The Board of County Commissioners of Brevard County, Florida, met in special session on February 1, 1995, at 5:09 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

DISCUSSION, RE: THE VIERA PROJECT

Public Comment

Chairman Higgs advised the audience of the proper procedure for addressing the Board.

Leroy Wright, 4045 Edgewood Place, Cocoa, speaking on behalf of the Save The St. Johns River Organization, stated he received a copy of the various responses that the staff and the Viera people had made to the many questions; he has not had an opportunity to look at all of them; but he wanted to make one comment in regard to the sovereign lands issue; and he is speaking outside the current Development of Regional Impact (DRI) boundary. He noted if this project is approved, the County is going to have to make sure that it is on the record that there will be absolutely no conditions allowed whereby the original DRI would in any way out permit further construction westward of the existing boundary without the Board coming back and having some results from hopefully a State ordinary high water line survey. He stated the Department of Environmental Protection (DEP) told the Board in two letters that the Bureau has not determined the ordinary high water line along the river in the area adjacent to the Viera development; and an accurate determination of the ordinary high water line of the river in this location will require some financial participation.

Mr. Wright stated Viera made a statement in its response to his letter saying that there had been an ordinary high water line survey made of the ranch; it does not say who did it; it does not say what the elevations were found to be; there is no mention in there about conveyance of the land from the State; there are a lot of things missing in that statement; and he is confused by it. He noted he talked to DEP today; it was going to see if there was anything in the file that would substantiate that statement; he is preparing to respond to the format of the development order and the content; and they will be preparing a statement to get in the condition and format that is required for consideration prior to the March 9, 1995 Board meeting.

Commissioner O'Brien stated in order to protect the sovereign lands, new language has been added in the DRI; with Mr. Wright responding yes. Mr. Wright stated his opening statement was simply that he wanted to make sure that some way the language is put in here that as they go further west with development, they will have obtained by that time an official ordinary high water line survey conducted by the DEP.

Commissioner Ellis inquired if Mr. Wright received a copy of the litigation; with Mr. Wright responding no. Commissioner Ellis requested Mr. Wright be provided a copy of it for his review.

Introduction by Staff

Mike Konefal, Planner II, stated at the last workshop held on January 5, 1995, the Board raised approximately 29 issues or questions that it requested staff or the applicant to further review. He explained the package which was provided to the Board and prepared by staff.

Transportation Systems

Jack Glatting, representing The Viera Company, stated the information before the Board is a result of previous meetings that have been held with County staff in trying to work out the issues and compromises which they believe were directed by the Board; Viera has also met with the County Attorney and have reviewed the issues; and the transportation issues are actually the comments directly from the staff. He noted Viera is in agreement with those comments; it believes they are responsive to the questions the Board has had; and compromises have been made that are helpful to the issues that have been raised.

The workshop recessed at 5:21 p.m.

The workshop reconvened at 5:29 p.m.

Chairman Higgs stated the first question is what will be the total gas tax generated through 2015, what will be the percentage contributed by Viera, and what percentage of transportation improvement dollars within the County will Viera generate.

Engineering Director Sue Hann stated the response staff provided is that the County will generate approximately $1.6 million in state, federal and local gas taxes during that time period; and that Viera is estimated to contribute approximately 6%. Chairman Higgs inquired does staff have a percentage of the demand that Viera will require. Ms. Hann responded that is a very difficult question to answer because Viera would use different percentages of capacity on different roadways; there has been an extensive transportation analysis done; and The Viera Company may be able to answer that better on an aggregate basis.

Mr. Glatting stated that is the information that Viera presented at the last couple of workshops where it shows its federal, state and local impacts of the roads that are impacted by Viera and the full costs of improvements that are approximately $100 million; and Viera is showing revenue generations in Viera over the 20-year period of approximately $150 million.

Chairman Higgs requested staff explain Item No. 10.

Ms. Hann stated Item No. 10 is regarding the monitoring/modeling; and staff feels very comfortable that it will be monitoring the monitoring and modeling process as it goes through the process.

Chairman Higgs stated the next issue is can the impact fee district boundaries be re-drawn so that Viera lies within its own district.

Ms. Hann responded staff can re-draw impact fee boundaries as may be appropriate for addressing both this project and any other issues as the Board may have discussed earlier in its previous workshop, given the appropriate amount of study.

Chairman Higgs stated if staff were to re-draw the impact fee district then impact fees could not be used outside of that district; so any offsite improvements that could be made with impact fees could not be made with that money; with Ms. Hann responding yes. Chairman Higgs noted there might be some consequences beyond just having an impact fee. Ms. Hann stated in looking at the impact fee boundaries, the County may want to look at the impact area of the development rather than the area defined simply by the development.

Mr. Glatting stated Viera concurs with the way the impact fee districts are drawn currently; it works for it; and if the County chooses to re-draw the districts, that is the Board's decision.

Chairman Higgs advised Issue No. 12 states that federal and state gas tax dollars have been generated within the County, and what has been returned to the County.

Ms. Hann responded in reviewing the Brevard Transportation Improvement Program, which is essentially the State Department of Transportation (DOT) work program for state and federal transportation dollars, that approximately 85% of the estimated $364 million paid in state and federal gas taxes will be returned to Brevard County for the period 1991 through 1997.

Chairman Higgs stated Item No. 13 is did the Viera Corporation account for the bonding of local gas taxes in their projections.

Ms. Hann responded the answer to that question is no. Chairman Higgs inquired what is the impact to that ability of those local option gas tax monies to generate sufficient revenue to pay the County's portion of the roads required. Ms. Hann responded the County has programmed its gas tax through 2001, so that was not necessarily taken into account in Viera's analysis; however, their citizens will be generating gas tax dollars and it is the Board's prerogative to program funds; and perhaps the monies during that initial period of time would not be programmed for those types of projects, but more of the funds towards the end of the Viera project would be programmed towards the projects impacted by Viera. She noted it could be explained as a programming issue as to when you program what gas tax dollars for those transportation improvements.

Mr. Glatting stated Viera's improvement needs are not showing up in the first phase of the project through the year 2000; and they are showing up in the later phase of the project.

Commissioner Ellis inquired would the bonding of the local taxes be irrelevant; stated what the County is talking about is the incremental revenue and gas taxes from the Viera development; so money previously collected with or without Viera, it would not matter whether the County bonds or not because it is talking about the $90 million of incremental revenue generated by the development. Ms. Hann responded that is a perspective; if you look at it that Viera will be growth in addition to what is already projected for Brevard County, then that is a correct point of view; and if you look at it from the perspective that Viera's growth is included in what is already projected, then the bonding of the gas tax is relevant. Ms. Hann stated staff assumed about a 2% growth rate in the gas tax revenues; that is essentially what the projections were and on which the bonding is based; perhaps there is a middle ground there where some of the growth would logically be included in that 2%; and the balance of it would be in excess of that 2% projection.

Commissioner Ellis stated the incremental revenue generated by Viera would simply be additional revenue to what was already planned. Ms. Hann noted staff has planned on a certain level of growth; and if Viera's growth is in excess of that, then the County would receive more revenue than it anticipated.

Mr. Glatting noted Viera generates about $26.6 million in impact fees; the local road improvement needs are calculated at about $28 million; so it has a little shortfall on the local road improvement needs, not counting the local option gas tax money. He stated on some of the exterior roads where Viera is impacting, it is not 100% of the traffic on those roads; Viera is paying its share; and the analysis will indicate that.

Chairman Higgs stated Item No. 14 is what roads will need improvement regardless of Viera.

Ms. Hann responded staff provided that data in table format; and it is in the package which was provided to the Board.

Discussion ensued between the Board and staff regarding road deficiencies, the Pineda extension and FDOT roads.

Chairman Higgs stated the next item is the estimated cost of improvements to roads which Viera impacts by less than 10%.

Ms. Hann stated staff did a quick analysis of this question; it was based on the tables which the Board has in its package; staff estimated approximately $83 million for non-Viera projects; it has not done any extensive engineering work or that type of analysis for right-of-way estimates, environmental impacts, and those types of things; and it is just a generalized cost estimate.

Chairman Higgs stated Item No. 16 is what funds are needed for the County's portion of road improvements.

Ms. Hann advised staff's response to this reiterated Viera's analysis of this situation that shows that the public portion of needed improvements as identified by its analysis is $60 million; however, Viera's analysis of the revenue generated included Viera's fair share as well as the public's fair share when it made the statement that it generated sufficient revenue to cover its impacts.

Commissioner Cook inquired is there a ballpark on the breakout percentage wise; with Ms. Hann responding approximately 60% public and 40% Viera's impact.

Chairman Higgs requested Ms. Hann reiterate her statement in first response to this item. Ms. Hann advised staff's response to this question is based on The Viera Company's analysis of its transportation impact; it is showing that the public portion of the needed infrastructure improvements and the public's fair share essentially is approximately $60 million; however, Viera's analysis shows that they are generating approximately $100 million in federal, state and local revenues, including impact fees; and that its fair share of those project improvements is approximately $40 million or 40%. She noted Viera's analysis shows that it is covering both its fair share as well as the balance of the cost of those improvements where its impact is significant and adverse.

Chairman Higgs inquired does staff believe that Viera will contribute sufficient funds through its gas taxes to cover the cost of its portion plus the public's portion. Ms. Hann responded based on Viera's analysis, it is generating sufficient revenue in federal, state and local gas taxes and impact fees to essentially cover the cost of improvements needed where it is showing a significant and adverse impact; it is not to say that those funds will necessarily be programmed on those projects; and she is simply stating that the revenue generation is approximately equal to the cost of doing those projects.

Chairman Higgs stated Item No. 17 talks about the waiver of the right of Viera to sue Brevard County if the Viera development is stopped under the terms of the Development Order; and there is a revised Condition No. 41.

The Board and staff discussed the Concurrency Ordinance, the Development Order, the County's Comprehensive Plan, complying with State law, and clarification of language. County Attorney Scott Knox stated staff will review the Concurrency Ordinance and come back to the Board with a report.

Chairman Higgs stated the next item deals with the language which permits Viera to continue development if I-95 is over capacity, if it pays its proportionate share; and there is a revised Condition No. 46.

Attorney Knox addressed the language inserted in Condition No. 46.

Chairman Higgs stated Issue No. 19 is the projection of what kinds of impact fee credits are being requested by Viera.

Mr. Glatting advised what Viera has said consistently on impact fee credit requests is that it anticipates paying impact fees, going through an annual process of determining what its road needs are, and presenting those as projects to consider for impact fee funding; and the Board will decide whether those projects are funded or not. He noted if the County's Ordinance allows for advanced construction or whatever it allows for in terms of roads, Viera would like to be treated like anybody else. He noted The Viera Company would be working under the County's Ordinance and does not anticipate asking for any impact fee credits.

Commissioner Cook stated he was under the impression that the issue was going to be reviewed; with Mr. Ridenour responding it will be. He advised staff is going to look at everything, but he cannot say whether or not there is going to be a change come from that.

Chairman Higgs stated Item No. 20 is impact fee credits agreement requirement, and there is a revised Condition No. 47.

Mr. Glatting stated language was added that until an agreement is reached or if no agreement is reached as required by this Condition, then the Brevard County Transportation Impact Fee Ordinance as amended from time to time shall govern.

Chairman Higgs advised Issue No. 21 is the response on Condition No. 47. Mr. Glatting stated on Conditions 47 and 49, they added the same wording on both.

Vesting

Chairman Higgs stated Item No. 22 is the issue of vesting; and the language has been suggested in revised Condition No. 6.

Mr. Glatting summarized the proposed language in Condition No. 6. Commissioner Cook expressed his concern on the 21-year vesting.

Mason Blake, representing The Viera Company, explained Viera's position and concerns regarding vesting. He noted it will work on it more and maybe try to get closer on the issue.

Commissioner Scarborough expressed his concern with vesting and how it is related to the regional mall.

Mr. Glatting stated Viera has worked with a number of regional mall developers, and regional mall DRI and comprehensive plan amendment approvals; it has not been the case where there have been regional malls disallowed by some action of the Department of Community Affairs (DCA) because of over development of commercial space in a particular county; DCA's concern with commercial development runs more to the line of urban sprawl; he has never seen DCA take a position with a regional activity center or a regional mall where it finds that inconsistent with development patterns; and what DCA promotes in parts about comprehensive planning is activity center development such as regional malls.

Discussion continued between the Board, staff and The Viera Company pertaining to population projections, commercial and residential development, development of regional impacts, zoning, and infrastructure improvements.

Mr. Glatting explained that to do large scale development, there has to be certainty; The Viera Company is talking about building major drainage systems and making major infrastructure improvements; vesting is what someone gets for the pain and suffering of going through the DRI process; they make commitments to make improvements; and if they do not have the certainty of being able to do those, then it is very difficult to do large scale land development projects.

The workshop recessed at 7:01 p.m.

The workshop reconvened at 7:19 p.m.

Perry Reader, Executive Vice President of The Viera Company, stated this issue is tremendously important to Viera; it has looked at it very hard since the last meeting; it has talked about it an awful lot; and the proposal before the Board really is the proposal. He noted anyone can do a DRI in Brevard County and apply for the same kind of vesting; the rights and the opportunities are there; the law says when you are this size of a project, you shall be a DRI; and Viera has come forward with it. He advised in order to have good quality growth and planned growth, Viera has to have a planned sound financial structure to build this community; that vesting is absolutely the key; and 21 years is the minimum it can live with.

Commissioner Cook stated he concurs that vesting is an important decision; he wanted to find out if any phasing in the vesting could be accomplished or if there are any other alternatives; 21 years is a long time to commit to this size of a project; certainly nobody wants to make it impractical; that is not the point; that is why he wanted to express his concerns with regard to that; and an important decision the Board is looking at with regard to the project is the vesting.

Commissioner Ellis indicated if the County wants people to do things right and take a very long term view then they have to be vested.

Chairman Higgs stated there are some Planned Unit Developments (PUD's) that have been vested infinitely basically; and as the County looks at them today, they are inappropriate to the surrounding developments.

Leroy Wright advised he has reviewed the case that was given to him by Mason Blake; from his own layman's knowledge, he does not consider that an ordinary high water line survey; it very clearly states that it is a mean high water survey; and there is significant difference.

St. Johns River Floodplain and Sovereign Lands

Chairman Higgs inquired if there are any comments on Condition No. 1. No comments were heard from the Board, public or staff.

Chairman Higgs stated Condition No. 2 is the commitment of Viera, Brevard and other entities to improve the St. Johns River; she has read the proposed Development Order conditions; and she was disappointed that there was nothing more specific than a commitment to participate in the preparation of a plan. She noted she was looking for far more specific commitment from Viera in regard to protecting the St. Johns River; she cannot support that language; and she finds it very inadequate. She indicated she thought they could come to something such as a one unit per 10-acre and the two miles closest to the River, some restored buffer and a setback agreement between Lake Washington and Lake Poinsett; and she found what The Viera Company gave her to be worthless.

Mr. Glatting advised all of these issues are outside of the DRI; with Chairman Higgs responding she understands that. Chairman Higgs explained that a lot of the objections and concerns that people have verbalized in regard to the DRI are issues about the preservation of the St. Johns River; their concerns about the DRI is a fear of the impacts on the St. Johns River; and she was hoping there would be a commitment by Viera to some significant protection of the River; what was proposed is their full participation in some sort of study; and if somebody else did not do the study, it would ask for a study and participate in that.

Mr. Glatting responded Viera's concern with this issue is that basically it is dealing with a very large regional resource where such resource is impacted by thousands of different properties; to take a single individual property and to apply standards to that which are not applied to anyone else simply does not address the regional resource; there should be something under way to try to identify how to protect this resource; and the DRI, the water management planning, and water quality monitoring do provide the fact that The Viera Company is not going to impact the St. Johns River.

Mr. Glatting described Viera's water management system; stated it is a model system; it does more in terms of managing water and water quality than most other parts of Brevard County; it is approximately five miles away from the St. Johns River; and it is not adjacent to it. He related that the County is talking about applying conditions to this development that have not been applied to any other development in Brevard County that are not part of any kind of a regional wide system to deal with that resource; and he does not understand exactly what the Board feels is appropriate for this development to do on land that is approximately five miles away from the St. Johns River.

Commissioner Ellis stated he has a map of the master plan for Viera; and inquired if the County can receive a commitment to the entire master plan.

Mr. Glatting explained that Viera has spent on the master planning for the Substantial Deviation and the impact analysis on Substantial Deviation, in the seven-figure numbers of dollars; the amount of effort that went into the preparation of the master plan for the 38,000 acres was approximately a two or three-week period of time when Viera did a very intensive analysis of what it thinks it knows; and it has no science on that land.

Commissioner Ellis inquired has The Viera Company done some work with the St. Johns River Water Management District about mitigation banking. Mr. Blake responded they have discussed a lot of things; he believes there have been some discussions, but he does not know that for sure; and Viera has looked at a lot of different options out there in the future. He stated the problem as Mr. Glatting just related to and the reason Chairman Higgs feels like Viera is not doing enough, is that Viera does not have data at this point; it is not the appropriate time to spend the money to collect the data; and the data should be collected not just on Viera's land to determine what sort of buffer is needed. Mr. Blake stated Viera has internally talked about mitigation banking and a lot of things.

Mr. Reader expressed that until there is a regional solution and all of the players who can affect change, sit at one table and agree this is what needs to be done and they are going to create a set of rules and regulations to get it done in, it is not going to work; it is not going to work looking at one little piece of the river and then another little piece of the river; and it has to be done and everyone has to be there. He advised until the State asks the federal government to come and pay attention to this because it is a major issue, the Corps of Engineers is not going to pay attention to one developer wanting it to create special rules for him even though it may be a good idea.

Commissioner Ellis related that he had talked to the St. Johns River Water Management District about this; the problem he had was trying to have the mitigation banking within specific watershed areas; you are talking about a very large area here; within that watershed area, you may not find enough to perform the mitigation banking; and yet this is one of the critical areas where a mitigation bank would be highly successful. He advised that is clearly the best solution out there; and he does not know where the County has to address that.

Chairman Higgs commented she cannot go forward with this DRI without some commitment from The Viera Company and this development on what it is going to do to the west of the project; if it cannot, then that is its bottom line and that is fine; that is her bottom line; that is as far as she can go; and she understands Viera's concerns, but she knows there are things that can be done to make commitments today to ease the concerns of people who want to protect the river. She stated Viera is the big guy who is out there; she understands there are other people and other projects; but this is Viera's land between Lake Washington and Lake Poinsett; something can be done now; and that is her bottom line.

Mr. Blake reiterated the point is today, five miles away, there is no reason to spend the money to do the science and the planning, because Viera is not that close; he can commit that Viera knows that the next step over, it is going to probably need to do that planning and that study and get that science at that time; and it is appropriate to spend the money at that time. He noted he would be piling up money and burning it if he spent it today; he can commit to doing it in the future, to getting the science; that is not a problem and he can make that commitment; but the real solution just is not with respect to Viera's land; and there is the other side of the river and north and south of Viera's property.

Mr. Blake advised Viera would like to see all of it done to fully protect the river because whatever Viera does, that alone is not going to get it done; his Company will work on maybe some additional commitment about future study as to its land, what is appropriate and what sort of buffers should it have and have that data; but it is not that close to the river yet. He advised he will commit at a time line when it is appropriate to do it.

Mr. Glatting expressed that the County has standards and controls that control water quality, water runoff and stormwater management; the St. Johns River Water Management District has those controls; Department of Environmental Protection (DEP), Environmental Protection Agency (EPA), and Corps of Engineers are involved; there are certainly enough layers of government to make sure that Viera meets rules, regulations and standards; it believes it is doing that; and to apply regulations for land that is extraterritorial out of the DRI that has no relationship to the DRI is really not appropriate.

Discussion ensued between the Board and The Viera Company on commitments to the St. Johns River, density issues, setbacks, certain restrictions, requirements on floodplains and wetland densities, and appropriate buffers and restorations.

Commissioner Scarborough inquired about the discharge from Viera East into the Viera West area. Surface Water Improvement Director Ron Jones responded in the review of the Viera West Master Drainage Plan, staff made several requests that The Viera Company tie the two systems together so it will be immediately apparent exactly what the impacts are and the County will not be looking from one unit to the other. He advised in terms of the long-term impacts of the associated downstream facilities, one of the things staff has reviewed and spoken with the applicant about is the ability to perhaps include a development order condition which would require if Viera were to modify any of its downstream drainage facilities, the facilities which both the east and west side rely upon for discharge, that it would come back to the County for review and approval for any of those modifications on that system.

Mr. Jones noted in the past, there have been a number of activities which have gone on with regard to agricultural; in almost all of those cases, it has been shown that those were truly agricultural operations; as there are a number of upstream urban developments even outside of the Viera DRI, the applicant has indicated a willingness to work with staff to develop that; and all it has asked for is an opportunity to have some input which is the reason the Board does not see it before it this evening. He indicated there is a Development Order condition which exists currently which addresses monitoring issues; and Viera has been forthcoming in bringing that information to the County.

Hassan Kamal, B.S.E. Consultants, stated he and Mr. Jones have had several discussions regarding the overall master plan; he is not sure exactly what particular information Mr. Jones is seeking; but whatever it is, Viera will be glad to meet with him, go over his request and go from there. He noted if there is a Development Order condition that Mr. Jones needs some information on, Viera will be glad to supply it.

Mr. Jones advised basically there were quarterly reports called for in the original Development Order conditions; he does not believe it was Mr. Kamal that County staff spoke with; and it was one of Mr. Kamal's environmental specialist which recently attended one of the St. Johns River Coalition meetings.

Mr. Kamal related that several years ago after the original DRI, one of the DO conditions was to meet with the St. Johns River Water Management District and Brevard County staff to submit a monitoring program that was acceptable to both agencies; Viera has done that; and the testing has been occurring. He advised he will make sure that information is provided to the County.

Mr. Blake stated that actually may have been downstream information; Viera does own the land out there west; it does extensive work with its water quality out there; it is permitted under the Water Management District; Viera does extensive testing regularly; and the District also tests; and Viera is very concerned about that. He noted Viera does not take the extensive measures it takes because it is forced to; and it does it because it is responsible.

Commissioner Ellis indicated he does not see how the County can request a restoration from one piece of the river and not from everybody along the river; in all fairness, Deseret has more money than Viera; he has not seen any effort to make Deseret do any restoration on the other side of the river; and that is unfair. He stated that is why he had the hopes for the mitigation banking; and it is a way where the property can be restored and the property owner can be compensated for the restoration.

Natural Resources

Chairman Higgs stated Item No. 3 clarifies Development Condition No. 9; and inquired if staff has reviewed this, do the amendments make it enforceable, is this language going to achieve an increase in native vegetation, and what does the extent consistent with xeriscaping principles mean.

Natural Resources Management Director Lisa Barr responded there is a standard set of guidelines that are considered to be xeriscaping principles that you can operate off of; it is more enforceable than to the maximum extent practical.

Chairman Higgs inquired what about the final sentence that says, "In addition to the preservation or maintenance of upland areas required . . . the original state to the greatest extent practical wherever possible based on vegetative tolerance of post development conditions", what does that do for the County.

Ms. Barr indicated Viera is going to follow all of the xeriscaping principles and use the same plant species that are listed under the xeriscaping guidelines, but it will only use those xeriscape plans that are consistent with the landscape after development which is to say that if there is some more shallow areas or down swale areas that may not be as tolerant to water, then it would use those plants as opposed to xeriscape plants.

Commissioner Ellis stated he would like to strike the language about consistent with xeriscape principles; and he believes the County's goal is to get rid of this reuse water, not to conserve it. Commissioner Cook concurred with Commissioner Ellis' comments. Commissioner Ellis stated he would like to go back to the original language that native vegetation shall be utilized in landscaping to the maximum extent practical.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to strike the entire language regarding consistent with xeriscape principles.

Chairman Higgs advised the motion is to strike the entire language, except for the sentence "In addition to the preservation or maintenance of upland areas required . . ."

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

Chairman Higgs advised the next issue is Item No. 11.

Mr. Glatting indicated the concern the Board raised was the unavoidable loss of wetlands; the word "unavoidable" has been eliminated and the word "any" was included; and the Board was also concerned that it be done in advance or concurrently with the County's acceptance of completion of construction projects.

Chairman Higgs advised the next issue is Item No. 12.

Motion by Commissioner Higgs, to include that at no point will the bikepath encroach into the buffer more than 25%. Motion died for lack of a second.

Chairman Higgs advised on Item No. 13, staff had a concern that the language might not protect the conservation areas.

Ms. Barr commented there is staff concern as it reviewed Florida Statutes, Section 704.06, Subparagraph 4; it states that a conservation easement may be released by the holder of the easement to the holder of the fee, even though the holder of the fee may not be a governmental body or a charitable corporation or trust; and staff had a concern whether that means that if the Community Development District (CDD) was the holder of the easement, whether they could release that easement back to the previous fee holder which would be either The Viera Company or A. Duda and Sons. She advised further clarification may be needed from the attorneys.

Betsy Bowman, with the firm Hopping, Green, Sams, & Smith, reported that is not Viera's intent; it would be happy to add some language that said substantially in compliance with that Section of the Statute, except that the easement shall not be released to the applicant.

Ms. Barr responded that would be acceptable and it needs to be made consistent throughout the Development Order for the other conditions. She advised the question of what the substantial compliance means is also a staff concern.

Attorney Bowman explained, for example, to the extent Section 704.06 might require something that is inconsistent with the Development Order condition, Viera would obviously need to follow the Development Order condition as well.

Chairman Higgs stated staff's concern was who got ownership. Ms. Barr responded that is correct, if the conservation easement was revertible back to the applicant or back to the title holder of the land; and if the County held the easement, then it would be up to it as to whether it wanted to revert it back or not. She advised if the CDD holds the conservation, then it has that option to release the easement back; with the language that was stated, that will cover staff's concerns; and the County may want to adjust that to say at the approval of Brevard County, it may release the easement.

Attorney Bowman commented there is a provision in the Condition that states that such release can occur only through a Development Order amendment which would require County Commission approval.

Chairman Higgs explained her concern in this Section was simply that the County got a conservation easement, but there was the provision that Viera could get it back; and that was the only concern she had. She noted if there is no concern that Viera gets it back, then the County can move on. Commissioner Ellis stated the County can leave it like it was.

Community Services

Mr. Glatting advised Viera surrenders on the fire issue in terms of asking for impact fee credits outside of the project; and that is modified to reflect that.

Chairman Higgs stated the next issue is Item No. 25. No questions were heard from the Board.

Mr. Glatting advised Item No. 26 is a minor word language. No questions were heard from the Board.

Chairman Higgs inquired is there any further action or additional questions. No further comments were heard.

Upon motion and vote, the meeting adjourned at 8:40 p.m.

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

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