The Board of County Commissioners of Brevard County, Florida, met in regular session on August 12, 1997, at 5:35 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Melbourne, Florida. Present were: Chairman Randy O'Brien, Commissioners Truman Scarborough, Nancy Higgs, Mark Cook, and Helen Voltz, County Manager Tom Jenkins, and Assistant County Attorney Shannon Wilson. Absent was: County Attorney Scott Knox.

The Invocation was given by Commissioner Randy O'Brien, District 2.

Commissioner Truman Scarborough led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Voltz, seconded by Commissioner Cook, to approve the Minutes of May 6, 13, 20, 22 and 27, 1997 Regular Meetings, May 8 and 19, 1997 Special Meetings, June 26, 1997 Zoning Meeting, July 10, 1997 Workshop, and July 15, 1997 Regular Meeting. Motion carried and ordered unanimously.

Commissioner Voltz inquired if the changes sent to Commissioners are included in the Minutes before the Board; with Deputy Clerk Berni Talbert responding yes.

REPORT, RE: ECO-TOURISM MEETING

Commissioner Scarborough advised of an Eco-tourism meeting scheduled on August 29, 1997 at 10:00 a.m. at Brevard Community College Palm Bay Campus; and recommended it be advertised as a Board meeting so all Commissioners can attend if desired, and not violate the Sunshine Law.

Chairman O'Brien instructed the County Manager to advertise the meeting.

REPORT, RE: RESIGNATION OF PAT MANNING FROM NORTH BREVARD HOSPITAL BOARD

Commissioner Scarborough advised Pat Manning has resigned from the North Brevard Hospital District Board; previously the Board wanted to advertise for interested persons to apply for appointment to that Board; and inquired if the Board wishes to continue that policy.

The Board instructed the Management Services Director to advertise for candidates for appointment to the North Brevard Hospital District Board as soon as possible.

REPORT, RE: AETNA INSURANCE COMPANY'S PROVIDER NETWORK

Commissioner Scarborough advised the doctor of a member of his staff advised her he was dropping Aetna.

REPORT, RE: APPOINTMENT TO WATER SUPPLY WORKING GROUP

Commissioner Higgs advised the Water Supply Working Group has a meeting on Monday; however, she has a prior commitment and will not be able to attend it. She recommended Richard Martens be appointed in her place for the meeting.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to appoint Richard Martens, Director of Water Resources Department, to represent Commissioner Higgs on the Water Supply Working Group at its meeting on August 18, 1997. Motion carried and ordered unanimously.

REPORT, RE: MEETING WITH HARBOR CITY VOLUNTEER AMBULANCE SQUAD

Commissioner Higgs advised she was contacted by the Harbor City Volunteer Ambulance Squad about a meeting on issues on Friday night; she thinks Commissioner Voltz was also invited; and she is not comfortable with both of them at the same meeting. Commissioner Voltz stated they just want to share information with them and it will not come before the Board. Commissioner Higgs stated moving stations around may come before the Board; and inquired if the meeting could be advertised.

Commissioner Cook advised of Attorney General's Opinions indicating it is not a violation of the Sunshine Law, but even if it is legal, there is a perception.

Commissioner Voltz advised since the meeting is at 4:00 p.m. and may not be long, perhaps they could have two meetings, one with each Commissioner. She stated she will ask them for separate meetings.

REPORT, RE: MANATEE PROTECTION PLAN

Commissioner Cook advised the Manatee Protection Plan is available in all Libraries, County Commission Offices, and County Manager's Office. Chairman O'Brien advised each Commissioner has four copies; and inquired if people have to purchase them; with County Manager Tom Jenkins responding just for the cost of producing the document.

REPORT, RE: RESOLUTION PROCLAIMING INTERNATIONAL FORGIVENESS DAY

Commissioner Voltz read aloud a resolution proclaiming August 3, 1997, as International Forgiveness Day; and recommended adoption of the resolution.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to adopt Resolution proclaiming August 3, 1997 as International Forgiveness Day in Brevard County, and encouraging citizens to practice forgiveness. Motion carried and ordered unanimously.

REPORT, RE: TOUR OF GOVERNMENT CENTER

Chairman O'Brien advised Sharon Luba, who coordinates the video taping of the Board meetings, led third graders from Gardendale Elementary on a tour through the Government Center.

Commissioner Cook stated it was one of the most inquisitive and exciting classes he has ever seen, and they asked intelligent questions.

REPORT, RE: NEWS ARTICLE ON THE BOEING COMPANY

Chairman O'Brien expressed appreciation to Florida TODAY Newspaper reporter John Tuohy for his excellent reporting of The Boeing Company; and noted all the information was correct and in order.

REPORT, RE: AETNA HEALTHCARE

Chairman O'Brien advised he was at the doctor's office yesterday and learned about information that was not available to him; Jim Ford, Fred Galey and Rod Northcutt's Offices called and have serious problems; so the Board needs to address its contract with Aetna and reconsider the RFP. Chairman O'Brien passed the gavel to Vice Chairman Voltz.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to reconsider going out for a request for proposals for health care. Motion did not carry; Commissioners Scarborough and O'Brien voted aye; and Commissioners Higgs, Cook and Voltz voted nay.

Commissioner Higgs advised if there is other information, she would be happy to review it to determine if the Board's position was not valid.

Chairman O'Brien advised he will send a memo through the County Manager on the information he received. He noted his doctor said he would not sign with Aetna because of the demands it made; Health First will not sign; and other doctors he knows are not going to sign.

Discussion ensued on an employee survey, negotiations with Aetna, doctors coming forward to inform the Board of problems, network size, doctors being required to sign up for HMO, and assurance on the type of future network.

REPORT, RE: LETTER FROM ATTORNEY EDWARD TIETIG

Chairman O'Brien read a letter from Attorney Edward Tietig regarding budget cuts and the criminal justice system improvements, and a request for 20 minutes to make a presentation at a budget hearing emphasizing specific procedural changes to save money and promote justice.

Commissioner Higgs inquired if Mr. Tietig talked with the County Manager; with County Manager Tom Jenkins responding he has information on file and can provide it to the Board; but before it comes to a conclusion, it needs to hear from the State Attorney and Sheriff.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to authorize 20 minutes for Edward Tietig's group to make a presentation at a budget hearing to emphasize specific, concrete, procedural changes which can save money and promote justice regarding the jail, and invite the State Attorney, Sheriff, and Jail Commander to the same meeting. Motion carried and ordered unanimously.

REPORT, RE: APPOINTMENT TO ECO-SYSTEM MANAGEMENT AREA TEAM

Chairman O'Brien read a letter from Derek Busby stating Secretary Virginia Wetherell designated an Indian River Lagoon Eco-system Management Area Team, and requested Environmental Services Administrator Stephen Peffer be appointed to the Team.

Motion by Commissioner Higgs, to appoint Stephen Peffer to the Indian River Lagoon Eco-system Management Area Team.

Commissioner Cook expressed concern with the lack of knowledge of the Team's responsibilities, and Mr. Peffer only providing input and not committing the County to anything.

The Board appointed Stephen Peffer to the Indian River Lagoon Eco-system Management Area Team.

REPORT, RE: ABSENCE OF COUNTY ATTORNEY

Chairman O'Brien advised County Attorney Scott Knox's wife has serious medical problems, and that is the reason for his absence from the meeting.

PERSONAL APPEARANCE - JASON DONALD, RE: COMMENDATION RESOLUTION

Chairman O'Brien read aloud a Resolution commending Jason Donald for his outstanding accomplishments, achieving the honor of Eagle Scout, and receiving a perfect score on the Scholastic Aptitude Test (SAT).

Motion by Commissioner Cook, seconded by Commissioner Voltz, to adopt Resolution commending Jason Donald for his outstanding accomplishments and achievements. Motion carried and ordered unanimously.

Chairman O'Brien inquired what project Mr. Donald did; and Mr. Donald described his project to stabilize and landscape a parking area for his Church.

AGREEMENT WITH DEPARTMENT OF ENVIRONMENTAL PROTECTION, RE: MERRITT ISLAND WILDLIFE REFUGE BICYCLING AND HIKING GRANT

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Agreement with Florida Department of Environmental Protection, accepting a National Recreational Trails Funding Program grant of $50,000 for the Merritt Island Wildlife Refuge Bicycling and Hiking project. Motion carried and ordered unanimously.

CHANGE ORDER NO. 6, RELEASE OF RETAINAGE, AND FINAL PAYMENT TO P. W. HEARN, INC., RE: MERRITT ISLAND PUBLIC LIBRARY

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Change Order No. 6 with P. W. Hearn, Inc. for construction of renovations and additions to Merritt Island Public Library, increasing price by $6,363; and approve release of retainage and final payment to the contractor. Motion carried and ordered unanimously.

TASK ORDER WITH CAMP, DRESSER & McKEE, INC., RE: FLORIDA BOULEVARD WATER QUALITY POND PROJECT

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Task Order #31030-97-003 with Camp, Dresser & McKee, Inc. to provide engineering services associated with performing a drainage analysis, development of construction plans and permitting for the Florida Boulevard water quality pond project located in Waterway Manor Subdivision. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE CREATING SHELL WOOD DRIVE WATER MSBU

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant permission to advertise a public hearing to consider an ordinance creating the Shell Wood Drive Water Municipal Service Benefit Unit (MSBU). Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE CREATING SELLERS LANE WATER MSBU

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant permission to advertise a public hearing to consider an ordinance creating the Sellers Lane Water Municipal Service Benefit Unit. Motion carried and ordered unanimously.

REIMBURSEMENT TO FAWN RIDGE DEVELOPMENT CORPORATION, RE: FLORA AND FAUNA WATER MSBU WATER LINE

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve reimbursement of $15,000 to Fawn Ridge Development Corporation for its prior expenditure to upsize the water line in Fawn Cove to provide the Flora and Fauna Water Municipal Service Benefit Unit (MSBU) with adequate and convenient access to the City of Melbourne's potable water system. Motion carried and ordered unanimously.

RESOLUTIONS, RE: AUTHORIZING MIRA TO APPLY FOR URBAN AND COMMUNITY FORESTRY GRANT, AND AUTHORIZING MEMORANDUM OF AGREEMENT WITH U.S. DEPARTMENT OF AGRICULTURE

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Resolution authorizing Merritt Island Redevelopment Agency to submit an Urban and Community Forestry Grant application in conjunction with the University of Florida Brevard County Extension Services Office; and adopt Resolution indicating willingness to enter in Memorandum of Agreement with the U.S. Department of Agriculture to maintain the landscaping. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to appoint Melinda Herold, 3756 Sunrise Drive, Merritt Island 32953 to replace Thomas Nichols on the MPO Citizens Advisory Committee, and Jim French, 55 Sea Park Boulevard #301, Satellite Beach 32937, to replace Ray Olinger on the Community Based Organization Funding Advisory Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE GRANTING ECONOMIC DEVELOPMENT TAX EXEMPTION FOR ROCKWELL COLLINS, INC.

Chairman O'Brien called for the public hearing to consider an ordinance granting an economic development tax exemption for Rockwell Collins, Inc.

Economic Development Director Greg Lugar, advised the recommendation is for 100% of County ad valorem taxes and five years.

Commissioner Scarborough advised the average wage is $45,000 and Commissioner Cook stated 23 jobs will be created with the expansion.

There being no objections heard, motion was made by Commissioner Cook, seconded by Commissioner Higgs, to adopt Ordinance granting an economic development ad valorem exemption to Rockwell Collins, Inc.; providing the expiration date of the exemption; finding that the business meets the requirements of Florida Statutes 196.012(16); providing for proof of eligibility for exemption; providing for an annual report by Rockwell Collins, Inc.; providing an effective date, to include 100% of County ad valorem tax exemption for five years. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING ACCESSORY STRUCTURE PROVISIONS TO PROVIDE HOUSING FOR ELDERLY FAMILY MEMBERS

Chairman O'Brien called for the public hearing to consider an ordinance amending accessory structure provisions to provide housing for elderly family members.

Zoning Official Rick Enos recommended the ordinance be amended to add, "except for handicapped access ramps," to page 4, paragraph 6.

Motion by Commissioner Cook, seconded by Commissioner Voltz, to adopt Ordinance amending Chapter 62, "Land Development Regulations," Code of Ordinances of Brevard County, Florida; amending Article VI, Section 62-1932, by permitting kitchen facilities in guesthouses or servants' quarters under certain circumstances; amending Article VI, Sections 62-1332, 62-1333, 62-1334, 62-1334.5, and 62-1401, by adding temporary medical hardship mobile homes as a conditional use in certain agricultural and mobile home zoning classifications; amending Article VI, Section 62-1951 by providing conditions for temporary medical hardship mobile homes; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code, as amended to include "except for handicapped access ramps" on page 4, paragraph 6.

Commissioner Voltz recommended allowing those structures on half-acre lots, if there is enough room on the lot and it meets all other regulations, as one acre may be too restrictive. Chairman O'Brien expressed concern about reduction of the lot size causing proliferation of such structures. Commissioner Higgs supported the ordinance as recommended by the Local Planning Agency as a start, and suggested reviewing it after one year.

Discussion ensued on proof of temporary medical hardship, mobile homes, permanent structures, rental of structures, reduction of lot size, removal of mobile homes, and correction of typographical error.

Chairman O'Brien called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: VESTED RIGHTS DETERMINATION FOR STEVEN CAPEDER

Chairman O'Brien called for the public hearing to consider vested rights determination for Steven Capeder to complete an accessory structure that encroaches into the required setbacks and exceeds the maximum building size for RU-1-13 zoning. He advised Ordinance No. 95-02 establishes criteria for considering determination of vested rights.

The Board discussed time limits and format. Chairman O'Brien advised Mr. Capeder he had ten minutes to make his presentation and five minutes for rebuttal after all speakers have been heard. Mr. Capeder advised his attorney resigned, so he is not well prepared to speak, but out of respect for his neighbor who came from Georgia to oppose the project, he would like to have a few more minutes if necessary due to his unpreparedness. Commissioner Higgs suggested continuing the item after public comments if the applicant wishes. Commissioner Cook stated it would be unfair to the individuals from the community; and since Mr. Capeder is willing to go forward, he does not mind giving Mr. Capeder a few extra minutes if he needs it.

Steven Capeder advised there are three things that he needs to prove in order to be granted vested rights; those are: (1) there was an act or omission on the part of the County; (2) he acted in good faith on the County's act or omission; and (3) due to his reliance on the County's act or omission, he substantially changed his position, and to make him change his position again would be highly unjust and inequitable. He stated he tried his best to explain his unique situation, but the County made a series of honest mistakes in misleading him; and what is at question is the characterization of a concrete structure on the Indian River at his property, as shown in the pictures he presented to the Board. He stated the structure extends from a five-foot seawall located at the national shoreline of the river; it is surrounded on three sides by water; and it looks and functions like a dock. He noted it is probably the only structure of its kind on Merritt Island and has been in place since the early 1960's; and in 1995, he began to research the possibility of constructing a roof or cabana on top of the structure. Mr. Capeder advised in May, 1995, he spoke with George Ritchie at the Zoning Office and explained the nature of his structure and what he wanted to do with it; Mr. Ritchie told him if there is water on three sides and it is manmade, the County has no jurisdiction; and that is the first act on the part of the County which caused him to make a $50,000 investment in his property. He explained in detail the proceedings that led to the second act which was when Mr. Ritchie again told him with water on three sides it is considered a dock, the third act when the permitting department told him he did not need a permit from the County, the fourth act when Mr. Ritchie assured him anything waterward of the seawall would be claimed by the State and not regulated by the County, the fifth act when Mr. Ritchie told him he did not need a building permit from the County, the sixth act when Theresa Strieter told him it was State not County, and the first omission when Mr. Ritchie failed to advise him to apply for a building permit just to make sure. He explained in detail his continued efforts to show he acted in good faith in all his dealings with the County, described the concrete structure, and asked if there were other people he needed to contact. Mr. Capeder repeated that the County committed a series of acts, even though they were honest mistakes due to the uniqueness of his situation, which led him to make a $50,000 investment in his property. He stated the County's errors led him to believe Department of Environmental Protection and Army Corps of Engineers had jurisdiction; and described his dealings with those agencies, indicating major blunders, cover up by Department of Environmental Protection, and letters disappearing from his file. He stated after his dealings with the State and Army Corps, he called the County to make sure the rules did not change; and the seventh act by the County was when they again told him he did not need a County building permit. He stated the eighth act was when Rosemary Wiggins of Natural Resources assured him he did not need a County building permit; the ninth act was when Clyde Loomis told him he did not need a County building permit; and three omissions were because the people he talked to for the second time did not tell him to apply for a County building permit just to make sure. Mr. Capeder advised due to the uniqueness of his situation, no one in the County thought it was County property. He explained a series of events, including visits to the site by George Tharas, the County Attorney's research into the matter which led him to believe no one in the County could have given him information different from what he was given, and the stop work order. He stated if he had applied for a building permit he would have been told he did not need one because it is not County property; there was no transfer of deed; his legal description does not include the concrete structure; there was never any record of title transferring it to him, but the law that granted him title to that property was not passed until 1993; and no one in the County was aware of its existence until the County Attorney's Office did research about two weeks ago. He presented a petition signed by 50% of his neighbors within 500 feet, stating the project does not negatively impact their properties; noted the names that were deleted; and stated only one-third of his neighbors within 500 feet are opposed to the project. Mr. Capeder advised he talked to his neighbors who are opposed to the project and told them he is willing to compromise and work something out. He stated the County Staff Report was prepared in two days and no one talked to him to ask him about the facts; and reiterated previous comments about allegations from Department of Environmental Protection to cover its mistakes. He summarized that he documented at least eight acts and four omissions on the part of the County, his acts of good faith reliance on the County's acts or omissions, at least five instances where he acted in good faith when dealing with the County, and his substantial change of position based on reliance of those acts or omissions. He stated a $50,000 penalty would be unjust and inequitable; and requested the Board table the item for a couple of weeks so he can meet with County Manager Tom Jenkins and see if he and his close neighbors who are opposed to the project can work out a compromise.

Tyree Harris advised the project is objectionable, looks bad, is built on a concrete structure that has three sides to the water, and was obviously a dock. He stated he does not know what Mr. Capeder intends to build as he was not privy to his plans, but kitchen and bathroom facilities would be difficult to maintain.

Jim Zager, representing himself and several of his neighbors in opposition to the project, advised Mr. Capeder said it was the most unique situation in the County, and if that is true, it would have required numerous additional things; and requested Bob Williams present photographs to the Board of the property before and after the dwelling was constructed. He gave a chronology of the neighbors' observations; and stated they are strongly opposed to the structure on aesthetic, environmental, and legal grounds. He stated it is inconsistent with anything in the area; it will be the only habitable dwelling hanging out over the Indian River from Pineda Causeway to Dragon Point; it obstructs the view for residents and people who stroll or ride bicycles through their neighborhood; and there are many environmental issues they are not qualified to address. He stated no Brevard County permits were issued; there were no compliance inspections; and as a licensed contractor, he knows they cannot backup and do them after the fact. Mr. Zager stated Mr. Capeder has been working on the project for two years, and the County became aware of it a few weeks ago; and in that few weeks, the County stopped it, met with Mr. Capeder and his attorney, and put a stop work order on the project, but Mr. Capeder continued to see how much he could get done under the secure property provision. He stated the County staff was impressive, responsive and professional; and there was no mistake on the part of the County significant enough to mislead Mr. Capeder into making a mistake of this magnitude; Mr. Capeder misled the County; he is constructing an illegal dwelling with no plans, drawings, or permits; and if the permits were properly applied for, they would have been denied. He stated a contractor with no license is building the project; they do not know if the owner or builder has proper liability insurance and builders' risk insurance or will be able to obtain those things; and nobody, except Mr. Capeder, knows what is going on the slab because there are no plans. Mr. Zager stated Mr. Capeder alleged he relied on incorrect advice from the County and is entitled to special remedy; however, he works for Pulte Homes, the largest home builder in the United States, in marketing, but it is still in the home building industry. He stated a man whose professional life is residential construction would have some awareness of the significance of building, zoning, and environmental issues, and that building near public waters would require additional burdens; and it is reasonable to assume that Mr. Capeder had access to a large library of construction, zoning, and environmental laws. Mr. Zager noted there is no way the Board can approve this project on its own merit; there is implication of malfeasance, incompetence, errors, intentional destruction of documents, illegal and unethical acts by public employees directed at Mr. Capeder; those are serious allegations; and Mr. Capeder is responsible for them and their accuracy. He stated the County did a splendid job; and he is a builder, and knows there is not $50,000 there.

Robert Williams advised he lives directly to the south of Mr. Capeder's property, and will sum it up in three words--it is wrong.

Scott Olson advised Mr. Capeder is a friend and has called him and told him about all the phone calls and visits he made to the County in an effort to find the right answers; and maybe he did not get the right answers, but he contacted many people several times. He stated Mr. Capeder has a lot of money tied up in the property only because he believed he had permission to go ahead and do what he is doing today; Mr. Harris said it was objectionable, but perhaps he did not see the artist's conception of the finished building; it is a very nice looking structure; but right now it looks like Mr. Williams' home when he was doing his remodeling. He stated the neighbor who does not want the building is the same neighbor who has a boathouse that is fully livable as a separate dwelling; he said it ruins his view of the sunset, but the low roof does not come anywhere near the sunset; and it is not to be a home or rental property, and will not have a kitchen or plumbing. He noted it is basically a three-season porch. Mr. Olson advised some neighbors said they were insulted that they were not conferred with on the original plans; and inquired if anyone got their neighbors' approval when they built their homes. He stated Mr. Zager said it was the only structure that is half over the water, but Mr. William's property is half on the water; and there is another boathouse with a large expanded apartment upstairs that is rented out as an apartment. He stated Mr. Capeder is not building his structure to rent out; and described it as being built to withstand hurricane force winds. He stated several years ago Mr. Capeder commented to Mr. Williams and him that he was planning to build a room and a deck, so it is not a surprise; it is going to be a beautiful building that will enhance the property of all the neighbors; and Mr. Williams said he would do it if he could. He stated Mr. Capeder has a unique piece of property; and he hopes the County does not take that from him.

Planning Section Manager Mel Scott advised the County's involvement began in May, 1995; Mr. Capeder stated he contacted George Ritchie by phone, and had tape recorded conversations unbeknownst to Mr. Ritchie; and Mr. Capeder included in his report what he represented as verbatim transcripts of those taped conversations; however, he has not seen or heard those tapes. He explained in detail sections of Mr. Capeder's report, including WW-3 where Mr. Ritchie relates information about docks to Mr. Capeder, and WW-5 where Theresa Strieter relates information on uplands and who the permitting agency would be for a dock because Mr. Capeder told her he had a question regarding a concrete dock in the Indian River. Mr. Scott advised Mr. Capeder alluded to conversations with Rosemary Wiggins and Clyde Loomis; however, there are no dates of those alleged conversations, so he cannot comment if they represent acts that occurred after construction began. He stated staff's report is to show the Board the activities staff undertook following a citizen inquiry made on July 28, 1997.

Mr. Capeder advised he spoke with Mr. Scott for an hour yesterday, but Mr. Scott did not speak with him prior to writing the report; and Mr. Scott only argued two of the acts on the part of the County, which means he is not debating the other acts; with Assistant County Attorney Shannon Wilson responding Mr. Capeder should not rely on that. Mr. Capeder described the activities of Jim Zager, his contact wit the County Attorney's Office, that Office researching the matter and discovering the County had jurisdiction over the property; and stated nobody in the County had any idea the County had jurisdiction over the concrete structure prior to that time, so there was no one he could go to. He explained his duties as a marketing person with Pulte Homes; and stated he knows no more about construction than the average person. He stated he did not record telephone conversations, but did have a pocket tape recorder with him when he went to the County offices; and explained his reasons for doing so were due to a friend who lost property because of what he was told by governmental agencies, and wanting to make sure he knew exactly what people said. Mr. Capeder indicated there is no argument about destruction of documents by Department of Environmental Protection; and described in detail his conversations with Department of Environmental Protection, and telling them they made a mistake. He advised of his continuous efforts to ensure everybody understood everything and to do what was right; and stated a story was fabricated against him in an attempt to cover up egregious errors made by D.E.P. Mr. Capeder advised the County was out to his property a minimum of 20 days prior to issuing the stop work order; they saw it was solid concrete; George Tharas, whose job it is to know the Codes and what is right and wrong, visually inspected the property and came to the conclusion that anything past the seawall was State and not County jurisdiction; and reiterated that no one in the County knew, prior to two weeks ago, that the structure was County property. He stated he never did anything other than to try and make sure he understood the situation concisely and everybody he talked to understood it.

Commissioner Higgs read from the transcript, "It's just four houses north of that, and it's solid concrete; and I'm trying to get us some type of thing getting the Corps of Engineers to say I can put a roof over it and partially enclose some of it"; stated it is inconsistent with the pictures of the structure; and requested Mr. Capeder address it. Mr. Capeder advised it was taken two and a half years ago when he was trying to find out what he could do; he was thinking of putting a roof over it and partially enclosing it like a cabana; but during the time he was doing research, he did not know what he wanted to build. Commissioner Higgs stated it is dated May 12, 1996; with Mr. Capeder responding it is mis-dated and should be 1995. Mr. Capeder explained why the concrete structure was referred to as a dock when he revisited Mr. Ritchie, indicating it was an identification issue.

Commissioner Cook advised he read all the information, including what was delivered to him yesterday; he has concerns about Mr. Capeder recording people without their consent; and inquired why he did not ask for it in writing; with Mr. Capeder responding he did, but was told they do not put things in writing; and described in detail his injuries due to an accident which gave him a lot of time to devote to his project.

Assistant County Attorney Shannon Wilson advised Mr. Capeder seems to be relying on the County Attorney's Office not knowing about the property; the County Attorney's Office was not involved in the issue until recently; and within a day they determined the status of the law. She stated there was a letter sent to the State, but it was to confirm the State's position, not the status of the law; so Mr. Capeder is misplacing his reliance on that issue being an issue of significance.

Commissioner Cook advised he visited the site, talked to Mr. Capeder, and met with some of the residents; he does not know what reason County personnel would have to intentionally mislead Mr. Capeder or anyone else; and Mr. Scott's chronology of events seem to indicate County employees who talked to Mr. Capeder thought he was talking about something quite different than what it ended up being. He stated it is a large structure over a body of water; he cannot see a valid cause to call it a vested right; there is nothing in writing from the County to indicate the activity was authorized by the County; and he cannot see where it would rise to the level of vested rights. He stated it is not permittable under the County Code; he cannot justify the structure staying when it is not permittable; no plans or drawings were submitted to the County; and no building permit was obtained from the County when it would seem obvious that such a structure would require a building permit. He stated it is obvious that a person would need some written authorization rather than rely on verbal authorization; the County employees contacted indicated the structure was not what they were talking about; and the evidence is not compelling enough to say it is truly a vested rights case, so he will move to deny vested rights based on documentation Mr. Scott gave as well as other documentation that came through the public hearing. He noted the evidence given is not supportable in this case.

Motion by Commissioner Cook, seconded by Commissioner Higgs, to deny vested rights determination for Steven Capeder.

Commissioner Voltz stated if what Mr. Capeder says is true, he does have a vested rights case; and for the Board to tell him he cannot have the structure that is almost built is unbelievable. It is a beautiful structure according to the pictures; and he has enough documentation to prove his point, so she cannot support the motion. Commissioner Cook stated the evidence indicates it is not a vested rights case; the comments of County employees on what they related to Mr. Capeder do not correspond with his statements; the transcripts are ambivalent and do not prove anything; and it is unfair to any individual to answer questions in a general fashion and be recorded without their permission. He stated if a person is building a structure that big on the river, he would want something in writing telling him he is permitted to do it, and would request it. Commissioner Voltz inquired if Mr. Capeder will have to tear down the structure; with Commissioner Cook responding all he knows is it is not a vested rights issue; it would be up to Code Enforcement if he is in violation of the Codes; and he would have to comply with the Codes. Mr. Scott advised there are two options; one, to go through the established mechanisms; and two, the Board could seek an injunction against the property owner and begin proceedings to have the building removed.

Commissioner Cook stated his preference would be to ask for an injunction. Chairman O'Brien inquired if that is part of the motion; with Commissioner Cook responding yes. Chairman O'Brien inquired if the seconder accepts the amendment; with Commissioner Higgs responding she would prefer it be a separate motion.

Chairman O'Brien called for a vote on the motion. Motion carried and ordered; Commissioner Voltz voted nay.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to authorize the County Attorney to pursue whatever avenues are available to ensure the structure is in compliance with County Codes. Motion carried and ordered; Commissioner Voltz voted nay.

PUBLIC HEARING, RE: VESTED RIGHTS DETERMINATION FOR CARL KUEHNER AND STEPHEN SAWYER

Chairman O'Brien called for the public hearing to consider vested rights determination for Carl Kuehner and Stephen Sawyer to retain a mobile home on AU property that is less than ten acres and does not meet a minimum of 200 feet setback from all property lines.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve vested rights determination for Carl Kuehner and Stephen Sawyer to retain a mobile home that received a building permit and certificate of occupancy on AU property that does not meet the minimum setback from all property lines and the lot size requirement because it is a HUD and not a Department of Community Affairs certified mobile home.

Commissioner Scarborough stated there is a distinction between the two types of mobile homes; the County issued a permit for the HUD mobile home; and staff failed to inform the applicants that a Department of Community Affairs certified mobile home would be needed to meet Code requirements before they purchased the HUD mobile home. He stated he will meet with Bob Rupe to discuss improvements to the Ordinance.

Chairman O'Brien called for a vote on the motion. Motion carried and ordered unanimously.

RESOLUTION, RE: PROVIDING COMMITMENT OF COUNTY AD VALOREM TAX ABATEMENT FOR THE BOEING COMPANY (McDONNELL DOUGLAS)

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to adopt Resolution recommending that McDonnell Douglas, now known as the Boeing Company, be declared eligible for the Brevard County ad valorem tax abatement program. Motion carried and ordered unanimously.

DISCUSSION, RE: EPA's PROPOSED REVISION TO THE NATIONAL AMBIENT AIR QUALITY STANDARDS

Chairman O'Brien advised the Environmental Protection Agency has proposed the National Ambient Air Quality Standards for ozone and particulate matter be revised and made more stringent; and recommended the Board send a letter to President Clinton as proposed by the Florida Association of Counties.

Motion by Commissioner Voltz, seconded for discussion by Commissioner Cook, to authorize the Chairman to send a letter to President Clinton on the proposed revisions to the National Ambient Air Quality Standards.

Commissioner Higgs advised the letter contains inaccurate information; she does not know if the new standards will be better; there are significant unanswered questions in EPA and Congress whether there are statutory inconsistencies; and she is not in a position to endorse a letter that is not accurate.

Commissioner Cook stated there is concern in Congress about it; he was told Escambia and Santa Rosa Counties and six other counties would not meet the standards; and that generated the concern. He stated if the information is inaccurate, staff needs to correct that.

Commissioner Voltz withdrew the motion; and Commissioner Cook withdrew the second.

Motion by Commissioner Voltz, seconded by Commissioner Cook, to table a letter to President Clinton on proposed revisions to the National Ambient Air Quality Standards until August 19, 1997. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - MIKE FITZGERALD, RE: PERMISSION TO HANG PICTURES OF BREVARD COUNTY BAR ASSOCIATION PAST PRESIDENTS IN JUSTICE CENTER

Mike Fitzgerald advised on June 12, 1997, the Bar Association went before the Arts in Public Places Committee to ask that pictures of 43 past presidents be hung in the Harry T. and Harriette V. Moore Justice Center; and requested the Board hold it until the Association takes a position on diversification of the Brevard County bench. He stated in 1992, he and Clarence Rowe lobbied the Bar Association for its support with naming the Justice Center after Harry T. and Harriette V. Moore, and it was not forthcoming. He stated they lobbied to rename a street after Judge Fran Jamieson, and asked the Bar for help which was not forthcoming; and in 1996, they approached the Bar and asked for assistance with raising money for the plaque, and no help was forthcoming. Mr. Fitzgerald stated two minority groups never had an applicant to the bench; there are 19 judges and only two females; diversification is not unique to Brevard County; and it will bring new ideas, solutions, and role models, and help the County go to the next century. He stated the Bar will say it has nothing to do with appointments of judges, but a letter from the Bar would change how they look at it; the bronze plaque says, "courage to challenge"; and requested the Board have the courage to challenge the Bar to put together a position paper on diversification.

Sam Lopez, President of United Third Bridge in New York City, and opening in Brevard County, advised he supports Mr. Fitzgerald because there has never been a Hispanic person on the bench or Charter Commission. He stated there is a large population of Hispanics in Brevard County; and requested the Board challenge the Bar to prepare a position paper on diversification.

James Beadle, President of Brevard County Bar Association, advised there is an issue of diversity on the bench; and the Florida Bar is pursuing it in a proactive manner. He stated the local Bar is a volunteer association and does not get involved in anything; their one precept is to stay out of politics; and to have minorities on the bench requires election or appointment. He stated someone has to make a choice whether or not to run for election. He stated if a seat is open on the bench, anyone can apply for the seat; and the Governor makes the appointment with support from the Florida Bar and Judicial Nominating Commission. He stated there are three appointments by the Governor, one of which has to be ethnic, woman, or racial minority; the Florida Bar has the same requirements; that is how diversity will occur; and the Judicial Nominating Commission has been active in getting minorities to apply, but the Governor has not appointed them. He stated the Bar has not been involved in such requests; and it does not get involved in donations of monies. He requested the Board grant permission for hanging of the pictures in the Justice Center which have been hanging in the Titusville Courthouse.

Chairman O'Brien advised the Board can request the Bar create a position paper on diversification, not allow it to hang pictures of past presidents in the Justice Center, or take no action. Commissioner Voltz stated the Board could let them hang the pictures. Commissioner Cook stated no action will allow the pictures to be hung in the Justice Center as recommended by the Arts In Public Places Committee; and he hopes the Bar will encourage minorities to run for the bench, but that issue should not be tied to the pictures.

County Manager Tom Jenkins advised the recommendation of the Committee will stand if the Board takes no action.

AUTHORIZATION, RE: SHERIFF'S LAW ENFORCEMENT TRUST FUND EXPENDITURE

Motion by Commissioner Cook, seconded by Commissioner Voltz, to approve expenditure of $13,100 from the Sheriff's Special Law Enforcement Trust Fund for construction of a suspect/child interview room and funding for the Sixth Annual Sheriff's Halloween Fun Night at Space Coast Stadium. Motion carried and ordered unanimously.

LETTERS, RE: REQUESTING FEDERAL COST-SHARE FUNDING FOR BEACHES

Chairman O'Brien read proposed letters to Senators Graham and Mack requesting support for inclusion of $154,000 for the Brevard County Storm Damage Prevention Project in the 1998 Energy and Water Development Appropriations Bill; and requested authorization to sign and send the letters.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to authorize the Chairman to sign letters on behalf of Brevard County to Senators Graham and Mack concerning federal cost-share dollars for beaches. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ORDINANCE #97-02 FROM TOWN OF PALM SHORES, RE: ANNEXATION

Commissioner Cook advised the County Surveyor had concerns about the legal description; and inquired if it has been corrected; with Planning Section Manager Mel Scott responding yes.

Motion by Commissioner Cook, seconded by Commissioner Voltz, to acknowledge receipt of Ordinance No. 97-02 from Town of Palm Shores annexing approximately 1.6 acres of land into the Town. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET TRANSFERS

Commissioner Cook questioned the cost of copies being billed through the courts at 20 cents a copy for 15,279 copies; and objected to paying that amount. He stated the County charges 15 cents a copy; and requested the County Attorney look into the standard which the Court has. He noted the Board may not be able to do anything about it because it is court ordered, but it is far above the average.

Chairman O'Brien stated it approaches outrageous when the County could copy pages for 5 cents or less. He instructed the County Attorney to look into it and return with a report.

Motion by Commissioner Cook, seconded by Commissioner Voltz, to approve bills and budget transfers, excluding pages 161 through 165. Motion carried and ordered unanimously.

PUBLIC COMMENTS - ANN KING, CITIZENS FOR CLEAN GOVERNMENT, RE: LETTER WRITTEN BY COMMISSIONER

Chairman O'Brien advised it is a policy of the Board not to accept personal comments made about Commissioners at its meetings; if it is about County business, the public should stick to the business; if there is a problem with Commissioners, letters could be written to them or calls made to their offices; but this forum is not a place to vilify any Commissioner.

Ann King, representing Citizens for Clean Government, advised her comments pertain to a question of ethics; it is not a personal battle; but she would like to share with the Board a letter dated March 18, 1997, written on County letterhead by Commissioner Helen Voltz supporting John Mazziotti. She read the letter. Ms. King stated Commissioner Voltz is entitled to her opinion and support of Mr. Mazziotti; however, it should have been written on personal stationery and not on County letterhead. She stated the letter also contained incorrect information because members of their group are active productive citizens who belong to church, civic, and fraternal organizations and serve on County and City boards and committees; and they are law-abiding citizens interested in their City and County.

PUBLIC COMMENTS - TOM BRADLEY

Tom Bradley advised Chairman O'Brien's remarks distinguishes what he came to speak about; however, he will leave copies with each Commissioner so they can have the information to review at another time and draw their own conclusions. He stated a number of residents in Palm Bay have been vilified by several members of City Council; and it has been going on for a long time. He presented copies of a document to the Board, and requested a response.

Chairman O'Brien advised the Board may or may not respond to public comments; this is a County Commission and not a city council; it deals with County business; and if Mr. Bradley has a problem with Palm Bay, he should address the Council of Palm Bay. Mr. Bradley stated he has addressed the Council, but the problem also exists on the County Commission.

WARRANT LISTS Upon motion and vote, the meeting adjourned at 8:31 p.m.

RANDY O'BRIEN, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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