was an appropriate site for a driveway and issued a permit; Mr. Weibelt had the permit and gave it to his client; and when their buyer went in to get his driveway permit, it was determined that was no longer available. He stated there is no question that Hardy Management relied entirely on that driveway permit to purchase the property; without that driveway permit, the property would not have been purchased; and they satisfy all three of the requirements of the vested rights criteria. He stated Commissioner Higgs' concern is that it is a public safety problem; they can solve that by moving the driveway further to the west and building a second lane there, and a deceleration lane for the driveway and acceleration lane after the driveway. He stated there are at least 120 feet of property between their north boundary and the road; there is plenty of room to do the engineering that needs to be done to make sure it is safe; and he will call Mr. Moore up to briefly discuss for the record the fact that the property would not have been purchased without the driveway access to the Pineda Causeway.

Cap Moore advised he worked for Mr. Hardy for 30 years in the lumber business; and after he retired he was retained as a consultant in the Land Development Department, which entailed finding suitable sites for the 84 Lumber Company, acquiring all permits, working the budget, and developing the site for a retail store. He stated the important part of a suitable site includes visibility and entrance and exit; in this case, they had a permit in hand, so an entrance was not a problem; and without the permit to get in and out of the site, the site would not have been selected for an 84 Lumber Company. He stated at the present time, the property is worthless.

Mr. Kirschenbaum advised he perceives this as a really tough case; and he spoke to staff and understands their concerns about safety, which can be resolved by addition of deceleration and acceleration lanes and placement of the entrance further to the west. He stated the Board of Adjustment often grants hardships in cases; landowners come and beg for mercy; and in this case, there is not so much difference. He stated if Mr. Weibelt had pursued it, there was the opportunity for them to be living with a driveway there; Mr. Weibelt had his driveway permit and built a driveway there that is now no longer there because County staff bulldozed it on the grounds that it was not built according to the conditions; but had Mr. Weibelt pursued that, which he was permitted to do, they would be here today with a driveway in place. He stated at one point the County was a part of this situation; it will be a legal nightmare if it is not approved; they have title companies involved, easement obligations between the parties, a prior seller, and the County which previously issued a permit; and there is going to be a lot of lawsuits about this. He suggested the Board step back just a little and say it is not fair and it is right that a driveway that was previously permitted be again permitted, and let them reconstruct the driveway and make it safe for the public.

Chairman Carlson inquired, since the property was deeded to DOT in 1970, and the driveway permit was erroneously issued to allow the Hardy Management and Williams' parcels to be accessed, where does that put the Board in terms of any legitimacy regarding the issuance of the permit; with Mr. Knox responding it puts the Board in the position of deciding whether or not the individuals have vested rights. He stated that is what the whole issue is about; they came in and claimed they had a permit; they started to do something in reliance on the permit; staff now says they erroneously issued the permit; and basically it has been revoked for all practical purposes and legal purposes. Chairman Carlson stated they are also falling back on the argument that in their title search attempts they had not established the limited access portion of that or uncovered the DOT deed; with Mr. Knox responding that is an issue they may have with their title companies which generally come up with things that would tell them they do not have access to their properties.

Commissioner Scarborough inquired if a property owner acted in good faith, sold the property, and did not do anything but sell the property, is he just a chain in the title or is he the person who did something in reliance. He stated another question is whether selling is an act of reliance; and inquired if divesting oneself of property constitutes an act of reliance. He stated he is having some trouble with this issue because normally a person who is doing something in reliance has actually done something to the property or continues to do something, as opposed to transactional things where that person basically divests himself of the property and wants to obtain consideration. He stated the County has numerous types of permits; and inquired how long do various permits last. Mr. Scott stated he would defer to Mr. Washburn whose Department deals more in permits than his Department. Commissioner Scarborough stated he is not talking just about driveway permits, but any permit; with Assistant County Manager Peggy Busacca responding a building permit expires after 180 days, if there has not been forward progress on the building. Commissioner Scarborough stated normally the word "permit" is something of a short duration so staff can take some action; a zoning issue or land changes are for longer periods of time; and the reason a permit has a shorter duration is because the County does not want people holding onto permits for an extended period of time. He stated anytime the word permit is used, it is permitted to be done within a limited time; so when they get into the concept of how were they supposed to know it was 60 days; well, the word "permit" springs forth the issue that there is a time limit, and the location springs forth as a problem. He stated maybe they have recourse, but it is against the title company and not with the Board, because there are so many things that are irregular; and if the Board approves it, it could open Pandora's box as to every vested rights when anybody wants to come in and sell a piece of property and say they can sell it for a higher price because they got a permit. He stated this issue is ludicrous; and he will move to deny the request.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to deny determination of vested rights for Hardy Management Company, Inc. and Brent Williams.

Commissioner Higgs advised the original permit that was issued was for a piece of property which was later subdivided into different parcels; and if one were to make any kind of assumption as to the validity of the permit, they would no longer have that parcel because it is gone. Mr. Knox stated that is probably correct because the original parcel that was configured at the time the permit was issued is different now. Commissioner Higgs stated the original owner sold off the right-of-way to the DOT, so there is no access even for that parcel; then it was later subdivided to the people who are before the Board today; and none of those parcels were a party to the permit. She stated two people, who have experience with DOT building roads, should put their statements on the record; and asked Mr. Thompson, who served with DOT for a number of years, if he is familiar with the location of the driveway and what the Board is being asked to vest; with Traffic Engineering Director Dick Thompson responding yes. Commissioner Higgs inquired if in his opinion it is a dangerous or safe driveway given what he knows about that road; with Mr. Thompson responding if he was still with the DOT, they would probably not issue a permit of any kind for access because it was purchased as a limited access right-of-way and the original owner was paid damages accordingly. He stated because of the proximity to the railroad crossing, ramp to U.S. 1 for eastbound traffic, merging ramp for westbound traffic, as well as the main line, it is absolutely the wrong location to put a driveway for public safety purposes.

Commissioner Higgs advised John Denninghoff is an engineer working with the County's Public Works Department and has an involvement in future construction in that area for the Pineda Extension. She inquired if he is familiar with the proposal; with Mr. Denninghoff responding he is. Commissioner Higgs inquired if Mr. Denninghoff thinks it would be a safe location for a driveway, and that the Board could ensure public safety; with Mr. Denninghoff responding no. Commissioner Higgs stated the permit and how long it lasts have been explained; there are real questions about the original ownership and division of the land; the right-of-way was sold off and the properties have no direct access on SR 404; and there is testimony by County experts concerning safety, so she will support the motion.

Commissioner Colon advised it is a difficult case; her heart goes out to the property owners because it is a touchy situation; she feels bad because there are plans that citizens have and they have spent a lot of time and money on this case; but she needs to do her job, which is to make sure she protects them and the citizens. She stated it would have been much easier to make the decision if it was not based on safety of their trucks and the citizens who would be using the causeway.

Mr. Knox stated he has a question for Mr. Soileau or Mr. Kirschenbaum whether their clients considered or applied for a statutory way necessity for an access to Roberts Road; with Mr. Kirschenbaum responding that would be the next thing they will do. Mr. Kirschenbaum advised the primary purpose for the purchase of the property was to develop a retail site with access to SR 404; now that it appears they will not have that access, they have several options; and that will be one of them.

Commissioner Scarborough advised the Chairman asked if it should be two separate motions or can the Board do it as one since it was one Agenda item; with Mr. Knox responding it should be done separately. Commissioner Scarborough stated the first motion is for Hardy Management's request. Chairman Carlson stated there is a motion and a second to deny the request from Hardy Management for determination of vested rights.

Commissioner Higgs advised normally in zoning cases the Board gives the applicants ten minutes and then allow rebuttal at the end; and inquired if the Board needs to allow the applicants for determination of vested rights to provide rebuttals. Mr. Knox recommended the Board allow them to have some discussion if they feel like there are things they would like to present. Mr. Kirschenbaum stated they have said all they can say.

Mr. Soileau advised when a title search is done on a specific piece of property, it goes back in time using that legal description; the Pineda Causeway was severed off in 1970 and the paper presented to the Board with "limited access" on it is part of the title record of that parcel but is not part of the legal description of his client's parcel, which is why it did not show up in the title work and become a red flag on the property. He stated there was physically constructed a driveway with a culvert and everything; nobody is denying that; they cannot see it because it was destroyed; there are statements about it did not get built the way the County wanted it to be built; but that is a Code Compliance issue more than pulling the permit back. He requested the Board consider that point. He stated they have thought about a way of necessity, but it has not been on the forefront because of the belief the property had a permitted access on the formerly existing driveway.

Commissioner Scarborough inquired when someone pulls a permit does someone go out to see that the work has been done and that it was done in the place the permit was pulled, or can they use the permit to go willy-nilly anywhere they want to; with Mr. Washburn responding no, staff would go out to see if they installed the culvert. Commissioner Scarborough stated the fact that there were some things that were done does not necessarily mean the action was exercising the permit right. Mr. Washburn stated they would call the County and tell staff they completed the rest of the work and staff would go and inspect it. Commissioner Scarborough stated from his experience in title examinations, frequently title companies mention when properties are landlocked; and inquired if Mr. Knox has seen that from his experience; with Mr. Knox responding yes.

Chairman Carlson called for a vote on the motion to deny the request from Hardy Management. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to deny the request of Brent Williams for a vested rights determination. Motion carried and ordered unanimously.

Chairman Carlson stated the applicants have options; staff suggested three options, one was to gain access from U.S. 1 to the east; she is not sure if it would be any safer; but there is that possibility for both applicants to work together to get access.

AGREEMENT WITH OFFICE OF THE STATE COURTS ADMINISTRATOR, RE:
ARTICLE V GRANT-IN-AID FUNDING

Motion by Commissioner Higgs, seconded by Commissioner Colon, to execute Agreement with the Office of the State Courts Administrator for Article V Grant-in-aid funding of $154,496; approve the Spending Plan; and authorize the Chairman to execute the documents required to complete the request for funding. Motion carried and ordered unanimously. (See page
for Agreement.)

PERMISSION TO ADVERTISE PUBLIC HEARING TO AMEND ORDINANCE NO. 2000-56,
RE: ADDITIONAL HOMESTEAD EXEMPTION FOR CERTAIN SENIOR CITIZENS

Assistant County Manager Stockton Whitten advised the Property Appraiser said he would accept the amended ordinance if it is done in January, 2001.
PERMISSION TO ADVERTISE PUBLIC HEARING TO AMEND ORDINANCE NO. 2000-56, Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to grant permission to advertise a public hearing to consider an ordinance amending Ordinance No. 2000-56 regarding additional homestead exemption for certain senior citizens to exempt all dependent special districts and municipal service taxing units. Motion carried and ordered unanimously.

APPROVAL, RE: WORKSHOP DATES

Commissioner O'Brien suggested changing the time to 10:00 a.m.; and Commissioners Scarborough and Colon disagreed.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve the Workshop dates of January 11, 2001 at 9:00 a.m. for courthouse options, and January 30, 2001 at 9:00 a.m. for Coalition for the Hungry and Homeless and Privatization of the Internal Audit Function. Motion carried and ordered; Commissioner O'Brien voted nay.

DISCUSSION, RE: LaDREW v. BREVARD COUNTY

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to schedule an executive session on December 12, 2000 at 8:30 a.m. to discuss the LaDrew v. Brevard County litigation strategy. Motion carried and ordered; Commissioner O'Brien voted nay.

DISCUSSION, RE: BOARD OPERATING RULES

County Manager Tom Jenkins advised if someone speaks at the end of the meeting on an item that was discussed at that meeting, it is potentially unfair to those who have left the room, and presents an inequity situation because it circumvents the five-minute per speaker time limit. He suggested limiting public comments to topics not on the day's Agenda unless waived by the Board, incorporating in formal rules that the Board would not take action unless it is an emergency, and limiting items to those under the Board's jurisdiction and authority. He noted Chairman Carlson stated at the last meeting that comments should not be personal attacks on individuals and should be limited to issues before the Board.

Commissioner O'Brien stated it is important to have people come before the Board, but some items have nothing to do with the Board; and some people were using the cameras and forum to correct a forum they did not agree with. He stated the meetings should not be used as political forums; and if it is something the Board should not deal with, they should not speak to the Board.

Commissioner Scarborough stated some people may be creative and figure out a relationship with the Board; from time to time the Board gets involved in things such as the Space Program and had Roy Bridges make presentations, but it has no jurisdiction over the Space Program. He stated the Board controls the Government Channel; it appoints people to the Jess Parrish Hospital Board although it is not involved in the day-to-day operations; and it will be difficult for the Chairman if the Board sets parameters on public comments. He stated telling someone they cannot be heard because it is beyond the Board's jurisdiction may end up to become arguments that would consume more time than to listen to them and thank them for their comments.

Chairman Carlson stated they should stay within the no personal attack parameter; and there was no decision made on Roy Bridges' presentation. Commissioner Higgs stated the Board did take action; and Commissioner O'Brien stated the Board supported SERPL.

Commissioner Scarborough stated people came to the Board who were very involved in televising Palm Bay City Council meetings; the Board pushed its jurisdiction when it got into advising Palm Bay whether or not to televise its meetings; and it was more appropriate for Palm Bay City Council to discuss it than for the County to interject how things were programmed; however, the Board controls the public access channel; therefore, it was not totally inappropriate.

Commissioner Colon advised Commissioner O'Brien made a good argument as to having someone come up again after the Board discussed something very lengthy; so the Board should use its discretion and realize it already discussed that issue and decide whether it wants to elaborate on it. She stated public comments are dear to her heart and a sensitive issue to her because she fought very hard to get public comments at Palm Bay City Council meetings; citizens come before the Board because they elected the Commissioners; they see the Board as the leader; and if they are not getting a voice heard and are stopped from being able to come to the Board for help, they would feel they cannot go any further. She stated she does not believe they came before the Board to be televised; they came to the Board at that time to see if there was any connection to the Space Coast Government Channel; so for the Board to say it had nothing to do with it, is not quite accurate. She noted Palm Bay will now televise its meetings, so the citizens should be congratulated. Commissioner Colon advised she has experienced the same kind of issues the Board is discussing; it would help if Commissioners would not be long-winded and continue discussing a subject that has been discussed for about an hour; and the Commissioners are to blame if they do that.

Commissioner O'Brien stated it was not just the Palm Bay televised argument; relatives of someone running for public office came before the Board four times to discuss the same topic during election time; and he felt it was an abuse of the privilege of appearing because they were political maneuverings and for campaign purposes, which insulted him. He stated the Board cannot say yes or no to Palm Bay televising its meetings; another example is the Oleander power plant issue; after attorneys and everyone left, two or three people came up and took five minutes to go over it again even after the topic was totally discussed and a decision was made by the Board; so it may be hard for the Chairman to cut off public discussion, but he would like to have items that are germane to the Board's responsibilities and not be dragged into cat fights with municipalities. He stated the Board is trying to get a handle on it because it has been abused to the point of almost being an insult; and public input is one thing, but to abuse the system is another.

Commissioner Higgs advised the only change she would support to the Board's policies is that under public comment, unless there is an emergency, the Board will take no action on an item. She stated doing anything else, whether it is an item discussed before, a personal attack, or another jurisdiction, gets into a situation that could potentially make the Chairman a censor; and the Board would not want to do that. She stated having public comments limited to three minutes for people to say what they wish and taking no action unless it is a critical emergency is the only thing she can support, because the Board should not provide the forum and then censor it. Commissioner Scarborough stated he will second it if that is a motion.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to amend the Board's operating policy to not take any action on items discussed under the Public Comments Section of the Agenda unless it is an emergency.

Commissioner O'Brien inquired if at election time any person running for office can come to the meeting that is televised countywide and use the forum to campaign their agenda; with Commissioner Higgs responding there were only one or two people who used that forum; she would prefer to protect the right of free speech than to get into the contents of public comments; and she needs to know more from the County Attorney regarding the Board's ability to control political comments. She noted people with campaign tee shirts have come to the meetings; not allowing the government channel to be used as a political forum is a separate issue; and the only issue she can support today is the subject of the motion. Commissioner O'Brien inquired what would happen if the next person running for Mayor of Cape Canaveral or City Council of Rockledge comes up wearing a political tee shirt and uses the mike as a political forum; with Commissioner Higgs stating there has been a parade of elected officials who have used the forum to make reports; and until she hears from the County Attorney regarding protections, the motion is the only thing she can support. Commissioner O'Brien stated he agrees with freedom of speech, but found the forum was being abused.

Chairman Carlson inquired if Commissioner Higgs would be interested in incorporating the issue of public attacks on individuals and limiting remarks to issues before the Board; with Commissioner Higgs responding she does not know how the Board can do that.

Commissioner Scarborough stated people are advised at zoning meetings what they need to present and that they can be turned down by the courts without valid evidence; and suggested something in the back of the room requesting speakers to limit their comments to items the Board can take action on, and that the Board will act more favorably when the comments are of a positive nature and not personal attacks on individuals. Commissioner Colon stated it could be printed on the cards.

Chairman Carlson called for a vote on the motion that unless it is an emergency under the Public Comment Section of the Agenda, the Board will take no action. Motion carried and ordered unanimously.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to add a paragraph to the first page of the Agenda asking individuals to limit their comments to items the Board can take action on, and that comments be of a positive nature and not personal attacks on individuals. Motion carried and ordered unanimously.

ACCEPTANCE OF QUITCLAIM DEED FROM OAK HILL DEVELOPMENT CORPORATION,
RE: PROPERTY CONTIGUOUS TO CHAIN-OF-LAKES PROJECT

Assistant Director of Surface Water Improvement Division Jim Helmer advised changes were requested by Oak Hill Development at the last minute, but they are minor in nature and were reviewed by the County Attorney's Office and approved. He stated the first change is that Oak Hill Development, which is donating the five-acre parcel to the County, wants to eliminate any liability they may have in the County's future use of the land; and the second change is an acknowledgment by Oak Hill that the County told them that Phase I Environmental Assessment has come back with no problems.

Commissioner Scarborough stated this is a gift of land at the Chain-of-Lakes Project. Commissioner O'Brien inquired why are they giving the land to the County; with Commissioner Scarborough responding generally it is a tax advantage. Commissioner Scarborough stated the Board gets donation of lands from time to time, but rarely is it where there is a dynamic project going on; and this is one of those unique cases. Commissioner O'Brien inquired if it would be taken off the tax rolls; with Commissioner Scarborough responding it will be taken off the tax rolls, but the project will be a substantial change to the community.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to accept a quitclaim deed from Oak Hill Development Corporation for a five-acre parcel contiguous to the Chain-of-Lakes Regional Stormwater Park in North Brevard, subject to successful completion of Phase I Environmental Assessment, survey, and title search. Motion carried and ordered; Commissioner O'Brien voted nay. (See page for Deed.)

Commissioner O'Brien stated he does not comprehend the issue.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 12:27 p.m.

ATTEST: _________________________________
SUSAN CARLSON, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
________________________
SANDY CRAWFORD, CLERK

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Meeting Minutes

Dec 05 2000

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