July 8, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on July 8, 2003, at 9:02 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners Truman Scarborough, Ron Pritchard, Nancy Higgs, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Minister Norman Gleason, Mt. Moriah Baptist Church, Palm Bay, Florida.

Chairperson Jackie Colon led the assembly in the Pledge of Allegiance.

WELCOME

Chairperson Colon welcomed everyone back after vacations.

PERMISSION TO SEEK INSPECTION WARRANT

County Attorney Scott Knox stated he was asked by the State Attorney’s Office to try to obtain an inspection warrant on a problem area that is located on the border between Districts 3 and 5; there is an illegal landfill going on at that location; and it is similar to the Hogan landfill. He stated Code Enforcement, as well as the State Attorney, would like to know what is being deposited in the landfill; one of the ways they can do that is to get an inspection warrant from a judge; they have asked for and been denied permission to go on the property; and that is a prerequisite to get the inspection warrant. He requested authority to get the inspection warrant. Assistant County Attorney Terri Jones advised the landfill is off Madison; Code Enforcement Director Bobby Bowen has been there; and he can probably answer more completely.

Commissioner Scarborough stated he has no problem with it; and staff needs to get out there.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant permission to seek an inspection warrant for a landfill located on the border between Districts 3 and 5. Motion carried and ordered unanimously.

REPORT, RE: SALES TAX SURVEY

Commissioner Pritchard stated his office has been conducting a sales tax survey; and the responses have been interesting. He stated the survey is online at www.brevardcounty.us/D2/; and encouraged people to give their comments on the sales tax.

REPORT, RE: DOGS ON THE BEACH

Commissioner Pritchard stated he has been approached by several groups who think it is time to look at having a small portion of the beach set aside as a dog park; out of 46 miles of beach, the County can devote a quarter-mile or so to people who own dogs and would like to take them to the beach; and the dogs would be under supervision, on leashes, with the owners cleaning up after them. He stated at the very least the Board can look at this on a trial basis of six months to see if it works; he is focusing on the beach at the northern end of Canova Beach; and the reason for that selection is it will solve a couple of problems. He stated there are problems there with law enforcement; a lot of calls have been made; and displayed copies of various calls for assistance. He stated some of the calls deal with activities the majority would find to be unsavory; and this is one way to clean up the beach and take it back. He stated this would be a proactive way of restoring a family aura to the area; and it would also be a benefit to people who have pets and would like to take them to the ocean for recreation. He stated he hopes the Board can have discussion on the issue at the July 22, 2003 meeting. Chairperson Colon inquired if it would be possible to bring back the discussion at the August 12, 2003 meeting; with Commissioner Pritchard responding that would be possible. He stated he would like to have representatives of the community and various animal pet groups present so they can make their pleas; and it seems that out of 46 miles of public beach, it would be possible to dedicate a quarter mile or so to people who have pets.

Chairperson Colon stated the issue will come back to the Board on August 12, 2003.

REPORT, RE: SEA TURTLE LIGHTING ORDINANCE

Commissioner Pritchard stated the Sea Turtle Lighting Ordinance has as its basis reducing the amount of lighting that is on the beach so that when turtles are born, they head to the ocean instead of going toward the brighter light, which in many cases is the beachside; but the problem is it is a very subjective Ordinance. He stated the Code Enforcement person may or may not find what was done the year before to be satisfactory this year; and recommended the Board address the Ordinance and take out some of the subjectivity. He stated maybe just having yellow bulbs of 40 watts or less would be sufficient, but he does not know; and he is proposing the Board do something. He stated he was on the beach a few weeks ago at nine o’clock at night; he met with Code Enforcement personnel and a couple of the neighbors; one of the Code Enforcement people pointed out a bright bulb, which was a 40-watt yellow bulb; and he does not know where they should draw the line. He suggested making the Ordinance more reasonable; and stated he would like to bring the issue to the Board in August.

Commissioner Higgs stated any Commissioner has the ability to bring anything before the Board by developing an agenda item with proposals.

Chairperson Colon inquired if the first meeting in August is okay. Commissioner Higgs advised it is up to the Commissioner who wants to bring it to the Board; and inquired if Commissioner Pritchard intends for staff to bring something back. Chairperson Colon stated Commissioner Pritchard will be bringing it back; the July 22 and 29 agendas will be full; and if it is okay with everyone, the first meeting in August would be better. Commissioner Pritchard stated he will bring it back to some meeting in August. Commissioner Higgs advised it is Commissioner Pritchard’s item of concern, and he may bring it back when he thinks it is right. Commissioner Pritchard stated he would like to meet with some of the property owners to discuss the problems they are having and with Code Enforcement to see what they would like done; and he wants to come up with something tighter and less subjective.

REPORT, RE: TICO AIRPORT LEGISLATION

Commissioner Pritchard stated he received a copy of a letter from County Manager Tom Jenkins to Representative Poppell concerning the Tico Airport legislation, the consensus of the Board is that the matter required additional community input, and a request to table the legislation. He stated the Governor did not sign the Tico Airport legislation, and will not until the County and communities get together and develop a version that everyone supports. He recommended in the near future the Board review the Tico Airport legislation, determine what works best for the people, and provide input to the Delegation, which can then carry it forward to Tallahassee.

REPORT, RE: MANATEE PROTECTION PLAN FIVE-MILE RADIUS

Commissioner Pritchard stated when the Board worked on the Manatee Protection Plan, one item he had problems with was the five-mile radius; and he thought it was so subjective that it should not exist. He stated he had a letter from a corporation in Melbourne that is under contract to Parks and Recreation Department to build boat ramps in South Brevard; they also provide engineering and permitting services for clients throughout the County; and they are having a disagreement with the Florida Fish and Wildlife Conservation Commission, which arises from the interpretation of the five-mile radius. He stated one of their clients has a property on the Indian River in close proximity to Pineda Landing; in determining the manatee mortality, the Commission has included the manatee in the Banana River along the Pineda Causeway; it is five miles as the eagle flies, which is not five boat miles; and if the distance is put into the equation, one would have to travel well over five miles, upwards of 20 miles. He stated a better interpretation is needed of what the five-mile radius is supposed to be; and his assumption was that it would be boat travel miles, not a five-mile radius that would encompass land also. He stated Merritt Island has two peninsulas; it would be easy to only be two miles away or less from one river to the other; but if one took that route, a boat or manatee would have to go ten, fifteen, or twenty miles. He stated he would like an interpretation, so the Board can send it to Fish and Wildlife Conservation Commission and say the five-mile radius should not apply, but it should be a five-mile travel distance when appropriate.

Commissioner Scarborough stated what Commissioner Pritchard is saying sounds logical; it is the proximity of the manatee to the location that matters; but he does not know how the Board can get back into this discussion. He inquired if Commissioner Pritchard has discussed this with members of staff as to how the issue may be raised. Commissioner Pritchard responded he does not see why it could not be addressed; and commented on the Titusville Marina and the five-mile radius. Commissioner Scarborough stated he understands the comment that it needs to be readdressed; but inquired how could that be done. Commissioner Pritchard stated he could draft a letter and send it to the Commissioners with a rendering showing why it should not apply. Commissioner Scarborough stated he understands what Commissioner Pritchard is saying; that is not the problem; but he does not know what windows are open for the Board to make comments. He stated it is not the substance but the procedure that he is questioning. Commissioner Pritchard stated he can do some checking on the procedure as well as on the reasonableness of not having a circle drawn with the peninsula in the middle. Commissioner Scarborough stated he does not think anyone is going to have a problem with the peninsula.

Commissioner Carlson inquired if Commissioner Pritchard has already talked to staff, and understands the philosophy and what went into the five-mile radius. Commissioner Pritchard stated he understands there was never any philosophy behind the five-mile radius. Commissioner Carlson inquired if Commissioner Pritchard asked staff; and stated the Board can ask for a report on staff’s interpretation. Commissioner Pritchard stated that would be one way to start. Commissioner Carlson advised she is not interested in discussing the issue at this point; staff has the historical understanding, although the Commissioners have sat in on those discussions as well and know very well where some of those things came from; and recommended Commissioner Pritchard start by getting a staff report on the interpretation of the five-mile radius, where it evolved from, and what it means. She stated if it still does not make any sense, Commissioner Pritchard can bring the issue back to the Board as an agenda item for discussion.

Commissioner Pritchard stated he will be happy to do that; he understands where it came from, how it came about, and why it is included as a part of the plan; but he does not understand how it can apply across a strip of land. He stated he is aware telemetry showed manatees on land, but that does not mean it was accurate; it does not mean that the interpretation of a circle around a peninsula is accurate either; and he does not have a problem dealing with staff and finding out what the procedure might be. He stated it needs to be laid out so there is an understanding of what is being done.

REPORT, RE: FIREWORKS

Commissioner Pritchard stated his last item has to do with fireworks; he is proposing to have a staff review of all the material his office has compiled; and recommended the Board do something about the current fireworks sale and use in the County. He stated the beaches have become a disaster; the ban that various cities have put in to control personal fireworks is not working; and there are waivers that allow people to publicly perjure themselves and purchase fireworks. He read aloud from Chapter 791.04, Florida Statutes, concerning purchase of fireworks; and inquired who knows what Chapter 791 includes. He stated fireworks are defined as anything that explodes or leaves the ground; a sparkler is a device that emits a shower of sparks but does not explode; and anyone signing the waiver is supposed to be signed up with the local Sheriff. He stated any person may acquire fireworks from any authorized person for the purposes stated in the Section, upon presentation of a copy of the statement filed with the Sheriff. He stated people are purchasing fireworks, signing a waiver saying they are complying with Chapter 791, but they are not because they have not filed with the Sheriff. He stated the majority of them would not qualify for the exemption because the exemptions include railroads or transportation agencies using them for signals, for quarrying or blasting or other industrial use, for signal or ceremonial purposes in athletics and sports or military organizations, and to frighten birds from agricultural and fish hatcheries; and not many people can qualify for that. He stated the situation is people are buying fireworks and blowing up the beach and neighborhoods; and there is no teeth in that portion of the Florida Statutes, although the County can add a little to it in terms of where fireworks can be used. He stated there are no penalties attached to signing a consumer affidavit to purchase fireworks; therefore, if the public is caught with fireworks, the case is thrown out by the judge because there is no law against lying; and that loophole needs to be addressed by the State Legislature. He stated the newspaper is full of articles showing that the ban does little to control fireworks; and commented on various newspaper articles. He stated 9,500 people in 2001 were treated for fireworks injuries nationwide; locally this year there were only two fireworks injuries, one serious and one minor; the majority of fireworks injuries and moralities are in the young, half under the age of 15 and two-thirds under the age of 20; and he is sure none were farmers or raising fish to qualify for the exemption. He stated he has been inundated with fliers at home from vendors selling their wares; and this is a huge business especially at certain holidays. He stated the County faces a huge problem; there are issues with people who live on the beach and are exposed to fireworks blasting off at all hours of the day and night; several fireworks vendors have encouraged their purchasers to go to the beach to set off their fireworks because the beach is vacant property; and there have been fires in the dunes, disrupting of the turtle nesting, and serious injuries. He stated many people who live along the beach have suffered due to the exuberance of those who like to go there to blow things up; and it is time to address this. He stated if someone wants a pack of cigarettes, they have to be 18; however, as long as they can sign their name to the waiver, they can buy fireworks. He displayed fireworks purchases he made, including super firecrackers, mini-artillery shells, bottle rockets, and an exploding fire engine; and exhibited fireworks debris collected from his yard. He stated this is a mess; the beaches are being used as a blasting ground; people are perjuring themselves to buy fireworks; vendors who are selling fireworks know what they are doing; the affidavit is meaningless; and the State law has no power to do much about it. He stated the Board needs to stop the use of fireworks on the beaches at the very least; and suggested requesting the Delegation draft stricter State regulations on the sale of fireworks.

Commissioner Pritchard read a quote from Michelangelo, “the greatest danger for most of us is not that we aim too high and we miss it, but that it’s too low and we reach it.”

Commissioner Higgs stated it would be helpful if Commissioner Pritchard would bring the issues he brought out this morning as agenda items with the recommendations he wants the Board to act on; that would allow the Board to use its time most effectively to move things along or determine what it wants to do with the items; she understands the issues; and she would be interested in seeing agenda items in the future and Commissioner Pritchard’s recommendations on how to deal with the specifics.

REPORT, RE: SAMPLE THE ARTS

Commissioner Carlson introduced Arlan Ropp, with the Cape Canaveral Chapter of the Barbershop Singers.

Arlan Ropp stated the Society for the Preservation and Encouragement of Barbershop Quartet Singing in America, Inc. has over 34,000 members nationwide; and 32 of those members are in the Greater Canaveral Chapter. He stated they meet every Tuesday night at the Cocoa campus of Brevard Community College; they sing a variety of music; and they sing whenever they have the opportunity, at parties, fundraisers, churches, and nursing homes. He stated there are 20 to 25 members in the chorus; and there are several quartets, singing in four-part harmony. He stated they are planning a patriotic program for September 11; and invited all men who like to sing to come and join them. He advised there is no pressure to join the Chapter and no cost; they are going to present a program of patriotic songs with a narration for September 11; and they also do singing valentines. He stated their big event is their annual show; Space Coast Chorus will sing as well as local quartets; and two very popular quartets will be coming, the Humdingers, also known as the Dapper Dan’s from Disney World, and a quartet called Fred from Atlanta. He stated people think of barbershop singing as four old guys singing songs that are even older than they are; but that is not always the case; and introduced Lewis Law.

Lewis Law stated he is a bit younger than most of the members; at the international convention in Canada last weekend a Miami collegiate quartet named Heat came in first place; all four men were under the age of 25, but they pulled out first place at the national conference. He stated there are also women’s quartets called the Sweet Adelines. He encouraged those who like to sing to join the group; advised of singing for the elderly, which brightens their day; and reiterated there are a number of young people involved with barbershop singing. He stated the website is www.spebsqsa.org

Chairperson Colon stated Mr. Law mentioned they go to areas that are gloomy; and encouraged them to come back to the Board meeting this afternoon. Mr. Ropp stated anytime the Board would like them to appear, they would be happy to do so; and encouraged people to visit their table in the lobby.

DISCUSSION, RE: AGENDA ITEMS

Chairperson Colon stated Item VI.F.4, Citizen Request - Claire and James Zuhlke, Re: Request for Waiver of Impact Fees, is a time certain at 1:00 p.m.; and individuals for Item IV.J., Appeal of Staff Interpretation, Re: Surface Water Protection Ordinance, asked to be heard after 1:00 p.m. She noted cards were submitted for Item III.F.1, Resolution, Re: Findings of Fact for Michelina Condos/Ray’s Condos Site Plan Appeal; at the last meeting, the Board discussed all the evidence; and the Board voted to make sure it was not going to get public comment again and go through the evidence one more time.

County Attorney Scott Knox stated the Board directed him to prepare a proposed order of finding of fact, which is on the Agenda today; typically when the Board has done that in the
past, it has not talked about the merits of the case again at a subsequent meeting; and it is placed on the Consent Agenda to be voted up or down without any comment. He stated to the extent the Board allows comment, it would probably only be on the format of the order, but not on the issues that were raised by the evidence, because to do so would be to open up the public hearing again; and if the Board reopens the hearing, it must be opened to everyone, which means there are people who probably are not present who would like to be heard again if given that opportunity.

Chairperson Colon stated the Board voted to close the hearing because it was concerned about opening it again.

Commissioner Pritchard stated he received a letter from Carol Pope, who brought up a relevant question; and inquired about the issue of contiguous property. He noted Ms. Pope’s property is the only contiguous property; and inquired what relevance does that have to the finding of fact. Mr. Knox responded that is an issue that was or should have been, if it was not, raised at the hearing that was held; the Board determined the site plan met the requirements of the Site Plan Review Ordinance, and directed him to prepare an order that reflected that, so the issue was addressed in the order; and the fact that Ms. Pope would like to speak about that issue would probably reopen the whole hearing, if that is what the Board allows her to do. Commissioner Pritchard stated Mr. Knox is saying this should have been addressed at the prior public hearing; it was not addressed; the Board at that time voted and instructed the County Attorney to develop a finding of fact, which Mr. Knox did; and based on the findings, it is a denial of the appeal of the Michelina Condos. He inquired does the question of contiguous property have any merit to the issue. Mr. Knox stated that is one of the standards that was set forth in Section 1902 of the Code; it was reviewed by staff; and that section was applied to the application as it was filed. He stated the determination was made by the Board that staff acted properly in doing so; therefore, the issue has been addressed in the order. He stated to the extent Ms. Pope wants to make an argument that she may not have made at the first hearing does not change the fact that it was addressed; staff looked at the issue; and there is evidence to the effect in the record and findings that those conditions have been met in the proposed order.

Commissioner Higgs stated her understanding was that if there were issues about the findings of fact, they could be brought up at this hearing. Mr. Knox stated the standard the Board has is substantial, competent evidence and whether there is enough evidence in the record to support the decision the Board made; the order is prepared with that in mind; and there may be additional evidence people want to bring out today. Commissioner Higgs stated she is not asking about new evidence; she is asking if there were issues about what was presented in the findings; and if there is an error in the findings of fact and what is presented is not consistent with the testimony or evidence heard at the initial hearing, whether it would be proper to raise those questions today. Mr. Knox responded the Board can let that happen if it wants to; but the issue is whether there is a mistake in the findings of fact that may or may not impact whether the Board’s decision was made on substantial competent evidence; and it is his belief that is not the case, so the discussion would be getting into the merits of the case. Commissioner Higgs stated if it is discussed at all, the Board should have a full additional hearing to allow all interested parties to discuss it fully. Mr. Knox stated if the Board is going to open up findings of fact for discussion, he would recommend doing that for due process reasons, if nothing else. Commissioner Higgs inquired if for due process reasons the Board is compelled to reopen the hearing; with Mr. Knox responding not at all; the Board’s decision was based on substantial competent evidence; that is reflected in the order; and anybody who wants to challenge that has the right to do so in court. He stated if the Board wants to reopen it, take additional evidence, and have argument about it, that is a different issue.

Chairperson Colon stated if the people are not happy with the order regarding the evidence, the next place would be in court; that is what the Board prepared itself for; that is why the Board was clear about the public comments; and if there are no further issues, the Board will move on to the Consent Agenda.

Commissioner Pritchard stated he is going to vote no on Item III.B.7, Waiver of Title Exception for Ditch, Re: Weber Property; he has continuously asked to know how much something is going to cost; but there is no mention of it. He stated this is a small amount of money; it is $7,800 to buy an acre or so of property that is contiguous with other properties set aside for conservation; if the Marine Resources Council cannot perform as curator of the property, it would revert to the County and become the County’s problem; and future impacts may include site security, capital improvements, and land management activities. He stated it does not give any indication as to what the cost may be or what the amount of taxable value would be coming off the ad valorem rates; and for that reason he is going to vote against Item III.B.7.

Commissioner Scarborough stated he would prefer to have the item removed so there can be full discussion later in the Agenda; the fact that one Commissioner is opposed to it raises red flags; and he may need to examine it more than he had previously.

Commissioner Pritchard stated he would like to pull Items III.B.7 and III.C.5 for discussion.

Commissioner Higgs stated she will vote no on Item III.F.1 as it was her desire, when the Board had the hearing, to have additional staff comment.

Commissioner Scarborough inquired if there are cards on Item III.F.1; with Chairperson Colon responding yes, and the Board does not want to take public comments. Commissioner Scarborough stated while the Board is not going to take public comments, it has been the practice of the Board to allow anyone who puts in a card to address the Board; and to not allow them to speak would be a deviation from the Board’s card policy. Chairperson Colon stated they have talked with the County Attorney concerning this issue; Ms. Pope wanted an opportunity to speak regarding this particular issue; but since the item is on the Consent Agenda, that is where the discrepancy was. Commissioner Scarborough stated any item can be discussed if a card comes in; but the Board may limit the discussion.

Motion by Commissioner Scarborough, to overrule the ruling of the Chairperson as to Item III.F.1, and follow the current policy of having anyone who submits a card to be heard.

Chairperson Colon inquired if Commissioner Scarborough is pulling item III.F.1; with Commissioner Scarborough responding no, he is moving to overrule Chairperson Colon’s ruling. Chairperson Colon inquired how Commissioner Scarborough would like this handled; with Commissioner Scarborough responding anytime a Commissioner disagrees with the Chair’s ruling, he or she has the opportunity to move to overrule the Chairperson; and he is doing so because the ruling is inconsistent with policy. Chairperson Colon inquired how would Commissioner Scarborough like the Board to do this; with Commissioner Scarborough responding by reversing the ruling.

Commissioner Higgs seconded the motion.

Chairperson Colon stated it would be no problem, but Commissioner Scarborough did not say anything while the Board was discussing it.

Commissioner Carlson stated if the Board moves the Consent Agenda including that particular item, then the comments would be moot, although they should be heard. Commissioner Scarborough stated the County Attorney has advised they have a limited item, which is what is in the finding of fact; and if the public wishes to discuss it by submitting a card, the Board has always allowed that discussion. Commissioner Carlson stated she is confused; if they start delving into specific issues, it would throw the current finding of fact out; then it is bringing it up for discussion again; and requested clarification from Mr. Knox. She inquired if the item is on the Consent Agenda and is passed, and then the Board allows comments, is that going to make any difference. Mr. Knox inquired if Commissioner Carlson is saying to pass the item as the order, and then allow people to come up and talk about it after the fact. Commissioner Carlson stated if the Board passes it and then finds out there are significant issues that should have been considered, it can bring it back to the table; with Mr. Knox responding the Board could do that. Commissioner Scarborough stated historically the Board has heard the comments before voting on an item; and to vote and then allow discussion creates a degree of awkwardness. Commissioner Carlson stated the Board is allowing public input, which is positive and sticks to the policy; but the Board has a finding of fact on which it deliberated, which is now in a legal format. She stated if the Board wants to open it up, it can do so; but if it does not, it can listen after the fact and then it can always bring it back; and that is procedurally correct. Commissioner Scarborough advised there are some municipalities that have the policy of passing things and then letting people discuss it at the end; those municipalities are coming under a great deal of criticism for that procedure; and there should be an opportunity to be heard before the decision is made.

Chairperson Colon stated if a citizens has pulled something from the Consent Agenda, the Board should just allow them to speak, and then there will not be an issue.

Commissioner Scarborough withdrew the motion.

Chairperson Colon stated III.B.7 and III.C.5 have been pulled from the Consent Agenda for discussion; and Item III.F.1 will not be a part of the motion to approve the Consent Agenda. She explained the differences between items pulled by Commissioners and items pulled by citizens.

APPROVAL, RE: FLAG STEM AND EASEMENT REVIEW POLICY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Policy establishing a procedure for the review and approval of flag stem and easement lots creating a total of three or more lots from one parent parcel of land. Motion carried and ordered unanimously.

CONTRACT WITH CHASE HAMMOCK LAKES, LLC, RE: CHASE HAMMOCK LAKES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Contract with Chase Hammock Lakes, LLC, to guarantee performance of infrastructure improvements in the Chase Hammock Lakes Development. Motion carried and ordered unanimously.

APPEAL OF SECTION 62-3206, PARKING REQUIREMENTS, RE:
JOHN FRED BAILEY, SR.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to waive the provisions of Sections 62-3206(c), 62-3206(d)(4)a.2, and 62-3206(e)(10) to allow the site plan of John Fred Bailey, Sr. to be approved without the required number of onsite paved parking spaces. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH ALAN ZAJDEL, RE: MORNINGSIDE DRIVE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with Alan Zajdel for a building permit off an existing right-of-way (Morningside Drive) that has been constructed to the standards of the Upaved Road Ordinance, Section 62-102. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: OCEAN ESTATES TOWNHOMES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant final plat approval for Ocean Estates Townhomes, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH KENNETH GREENWOOD, RE: LOG CABIN LANE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with Kenneth Greenwood for a building permit off an existing right-of-way (Log Cabin Lane) that has been constructed to the standards of the Unpaved Road Ordinance, Section 62-102. Motion carried and ordered unanimously.

CONTRACT MODIFICATION AGREEMENT WITH INDIAN RIVER NO. 1
DEVELOPMENT, INC., RE; AQUARINA BOULEVARD

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Contract Modification Agreement with Indian River No. 1 Development, Inc. guaranteeing infrastructure improvements for Aquarina Boulevard. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: SONOMA
AT VIERA, PHASE 6

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant final plat approval for Sonoma at Viera, Phase 6, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary jurisdictional permits; and execute Contract guaranteeing infrastructure improvements in the development. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: SONOMA
AT VIERA, PHASE 3

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant final plat approval for Sonoma at Viera, Phase 3, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary jurisdictional permits; and execute Contract guaranteeing infrastructure improvements in the development. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: DEER LAKES SUBDIVISION, PHASE 1-A

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant final plat approval for Deer Lakes Subdivision, Phase 1-A, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: SUMMER LAKES SUBDIVISION, PHASE II

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant final plat approval for Summer Lakes Subdivision, Phase II, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.

APPEAL OF SECTION 62-3206 (3)(5), PARKING REQUIREMENTS, RE: TARGET

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to waive the provisions of Section 62-3206(3)(5), Parking Requirements, to allow the site plan for Target to be approved without curb stops in the parking lot. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN WITH ST. PATRICK, LLC, RE: ST. PATRICK PUD

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Binding Development Plan with St. Patrick, LLC, for the St. Patrick PUD. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN WITH ROBERT G. WEBER AND MARY ELIZABETH
PLUCKEBAUM WEBER, RE: PROPERTY IN SECTION 23, TOWNSHIP 25, RANGE 36

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Binding Development Plan with Robert G. Weber and Mary Elizabeth Pluckebaum Weber for property in Section 23, Township 25, Range 36. Motion carried and ordered unanimously.

PERMISSION TO ORDER APPRAISAL, RE: PARCEL IN CRANE CREEK DRAINAGE
BASIN

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize Land Acquisition staff to order an appraisal and negotiate for property for a regional stormwater treatment and flood control pond in Section 16, Township 28, Range 37. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, RE:
UPPER EAU GALLIE STORAGE AREA F STORMWATER IMPROVEMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with Florida Department of Environmental Protection in the amount of $435,000 to partially fund the Upper Eau Gallie Storage Area F stormwater improvements. Motion carried and ordered unanimously.

APPROVAL OF POLICY BCC-53, RE: MUNICIPAL SERVICE BENEFIT UNIT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Policy BCC-53, Municipal Service Benefit Unit, reducing the requirement for Board consideration of an MSBU from 75% to 66.66%. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE CREATING THE RIO
LINDO MAINTENANCE DREDGING MUNICIPAL SERVICE BENEFIT UNIT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance creating the Rio Lindo Maintenance Dredging MSBU. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE AMENDING
ORDINANCE NO. 92-23, DISPOSITION OF ROAD & BRIDGE MSTU PROCEEDS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance amending Ordinance No. 92-23 to allow for the proceeds derived from the Road & Bridge MSTU ad valorem tax to be used for drainage facilities. Motion carried and ordered unanimously.

RESOLUTION AND LEASE WITH FEC RAILWAY, RE: STREET ENCROACHMENT
AT MILE POST 168+1111'

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution and execute Lease with Florida East Coast Railway Company for space for street encroachment at Mile Post 168+1111’ in District 1. Motion carried and ordered unanimously.

RESOLUTION AND UTILITY EASEMENT, RE: CONVEYANCE OF PROPERTY OWNED
BY COUNTY TO CITY OF TITUSVILLE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution and execute Utility Easement in favor of the City of Titusville for property owned by the County in Section 10, Township 22, Range 35 East. Motion carried and ordered unanimously.

PERMISSION TO INCREASE WORK ORDER TO POST BUCKLEY SCHUH & JERNIGAN,
RE: PARADISE BEACH PARK

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize an increase in Work Order #98-008-P-037 for Post Buckley Schuh & Jernigan in the amount of $6,900 for a new total of $41,700 for the Paradise Beach Park project. Motion carried and ordered unanimously.

RESOLUTION, RE: NO PARKING SIGNS FOR HERON’S LANDING, CRANE CREEK,
BAYHILL AT VIERA EAST, AND HAMMOCK TRACE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt a Resolution calling for installation of signs in Heron’s Landing, Crane Creek, Bayhill at Viera East, and Hammock Trace for no parking on streets between Midnight and 7:00 a.m. Motion carried and ordered unanimously.

APPROVAL, RE: ANNUAL CERTIFICATION OF LOCAL OPTION GAS TAX FORMULA

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the Annual Certification of Local Option Gas Tax Formula revenue percentage allocations as submitted; and to direct County Finance to submit the revenue percentage allocations to the Department of Revenue. Motion carried and ordered unanimously.

APPROVAL, RE: TOURIST DEVELOPMENT COUNCIL CATEGORY E-CULTURAL EVENTS
REVISED GRANT APPLICATION HANDBOOK

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the revised TDC Category E-Cultural Events Revised Grant Application Handbook, including eligibility requirements, type of grants available, criteria for evaluations, instructions, and application forms. Motion carried and ordered unanimously.

AUTHORIZE APPLICATION TO U.S. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, RE: URBAN COUNTY RE-QUALIFICATION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize application with the U.S. Department of Housing and Urban Development (HUD) for Urban County re-qualification for Community Development Block Grant (CDBG) and HOME funds; authorize Cooperation Agreements with the municipalities; and authorize the County Attorney to execute mandatory legal opinion for submittal to HUD. Motion carried and ordered unanimously.

AMENDMENT NO. 9 TO LEASE NO. 3485-01 WITH BOARD OF TRUSTEES OF THE
INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA, RE: STOKES,
LAVRICH, AND GREEN SAVE OUR COAST PROPERTIES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Amendment No. 9 to Lease Agreement No. 3485-01 with the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, amending the Save Our Coast Agreement to add Stokes, Lavrich, and Green beachfront properties for the County’s management. Motion carried and ordered unanimously.

AUTHORIZE PURCHASE, RE: BUCKET TRUCK FOR SOUTH AREA PARKS
MAINTENANCE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize purchase of a bucket truck from the GSA Contract #070-700-300 for the South Area Parks Maintenance Division. Motion carried and ordered unanimously.

AGREEMENT TO AMEND EXISTING INTERLOCAL AGREEMENT WITH CITY OF
ROCKLEDGE, RE: CONSTRUCTION OF PAVILION AT COMMUNITY PARK OF
ROCKLEDGE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement to Amend Existing Interlocal Agreement with the City of Rockledge for construction of a pavilion at Community Park of Rockledge. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING USE OF NORTHWEST PORTION OF INDIAN
HARBOUR BEACH WASTEWATER TREATMENT PLANT SITE FOR PARK AND
RECREATION MAINTENANCE PURPOSES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution authorizing the use of the northwest portion of the Brevard County Indian Harbour Beach Wastewater Treatment Plant Site by the Parks and Recreation Department for construction and operation of a 4-bay park maintenance facility. Motion carried and ordered unanimously.

AWARD OF CONTRACT, AUTHORIZE CHAIRMAN TO EXECUTE CONTRACTS, AND
AUTHORIZE UTILIZATION OF STATE AND COOPERATIVE AGREEMENTS, RE:
KIWANIS ISLAND PARK, GARDENDALE AND STEVENSON ELEMENTARY
SCHOOLS, AND OTHER PARK PROJECTS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to award contracts, pursuant to Brevard County School Board Contract Bid #017-01/JO, for Kiwanis Island Park, Gardendale and Stevenson Elementary Schools to Golf Shapers Construction Company, Inc.; authorize staff to utilize State and cooperative agreements; and authorize the Chairperson to execute the associated contracts for the park projects. Motion carried and ordered unanimously.

RESOLUTION, GRANT APPLICATION, USE OF TOLL REVENUE CREDITS, AND
EXECUTION OF FOLLOW-UP AGREEMENTS, RE: FISCAL YEAR 2005 SPACE
COAST AREA TRANSIT CAPITAL OPERATING ASSISTANCE GRANTS FROM
FEDERAL TRANSIT ADMINISTRATION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution; execute Grant Application; authorize use of Florida Department of Transportation Toll Revenue Credit for the FY 2005 Urbanized Area Formula Program Public Transportation Capital and Operating Assistance Grant from the Federal Transit Administration in the amount of $4,714,919 for Space Coast Area Transit; and authorize the Chairperson to execute the standard follow-up grant Agreement contingent upon County Attorney and Risk Management approval. Motion carried and ordered unanimously.

APPROVAL, RE: MOSQUITO CONTROL TENTATIVE DETAILED WORK PLAN BUDGET
FOR FY 2003-2004

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute the State of Florida, Department of Agriculture and Consumer Services, Mosquito Control Department’s Tentative Detailed Work Plan Budget for FY 2003-2004. Motion carried and ordered unanimously.

PERMISSION TO SCHEDULE WORKSHOP, RE: SOLID WASTE WORKSHOP

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to designate August 21, 2003 as a solid waste workshop. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 WITH HANDEX OF FLORIDA AND FINAL PAYMENT, RE: CDF
LANDFILL GAS MANAGEMENT SYSTEM PHASE I REHABILITATION PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Change Order No. 1 with Handex of Florida, increasing contract price by $2,384 and extending contract time by an additional 79 days to complete all construction activities; and authorize the Solid Waste Management Department to accept the final completion of the CDF Landfill Gas Management System Phase I Rehabilitation Project, process final payment to the Contractor, and release retainage. Motion carried and ordered unanimously.

AGREEMENT WITH KEEP BREVARD BEAUTIFUL, INC., RE: RECYCLING EDUCATION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with Keep Brevard Beautiful, Inc. for continuation of the recycling education program for the fourth and fifth-graders in the County’s public school system. Motion carried and ordered unanimously.

AWARD OF BID NO. B-4-03-57 AND EXECUTE CONTRACT WITH MAXWELL
CONTRACTING, INC., RE: CONSTRUCTION OF WEST STATE ROAD 520 FORCE MAIN
MODIFICATIONS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to award Bid No. B-4-03-57, West State Road 520 Force Main Modifications, to Maxwell Contracting, Inc.; and authorize the Chairperson to execute the Contract with the Company at a total price of $297,000. Motion carried and ordered unanimously.

AUTHORIZE PURCHASE OF EQUIPMENT USING FDOT BID, RE: TRUCK-MOUNTED
SEWER CLEANER

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the purchase of a truck-mounted sewer cleaner for $199,268 using the Florida Department of Transportation (FDOT) bid and Contract No. PO384. Motion carried and ordered unanimously.

AGREEMENT AND TASK ORDER WITH MWH, INC., RE: ENGINEERING SERVICES FOR
SEA PARK LIFT STATION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept the recommendations of the Negotiating Committee and execute Agreement and Task Order No. 1 with MWH Americas, Inc. for engineering design and construction services for the refurbishment of lift station S-2 (Sea Park area of North Satellite Beach.) Motion carried and ordered unanimously.

TASK ORDER NO. 7 WITH POST BUCKLEY SCHUH & JERNIGAN, INC, RE:
ENGINEERING SERVICES ASSOCIATED WITH EXPANSION OF SOUTH CENTRAL
REGIONAL WASTEWATER SYSTEM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Task Order No. 7 with Post Buckley Schuh & Jernigan, Inc. in the amount of $230,900 for additional engineering and permitting services for South Central Regional Wastewater System. Motion carried and ordered unanimously.

AUTHORIZE PUBLIC SALE, RE: SURPLUS AGRICULTURAL IRRIGATION EQUIPMENT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the public sale by acceptance of sealed bids of surplus agricultural irrigation equipment. Motion carried and ordered unanimously.

APPOINT SELECTION COMMITTEE, RE: STANDARDIZED STRUCTURED CABLING
SYSTEMS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to appoint Information/Communications Systems Director Gino Butto, Facilities Engineering and Construction Director Jaimie Irizarry, and Library Services Department Information Technology Manager to the Selection Committee to evaluate proposals received for Standardized Structured Cabling Systems. Motion carried and ordered unanimously.

APPROVAL OF REQUEST OF FLORIDA LOCAL GOVERNMENT FINANCE COMMISSION
AND WACHOVIA BANK, RE: LOWER APPROVED LOAN FOR TDC’S SOUTH REACH
SHORE PROTECTION PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize a request of the Florida Local Government Finance Commission and Wachovia Bank to lower the approved loan for the TDC’s South Reach Shore Protection Project from $5 million to $2 million. Motion carried and ordered unanimously.

APPROVAL OF REVISED POLICY BCC-28, RE: PRE-QUALIFICATION OF
CONSTRUCTION BIDDERS PRIOR TO AWARD

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the updated Policy BCC-28, Pre-qualification of Construction Bidders Prior to Award, which establishes a uniform system of pre-qualifying construction bidders prior to the award of the construction contract, in accordance with Ordinance 98-27. Motion carried and ordered unanimously.

APPROVAL OF POLICY BCC-04, RE: DISCRIMINATORY HARASSMENT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Policy BCC-04, Discriminatory Harassment. Motion carried and ordered unanimously.

APPROVAL OF POLICY BCC-08, RE: EDUCATIONAL ASSISTANCE PROGRAM AND
LICENSING FEE REIMBURSEMENT PROGRAM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Policy BCC-08, Educational Assistance Program and Licensing Fee Reimbursement Program. Motion carried and ordered unanimously.

CONTINUATION OF SUPPLEMENTAL PAY, RE: RESERVISTS CALLED TO ACTIVE DUTY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize all employees who have been called to active military duty to continue to receive pay supplements for another 18 months, for a total of two years. Motion carried and ordered unanimously.

APPROVAL OF WORKERS’ COMPENSATION CLAIM SETTLEMENT, RE: TONY L. TYSON

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the negotiated settlement of the Workers’ Compensation claim of Tony L. Tyson in the amount of $85,000, with the claimant to pay his own attorney’s fees, repay the County $8,000 in satisfaction of its subrogation lien, and voluntarily resign from county employment. Motion carried and ordered unanimously.

RATIFY STIPULATION FOR INJUNCTIONS, RE: BREVARD COUNTY V. KEITH JOHNSEN

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to ratify the Stipulation entered into with Keith Johnsen for a permanent injunction in Brevard County v. Keith Johnsen. Motion carried and ordered unanimously.

PERMISSION TO SCHEDULE EXECUTIVE SESSION, RE: BREVARD COUNTY V.
SUSAN BUTLER

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to schedule an executive session for July 15, 2003 at 11:30 a.m. or as soon thereafter as possible, to discuss proposed settlements and litigation strategy related to Brevard County v. Susan Butler. Motion carried and ordered unanimously.

APPROVE SETTLEMENT, RE: ELLSWORTH V. BREVARD COUNTY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize settlement of all claims regarding Ellsworth v. Brevard County, including attorney’s fees and costs, in the total amount of $25,000. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING JAMES B. HUNT TO TESTIFY FOR THE BOARD IN
LUMBER/KAUFMAN V. BREVARD COUNTY, ET AL TRIAL

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt a Resolution authorizing James B. Hunt to testify for the Board in the Lumbert/Kaufman v. Brevard County, et al trial. Motion carried and ordered unanimously.

RESOLUTION, RE: APPRECIATION AND BEST WISHES TO KSC CENTER DIRECTOR
ROY BRIDGES, JR.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution expressing appreciation and best wishes to General Roy Bridges, Jr. upon his leaving Kennedy Space Center to assume the Directorship of NASA’s Langley Research Center in Virginia. Motion carried and ordered unanimously.

RESOLUTION, RE: CONGRATULATING SUSIE FLEMING

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt a Resolution congratulating Susie Fleming on her retirement from the Brevard County School Board. Motion carried and ordered unanimously.

ACKNOWLEDGE, RE: CITIZENS FINANCIAL REPORT FOR YEAR ENDED
SEPTEMBER 30, 2002

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to acknowledge receipt of the Citizens Financial Report for the year ended September 30, 2002, which summarizes how the County generates revenue, what services the monies are used for, and the five-year economic trends. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to appoint and/or reappoint Laura Ward to the Charter Review Commission with term to expire on July 31, 2004, Christopher S. Kennedy to the Health Facilities Authority with term to expire on July 23, 2006, Barbara McClure to the Historical Commission with term to expire December 31, 2003, and Bonnie Will to the Personnel Council with term to expire December 31, 2003. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the Bills and Budget Change as submitted. Motion carried and ordered unanimously.

REPORT, RE: FIREWORKS (CONTINUED)

Commissioner Pritchard stated he asked Mary Jane Nail to be present to give her view of the fireworks issue.

Mary Jane Nail stated she lives on Cocoa Beach and is deeply affected by the fireworks, not just on the Fourth of July, but in the period before and after the Fourth of July; and it is extremely disturbing to her personally. She stated she hears fireworks all the time; there is concern about feral cats chasing away birds; but fireworks are chasing away the birds as well. She stated she does not know if this is friendly or enemy fire; people are very concerned about their surroundings and the threat of anything abnormal such as terrorist activity; and this is disturbing because she does not know if she is hearing guns or fireworks. She advised of almost having two accidents due to fireworks being shot off into the road, causing her view to be obscured. She stated it is an extremely unregulated activity; peace, tranquility, and life are being disturbed; and she objects to it. She stated she appreciates Commissioner Pritchard speaking up; and she is looking forward to the State regulating this.

Commissioner Pritchard stated he asked Andy Rissman to be present, but he was unable to attend.

Chairperson Colon stated this issue will be on the Agenda again, and the public will have the opportunity to speak to it.

REPORT, RE: STATUS OF THE BEACH

Chief William Farmer stated there was an event over the Fourth of July holiday involving some type of discoloration of the seawater around the Melbourne Beach area; and County Manager Tom Jenkins is distributing a copy of the incident report. He stated they went to one incident on July 4 where there was some discolored water, which was tested by the Hazardous Materials team and found to be mostly composed of water, with some organic material and soap; and at no time did staff find anything regarding sewage. He stated Cheryl Dunn with the State Health Department is doing a more in-depth study, and took samples yesterday with the assistance of the Coast Guard. He stated the lifeguards took their normal actions that they would at any time there is a possibility of public safety concerns and issued a red flag warning; and that is something they probably do daily because of algae blooms or potentially dangerous marine life.

Chairperson Colon inquired where did the media get the misinformation; with Chief Farmer responding he has no idea. Chief Farmer advised there were several persons present; it probably was speculation on the part of certain persons; but nothing from the test indicated sewage and no statements like that were made by Fire Service personnel. Chairperson Colon requested Chief Farmer notify the media of the facts.

Commissioner Carlson requested explanation of the handout that was distributed. Chief Farmer stated Virginia Barker of Natural Resources Management requested to see if their system could test for hydrocarbons in the water; and the test sample was roughly four drops of hydrocarbon in approximately a quart of water.

Commissioner Pritchard stated it was only a few weeks ago that Brevard County received a check of $540,000 because it had the cleanest beach in the State; and when there is sensationalized news coverage that is based on someone’s assumption of what happened, it does everyone a disservice. He stated Brevard’s beaches are clean; its water is clean; and keeping on top of it the way the County does should insure the public that the County adheres to the trust. He stated the County would not have been awarded the large grant if there was a problem with the water or beaches.

RESOLUTION, RE: RECOGNIZING A “SEASON FOR EVERYONE” AND
ACCOMPLISHMENTS OF THE BREVARD SYMPHONY ORCHESTRA

Chairperson Colon read aloud a resolution recognizing “A Season for Everyone” and the accomplishments of the Brevard Symphony Orchestra.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution recognizing July 1, 2003 to June 30, 2004 as a “Season for Everyone” and celebrating the 50th Anniversary of the Brevard Symphony Orchestra. Motion carried and ordered unanimously.

A representative of Brevard Symphony Orchestra expressed appreciation to the Board for its support over the years; stated they are proud to be the orchestra that serves all of Brevard County; and they appreciate the recognition. She stated in these times of economic troubles throughout the world, many orchestras and arts organizations are suffering badly; but they are fortunate to live in a community that supports the arts.

Commissioner Pritchard stated he was in attendance at Cocoa Village; and the orchestra playing music that was choreographed to the fireworks display was awesome.

Chairperson Colon presented the Resolution to the representative.

PRESENTATION, RE: GOVERNMENT FINANCE OFFICERS ASSOCIATION
DISTINGUISHED BUDGET AWARD

Chairperson Colon stated the presentation of the Government Finance Officers Association Distinguished Budget award will take place at the next meeting.

RESOLUTION, RE: RECOGNIZING RECREATION AND PARKS MONTH

Commissioner Higgs read aloud a resolution recognizing Recreation and Parks Month.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution recognizing the month of July as Recreation and Parks Month. Motion carried and ordered unanimously.

Charles Nelson, Parks and Recreation Director, introduced Bonnie Guilhaus who represents one of several hundred volunteers on committees for referendum projects; and she is here to receive the Resolution. Ms. Guilhaus stated she has been privileged to see the growth in Park and Recreation in Brevard County; she has lived here the better part of her life; and it is exciting to see what is happening. Commissioner Higgs presented the Resolution to Ms. Guilhaus.

Chairperson Colon expressed appreciation to Parks and Recreation; and stated she is sure Commissioner Higgs will want to mention the beautiful facilities that were opened in South Brevard. Commissioner Higgs stated they recently opened the new aquatic center that is a partnership between the Brevard County Parks and Recreation, the City of Palm Bay, the School Board, and Brevard Community College; it has record setting crowds every day; and it is an asset for the community.

RESOLUTION, RE: RECOGNIZING NATIONAL AQUATIC WEEK

Commissioner Pritchard read aloud a resolution recognizing National Aquatic Week.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing the week of July 13 to July 19, 2003 as National Aquatic Week. Motion carried and ordered unanimously.

Karen Palus stated she hopes everyone had a great time at the opening of the aquatic center; there were record crowds; and hopefully they will be able to service everyone to their fullest potential. She advised open swimming is Monday through Friday from 12:00 noon to 5:30 p.m.; Saturday is from 10:00 a.m. to 6:00 p.m.; and Sunday is from 12:00 noon to 6:00 p.m. Assistant Parks and Recreation Director Jack Masson stated this is another referendum project completed; they look forward to completing all the projects; and he is particularly excited about the aquatic center being completed. Commissioner Pritchard presented the Resolution to Ms. Palus.

RESOLUTION, RE: PROCLAIMING NATIONAL THERAPEUTIC RECREATION WEEK

Commissioner Carlson read aloud a resolution proclaiming National Therapeutic Recreation Week.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution proclaiming the week of July 6 through 12, 2003 as National Therapeutic Recreation Week. Motion carried and ordered unanimously.

Charles Nelson, Parks and Recreation Director, stated the recreation staff are dedicated to people, and those who deal with therapeutic recreation are some of the most dedicated; they do a very special job with very special people; and everyone appreciates their effort. Commissioner Carlson presented the Resolution to Mr. Nelson.

RESOLUTION, RE: PROCLAIMING JOEY BERGSMA RETINOBLASTOMA AWARENESS
MONTH

Commissioner Scarborough stated this resolution deals with a particular form of cancer that is the third most common cancer for young people; if early detection occurs, everything works out great; but if not, it is necessary to remove the eye, and if it escapes the eye, death is certain.

Pam Bergsma stated her grandson Joey died needlessly on December 22, 2000 of metastatic retinoblastoma; it should not have happened; and she is here to give the information she did not have so this will never happen to a child in Brevard County. She stated the first thing she wants to alert people to is their photographs; red eye pictures are diagnostic tool; and displayed a photograph of her grandson Joey. She stated in dim lighting the pupil dilates exposing the retina to the light; the retina is always supposed to reflect red; but one of his eyes did not reflect red; and this is how pictures are taken of tumors, cataracts, glaucoma, and other eye diseases. She stated the pictures show the tumor reflecting light; and it was eight months after the photograph was taken that Joey complained that his eye hurt, and they began their journey with retinoblastoma. She stated had she known at the time the picture was taken that it was a tumor, Joey would have his eye and his vision, and his life would not have been jeopardized. She stated the disease strikes primarily from birth to five years of age; and the vast majority of those are in the first two years of life. She stated those are the ages when parents are photographing their children; and in most instances where a child loses an eye and their life has been jeopardized, there are photographs that could have saved their vision or life. She displayed a direct opthalmoscope; stated all health care professionals have this instrument; and they need to be used as stethoscopes are used. She stated if Joey’s pediatrician had used an opthalmoscope at his 15 or 18-month well baby exam, turned out the lights, and looked into this eyes, he would have seen the tumor that she photographed, and Joey’s life would not have been jeopardized; but she did not know to ask for it. She stated she thought the pointed otoscope was all that was needed, and it is for ears; but all parents should be sure their children’s eyes are being screened with the opthalmoscope. She stated from the time we are born until we die, we can develop an ocular problem; and using the opthalmoscope is how it can be detected in time to treat it and save our vision. She stated if retinoblastoma is allowed to escape out of the eye, there is no cure; one in every 677 babies is born with treatable eye disease, which if not detected and treated can lead to blindness; and because health care professionals are not looking into infants’ eyes, with the exception of premature babies, there are children in the United States going blind needlessly as early as two months of age. She stated the direct opthalmoscope will only see approximately 30% of tumors or cataracts in an infant’s eye because their pupil is so small in diameter; but the addition of any eyedrop will allow it to detect eye diseases in an infant’s eyes. She stated a bottle of the eye drops is $1.75; it will serve 150 children; it only takes a nurse about ten seconds to drop it into the corner of the baby’s eyes, so it is a two-cent, ten-second exam; and an eye dilation exam is needed for infants. She stated after Joey died, she worked to get a bill written calling for infant eye dilation exam for infants before they leave the hospital, at the six-week well baby exam, and one more time at the six to nine-month well baby exam; the three exams in the first half year of life will help insure healthy vision and life to all children born in the State; it has gone through two sessions; and 2004 will be the third session. She stated they have never been stopped in committee; but they have never been allowed to continue through the process to get to the floor; she knows it will happen with the Board’s help; and requested the Board let its legislators know that help is needed for the children. She stated through the awareness program, vision and lives are being saved; and advised of a little girl who has perfect vision in her eye because of Joey’s story. She stated the most common treatment for this disease is eye enucleation because by the time the disease is detected, the whole eye is involved with the tumors and has to be removed immediately to save the child’s life. She stated Bailey Hamilton of Titusville and her family are present today; Bailey lost her eye to retinoblastoma recently; Bailey had a form of strabismus, as do approximately 20% of the children; and that is another important clue to cataracts or tumors. She cautioned parents to be alert to eye movements in their children; stated Bailey had a lazy eye; and if it had not been for this problem, the Hamiltons would not have gotten her to an ophthalmologist. She stated a year and half ago, they took a photograph of the tumor; had they seen one of Joey’s posters at the time, Bailey could have perfect vision in her eye; but thankfully Bailey is still here today. She thanked the Board for allowing her to present this information.

Chairperson Colon thanked Ms. Bergsma for her courage in bringing the message to the people.

Mr. Hamilton stated they are trying to get the message out in Brevard County and Central Florida; it is not a common disease; he and his wife had never heard of it until it happened to their daughter; and if they can save somebody else’s child and not have to see other parents go through what they went through, they are willing to do whatever it takes to help Ms. Bergsma and other families in the area.

Commissioner Scarborough introduced Bailey Hamilton; and the audience gave Bailey a round of applause.

Ms. Bergsma stated the first time most people hear the word retinoblastoma is the day their child is diagnosed; about 30 to 40% of the cases are hereditary; but the majority are sporadic; and even with the hereditary cases, only 10% of those people have a history in their family. She stated it is the third most common cancer in children, but is still rare because it is a pediatric cancer; and the number one pediatric cancer is also described as a rare disease. She stated parents should be alert with children from the ages of one to five because this problem can be fixed. She stated her grandson Joey was a gift, because without him she would have known nothing about this, and with each child’s vision and life that is saved, it is a gift.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution proclaiming the month of July 2003 as Joey Bergsma Retinoblastoma Awareness Month. Motion carried and ordered unanimously.

RESOLUTION, RE: SUPPORTING A MARINE RESOURCES COUNCIL GRANT REQUEST
TO THE FLORIDA COMMUNITIES TRUST

Commissioner Carlson stated the Marine Resources Council has applied to the Florida Communities Trust, Florida Forever Program, for a grant to purchase land from willing sellers adjacent to Riverwalk Park; and read aloud a resolution supporting the Marine Resources grant request to the Florida Communities Trust.

Jim Egan submitted paperwork to the Board; and stated in prior meetings, Commissioner Carlson mentioned the Marine Resources Council had been involved in land acquisition on the Indian River Lagoon, not just for environmentally sensitive land, but for lands with recreational opportunities. He stated this is a parcel that would have recreational opportunities; the local residents brought it to the MRC’s attention; it is on U.S. 1 and the Indian River Lagoon south of Rockledge in the Suntree area; and he has photographs of the parcel. He stated the parcel includes a beautiful mangrove island and natural shoreline; the majority of the parcel is wetland, as is Riverwalk Park to the north, which is bridged via wooden walkways; and it provides a nice place for the public to walk as well as providing access to the Indian River. He stated the plan for the site is included in his submittal. He stated they are seeking funds through the Florida Community’s Trust; the funds are not currently being sought by the County; and they are specifically not funds the EEL’s Program would be looking for because recreation plays a role in this, and the EEL’s Program is usually looking for lands to be used mostly for just natural resources and appreciation of those resources. He stated they would like to put in a canoe dock; Parks and Recreation has expressed an interest in connecting to the path that currently exists in Riverwalk Park; they would like to turn that into a loop type of trail; and they would also like to build some additional parking for the overall site. He stated they are considering a small hands-on education center; it would be a valuable enhancement to Riverwalk Park; and they are seeking this as an MRC project solely as seeking it in partnership with the County would have cost the County at least 25% of the cost of acquisition. He stated they have applied for it individually with the understanding that if they are successful in getting the funds, they will involve the Parks and Recreation Department in the acquisition process and in the creation of a management plan; and that would be at whatever level of interest the County might have. He stated they would not be interested in creating something that would turn its back on Riverwalk Park; they see them as a combined element; and they would try to accentuate the same features and values. He stated Riverwalk Park is six acres; it is a very long narrow park; the County has already invested in staffing and an education center; and purchase of additional parcels could add to making it a viable park that the community would embrace.

Chairperson Colon stated this sounds like a wonderful project; but she is wondering why it is not an Agenda item and instead came to the Board as a resolution. She stated since there are responsibilities on the County’s end, she would be more comfortable if it came back as an Agenda item.

Commissioner Carlson stated it would normally have come as a Consent Agenda item; she is not sure why it was put under Resolutions; but it is not requesting any matching dollars, but just a resolution supporting the MRC getting the money. She stated it is a win/win scenario; if they get the money, that is great, and if the MRC cannot do it, the County would get the property; but if the County would like to converse about it further, it can come back. She stated she does not know if there are time limitations.

Mr. Egan stated there are time constraints; the Florida Communities Trust Fund has a new regulation that calls for a non-profit group seeking funds, because the Trust wishes the properties to be kept in perpetuity, to provide long-term assurance there will be public management in place. He noted the Marine Resources Council has been around for 20 years; but the County will definitely be around for another 100 years; it is a technicality; but the application requires this resolution. He stated if they do not get the resolution, they do not have a lot of time before the Trust will consider the application null and void and they would not be able to apply again until next year.

Chairperson Colon stated the next meeting is July 22; and inquired if there would be a problem with seeing the item then. She stated she does not like things to be brought to the Board at the last minute, even if no money is involved; and something of this magnitude should be on the regular agenda. Mr. Egan stated when they found out about this requirement, the Board was on break; he did not propose that this should be on the Agenda under Resolutions, just that it come before the County; and he cannot say with absolute assurance that July 22 is fine. Chairperson Colon stated there are meetings before them; and suggested July 15, 2003.

Commissioner Carlson requested Mr. Egan come back to the Board before the end of the meeting concerning the deadline. Mr. Egan advised the deadline has passed; they said they could not get a resolution because the Board was not in session; the Trust is allowing them to get it after the deadline; the 15th, which is just a few days, should not be a problem; but toward the end of the July they will wrap up their assessments and have every opportunity to reject it.

Chairperson Colon stated she is very supportive; and suggested taking up the item on July 15 under reports. Mr. Egan stated he would prefer for the Board to have an opportunity to investigate better.

Commissioner Carlson stated that is fine as long as it meets the requirements; and requested Mr. Egan make sure the date is going to work.

Commissioner Pritchard stated he spoke earlier about Item III.B.7; and he has concerns about the Marine Resources Council and this item. He stated he now sees the size of the parcel, its proximity to Riverwalk Park, and the viability of the project; and inquired how much is going to come off the tax rolls. He stated whenever there is going to be an acquisition of property, he wants to know the cost; this says there is no cost to the County; and that is true except for how much taxable property is going to come off the tax roll. He stated if the property reverts to the County, it would have maintenance, infrastructure, and capital outlay; and he would like to know those costs on an annualized basis. He stated he would like to know if there are matching funds required, whether MRC can provide those matching funds, and whether MRC can steward and maintain this project. He stated he would like to know the acquisition cost, the cost of turnover, the cost of maintenance, and also the opportunity cost of not doing the project. Mr. Egan responded he will wait until the next meeting to provide the information; but advised the Marine Resources Council has every intention of stewarding the project and not seeing it turn over to the County.

The meeting recessed at 10:37 a.m. and reconvened at 10:53 p.m.

RESOLUTION, RE: FINDINGS OF FACT FOR MICHELINA CONDO’S/RAY’S CONDO’S
SITE PLAN APPEAL

Commissioner Scarborough stated the County Attorney is concerned about the prior comments; there was an action by the Board saying this was coming back, but the public hearing was closed; and to proceed beyond that would require an action by the Board to rescind the prior motion and reconsider opening the public hearing. County Attorney Scott Knox stated that is correct. Mr. Knox stated his concern is if the Board begins to take additional evidence, or if anyone starts presenting additional evidence, then the Board has opened up the hearing again, and it will have to go through the hearing process. Chairperson Colon stated she, Commissioner Carlson, and Commissioner Pritchard voted at the last meeting to close the public hearing; she would like to clarify this so next time it does not confuse the residents; and perhaps it should not have been on the Consent Agenda.

Commissioner Carlson stated she still has a point of confusion; and inquired if the Board is going to start hearing people, why does it not just open it up. She stated if the Board is going to hear the testimony of other attorneys, experts, etc., it would flaw the original testimony and require them to redo it. She stated this is a very strange position; and she is looking to the County Attorney for advice. She stated she cannot imagine the Board is not going to hear additional information; with Mr. Knox agreeing he cannot either, which is why Commissioner Scarborough brought up the issue of moving to rescind the prior action and opening a new hearing. Mr. Knox stated if that happens and Mr. Amari, who represents the applicant who is affected by the appeal, wishes to give additional information, the Board is going to have to do that. Commissioner Pritchard stated it will be necessary to advertise. Mr. Knox stated he does not think advertisement would be required. Commissioner Carlson stated the only way to get around that is to make sure everyone who speaks today speaks only to the findings of fact. Mr. Knox stated the Board can attempt to limit it to that; but he is not sure how successful it would be. Commissioner Carlson stated she reviewed the findings of fact last night, so they are clear in her mind.

Chairperson Colon stated this is opening Pandora’s Box; it was clear to the applicant what was going on here today and that the Board had already heard the evidence; and the Board said at that point there was not going to be further public comment. She stated if the Board does this for this case, it should be prepared for this to happen again; findings of fact and closing public comment will not be obeyed; and if that is the case, the Board needs to realize that is what it is doing. She stated whatever the Board wants, is what she will do and respect; but she is uncomfortable about giving people the sense they can be heard over and over again. She stated there are people who are not here today; so all the Board wants to hear are comments about the format of the order of findings of fact from the County Attorney. She inquired if the Board wants to reopen the public hearing.

Commissioner Pritchard stated the only issue he would like to hear input on is anything that applies to the findings of fact; and he does not want to reopen the public hearing. He stated the Board has already gone through that; and otherwise the Board will open itself up to rehearing everything every time.

Commissioner Higgs stated when the Board first heard the item, she asked that the Board not make a decision, but get additional staff comments for review; she felt there was additional information the Board could benefit from; and that is still a good course of action, so she has no problem reopening the public hearing for additional information on the issue. She stated over the last month she has heard from Ms. Pope and Mr. Ray regarding their concerns about the item. She stated Chairperson Colon is correct; if the Board opens up the findings of fact for additional testimony, it will reopen the public hearing; and the Board needs to understand fully what it is doing. She stated if the Board allows people to talk on the findings of fact, then it will be talking about the evidence in the hearing; and that will be opening it up again. She stated if the Board is going to hear anything, it should recognize it is opening up the public hearing; so it should take no testimony today and schedule a public hearing at an appropriate time

Chairperson Colon stated nothing has changed; County staff is comfortable with its recommendation to the Board; the County Attorney is also comfortable; Commissioner Higgs said at the last meeting the Board should allow the attorneys from both sides to put something together and come back to the Board; and inquired if there is anything new. Assistant County Manager Peggy Busacca advised staff has no additional information it feels necessary to put on the record. Chairperson Colon inquired if staff still supports its findings and decisions regarding this issue; with Ms. Busacca responding it does. Chairperson Colon stated Commissioner Higgs would like to open up the hearing; she is not willing to do so; and she would like to give the citizens an opportunity to share anything in regard to the findings of fact; but she does not support taking additional testimony. She inquired if any other Commissioner desires to reopen the public hearing; and no response was heard.

Thomas Renne submitted paperwork; and stated those are fireworks and garbage he pickup up on the beach on July 5.

Commissioner Scarborough called a point of order; and inquired where is this within the findings of fact.

Chairperson Colon stated this is not within the findings of fact; and requested the speaker address the findings of fact.

Mr. Renne stated he is talking about density. He stated two of the trash bags were from the crossover at Taft to the middle of Wilson and Harding Streets; and the three bags were from the middle of Wilson and Harding Streets to the middle of Harding and Barlow Streets.

Commissioner Scarborough called a point of order.

Chairperson Colon stated the Board wants to hear from everyone, but speakers must limit their comments to the findings of fact and the site plan.

Mr. Renne stated he is concerned about the environmental permitting; all native vegetation must remain within the setback buffer areas; sod is not considered native vegetation, but has replaced the native vegetation; and that changes the available site plan.

County Attorney Scott Knox stated Mr. Renne is talking about new factual material that is not in the record; and if the Board is going to allow this, it will have to open the public hearing.

Chairperson Colon stated the Board cannot allow this testimony; and inquired if Mr. Renne has a copy of the findings of fact from the County Attorney; with Mr. Renne responding he does not. Chairperson Colon stated staff will provide Mr. Renne with a copy for review.

Carol Pope stated she has residences on Wilson Avenue in Cocoa Beach and in Rockledge; there is some confusion because there has never been a public hearing as prescribed in some of the County’s Codes; and that is what is confusing some people here today. She stated the underlying issue of the findings of fact and the order before the Board is whether placing an eight-story building 14 feet from the walls of a two-story duplex on the contiguous property forming a concrete wall eight stories high for the entire south side of the duplexes is in compliance with the Ordinances and compatible with the surrounding area. She stated the developer had 200 feet to work with but chose to place the structures in the position most damaging to the abutting property; and the Board is being asked today to agree to an order that is factually incorrect. She stated on the last page of the order it asks the Board to find that the criteria of Section 62-3202, as it existed on April 4, 2001, has been met; however, the criteria of Section 62-3202 has not been met where it requires the site development plan to conform with the requirements of applicable Ordinances and be in harmony with adjacent and surrounding land use and with the land use character in the proposed area. She stated specifically Codes 62-1373(5)(c), 62-1373(7)(d), 62-1901(b) and (c), and 62-1902(7) have not been complied with; the property for the proposed site plan is zoned RU-2-30, which is governed by 62-1373; and as it existed in April 2001, 1373(7)(d) said, “where any structure or building exceeds 35 feet in height all conditions enumerated in Division 5 Subdivision 3 of this Article shall be fully satisfied.” She noted it says it shall be fully satisfied, and did not express specific conditions as suggested in the order before the Board today; all conditions have not been satisfied; and a review of the proposed order statement of case and findings of fact reveals several inconsistencies. She inquired why paragraph 10, page 5, gives consideration to only a few residents of Harding and no consideration to the residents of Wilson or the surrounding community who have more view, light, breeze, etc. to lose than the properties on Harding. She stated most of the Ordinances speak to the effect on contiguous and abutting properties; but the homes on Harding are not contiguous or abutting. She stated paragraph 11 on page 5 is a complete exaggeration; the shadow effect from the eight-story Discovery building to the homes northwest of that building is in no way similar to the potential effect of the proposed structure on the Pope property; the closest home on Harding Street is 113 feet from that building; and she would be very happy if the proposed structure was 113 feet away from her structure. She stated paragraph 14 on page 9 of the order incorrectly claims that Section 62-1902, additional height, is the only condition of Subdivision 3 that must be met; however, the language of 62-1373(7)(d) says all conditions shall be fully satisfied and height is not the only issue; it is the placement of the structure on the property to the detriment of the abutting property that is at issue; and not all of 62-1902 has been met. She stated item 7 on page 10 states, “the spatial relationship between the proposed building and the existing buildings located on properties contiguous to the proposed building site shall be compatible so as to maximize the preservation of privacy and minimize interference with sunlight and air to the contiguous properties and applicants thereof”; but the building depicted on the site plan does completely the opposite in that it minimizes privacy and maximizes interference with light and air to the only contiguous property. She stated the applicant’s attorney made a smoke screen out of the act that there are many specific criteria for various uses within Subdivision 3 that would be applied in this case; but that does not preclude the requirement to satisfy all the applicable sections. Ms. Pope stated the very direct language of “shall fully satisfy all conditions” requires examination of the entire Subdivision and compliance with all that applies, which in this case are both Section 62-1901 and Section 62-1902. She stated paragraph 15 on page 10 is totally incorrect; it claims that all provisions of Section 1901 are not dispositive; language of Zoning Ordinance 62-1373(7)(d) states, “all conditions of Division 5 Subdivision 3 be satisfied”; and conditions is defined in Webster’s dictionary as anything called for as a requirement before the performance, completion, or effectiveness of something else.

Chairperson Colon advised Ms. Pope her time is up. Ms. Pope requested additional time because the issue has not been completely covered.

Commissioner Carlson stated the Board needs to open the public hearing; what Ms. Pope is bringing to light is something she did not catch as she was reading the findings of fact; and she would like to hear the testimony.

Motion by Commissioner Carlson, to reopen the public hearing and take testimony.

Chairperson Colon stated if that is the case, it is going to be necessary to stop the hearing because there were many people present to discuss this issue; there were at least a dozen people at the last meeting in support of the project; and the Board needs to be sure it gets testimony from everyone.

Commissioner Pritchard inquired if Mr. Knox can respond to the issues as Ms. Pope brings them up. Mr. Knox stated it is wonderful material for a court to decide, but he disagrees with Ms. Pope on everything. He stated if the Board wants to take additional testimony on whether the contiguity issue was met as set forth in the Ordinance, the Board is entitled to do that; but it will have to open the hearing to everyone.

Commissioner Carlson stated she met with Ms. Pope and various folks; Ms. Pope brought up various issues; she read the findings of fact from beginning to end; and she felt coming into this meeting, it sounded like the best bet would be to go to court to have a judge make the decisions; but if the Board does not support it, that is fine. She stated it seems like the Board is going to get other information that is going to cause the findings of fact to stand on its head; and if that is the case, the Board needs to respond.

Chairperson Colon stated the County Attorney is comfortable to proceed. Commissioner Carlson stated she made a motion; and whatever happens happens.

Commissioner Pritchard stated the Board keeps talking about slippery slopes; this is a pretty slippery slope if the Board follows the direction to keep reopening things as other information is presented; and he disagrees with that. He stated the County Attorney is able to respond to each of the issues Ms. Pope is raising; the concern was the issue about contiguous properties; and Mr. Knox is confident that what staff has reviewed and what he recommended is correct. He stated he does not want to reopen something that has been hashed so many times before because it will go on forever; and the Board seems to have enough problems making decisions sometimes. He stated the County Attorney and staff are confident with what they have done; he read the order, and the issue of contiguous properties was addressed; and he is not opposed to listening to people addressing the order as Ms. Pope has been doing, but he does not think the case should be reopened to public hearing.

Commissioner Higgs seconded the motion.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

Chairperson Colon stated the Board is going to have to stop the hearing now and bring it back to public hearing so the dozens of people who were here at the last meeting in support of the condo also have an opportunity to come forward; this is what the Board was trying to avoid; and recommended everyone bring forward any issues they wish with regard to the property at the next meeting. County Manager Tom Jenkins advised that will be the first meeting in August.

Ms. Pope inquired if this will be scheduled for a public hearing; and inquired what is the status of the order now. Mr. Knox responded this is opening up the record again; new evidence will be taken at the next hearing; and depending on what comes in, it may or may not be appropriate to make some modifications to the order. Chairperson Colon stated after the next meeting there will be findings of fact and the public comments will be closed; and if Ms. Pope comes up with new evidence again, the Board will not want to keep hearing this time and time again; and that is why Ms. Pope received a letter; with Ms. Pope advising she received one on Saturday. Chairperson Colon stated all these things have been put into writing so there would be an opportunity for discussion; and she wants to be clear that evidence from both sides will be brought up at the meeting on August 12, 2003. Ms. Pope stated she did have a meeting with Mr. Knox where she presented all her issues. Chairperson Colon stated she had mentioned to Ms. Pope that anything would be good to put into writing if it was new; she wants to be fair to everyone; and those who are not present today would be upset if they were not allowed to speak. Commissioner Higgs inquired if staff will notice the August 12 meeting; with Ms. Busacca responding they will get the same notice that went out the first time.

Commissioner Higgs stated at that meeting she asked that the attorneys give their arguments in regard to the application of the Division 5 criteria; and she would still be interested in Mr. Amari giving an argument as succinct as Ms. Pope’s on the application of the Ordinance. She stated the question is whether staff properly used the Ordinance; and it is not whether she likes light or condos or density, but whether the Ordinance was properly applied.

Chairperson Colon inquired if Mr. Torpy would be representing Ms. Pope; with Ms. Pope responding she does not know at this time. Chairperson Colon stated Ms. Pope is fully aware of what Commissioner Higgs expects from both parties. Commissioner Higgs stated it would helpful to have that information in advance so the Commissioners and staff can read it and digest it.

Commissioner Scarborough stated there have been a number of these findings of fact coming up; but he has never seen one end up being this much of a problem for the Board; and requested after a findings of fact is issued, that Mr. Knox send a memo to the attorney who opposes the ruling, so that attorney has a chance to respond, and then in turn anyone else could respond. He stated what they are going to end up with is evolving into rehearing upon rehearing; the Board has taken in all kinds of collateral information; but the issue is whether the Ordinance was interpreted correctly. He stated that is pretty clear-cut; but today they opened with pictures of fireworks; it shows the dynamics the Chairperson has to deal with; it is difficult to be rude to the public and say the Board may be interested in the testimony, but not here and now; and moving it to a posture of written response may be a way of doing it. He stated it would not be to the substance, but just to the findings of fact; and staff and Mr. Knox may have other ideas.

County Attorney Scott Knox stated there is a precedent for how to handle that; and advised how an administrative proceeding in front of a hearing officer for the State is conducted, with the proposed order prepared and submitted to the different parties for comment. He stated if a person makes an exception, the order goes back to address that exception; and if there is a problem, it can be identified, and there can either be guidance from the Board or open it to new proceedings on that particular point as opposed to everything.

Chairperson Colon inquired if such a matter could be put under Old Business instead of Consent Agenda; with Mr. Knox responding it does not make any difference.

Commissioner Carlson stated she was thinking about putting together a policy for how to handle findings of fact.

Ms. Pope stated part of the issue is that there were no public hearings on this; that is why the public is so confused about what it can talk about; and public hearings are required in this situation for this type of project.

Chairperson Colon stated there were dozens of people here at the last meeting. Ms. Pope advised there were six houses represented. Chairperson Colon stated there were 12 people present; and this will come back on August 12, 2003.

Commissioner Higgs stated it is difficult for the Board to have dueling attorneys at some of the hearings, as well as the County Attorney and staff; the Board is getting four different opinions; and she appreciates them all and does not want to delay looking at the arguments; however, the Board should be willing to request the arguments in writing. She stated judges do this all the time; the Board is functioning in a quasi-judicial manner; if the arguments are presented in writing, the Board can read them, draft an order, and come up with a decision; and the Board should not feel it has to make a decision until it has taken the testimony. She stated the Board can have a draft from the County Attorney, from staff, and from the attorneys present; it can look at all those; and that is not being unwilling to make a decision, but being prudent.

Commissioner Scarborough stated the Board needs to be sure it has heard the testimony; the Board then makes a decision and directs staff to prepare a findings of fact; and that findings of fact is supposed to be the Board’s. He stated if the Board acts arbitrarily in adopting without allowing any discussion or thought process, it may be at risk of saying it is really not the Board’s decision. He stated otherwise the Board will continue to reopen hearings; it needs to move past that; and commented on the procedure.

Chairperson Colon stated the Board will hear everything fully on August 12, 2003.

Commissioner Pritchard stated when the Appellate Court reviews a lower case finding, it does not introduce new evidence; it looks at the way the judge reached the decisions and whether he followed proper judicial procedure; and that is the level the Board was prior to reopening the public hearing. He stated the judicial system has a methodology it uses; and he is looking to have a methodology the Board can use so it does not have to continue to reopen things.

PUBLIC HEARING, RE: RESOLUTION VACATING DRAINAGE AND UTILITY EASEMENT
IN WINDOVER FARMS, UNIT 2-A - BRIAN BATEMAN

Chairperson Colon called for the public hearing to consider a resolution vacating drainage and utility easement in Windover Farms, Unit 2-A as petitioned by Brian Bateman.

There being no comments or objections, motion was made by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution vacating drainage and utility easement in Windover Farms, Unit 2-A as petitioned by Brian Bateman. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENTS IN TROPICAL VILLAS, UNIT TWO - DAVID E. LAWHORN

Chairperson Colon called for the public hearing to consider a resolution vacating public utility and drainage easements in Tropical Villas, Unit Two as petitioned by David E. Lawhorn.

There being no comments or objections, motion was made by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution vacating public utility and drainage easements in Tropical Villas, Unit Two as petitioned by David E. Lawhorn. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING INGRESS/EGRESS EASEMENTS AND
UTILITY EASEMENT IN SECTION 25, TOWNSHIP 24 SOUTH, RANGE 36 EAST -
HARBOR DEL RIO LLC

Chairperson Colon called for the public hearing to consider a resolution vacating ingress/egress easements and utility easement in Section 25, Township 24 South, Range 36 East, as petitioned by Harbor Del Rio LLC.

John Denninghoff, Transportation Engineering Director, stated there are a couple of questions on this item; and it appears some paperwork associated with this item is missing.

Craig Helpling, Water Services Construction Management Director, advised Mr. Martens could not be present today, and sends his apologies; the status of the vacating is conditioned upon an agreement the Board has already approved; the developer has built a lift station, which is active; it has been built to the County’s criteria and accepted; but the rest of the process of exchanging properties has not been finalized. He stated there is a deed for the new lift station site that has been submitted; there are more materials to be submitted for that; and that will be brought to the Board at a later date. He stated the request is to continue this today and allow it to be considered as approved; they have no concern with the exchange and vacating of the particular easements; but they are asking that it be contingent on the rest of the conditions and subject to the final recording of the properties.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution vacating ingress/egress easements and utility easement in Section 25, Township 24 South, Range 36 East as petitioned by Harbor Del Rio LLC, contingent upon recording of the rest of the properties.

Commissioner Higgs stated she thought the request was to continue the item. Mr. Denninghoff clarified the request is to approve the item subject to receipt of all the required paperwork, not continuance of the public hearing.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENT IN BEL
AIRE SUBDIVISION - WADE AND DEBORAH McCRARY AND MICHAEL MINOT,
ESQUIRE

Chairperson Colon called for the public hearing to consider resolution vacating public utility easement in Bel Aire Subdivision as petitioned by Wade and Deborah McCrary and Michael Minot, Esquire.

Commissioner Pritchard stated the property owner has requested a continuance to July 22, 2003.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to continue the public hearing to consider a resolution vacating public utility easement in Bel Aire Subdivision as petitioned by Wade and Deborah McCrary and Michael Minot, Esquire to July 22, 2003.

Wade McCrary advised he is the property owner and has no objection. Transportation Engineering Director John Denninghoff stated the reason for the request to continue was receipt of an objection from Florida Power & Light, which opposes the vacating; there is an overhead power line that would be close to the facilities the applicant wants to construct; and Mr. Minot requested time to work with FP&L rather than finalizing it today. Mr. McCrary stated he was not aware of that.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE RESCINDING SELECT COMPANY ABATEMENTS

Chairperson Colon called for the public hearing to consider ordinance rescinding select company abatements.

There being no comments or objections, motion was made by Commissioner Carlson, seconded by Commissioner Scarborough, to adopt an Ordinance repealing Ordinances granting certain ad valorem tax exemptions for failure to continue to meet the criteria for such exemptions; repealing Ordinance 96-24 relating to the Economic Development Ad Valorem exemption granted Hydro Aluminum Automotive, Inc., 100 Gus Hipp Blvd., Rockledge, Florida; repealing Ordinance 97-38 relating to the Economic Development Ad Valorem exemption granted to Northrop Grumman Corporation, 2000 West Nasa Boulevard, Melbourne, Florida; repealing Ordinance 00-11 relating to the Economic Development Ad Valorem exemption granted to Lockheed Martin Astronautics, Cape Canaveral Air Station, Cape Canaveral, Florida; repealing Ordinance 00-43 relating to the Economic Development Ad Valorem exemption granted to Submitorder.com, 915 South Babcock Street, Melbourne Florida; repealing Ordinance 00-49 relating to the Economic Development Ad Valorem exemption granted MSI of Central Florida, 7703 Technology Drive, Suite #102, Melbourne, Florida; repealing Ordinance 01-09 relating to the Economic Development Ad Valorem exemption granted to Stratos Lightwave, Inc., 1450 Treeland Boulevard, SE, Palm Bay, Florida; repealing Ordinance 01-39 relating to the Economic Development Ad Valorem exemption granted Mainstream Engineering Corporation, 200 Yellow Place, Rockledge, Florida; repealing Ordinance 02-15 relating to the Economic Development Ad Valorem exemption granted Allstar Corporate Media, Inc., 131 Tomahawk Drive, #A1, Indian Harbour Beach, Florida; and providing an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PUBLIC COMMENT FOR CONSOLIDATED ACTION PLAN FOR
FY 2003-2004 COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) AND HOME
INVESTMENT PARTNERSHIP PROGRAM

Commissioner Colon called for the public hearing to consider public comment for Consolidated Action Plan for FY 2003-2004 Community Development Block Grant (CDBG) and HOME Investment Partnership Program.

Housing and Human Services Director Gay Williams advised no Board action is required at this time; and it just needs to be open for public comment.

There being no comments or objections, motion was made by Commissioner Carlson, seconded by Commissioner Scarborough, to acknowledge public hearing, as required by the U.S. Department of Housing and Urban Development, for the purpose of receiving public comments on the funding priorities for the County’s FY 2003-2004 CDBG and HOME Investment Partnership Programs, and a report on last year’s CDBG and HOME accomplishments to complete the Consolidated Action Plan Process. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: APPEAL OF ZONING OFFICIAL’S INTERPRETATION FOR LAKE
WASHINGTON GOLF AND RACQUET CLUB PUD

Chairperson Colon called for the public hearing to consider an appeal of the Zoning Official’s interpretation for Lake Washington Golf and Racquet Club PUD.

County Manager Tom Jenkins stated there has been a request for the item to be continued; and a letter was received. Planning and Zoning Director Mel Scott stated the letter was not conclusive; and the last dialogue he had with Henry Evans was that if he could not assure 100% that the item would be continued, he was going to present the item. He advised as Mr. Evans is not present, he would recommend tabling it to August 12, 2003.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to continue the public hearing to consider an appeal of the Zoning Official’s interpretation for Lake Washington Golf and Racquet Club PUD to August 12, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 22, BUILDING AND
BUILDING REGULATIONS, CREATING ARTICLE IX, BOAT RAMP CONSTRUCTION

Chairperson Colon called for the public hearing to consider an ordinance amending Chapter 22, Building and Building Regulations, Creating Article IX, Boat Ramp Construction.

Commissioner Pritchard stated the Building and Construction Advisory Committee reviewed the proposed amendments in November and sent a memo to the Board expressing concerns and stating the new Codes did not appear to be warranted since a minimum number of boat ramps are constructed on private waterways and requests for boat ramps on lots with bulkheads are uncommon. He stated he does not see the necessity of doing this; it just seems to be a way of generating revenue; and advised of fees including $75 along with review fees by various agencies. He stated he agrees with the Advisory Board, and does not see any need to have the changes.

Commissioner Scarborough stated he asked yesterday about the history of this; and inquired what was the problem that brought this about.

Commissioner Higgs stated one of the questions that arose in District 3 was concerning a private boat ramp on a bulkheaded lot; it generated considerable controversy in the neighborhood; and there were no standards to be applied. She stated it was a difficult neighborhood issue; and it generated considerable staff time going over it; so standards were drafted.

Commissioner Pritchard stated his only concern is if there were people in the neighborhood complaining, it could be because they do not want a ramp period, and they were looking for any possible reason to complain to stop the ramp from going in. He stated it is like putting the tag lines, "for the children" or “for scrub jays” behind every project. Commissioner Carlson stated the ordinance is to protect property rights. Commissioner Pritchard stated that is why he wanted to ask Mr. Washburn why this was coming to the Board since the Building and Construction Advisory Committee (BCAC) did not recommend it. Ed Washburn, Permitting and Enforcement Director, stated there were no specifications on the books to control the installation of boat ramps such as proposed by the regulation; and BCAC’s point was there had only been two such ramps in eight years, so they did not see a need to put the regulations on the books. He stated if the regulations are adopted, but not used, it will not be a problem; but if another situation comes up, there will be specifications to control it. Commissioner Pritchard stated he understands what Mr. Washburn is saying but it is like saying, “everything is legal as long as you do not get caught”; the Board is creating more of a problem than it is resolving; and his concern is a neighborhood that would do anything to stop a ramp. He stated based on the recommendation of the Building and Construction Advisory Committee, he will not support it.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 22, Code of Ordinances of Brevard County, Florida, creating Article IX, Boat Ramp Construction; specifically creating Section 22-801, providing for intent; specifically creating Section 22-802 providing for the requirement of a construction permit for boat ramp construction on man-made bodies of water within the unincorporated areas of Brevard County; specifically creating 22-803, providing for definitions; specifically creating Section 22-804, providing for plans specification requirement; specifically creating Section 22-805, providing for minimum design standards; specifically creating Section 22-806, providing for permit issuance; specifically creating section 22-807, providing for penalty; providing for conflicting provisions; providing for area encompassed; providing for codification and renumber; providing severability; and providing an effective date. Motion carried and ordered; Commissioner Pritchard voted nay.

PUBLIC HEARING, RE: ORDINANCE CREATING SPECIAL WATER AND SEWER
DISTRICT WITHIN THE UNINCORPORATED AREA OF BREVARD COUNTY

Chairperson Colon called for the public hearing to consider an ordinance creating special water and sewer district within the unincorporated area of Brevard County.

Chairperson Colon stated Mr. Knox has requested this item be continued to July 22, 2003.

James Payne, representing East Central Florida Services, stated he was present the last time this was on the Agenda; and he knew it was going to be delayed today. He stated he wants to go to the Water Supply Board meeting on Friday; and he is sorry he missed the last one, but he did not get notice. He stated the proposed ordinance intends to make a special district in the unincorporated parts of the County; the way it is presently drafted makes provisions for the municipalities that have water service areas; however, it does not take into account private utilities that have water services areas within the County, such as East Central Florida Services. He stated he does not know whether the County or staff has adequately thought about that; and he sent a letter in April 2003, bringing up a couple of issues concerning private utilities that have service areas and are regulated by the Public Service Commission, and will be impacted by the ordinance. He stated the ordinance may cause confusion, undue burden, and additional expense; and it may be conflicting in what it is trying to do regarding the private utilities. He stated the Board should consider that impact; in his letter he requested the private utilities be given the same consideration as the municipalities; the private utilities have service areas and rate structures; and the ordinance may unduly impact the private utilities. He stated that should be considered when the Board considers this ordinance.

Chairperson Colon stated that was well noted; and inquired if Mr. Payne will be at the meeting on Friday; with Mr. Payne responding yes. Chairperson Colon stated hopefully the Board will also see Mr. Payne at the July 22, 2003 meeting.

Commissioner Carlson requested staff provide Mr. Payne’s letter to the Board as she did not receive a copy. Mr. Payne advised he has an extra copy of the letter. Chairperson Colon requested Mr. Payne give the letter to the County Manager who will see that everyone gets copies.

Commissioner Pritchard stated the Water Board has been reviewing input from municipalities and private sector entities for several weeks now; he does not think OSHA could have gotten it more confusing; and it has gotten to the point where there are more exclusions and exemptions in the interest of the service providers. He stated at the meeting on Friday there will be no further input; what has been submitted will be either accepted or denied by the Water Board; and then it will be presented to the Commission, which will be making its decision on July 22, 2003. He stated the Water Board has been inundated with input.

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to continue the public hearing to consider ordinance creating special water and sewer district within the unincorporated area of Brevard County to July 22, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR
HANK SAUNDERS

Chairperson Colon called for the public hearing to consider a request for determination of vested rights for Hank Saunders.

Attorney Ken Crooks, Dean Mead Law Firm, representing Hank Saunders, stated he had a chance to speak to most of the Commissioners before about this issue; but for those who have not had a chance to review the documents that have been submitted, he will provide a short breakdown on the issues. He stated this is a platted subdivision called Sunnyland Beach, which is just north of Aquarina; there are a total of ten lots in the subdivision; Lots 1 through 8 are all the same size at 75 feet wide; but for some reason the last two lots, Lots 9 and 10 are different. He stated Lot 9 is 15.94 feet smaller than the other lots and Lot 10 is 15.94 feet larger than the other lots; and that is the main problem. He stated the Andrews owned Lots 9 and 10 since 1974; in 1975 they built a 2,000 square-foot home where they lived for a period of time; the home is in the middle of Lot 9; and Lot 10 is totally vacant at this point. He stated in June of 1992, the Andrews took some steps that clearly showed their intent to make the two lots the same size, 75 feet wide, to keep the south portion of the property, Lot 10, for building later on, and to try and sell Lot 9 to someone else. He stated they put up a boundary fence; they did a survey showing Lots 9 and 10 and the north 15.94 feet of Lot 10; and they entered into a contract with the Goodmans for Lot 9. He stated unfortunately the transaction did not close; and in 1993, they sold the property to the Hammerslas. He stated there was a problem with that transaction; they had to do a corrective deed in 1994 because they had sold both Lots 9 and 10 to Mr. Hammersla, when they only wanted to sell Lot 9; and the corrective deed was submitted in 1994. He stated in 1999, Mr. Hammersla sold the property to Mr. Gonzalez who now owns Lot 9; and that deed described the property as Lot 9 and the north 15.94 feet of Lot 10. He stated in the spring of 2001, Mr. Andrews, who still owned Lot 10, decided to sell the property to Mr. Saunders, and they entered into a contract. He stated as part of the process of deciding whether to purchase the property, his client came to the County; his client was in the real estate business and knew there was some question about whether he would be able to build on Lot 10 because of the 15.94 feet; and it was suggested by County staff that he go through the process of reacquiring the north 15.94 feet and rejoining Lots 9 and 10; and under that scenario, it was believed that Lot 10 could be built upon and everyone would be satisfied. He stated his client sent a letter to Mr. Gonzalez offering to pay $20,000 for the north 15.94 feet, and then after he built his house, he would give it back, if Mr. Gonzalez wanted; but Mr. Gonzalez said no, so his client went to the County to inquire if there was any other way to build on Lot 10, and requested staff show him the Ordinance that indicates he cannot build on that lot. He stated the Planning and Zoning staff sent his client a copy of Sections 62-1188 and 1189; he went back and looked into the records; and he came up with reasons why his purchase of Lot 10 was sufficient to justify building a house on Lot 10. He stated they sent a letter to the County outlining the facts that they knew; they did not hide anything; they showed that the transaction that occurred in 1992 did not close, that they had a survey and a boundary fence, and that they clearly intended to have two separate equal-sized lots. He stated as a result, they submitted a survey, affidavit of the prior owner, and a deed to Mr. Goodman; and they felt the documents indicated the lot was a nonconforming lot of record. He stated the Planning and Zoning staff issued a letter advising a single-family home could be built on the lot as currently configured; and after receiving that approval, his clients bought the property for $100,000 in 2001. He stated they went through the process of getting a State Coastal Construction Control Line permit from Florida Department of Environmental Protection; as part of that process, they had to get approval from the County’s Office of Natural Resource Management and the Planning and Zoning staff; they got both of those approvals for the project on Lot 10; and letters were issued and plans were approved. He stated after getting approval from DEP in 2002, they proceeded to get a building permit for the construction of a single-family house; in March 2003 they got the building permit; and they then entered into a contract with a general contractor to build the house at $695,000. He stated they also entered into a construction loan with their bank for $400,000; after they signed the contracts, bought fill to put on the property, cleared the property, and had various architectural and engineering services done to develop the single-family residence, the County issued a stop work order at the end of May; and that is why they are present today to seek a vested rights determination. He stated there are several reasons why they are entitled to a vested rights approval; the Saunders only want to build on Lot 10; they only want to put one single-family residence on the lot; and Lot 10 has been in existence since 1946, but the Saunders do not own the northern 15.94 feet of Lot 10. He stated Lot 10, except for the north 15.94 feet, is a nonconforming lot of record and complies with the County Ordinance as written; it was consistent with the Comprehensive Plan at the time it was established and existed pursuant to a contract for purchase; and that was the contract that they showed in 1992. He stated the County should be equitably estopped from enforcing the stop work order because the Planning and Zoning Office approved the building of the residence on Lot 10 except for the north 15.94 feet after being informed of the facts without any fraud or misrepresentation by Mr. Saunders. He stated Mr. Saunders spent two years in discussions with the County trying to get this approved; he spent a lot of money including the $100,000 to purchase the property; the County Office of Natural Resources Management approved it; and the County’s Planning and Zoning Office approved the State permit. He stated in reliance on all that, the Saunders have expended substantial monies toward developing Lot 10; they paid taxes on the lot for several years as a buildable lot; and for the County to do other than approve would be an unconstitutional impairment of contracts because his clients have entered into substantial contracts to their detriment at this point.

Chairperson Colon advised Mr. Crooks has a total of 15 minutes; he has already used 13; and suggested he might want to save the last two minutes for rebuttal at the end. Mr. Crooks stated there are several people who wish to speak; with Chairperson Colon responding she has their cards; but that is all the time the applicant has.

Mr. Crooks stated yesterday he received a copy of a memorandum from Commissioner Higgs to Mr. Scott; neither he not Mr. Saunders know anything about the transactions that are referred to in that memo; they do not know Mr. Keane and cannot vouch for anything that Mr. Keane or Mr. Andrews may have said or done; apparently they did not go through with whatever transaction they were talking about; and it has nothing to do with Mr. Saunders or whether it is fair for him to get a building permit for his property. He stated he does not know what discussions Mr. Spielvogel had with his clients or with County staff; he has not discussed this with Mr. Spielvogel; and Mr. Spielvogel did not discuss this with his client, Mr. Saunders.

Chairperson Colon inquired if Mr. Crooks is not going to have a rebuttal because he is taking up all his time; and recommended he save his last two minutes. Mr. Crooks advised Mr. Saunders and Wendy Murray will speak.

Hank Saunders stated he and his wife Joanne Saunders have lived in Melbourne Beach for the last 25 years; it is the only home they have ever owned; and his children grew up in that house. He stated Mr. Crooks has gone over just about everything; but he will go over this briefly. He stated Mr. Andrews contacted him in 2001 and asked if he wanted to buy their lot.

Chairperson Colon stated Mr. Saunders only has five minutes; Mr. Crooks already took up that; and she is not going allow Mr. Saunders to take more.

Mr. Saunders stated County staff are very hard-working people; he has been dealing with them; they go by the book; but the book has many pages; and it takes a long time for a case like this to work within the system. He stated he was totally upfront with staff; staff made the right decision when they signed off on the building permit; when they first applied to the State, they gave all the residents in the area 14 days to make comments; later when they got their final approval, they gave everybody in the area 21 days to comment; and no one came forward although the notice was published over and over again. He stated when they did the notice of commencement, it was published and recorded in the public record; he did everything he could possibly do; there was nowhere else to do a check-off; he has done everything the County and State requested; and requested he be allowed to build his house.

Wendy Murray stated they were the listing agent when the house was listed originally; and it was only the house. She stated she has known Mr. and Mrs. Saunders for 23 years; he has worked to help other people get homes; and she has seen him through this whole motion through the real estate business, going through all the channels, and getting their building permit. She stated she saw them so excited getting their building permit and loan, and bringing in their plans to share with their friends; she loves this County and lives here; and she cares about what is best for the County including having the use for the property being the best. She stated to go through everything one has to go through to get a building permit, loan, and plans, and then have it jerked out from under them would be devastating; and it is for the Saunders. She stated the best solution is to let it proceed; and the County can use the taxes.

Commissioner Higgs requested comment from staff.

Planning and Zoning Director Mel Scott stated it is a matter of fact that staff issued a building permit; and what the Board is being asked to consider is whether or not the representations that staff ultimately relied upon are factual. He stated once certain questions involving the buildability of a lot and its nonconforming or legal status are resolved, it is rarely readdressed or revisited; and requested the Board keep that in mind as he goes through the documents. He stated it is not a point that is being contested on either side whether or not Mr. Saunders recognized the County’s position regarding the buildability or unbuildability of the lot per a letter that Mr. Saunders presented to Mr. Gonzalez on June 19, 2001; and read aloud from the letter, “because the property was subdivided after March 1993, the County’s position is that the lot has changed from the original plat; therefore, the remaining lot is unbuildable.” He stated the Board is being asked to consider what representations staff might have made to compel Mr. Saunders to the point that he feels that staff’s position has changed; on page 8 of the report it is accurately described as being a relationship that existed for some time between Mr. Saunders and staff because this was not an easily researched property; and it has a lot of history to it. He stated on July 31, as part of Mr. Saunders’ due diligence, he got a letter from staff informing him of the fact that staff recognizes that this property has deviated from its original plat; it has lost 15.94 feet; and since the description deviates from the original plat, it requests additional information so staff can determine its nonconforming status. Mr. Scott advised there are three ways that can be done; one can uncover a recorded deed; it was recorded in its original configuration in 1994, missing the February 17, 1993 date; and all property recorded after that date in this portion of the County, that is less than one acre, is done so illegally and in contradiction to the Comprehensive Plan that mandates one-acre lots. He stated there are two other opportunities for the lot to receive nonconforming status; there can be a fully-executed but unrecorded deed or valid contract for deed or contract for purchase; in this instance, Mr. Crooks points out that there was at a time a valid contract for purchase; but on the critical February 17, 1993 date, that contract for purchase had expired. He stated the contract for purchase existed prior to that, so that does not garner this property nonconforming status. He stated the only other thing they were searching for was a fully-executed but unrecorded deed; and they have yet to uncover that. He stated Mr. Saunders was put on notice of the three criteria he would need; on page 29 of the report is a copy of a letter from staff that gives Mr. Saunders the February 17 date and lets him know that if the property was subdivided after that, the minimum lot size needs to be one acre. He stated staff then received a fax from Mr. Saunders saying, “I found through my research that the property in question has been subdivided prior to February 17, 1993. My question is how do I document the date of the subdividing of the properties?” He stated Mr. Saunders is advising he found out that this was subdivided prior to 1993; and advised Mr. Saunders is a licensed realtor. He stated some people have challenged the validity of incorporating that kind of knowledge into this; but there are professions that do garner a higher level of expectation as far as the representations they are making. He stated the letter on page 45 is the one on which the most reliance was placed; it says that based on the original letter of June 25 where staff is advising of the implications of the date and based on Mr. Saunders’ replied facts, which inform staff that this was subdivided prior to 1993, the current zoning should allow the construction of one single-family residence based upon lot configuration, exhibiting full disclosure, and provision of the documents. He stated the letter in large part accepts the representation being made in the fax; and the Board can discuss whether or not that was an appropriate assumption to make, but that was clearly the essence of the letter, which was staff has advised of the rules, the applicant is telling staff he complied, and he is good to go. He stated unfortunately when he was researching the completeness of the file, before he issued the stop work order, he contacted Mr. Saunders and said it was not his intent to cause delay or cost him money, but he now recognized the file was incomplete and staff did not have the information Mr. Saunders was representing he had, and requested that information be provided to complete the file. He stated it was at that point that he recognized the evidence did not exist; and that was when he was compelled to issue the stop work order. He stated the essence of the vested rights determination is for the Board to consider whether or not there is a good faith procession of events occurring on the point of the applicant. He stated in the record they have assumed that certain information was in existence; they have not confirmed that it is not; and that is the essence of the presentation he has.

Mr. Crooks stated he agrees with what the issue should be, whether his client in good faith made certain representations to the County, and did the County make an action or decision and act fairly toward his client. He stated he has submitted copies of every letter that was submitted back and forth in regard to this in 2001; what his client told the County was the truth; and that is that the property had been, from his standpoint, subdivided through survey, through boundary fence, and through attempted sale of the property, which did not go through. He stated the letters say exactly that; they do not say Mr. Saunders has a recorded deed dated in 1992 upon which he was complying with the County Ordinance; he just told them the facts as he knew them; and they did what the Ordinance talks about with verifying nonconforming lot of record, and submitting not only deeds, but affidavits, surveys, and other information. He stated they thought the additional information beyond the letter to Mr. Gonzalez was sufficient to show that the lot should be allowed to be built upon. He stated according to the staff report, if they get the 15.94 feet back and make Lot 10 the same size it was under the plat, then someone could build on the property; if that is the case, and his client cannot get the 15.94 feet back, then Mr. Gonzalez can get the property back, and will be able to build a house on Lot 10; so it will end up with the same situation that his client wants to have, one single-family home on Lot 10. He stated the fact, whether the Board looks at it as the Ordinance has been specifically written of at basic Florida law in regard to equitable estoppel, is that both parties did their best to do their jobs; and what is unfortunate is that his client has ended up in a financial hole because of this without doing anything wrong to get there.

Mr. Scott inquired if it is Mr. Crooks’ contention that the act of recognizing an unrecorded survey has the effect of “subdividing the property”; and does he believe that is true. Mr. Crooks responded one can show what the intent of the parties was; in this case what the Andrews did regarding Lots 9 and 10 was clear; and what they wanted to do was divide the lots into 75-foot lots and build a house on each lot. Mr. Scott inquired if it is Mr. Crooks’ contention that an unrecorded survey in 1992 is good enough evidence to say that the property was subdivided prior to 1993; with Mr. Crooks responding it is not his position to make that determination. Mr. Scott stated Mr. Crooks is representing that his client had an intention; through the fax, he said the property was subdivided prior to 1993 when, in fact, there was an unrecorded survey; and inquired if that is adequate in Mr. Crooks’ view; with Mr. Crooks responding his client felt so.

Commissioner Higgs stated Mr. Gonzalez was here earlier today but had to return to his home in South Florida; and he requested that she read the following: “County Commissioners, I, Nelson Gonzalez, am the neighboring property to the north on Lot 10. I currently live and work as a realtor in Miami Beach. I purchased my home in Melbourne Beach in late 1999. In Miami Beach, there’s an area called Golden Beach, which has oceanfront homes. Back 20 years and beyond, Golden Beach had very relaxed building and zoning laws that allowed homes to be built on 50 foot lots. Today you have very large homes built on 50 to 150-foot oceanfront lots. The problem is that all the homes appear to be crammed in next to each other. The City of Golden Beach allowed at the time for the construction of homes on smaller than normal size lots, and residents and City officials are deeply regretting that today and would not allow the subdividing of larger lots into smaller lots again. Commissioners, please do not make a decision today you will regret in the future. Thank you. Nelson Gonzalez.” She stated she sent the Commissioners copies of information referencing a discussion she had in 1999 with Kenneth Andrews, the previous owner, and Mr. Keane, an attorney who is now a resident of Melbourne Beach; Mr. Keane attempted to buy the lot, use it to build a home, and after extensive consultation with a local attorney, determined it was not a buildable parcel; so there was some previous information on that. She requested a short recess to confer with the County Attorney.

Chairperson Colon allowed Commissioner Higgs to confer with the County Attorney, but did not recess the meeting.

Commissioner Higgs stated the Board has seen the question of buildable lots before; whether or not a lot is buildable is based on a definition, which in this case is that it was recorded prior to February 17, 1993; and based on everything in the record, that was not achieved. She stated staff unfortunately made some conclusions based on what they thought the representation was and issued a building permit; it is not a vested right, but a matter that this was not a buildable lot after the failure to record it; and she does not think staff was given the correct information, so it is not a vested right.

Commissioner Pritchard stated his concern about defining buildable lot and having dates thrown in as February 1993, is that it sets a hard and fast threshold; and may times there are circumstances that come up as a reason why the Board may need to question why it has such a finite definition in the Comprehensive Plan. He stated he is concerned about the fact that the lot is adjacent to Mr. Gonzalez’ property who is a realtor; and he could profit from the Board’s denial of Mr. Saunders ability to build. He stated Mr. Gonzalez could build on the property; with Mr. Scott advising he could not without Board action. Mr. Scott stated he relayed this to Mr. Crooks in a briefing in Commissioner Scarborough’s office; in searching for potential remedies, he does recall instances where the Board of County Commissioners has recognized that a lot has been subdivided in an illegal fashion but has allowed that action to be reverted to its original configuration to restore the buildability of the lot; but staff is not able to do that administratively due to the definition of lot alteration, which is written in the present tense. He stated the lot does not meet the size requirements necessary down there; and only the Board through the vested rights mechanism is able to say absent the lot alteration definition, it will recognize the lot in its original configuration. Commissioner Pritchard stated looking at the size of the property, the assumption would be that the Board may decide it could never be built upon; but the Saunders family has been paying taxes on the property; and he is assuming the tax rate is as if it were a buildable piece of property and not something that could just be used as a private place to park one’s car. He stated $100,000 is a lot of money to spend on something like that; the intent was to build on the property; the owner is paying taxes based on what the Property Appraiser has placed as a value on it; then when it comes time to build, he is not able to do it; and the reason he is not able to do it is because in February 1993 something happened. He stated sometimes things are missed when people own the property; and advised of a situation in Cocoa Beach. He stated this is a situation the Board needs to address; in this case the Saunders have a piece of property that the Board has determined is unbuildable; and they are stuck with it. He stated their recourse would be to go back to the original owner and file suit; but this costs money; and the inevitable result may be that Mr. Gonzalez a year or so down the road may ask for a reconvening of the properties and build another house, so they will still end up with a house there. He stated he does not see where having the tenth house built in a ten-house subdivision is going to destroy the ambience of the neighborhood; the property is the southernmost of the ten lots; and inquired if it abuts a County park; with Mr. Scott responding the southern neighbor is a conservation tract. Commissioner Pritchard stated having another house is not going to destroy the conservation tract; and inquired what is denying Mr. Saunders the ability to build going to do other than cost them a considerable amount of money. He stated it is not appropriate for the Board to deny the Saunders the ability to build their home.

Commissioner Carlson inquired if the Board is talking about a vested right here; with Mr. Knox responding the issue is definitely one of vested rights. Mr. Knox continued the issue is whether or not the Board believes Mr. Saunders acted in good faith based upon everything it has heard; and if the Board believes that, then vested rights is appropriate. Commissioner Carlson inquired if the burden of proof is on the County; with Mr. Knox responding no, it is on the applicant to show he has a vested right. Commissioner Carlson stated the three criteria for consideration talk about an act or omission of the County; and inquired if that implies that the County needed to make sure it had all the documents required even though the applicant misrepresented. Mr. Knox stated the act or omission that they are talking about are the letters that went back and forth between County staff and the applicant as well as the building permit; there are clearly letters that say if what was said is true, then the applicant is good to go; there are also building permit issues; and there are also County approvals of other permits posted, setback line permit, and other things that could fit the definition of act or omission of the County.

Commissioner Scarborough stated there have been vested rights over the years; but he has never seen one where the act relied upon was the building permit. He stated the building permit is a profound act; with that occurring and the expenditure of funds, one could say this is a slam-dunk vested right; but there has been an allegation of misrepresentation or lack of correct representation that misled the County, or in other words that it was procured with fraud. He inquired when fraud is raised by the County, does the County have some responsibility in moving forward with facts to indicate there is fraud. Mr. Knox stated he is not sure fraud is the right characterization; the issue is good faith; and Mr. Scott is trying to point out that there is evidence that maybe Mr. Saunders knew more than what he did while Mr. Saunders is saying he did everything he was told to do and found everything he needed. Commissioner Scarborough stated everyone advocates their own position; if he was coming to get a building permit, it would behoove him to bring everything forward that would be necessary; but there is a point of moving beyond bringing things forward to actually not revealing pertinent facts or altering the facts fully knowing that if the facts were revealed correctly another result would have occurred; and he is having a problem knowing whether or not this is at that point. He stated there is not strict vested rights; one person should treat another person fairly and should not lead someone to do something and then have it harm them; so there has to be case law on where this is with the rising of a new element, which has not been considered before; and he is using the word fraud, but it does not have to be that. He stated he would like to see the level in which that has to occur within the context of the facts before he votes on it.

Commissioner Higgs stated Commissioner Pritchard raised the question of the significance of February 17, 1993; for more than a year the Commission, the Citizen Resource Group, and the citizens had been involved in a Comprehensive Plan change; and it was adopted on February 17, 1993, although transmittal had occurred the previous summer. She stated February 17 is both good and bad; anybody who filed various types of site plans prior to that date vested a certain type of development; after that date, there was a line in the sand that said what you could do and what you could not do; and people used that date positively and negatively depending on how one looks at it. She stated it was the date that said things changed; it was the adoption of the Comprehensive Plan final hearing; and it had been preceded by a lot of community conversation and a transmittal hearing, so it was a very prominent date. She stated the previous owners of the property were the Andrews who owned the property for a good period of time; Jeffery Keane wrote to her in August 1999; the buyers and seller then hired Leonard Spielvogel to advise on the matter; and Mr. Spielvogel looked into the problem and gave some preliminary recommendations, which did not result in the issuance of a building permit. She stated after several hours of effort, Mr. Spielvogel advised not to pursue the matter, making it clear to the buyer and the seller that it would be a waste of time and money to have him proceed further on the nonconforming lot issue raised by the Building Department; and the contract was terminated, the sellers returned Mr. Keane’s money, and they offered to reimburse him for all of his out-of-pocket expenses. She stated Mr. Keane advised that the Andrews knew Lot 10 was a nonconforming lot; and the failure to disclose that would have been a significant omission by the seller. She stated she only knows the evidence that Mr. Keane presented to her; but the Board should know that. She requested the Board look at page 92 of the packet and note the sales that occurred in 2001; stated there are two sales dated 8-2001; one is the initial buy of $100,000; and that has a disqualification code, which means it should not be used as a comparable for other appraisals. She stated based on her knowledge of sales in the area, although she is not a real estate broker, $100,000, while it is a huge amount of money, is not consistent on the low side of sales in the area for oceanfront property of similar size; and that is why there is a disqualification code. She stated there is sales data in the public record that says the price of the parcel is not consistent with the other sales; that is something the Board needs to note; the important thing is this is consistent with what the Board has acted on in the past; the law says it is recorded; and in this case, the lot was not recorded.

Commissioner Scarborough stated every time there is a vested right, there is something occurring that would not have occurred but for an act or omission on the part of County staff; the issuance of a building permit is the most profound act that can occur at the County level; and Mr. Saunders is saying the mistake is that the County issued a building permit and after the fact realized it should not have; but if that was done based upon information provided or failed to be provided by the applicant, then the act was procured by fraud. He stated that is the only way he can vote to deny the vested right; otherwise he is going to be voting for the vested right, not because he likes the Saunders or Mr. Gonzalez or beach property, but because he does not know anything. He stated Mr. Crooks and Mr. Scott discussed this with him; it is a matter of the way the County does business; the County cannot do something and then say it made a mistake; otherwise, people would be going back and changing the rules after people have acted in reliance; and that is not the way the County does business. He stated he is willing to proceed if the motion for denial of the vested right has a finding of fact within it that indicates there was fraud on the applicant’s part. Chairperson Colon states she does not know about fraud. Commissioner Scarborough stated he needs to set the parameters of where he is at this moment.

Commissioner Carlson stated she agrees with Commissioner Scarborough; and looking at it at face value, it looks like a slam-dunk, but she has questions. She stated looking at the June 25, 2001 letter, Mr. Ritchie is answering questions from a previous letter from the applicant; looking at the letter that seems to be the linchpin of August 6, it says, “based on my original letter of June 25 and then your replied fax . . . this should allow the construction of one single-family residence based upon this current lot configuration”; and inquired could the applicant take that letter to the Building Department and get a building permit. She inquired given the importance of a building permit, is that all that is required. Mr. Scott stated that would be part of the package; and there are numerous things by the time one gets to the building permit package that are being reviewed by 15 different departments. Commissioner Carlson inquired what scrutiny is there before the building permit is actually cut; with Mr. Scott responding before the building permit is cut, staff confirms ownership of the lot, and confirms there has been a survey of the lot in preparation for the building permit so they can start to measure setbacks and breezeways if applicable and so on. He stated as to the issue of buildability of the lot, 99.9% of the time in the one-stop office, they are reviewing platted subdivisions where the issue of buildability is so remote that they are not doing title searches in the one-stop function; and at some point there is reliance upon certain things being in line perfectly for the review to take place prior to the issuance of the building permit. Commissioner Carlson stated the survey needs to be a real survey. Mr. Scott stated in this instance there was an unrecorded survey in 1992; the lot in its current configuration was recorded in 1994; and the seriousness of the date is that it is smaller than one acre and happened after February 17, 1993. He stated what he is sharing with the Board is that rightly or wrongly, this is full disclosure mode; and they are not revisiting the issue of the lot’s buildability by the time it gets to the package where they are looking at ownership and a survey for building placement and things of that nature. Commissioner Carlson inquired if the person who cuts the building permit is not involved in that portion of the analysis; with Mr. Scott responding that is correct.

Chairperson Colon inquired if it was in between that when a letter was received saying things have changed and it was still going to be a nonconforming lot because the sale did not go through; with Mr. Scott inquiring what letter is Chairperson Colon referring to. Chairperson Colon stated she is referring to the letter that was mentioned that was submitted to the County where it states that the sale did not go through; with Mr. Crooks advising that was just before. Chairperson Colon stated that is where her concern is; and that is why she does not want to use the word fraud because it was submitted to the County. Mr. Crooks stated that was one of the letters that Mr. Saunders sent to Mr. Ritchie before he issued his August letter. Mr. Scott noted that is before Mr. Saunders owned the property; with Mr. Crooks agreeing that is correct.

Commissioner Pritchard stated having gone through the process of getting building permits for various things, he can attest the entire process is well scrutinized and the issuance of a building permit is the culmination of all the inputs that are provided and usually addressed and readdressed several times; it is a significant accomplishment to get a building permit; and when someone receives the permit, they will have jumped through the hoops and done all the necessary procedures required. He stated the issuance of a building permit sets a threshold and a parameter that says one has complied and the information given is correct and accepted.

Commissioner Higgs inquired if the letter Mr. Ritchie issued on the 29th was given to the Building Department, which then used that to say it was a buildable lot and they could proceed once they had all these other things together; with Mr. Scot responding that is correct. Commissioner Higgs inquired what information did Mr. Ritchie base that letter on; with Mr. Scott responding he based it on a previous letter that he sent the applicant and the applicant’s response by fax, which is contained on page 30 of the package. Commissioner Higgs stated page 30 says the property had been subdivided prior to February 17, 1993, but that did not occur, so when that was given to Mr. Ritchie, that was not factually correct and the properties were not subdivided; with Mr. Scott affirming that is correct. Commissioner Higgs stated it was not recorded; Mr. Ritchie then came back on the 25th and said if the subdividing occurred as was represented on page 30, then it is a buildable lot; but there is an obvious error in the letter of July 2, 2002 because it was not subdivided in accordance with the law.

Commissioner Scarborough stated that is his point; if staff acted upon faulty facts provided by the applicant, then regardless of the fact that the building permit was issued, he cannot go that route. He stated one should not defraud the County and then benefit from it; if it was a failure on the part of staff, everyone recognizes that there will continually be mistakes; if it was a legitimate mistake of confusion on the part of the County or miscommunication, then it does not hit the level of staff being told things that he found to be fundamentally important in writing that letter; and if there is a motion saying that based on the information provided and that there was fraud in the procurement, he will support the motion; but failing to do that, he finds the fact that the building permit was issued and there were profound acts of reliance make it such that he cannot go there.

Commissioner Higgs stated there was an error in the July 2 letter; she is not willing to interpret that; but staff was provided with erroneous information in the letter of July 2, which said it was subdivided. She stated she cannot go further than that; but she knows it was erroneous.

Commissioner Scarborough stated a lot of things have been said that would indicate that it is the belief of some people in the room that it was procured by fraud. Commissioner Higgs stated the information was erroneous. Commissioner Scarborough stated if he was an immigrant to the country, not speaking English very well, and he provided erroneous information to the staff and the staff, based on that information, issued a building permit, he has not gone out of his way to do anything but provide correct information; however, it is not the same situation if someone who is a realtor, who had correspondence with other people who are very knowledgeable, provides the information.

Motion by Commissioner Higgs, to deny the request for determination of vested rights by Hank Saunders. Motion died for lack of a second.

Motion by Commissioner Scarborough, to deny the request for determination of vested rights by Hank Saunders based on fraud in the procurement. Motion died for lack of a second.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to deny the request for determination of vested rights by Hank Saunders based on erroneous information given to the staff.

Commissioner Pritchard stated the letter in question of July 2 written by Mr. Saunders says, “I’ve found through my research that the property in question had been subdivided prior to February 17, 1993”; and inquired what research. Mr. Crooks responded he submitted the information that Mr. Saunders had in regard to the 1992 transaction; and a copy of the survey and deed from 1992 and the real estate information with the attorney involved in the case was sent. Commissioner Pritchard inquired where is the fraud.

Commissioner Scarborough stated as structured, he cannot support the motion because erroneous information is always being exchanged; people do not always communicate; and he would like to see something about the erroneous information was provided by the applicant knowing that it was erroneous and could benefit his obtaining a building permit. Commissioner Higgs stated she would like to discuss that with the County Attorney and would like to table this to the next meeting.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to continue the public hearing to consider a request for determination of vested rights by Hand Saunders to the July 22, 2003 Board of County Commissioners meeting.

Commissioner Scarborough stated he would like to have some case law on vested rights where the act relied upon was procured by fraud, and to what extent one needs to go.

Commissioner Carlson inquired if the next meeting will include public comment; with Chairperson Colon responding yes.

Commissioner Pritchard stated at that time Mr. Saunders can bring to the Board the research that he has. Mr. Crook advised the Board already has that.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

The meeting recessed at 12:44 p.m. and reconvened at 1:35 p.m.

CITIZEN REQUEST - CLAIRE AND JAMES ZUHLKE, RE: REQUEST FOR WAIVER OF
IMPACT FEES

Claire Zuhlke submitted paperwork to the Board but not the Clerk; and stated she is going to address an issue that affects not only herself but countless other Brevard County taxpayers concerning impact fees. She stated if the application of an Ordinance, as written, would lead to counterproductive, appositive, and/or unjust results, it should be tweaked or tailored to accomplish its legislative intent; the general principle applicable to interpretation of laws is that a statutory interpretation that leads to absurd results is unacceptable; and the same principle should be extended and applied to municipal and county ordinances. She stated she is not sure how the Board has instructed staff to interpret and implement the Ordinance under which she is being charged almost $5,000 in impact fees for a simple change of IU usage to another IU usage; however, she does not believe it is the Board’s intention to put the citizens of the County out of business and into bankruptcy; but the way staff is applying the Ordinance is forcing small businesses and individuals into failure and possible bankruptcy. She stated this is a severe hardship; they cannot survive this way; by imposing several restrictions on the usage of existing structures, the County is depreciating the value of all commercial real estate in the County. She stated investors will not buy; banks will not make loans; Jim Ford will have to decrease property values; and Rod Northcutt will collect less taxes. She stated if a successful businessperson was planning to rent or buy a facility and came upon the impact fee, he or she might well decide that as long as they are going to be charged an impact fee, they will build a new building and not occupy the vacant property; and the end result will be the exact opposite of the Board’s true intention. She stated they all understand that new development must pay its fair share of its impact on the infrastructure, but that is new development; the result will not be nice; and the County in the next 20 years will turn into a vast wasteland of unoccupied undertaxed commercial property surrounded by new construction located where the fields, swamps, and trees used to be. She stated business has to go somewhere to sustain the economy, support the schools and law enforcement, and support public benefit and entitlement programs; if commerce is not permitted to occupy and restore the presently available commercial property, it is inevitable that it will go somewhere else; and requested the Board reconsider the Ordinances that encumber the small business person. She stated her warehouses are located on Pinetree Place, which is off Cox Road in Cocoa; the location is zoned IU and has been since the warehouses were built 20 years ago; the owners of the warehouses have been paying commercial real estate taxes based on the IU usage for 20 years; and the impact of these warehouses on the surrounding area, which require public services to be provided, have been paid on an ongoing basis for 20 years. She inquired why does staff think her new tenant, J&D Automotive, owned by Joe Westerfield, is going to produce a marked increase in traffic. She stated staff goes by a fee schedule as calculated by the Brevard County Impact Fee Study; it has been explained that land use type categories are very broad and include high as well as low impact businesses; it is obvious that Mr. Westerfield’s two employee auto repair service cannot impact infrastructure as much as a drive-through oil change facility, but they are in the same broad classification; and one size does not fit all. She stated several years ago the Board instructed staff to find out what the applicant was doing by simply asking and making an intelligent deduction from the facts provided; the Ordinance should be modified to give some latitude in interpretation; if the applicant provides documentation that shows the functionality is the same, staff should have some discretion; but she finds staff is afraid to use their discretion and knowledge of facts and circumstances for fear if they use a more friendly user approach, they will be reprimanded by the Board. She requested the Board instruct staff to issue her tenant an occupational license, revisit the Ordinance with an eye to making sure they fully accomplish what the Board wants, and work with the small business people to create a healthy and financially successful County.

Jim Zuhlke stated he was informed by staff that the reason he is being charged the impact fee is on page 8 of the Ordinance under change of use, redevelopment, or modification of use, which requires the issuance of a building permit; and staff is applying this to everyone by stretching the imagination and changing commas to periods. He stated he understands how staff could get this interpretation from this paragraph; but staff cannot make it fit into the purpose of the Ordinance, which is that new development bears its fair share. He commented on the opinion of a judge of the Fifth District Court of Appeals that the majority of the work becomes interpretation and determining intent and purposes of law; and gave an illustration of a lawyer and a preacher interpreting the statement, “Jacob danced before the pyramids.“ He stated common sense will tell that there is no way that staff’s interpretation can fit within the purpose of the Ordinance, which is outlined on the first page of the Ordinance.

Jerry Taylor, representing Auto Service Center of Cocoa, stated he already had an existing business on St. Johns Street; he was going to move his business to a better location; and he came to Viera to ask the Building and Planning and Zoning Departments if there were going to be any problems moving his shop to Clearlake Road. He stated he went through all the departments; they all advised there was no problem; it was zoned right at BU-2; and the only way they could go any farther was if he had a lease agreement. He stated they told him he would have to pay $5 for a transfer of occupational license; once he got that, he was committed to the move; and that is when he was hit with an impact fee of almost $2,200. He stated if he had known he was going to have to pay the impact fee, he would have stayed where he was; and he does not understand what the impact fee is about, although he paid it. He stated he would like a refund on it; he is close to having to close his business because it has taken him three weeks to try to get an occupational license; and he still does not have it.

Karen Jones, President of Island Street Performance, stated they have already paid their impact fee; and it was originally estimated at $12,000 but was reduced to $3,000 because they are not using the entire building. She advised of compliments received for cleaning up the property; and stated it is outrageous to have to pay because they have been in similar zoning for quite some time. She stated her parents had this property for over ten years; it has always been a hazardous waste generator, and still is; and it is outrageous to have to pay over $3,000 for 1,500 square feet of property for change of use.

Chairperson Colon inquired what was it before and what did it become; with Ms. Jones responding it was metal fabrication and research, and is now automotive repair. Chairperson Colon inquired about the traffic; with Ms. Jones responding it is the same amount. She stated there are only a few people a day; there are only four employees; and that is not a big change.

Jim Johnston, representing Trafford Realty Company, stated he wants to reinforce the points made by Ms. Zuhlke; the change of use Code needs to be more clearly defined as it applies to buildings such as the one Ms. Zuhlke owns; it impacts that building to the point that it is difficult to lease; and it narrows the prospective tenant market, which means the building is likely to stay dark longer. He stated it creates more vacancies; the most expensive component to an income property is vacancies; one can never recover from the vacancies; and he concurs with the points Ms. Zuhlke made regarding the definition of the change of use Code.

William Quinter stated he is just here to support the speakers.

Commissioner Carlson stated she met with the Zuhlkes; and they were interested in bringing it to the Board to get a perspective from the Board. She stated she asked the County Attorney for an interpretation of the Code; she met with Mel Scott and staff about how the Code is interpreted; and she questioned how staff was dealing with change of use as it applies to building permits. She stated there is a sentence in the Code that she interprets differently than staff.

County Attorney Scott Knox stated the sentence is in the case of change of use, redevelopment, or modification of an existing use, which requires issuance of a building permit, the impact fee shall be based upon the net increase in the impact fee for the new use as compared with the previous use.

Commissioner Carlson stated there are many ways to read things; it states, “in the case of change of use,” then goes on to say, “redevelopment or modification of existing use, which requires the issuance of a building permit, the impact fee shall be based upon the net increase in the impact fee for the new use as compared to the previous use.” She stated the way she was reading it was that what is in the portion of the sentence that has commas defines what change of use means; that was what the Board was trying to say when it wrote this; and she interpreted it that way. She stated if there is a change of use and it requires a building permit, there is an impact fee calculation; but if there is no building permit, there should be no impact fee; she guesses a calculation is needed on that and a clarification as to how the County Attorney would interpret the sentence. She stated she is sure it can be interpreted many different ways; and inquired from a legal perspective how would it be interpreted. Mr. Knox responded legally it is ambiguous and can be interpreted either way. Commissioner Carlson stated when a sentence is started with a preposition, normally it is defining something. Mr. Knox stated it is a fair interpretation to say the requirement of the building permit relates back to each one of the types of changes, or in other words, each one of those things has to be accomplished by a building permit in order to trigger the fee. Commissioner Carlson stated a change of use in and of itself is not the redevelopment or modification of existing use, which requires the issuance of a building permit; and inquired what does change of use mean. She inquired does change of use mean redevelopment or modification of existing use, which requires the use of a building permit; and stated the reason she brings it up is because reading through the rest of the section under computation, all it does is deal with building permits, which is the linchpin in determining whether there is an impact fee or not. She inquired if there is a use that is similar to the other use and there is no building permit because they are not changing anything in the building, where is the building permit and therefore, where is the impact fee.

Chairperson Colon stated new development should pay its fair share of impact fees; there is nothing wrong with that; and the only part she would be interested in putting on the agenda again and having more information and input from each Commissioner would be the change of use issue. She stated she would be more than happy to have staff come back, not about new development because everyone needs to pay their fair share; but regarding change of use, it is not the Board’s intent to hurt the community, but to make sure that everybody is contributing to whatever impact they are causing to whatever area is affected.

Commissioner Carlson stated if the Board is supporting redevelopment in the community and encouraging people to move into already existing buildings and it is a similar use, it is not a problem; but she wants the Board to reflect on the discussion it had on change of use and make sure how it is applying the impact fees and the interpretation of what is existing in the Code.

Chairperson Colon stated at that time each Commissioner can give their input; the Board’s intent is not to hurt; and this is not the first time it will go back and tweak an Ordinance.

Commissioner Pritchard stated the example that was used had an impact fee that totaled over $8,100; there was a reduction of $3,200, which took it down to $4,900; that was talking about a welding shop changing to an auto repair shop; and inquired what if it goes the other way, and would someone get a $5,000 rebate. Mr. Scott advised if staff was able to take the asphalt and widened roadway up and get the money reimbursed, then theoretically, it would be able to reimburse the fee. Commissioner Pritchard inquired if the Zuhlkes are going to get a road widened for their $5,000. Mr. Scott stated that fee goes into a pot of money that goes toward improving the infrastructure that services the development. Commissioner Pritchard inquired if it services the specific occupancy; with Mr. Scott responding that is correct. Commissioner Pritchard inquired what if nothing is used on the specific occupancy; and stated he thinks this is a revenue stream and way of producing revenue by not going to the taxpayers and asking for a tax increase. He stated it has the effect the speakers have spoken of; and he knows of many other cases where people have not gone to another location, but have stayed at the location where they really should not have because they cannot afford to move. He stated some businesses do not generate a tremendous amount of profit; and $2,000 may not sound like a lot of money to some people, but it is a lot when there is a low profit margin; and $5,000 is even worse. He stated this has the effect of stifling business instead of encouraging it; having something new in a neighborhood and charging appropriately is one thing; but overcharging for that is also wrong. He stated the idea of having an impact fee is to have the applicant pay what the added cost would be; but in many cases what they pay has no bearing on the cost; and it becomes more of a way to produce a revenue stream than to justify the impact to infrastructure.

Chairperson Colon stated she is sure the Board does not have a problem with making sure the fees cover what is done administratively, sending inspectors out, and everything else; everybody needs to pay their fair share; and she would be supportive of having something come back from staff for the Board to review and see where it wants to head with this.

Commissioner Scarborough stated the County Attorney has advised this is ambiguous and needs to be clarified; and he concurs with Commissioner Carlson’s interpretation, which the County Attorney advises is a legitimate interpretation. He stated change of use, redevelopment, and modification are all qualified if they require the issuance of a building permit; and inquired if the Board should bring back the Ordinance for reconsideration or can it just give an interpretation. Mr. Knox advised the best way to handle it is to come back for a rewording of the paragraph to mean what the Board wants it to mean.

Commissioner Carlson stated when a change of use occurs and a building permit is required, that is when the impact fee is triggered; that needs to be clear; and the history of that and the Board’s intention when it did the change of use policy should be part of the item.

Commissioner Scarborough stated if he had an ongoing business, he could over time go from one type of business to another, ordering different products and servicing different components; and if the Board wants to take the prior interpretation, it will need to have staff out visiting businesses constantly to see if they are doing different things. He stated there is a risk in going there; and if he was arguing a case for the Zuhlkes, he would say the County needs to be inspecting all the businesses all the time to see if they are changing uses.

Motion by Commissioner Scarborough, to implement Commissioner Carlson’s interpretation of the change of use policy for the time being; and direct staff to come back to clarify having the issuance of a building permit trigger the analysis.

Commissioner Pritchard noted it is necessary to have a building permit to put in an interior wall. Commissioner Scarborough stated that is one interpretation of the current policy; once staff brings it back, the Board can look at other options and open the complete discussion; but the Board should at least say under the current interpretation, it clearly can only be if a building permit is required. He stated he has no problem looking at the full gamut of issues.

Commissioner Carlson stated the only question in terms of time are the people who have either paid an impact fee but did not have to deal with a building permit and those who are pending; and inquired if there is a timeframe. Mr. Scott stated there have been six instances since it was reinstated in 2001 where the change of use provision has been instituted; so if it is the Board’s pleasure, with the interpretation that has been put forward pending the rewording, they can bring back the full implication of the reinterpretation so the Board can consider whether or not it wishes to reimburse the Zuhlkes and all the other changes of use that had an impact fee assessed but did not have a building permit. Commissioner Carlson stated the Board needs to go back to when it had that discussion and see what the intent was because she is not sure the intent is what the Board is seeing right now.

Chairperson Colon stated she does not have a problem in the future if it shows that the Board’s intent is not what has been applied; she would not have a problem with the people being reimbursed, less whatever fees were incurred for inspectors, administrative paperwork, etc.; and the people who have not challenged should not be penalized because they are not present today. She stated the Board should look at the whole scope so it can see the different scenarios; and it is almost like opening Pandora’s box, but it is a door she would want to open just to take a better look at this.

Commissioner Higgs stated there are a couple of valid interpretations of the Code; the best way to do it would be to bring it back and correct it to reflect what the Board wants to say; and she does not think staff should start interpreting it differently, but should bring it back to get it fixed. She stated she would not support a reinterpretation today; and they should stay with staff’s interpretation, and bring it back to be corrected, after the Board has looked at all aspects of it. She stated there are other sides to every story; and she wants to be sure she has all those and does it right to be sure the Board gets the right intent and the right language. Chairperson Colon stated if the Board is going to do it, it should do it right one time. Commissioner Higgs stated she does not support changing the interpretation today, but would support bringing it back and seeing what the Board wants it to say.

Commissioner Scarborough stated that was the thrust of his motion because he concurs with Commissioner Carlson’s interpretation that the issuance of a building permit is a prerequisite; it can easily be interpreted that way; and he does not think the Board is doing any service by deferring that decision. He stated the Board needs to make a decision based on this request; and he would be more comfortable going ahead.

Commissioner Carlson stated it would be more prudent to flesh out the real purpose and intent of the change of use policy as it applies to impact fees; if Code is not correct in reflecting the intent, then the County should be charging; but the other side of that is looking at the time frame of those who brought this forward. She stated the Zuhlkes are looking at a time frame to try to get their facility occupied; they have someone who wants to occupy it; and if the Board can bring this back in a quick manner and get it solidified, she does not have any problem with going forward and having it brought back. She inquired what time frame can the Board get this done; with Mr. Scott responding the agenda for the July 22 meeting is full; the next meeting would be August 12; and the Zuhlkes do not have an occupational license today.

Chairperson Colon stated when she spoke to the folks, she told them not to expect anything to change today and that things would have to happen first in order to be able to get anything.

Commissioner Carlson stated the worst case scenario is they can pay and the County can refund or something like that; and that way they can go along their course and the County is not stopping anything.

Commissioner Scarborough inquired if his motion received a second; with Commissioner Carlson responding no. Commissioner Pritchard inquired if the motion changes the interpretation effective today; with Commissioner Scarborough responding existing right now and open it up for further discussion.

Commissioner Pritchard seconded the motion.

Commissioner Carlson stated she was not looking at it from that perspective; Commissioner Scarborough is saying from this point on staff should review it as that interpretation; but right now the Zuhlkes and everyone else are still in their present state having to go ahead and pay.

Commissioner Scarborough stated the County Attorney said it could be interpreted either way; Commissioner Carlson suggested sticking with the building permit; and if the Board tells staff to interpret it that way, it is going to be less pressure on staff to get things through in a hurry. He stated the Zuhlkes and everyone else will feel at least the Board is at this point and will come back and look at it for everybody. Commissioner Carlson expressed concern about going forward with that. Commissioner Scarborough stated this is on the books, but is ambiguous; and inquired if Commissioner Carlson wants to leave it sitting as an ambiguous interpretation. Commissioner Carlson stated the question would be what to do for the other six cases that are already on the books; and should they act on them or leave them the way they are. Commissioner Scarborough stated the Board can get a staff report quickly as to whether they apply or not; and if they apply and if that is the interpretation, then they need to be reimbursed. Commissioner Carlson stated her question is how was it intended to be interpreted.

Commissioner Higgs stated bringing it back and getting it right is the right course of action; there is a motion on the floor; and inquired why was it interpreted the way it was in the past and is there an instance staff can envision where there is not a building permit but the impacts may change significantly. Mr. Scott stated the reason they are interpreting it this way is that it was the Board’s intent to have change of use, regardless of whether there was issuance of a building permit, to have an impact fee if there was a net increase in the impact of services as a result of the change of use; they sought legal counsel, and brought it to the body the Board has recommended seeking interpretations from; and staff determined that this was something that would apply to change of use regardless of whether or not there was a building permit in play. Commissioner Higgs stated staff can envision a situation in which there is a change of use and the impacts change significantly. Mr. Scott stated if there was a BU-2 warehouse where there was some general industrial use that had a couple of employees making widgets, there would be no traffic beyond the shipment coming into the warehouse and the employees who are assembling to make the goods; and it would be a defined number of trips, unchanging. He stated without having to modify the structure, it may be possible to switch from general industrial to auto repair; the impact fee table does not allow incorporating the possible success of a business, but simply identifies the type of business; so, this is an instance where they are not incorporating the potential success of the business, and the change of use does not require modification to trigger a building permit, but it clearly goes through the change of use process, and results in a new occupational license being issued. Commissioner Higgs stated staff goes to an objective table that measures the trips; it is possible to see there are change of impacts when they are not triggered with a building permit; and commented on fairness.

Chairperson Colon stated there are many scenarios; this is just one of them; but there are other scenarios where there is a permit but there is not a change of use in the sense of additional impact. She outlined a scenario of an auto repair business that expands to provide a waiting room, which does not increase the impact but does require a building permit. She stated staff needs to look at all the different scenarios and try to make the best of it; and she does not want to give the audience a sense that today is going to be it.

Commissioner Scarborough stated his motion was two parts; the first is that since the interpretation is currently ambiguous, they are going with Commissioner Carlson’s interpretation that as a prerequisite the building permit has to be part of the component before getting into the issue; and the second, that it will come back for full discussion before the Board with all options being considered.

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

Commissioner Scarborough stated he does not know if the people in the audience understand what happened; basically Commissioner Carlson’s interpretation has come in, so if they did not require a building permit as part of the change, they are given a green light now because staff is going to be interpreting differently.

Chairperson Colon stated for the rest of the people who paid, that is not being taken care of today; and it will come back to the Board on August 12, 2003.

Commissioner Carlson stated that does not supercede if comments come back and the Board determines it is based on what Mr. Scott said that they would not be assessed an impact fee; and inquired if that is true. Commissioner Scarborough stated he finds it difficult for the Board to go in that direction; but he has an open mind. Chairperson Colon stated she does not want to keep people in limbo.

County Manager Tom Jenkins stated the policy now is one does not pay an impact fee unless that individual pulls a building permit; that is the policy from this moment forward; and that will remain in effect until the Board changes the policy; but he is sure the people in the audience will be going very soon for their occupational licenses so they do not have to pay an impact fee.

PUBLIC HEARING, RE: APPEAL OF STAFF INTERPRETATION OF SURFACE WATER
PROTECTION ORDINANCE

Chairperson Colon called for the public hearing to consider an appeal of staff interpretation of the Surface Water Protection Ordinance.

Brian Ziegler stated he is an orthopedic surgeon and his wife, Cynthia Halcin, is a dermatologist; and they both currently live and work in Brevard County. He stated they are present today to appeal a staff decision regarding building setbacks on a unique piece of land in Merritt Island, bordered by Honeymoon Lake and the Indian River; they desire to build a home there for themselves, their three children, and their parents; but unfortunately the land they wish to build on, while beautiful, has many unique features that make it challenging to build on. He stated in spite of the care they used in designing a home that would protect the environment to an even greater degree than required under current Code, the staff felt it was unable to allow the setback reduction they requested; thus, they are appealing the staff decision in hopes the Board will recognize that their building plan is actually permissible under the current Surface Water Protection Code and will protect the environment to a much greater degree than a home built without setback relief. He stated he will leave the construction details to his contractor, but will point out several reasons they should qualify for the reduction they requested. He stated the land they wish to build on is highly unique, consisting of two and one-half acres over 1,000 feet long and narrowing to a point of a triangle; it is surrounded by water on both sides; and the widest area of the lot is reserved for a septic system. He stated staff determined that without the setback reduction, there was enough buildable lot to construct a 2,000 square-foot dwelling, which is the minimum required under SEU zoning; and staff denied their request for the allowable reduction under the Code to 15 feet from the lake and 25 feet from the river. He stated unfortunately staff did not take into consideration the narrow and elongated shape of the building envelope, nor did it consider the steep eight-foot grade change present across the width; construction necessities such as driveways, stairs, and stemwalls will narrow the building envelope even further, making a 2,000 square-foot home a practical impossibility, requiring an astronomical per square-foot cost, if it were even possible to accommodate the terrain; and staff suggests a building envelope that encompasses just one-tenth of the acreage of the lot and a house size that falls far short of the average for the neighborhood, in spite of neighborhood lot sizes being vastly smaller than the one they are interested in. He stated the Code allows a setback reduction if there is insufficient depth to build primary and accessory structures permitted under the zoning rules; and there is insufficient lot depth to build the home they desire without the allowed setback reduction, so they should be permitted to do that. He stated staff has taken that a step further; staff regularly grants setback reductions to expand into the buffer zone for existing homes built prior to 1988, while not granting this same relief to new construction such as he is planning; but nowhere in the Code does it make this distinction; and in the interest of fairness, he believes he deserves the same consideration. Dr. Ziegler stated they have gone to great lengths to insure their development plan achieves a higher standard for environmental protection that is required under the current rules; while current rules require a stormwater system to capture one inch of runoff from any impervious surface that encroaches on the buffer zone, they have developed an engineered system to capture runoff from the entire impervious surface area of the entire building envelope, offering an even greater level of protection than a minimum-sized home constructed without setback relief; and when combined with the careful design, which has no impact on the wetlands and has planned removal of all non-native and invasive plant species from the entire two and one-half acre lot, the home design they have presented offers the highest possible standard of environmental sensitivity, far exceeding the current level of protection the Surface Water Protection Ordinance requires. He stated they have met extensively with officials at Planning and Zoning and Office of Natural Resources Management; and they all agree the development plan would protect the environment to a greater degree than construction without setback relief. He reiterated thoughtful environmentally-sensitive development is allowed under the current Surface Water Protection Code; staff has taken too narrow a view of when setback reductions should be allowed under the current Code; and nowhere in the Code does it say existing homes should be allowed setback reductions to expand into buffer zones with only minimal attempts to prevent runoff, while new construction, which is carefully designed to protect the environment to a greater degree than required should be rejected.

Keith Brockhouse, President of CDMA and a general contractor for 16 years in the County, stated he was hired by the applicants approximately nine months ago to assist them in their investigations and design attempts on a piece of property they found at the end of Randon Lane on South Merritt Island. He stated it is a unique piece of property that is over 1,000 feet long and 175 feet wide at its widest point tapering to roughly 40 feet; and pointed out on a drawing the area that can accommodate a septic tank system and the area where they would be allowed to build. He stated they hired environmental consultants, civil engineers, and septic tank engineers; they made application to the Consumer Health Department for an advanced secondary distribution system, which is a $25,000 septic tank system; and that is the only way they could get the setbacks reduced to the 50 feet to allow them to build within the envelope. He stated they have already prepared a preliminary wetland enhancement plan to improve the plantings along the shoreline on the Honeymoon Lake side; and they created a complete stormwater engineering system for one inch of stormwater runoff over all impervious surfaces, which is in excess of what the Code would require. He stated in theory they could walk in, building a box there, and not have to worry about stormwater, wetlands, or anything else; but that is not practical. He stated the eight-foot grade change they have to accommodate means even the driveways are going to have to have four to five-foot retaining walls; commented on the need for railing systems and landscaping; and advised with over $10 per square foot being assessed to a septic system, it is economically impractical. He stated no lender will touch it; it cannot be financed; and it appears staff’s interpretation on that basis means that the Stormwater Management Act is not designed to stop construction, which in this case it would. He advised of his clients’ willingness to respond to his suggestions and overdesign the plan; and stated they wish this to be their dream home with their children and parents residing there. He stated the only mechanism they have is to come to the Board and challenge staff’s decision saying that only the minimum square footage allowed under SEU zoning is the criteria that should be established; they are building a home that is consistent with SEU zoning; they are providing everything and more that is being asked for to qualify for the setbacks; and they are only asking for a reasonable interpretation that allows the property to be developed, because otherwise he does not think it can be developed. He submitted site plans to the Board but not to the Clerk.

Commissioner Higgs stated when she met with the applicants she thought they had a sizable house on the property; and inquired what is the current proposed square footage; with Mr. Brockhouse responding the footprint on the first floor is roughly 3,300 square feet, and it is a two-story structure. Commissioner Higgs stated it is 6,600 square-feet without any kind of waivers, variances, or anything else; with Mr. Brockhouse responding no, they would be required to have the waiver in order to accommodate the 3,500 square-foot first floor. Commissioner Higgs inquired how much could they get with no waiver. Mr. Brockhurst stated the 50 and 25-foot setbacks are not building setbacks; they are nondisturbed area setbacks; and they have to accommodate driveways, landscaping, and the stairway entrances, so they could probably get around 3,000 to 3,500 square-feet if they were content with a more rectangular box fashion. Commissioner Higgs inquired if that would be on the ground on a single-story; with Mr. Brockhouse responding they could get approximately a 2,000 square-foot floor plan. Commissioner Higgs stated if they went to 35 feet times 2,000 square feet that would be a 6,000 square-foot home; with Mr. Brockhouse responding if they were willing or forced to take a three-story structure, but he is sure Dr. Ziegler’s elderly parents would object. Commissioner Higgs stated the average square footage according to staff is 4,276 square feet; and inquired if Mr. Brockhouse disputes that; with Mr. Brockhouse responding he would not dispute staff’s access to the information, but most of those are single-story structures, and their footprint is smaller than that.

Commissioner Pritchard stated he is familiar with the strip of property; it is a beautiful piece of property and very unusual; and he can understand the issue; but across Honeymoon Lake are two 12,000 square-foot homes and in Hacienda del Sol there are homes that are 6,000 and 7,000 square feet. He stated there are smaller houses on big lots; there is a treehouse-looking house that is approximately 30 feet up in the air; there are some very large houses; and on the ridge, there are 12,000 square-foot houses. He stated the interesting thing about the property is that it is so unusual and so expensive; it is approximately $600,000 for the property; and a 2,000 square-foot house does not go on a $600,000 property.

George Lewis, realtor with Remax Service Team, representing the seller of the property, advised the seller has owned the property for a long time; it is not something that was just purchased; and the price of $600,000 was thrown around, but the owners spent a couple of hundred thousand dollars just to get access to the property from the owners to the north as well as paying taxes on it for years. He stated the owners are elderly; they have no personal need for the property, and would like to dispose of it; and they would like to sell to a nice family that is going to have a nice environmentally-sensitive home. He requested the Board consider the setbacks and perhaps some little meaning in the rules and regulations that staff may have overlooked that could make this work.

Office of Natural Resources Management Director Conrad White stated when staff interprets the Code, it looks at what is the building envelope and what is the zoning classification; in this case the zoning classification is SEU with a minimum size of 2,000 square feet; their calculations show 11,000 square feet; so, staff’s interpretation is clearly there is sufficient lot depth to build a house with a minimum square footage of 2,000 square feet. He advised they can configure any size home within the 11,000 square feet as long as they meet the zoning regulations.

Chairperson Colon inquired about the $25,000 they are spending for the water. Mr. White advised the current regulations require the retention of one inch of stormwater on any lot regardless of whether they are going into the setback area or not; and current regulations require removal of all non-native invasive plants for new development. Chairperson Colon inquired if Mr. Brockhouse was explaining they spent $25,000 for a septic tank; with Mr. White responding there are certain State requirements for a septic tank system; and the only area where they can install it is on the north property line; but outside of the septic tank area, there are 11,000 square feet of developable area without going into the setback area.

Commissioner Pritchard inquired what is the purpose of the setback area; with Mr. White responding the setback area is primarily targeted toward stormwater, but also includes looking at maintaining some natural areas along the surface water bodies, particularly the Indian River Lagoon. Commissioner Pritchard stated the system the applicant is talking about putting in greatly enhances the environmental aspects that are the intent of the setback ruling; they are putting in a retention system that is state-of-the-art; and it is going to be much better than if they were to put a 2,000 square-foot footprint home leaving vegetation as it is. Sherry Williams with the Office of Natural Resources Management stated the Code requires all properties, whether created before or after 1988, to retain one inch of runoff from all impervious surfaces, so whether it is a quarter-acre or two and one-half acre lot with a 1,000 square-foot home or a 6,500 square-foot home, all new development has to provide one inch of retention of stormwater runoff. Commissioner Pritchard stated that is what they are going to be doing; with Ms. Williams responding they would be required to do that regardless of what size house they put in. Commissioner Pritchard stated they have undertaken the option of spending quite a bit of money to have a stormwater retention system configured as part of the construction of a larger home; staff said 2,000 square feet is the minimum footprint; and inquired what is the maximum that could fit onto this property. Mr. White responded he is not an engineer and would hate to speculate; it would be necessary to look at all different factors such as height restrictions, access points, accessory structures, and so on; and to calculate that would be very difficult for staff as it essentially looks at the footprint on the ground. Commissioner Pritchard stated this is a meandering house; it was designed to enhance the configuration of the lot; and inquired how long is the house. He stated the property is 1,000 feet long; if the house is 100 feet long, that would leave 900 feet of property; and it is going to be improved by removing all the invasive and non-native species along the full 1,000 feet. Mr. Brockhouse stated as staff has advised, they are required to do that; but they are not required to do the wetland enhancements they have proposed, among other things. Commissioner Pritchard inquired how long is the house; with Mr. Brockhouse responding 125 linear feet. Commissioner Pritchard stated it is pretty well gerrymandered to fit; with Mr. Brockhouse responding they are leaving as much in a natural condition as possible while still having a playground and accommodating the accessory structures that are normal for most homes in any zoning. Commissioner Pritchard stated if the house is going to occupy 125 feet, which leaves 875 feet. Mr. Brockhouse stated they have the retention area designed to the south, so they would have approximately 730 linear feet of completely undeveloped property; and they will be developing less than 20% of the property and enhancing the other 80%. Commissioner Pritchard inquired if the property can be subdivided into other lots; with Mr. Brockhouse responding no, it cannot. Commissioner Pritchard inquired about access from the south; with Mr. Brockhouse responding if they tried to do that, it would be deeded after 1988, which would mean they would not even have the possibility of the exception to the setbacks and the whole property would be unbuildable.

Chairperson Colon stated Mr. Brockhouse mentioned wetlands enhancements; and inquired what else they are doing that is above and beyond what is requested; with Mr. Brockhouse responding their advanced secondary distribution system is a state-of-the-art waste management system; but they are required to do it because that is the only way they can get one on at all; and otherwise the 75-foot setback requirement from the surface waters would lave a triangle-shaped piece, which could not accommodate a septic tank system. He stated even their waste products are going to be considerably better treated and the surface water management quality is going to protected even further. Chairperson Colon inquired if this is required; with Mr. Brockhouse responding it is required for the property to be developed at all; but it takes 40 feet from the north property line of the most developable area, which is another reason they are ending up working with a snakelike house and another reason they need the reductions.

Assistant County Manager Stephen Peffer stated as Mr. White has said, when they met with the applicants and each Commissioner, they tried to point out that the dilemma staff had in reviewing the proposal is the language of the Ordinance; and read aloud, “only if it can be shown that there is insufficient lot depth to allow development of the primary and accessory structures permitted and defined by the existing zoning classification of the property and if all other alternatives and remedies are not applicable may we reduce the shoreline buffer.” He stated in this case it is definitely a very unusual piece of property; but in the request to allow an alteration of the setback or a deviation from the setback, staff has to look at the sufficient lot depth aspect; the interpretation has to rely on whether or not one could build a home there that is consistent with the zoning category; and one of the issues is that the proposal is for a much more luxurious house. He stated the applicants have proposed a lovely home; but staff is not in a position to make the arbitrary decision as to what should be allowed on the property as opposed to what the Code specifically says, so staff’s interpretation of the Code is being challenged. He stated if the Board feels staff has interpreted incorrectly, staff would be grateful to get guidance from the Board as to the correct interpretation as it did with the last item where the Board said henceforth staff would look at the rule differently; however, staff does not feel it has any discretion available to read this in any way differently. Mr. White advised the Comprehensive Plan also has the same language, so if the Board decides to interpret this differently or ask staff to make that change, it would also have to go through a Comprehensive Plan change.

Commissioner Carlson stated she met with the applicants and asked if there were any compromises they could make, given the Board has always held a strong position on stormwater issues and surface water issues; she recalls some of the Board discussion when the Board decided to do this; and as Mr. White advises it is in the Comprehensive Plan. She stated the Board did not do this matter-of-factly; it does not do something as a one-instance kind of thing; and it is not going to change the Comprehensive Plan for everybody because there would be an impact to consider. She stated there is 11,000 square feet of buildable property, although she agrees there are some challenges to the layout of any home the applicant would put there; she agrees a beautiful home is anticipated to be put there; but she is not sure the Board can go farther than what it has given and what the language says, which is mimicked in the Comprehensive Plan. She stated she stands pretty strongly on the Comprehensive Plan and the things the Board has tried to put into effect; and she would not vote for this particular item.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to deny the appeal of Keith Brockhouse, on behalf of his clients Brian Ziegler and Cynthia Halcin, of the staff interpretation of the Surface Water Protection Ordinance.

Commissioner Pritchard stated the Board at one time discussed a condominium that was going to encroach into the setback but they had designed, as part of that condominium, a stormwater retention system that was going to greatly enhance stormwater retention rather than having it run into the Indian River; and that was Island Pointe. He stated the Board discussed the issue including the Comprehensive Plan, but it kept coming back to preventing and treating the runoff; and that is what he sees here. He stated this is a unique piece of property; the opportunity to use it properly is being performed by the applicants and the engineering firm; what they are doing is asking to gerrymander the house on the property that will enhance the value of not only that property but surrounding properties; and for the contract sale price of $620,000, one does not put a smaller house of 2,000 or 3,000 square feet. He stated one does not do certain things when one has certain types of properties; the applicants are doing everything they possibly can to enhance the property and the environment; they are taking precautions that are noteworthy; and the Board should recognize what they are doing to add value to the environmental aspect of what they are constructing. He stated he would not support denying their ability to do this; they should be allowed to get into the areas that they would like to drop from 50 feet to 25 feet and from 25 feet to 15 feet; and the ability to do that is here, so the Board should allow that to happen.

Commissioner Scarborough stated he agrees with Commissioner Carlson; he met with the applicants and their representatives last week; Mr. White and Mr. Peffer were also present; and the problem is this may get into a very subjective discussion. He commented on building something nicer, getting architects, lack of full-enough discussion on how that should occur, and getting into layout of the property. He stated the Ordinance does not give staff any discretion beyond what has been described; and unfortunately for the applicant, the only recourse is to come back and revise the Ordinance, which would also require revision of the Comprehensive Plan as well.

Commissioner Pritchard stated he thought he heard there is an ability to reduce the setbacks from 50 feet to 25 feet and from 25 feet to 15 feet. Mr. White advised that is if there is insufficient lot depth for building, and that is the critical point. Commissioner Pritchard stated it all hinges on having sufficient depth to build a 2,000 square-foot house. Mr. White stated it hinges on the Zoning Code and whether or not they are able to construct the dwelling on that lot. Commissioner Pritchard stated in this case that leaves about a 2,000 square-foot house; with Mr. White responding it leaves 11,000 square feet that could be utilized in constructing a dwelling. Commissioner Pritchard inquired about the dimensions of the 11,000 square feet, noting it is a narrow configuration; with Mr. White responding as constructed, it would be a long linear house. Commissioner Pritchard stated it could be talking about a building area 20 feet wide by a certain length; with Ms. Williams responding the minimum lot depth for the developable area ranges from 75 feet to 50 feet for the major portion. Commissioner Pritchard inquired about the driveway and pool; with Ms. Williams responding staff does not include the driveway as part of the developable area because they would be allowed access to their property, so it is just 11,000 square feet excluding the septic tank area and driveway.

Chairperson Colon called for a vote on the motion for denial. Motion carried and ordered; Commissioners Pritchard and Colon voted nay.

TRANSPORTATION IMPACT FEE CREDIT AGREEMENT WITH OAK GROVE, LLC, RE:
CONSTRUCTION OF EXTENSION TO FLORIDA AVENUE

Commissioner Higgs stated she has a problem with the whole process because it was a part of the South Brevard Study; a considerable length of time was involved with this road; the presentation to the public did not include it as being a through road; and she understands the City of West Melbourne says it is okay and the MPO, without a rehearing to the public, is saying it is part of the plan; but she has a problem with it.

Chairperson Colon inquired if the MPO approved it; with Commissioner Higgs responding the MPO approved the inclusion of it in the plan. Chairperson Colon stated she is in favor of the transportation impact fee credit agreement with Oak Grove, LLC.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Transportation Impact Fee Credit Agreement with Oak Grove, LLC in the amount of $294,346.30 for construction of an extension of Florida Avenue. Motion carried and ordered; Commissioner Higgs voted nay.

SETTLEMENT OF APPEAL FROM DENIAL OF VESTED RIGHTS DETERMINATION, RE:
TIMOTHY AND KAREN NIELSEN

County Attorney Scott Knox stated this a counterproposal made by the Nielsens; they had offered to settle for $75,000 and a guarantee of a variance to setbacks; they have now dropped the variance request; and the amount being proposed is $62,500.

Commissioner Pritchard stated this issue dealt with the 35-foot height above the garage; there was some confusion and misinterpretation; there was a certain amount of reliance; and he would agree that $62,500 would be a good way to bring closure to this.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to execute Settlement Agreement with Timothy and Karen Nielsen in the amount of $62,500 for denial of vested rights determination. Motion carried and ordered unanimously.

RESOLUTION, RE: FINDINGS OF FACT FOR DENIAL OF REZONING FOR AZAN TEMPLE
HOLDING CORPORATION

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution setting forth the findings of fact and conclusions of the Brevard County Commission pertaining to the denial of a request for RU-2-12 by the Azan Temple Holding Corporation, Inc. Motion carried and ordered unanimously.

STAFF DIRECTION, RE: OUTDOOR MUSIC ACCESSORY TO OUTDOOR RESTAURANT
SEATING

Planning and Zoning Director Mel Scott stated as part of the discussion the Board had regarding the outdoor restaurant seating ordinance, which will be coming before the Board for final reading in August, the notion of providing outdoor music accessory to outdoor restaurant seating came up; the Board directed staff to provide an overview of the issue for further discussion; and he is hoping to briefly outline the ways in which the cities and the County currently regulate outdoor music, the two ways one might have outdoor music in unincorporated portions of the County, and then options for the Board’s discussion regarding how it may or may not decide to have staff proceed with this idea. He stated the Board could go with taped versus live music, make distinctions between amplified and non-amplified music, or have staff try to devise a permitted with conditions scenario where they could look at surrounding uses and zoning, which might mean that restaurants that are surrounded by commercial uses might be able to enjoy a degree of outdoor music accessory to outdoor seating, while those within residential communities might not. He stated it is up to the Board to have some discussion and decide whether or not to pursue this idea.

Chairperson Colon stated she likes the third option, take no action.

Commissioner Pritchard stated when someone goes to a restaurant, he or she would not mind sitting outside on some of the more pleasant nights listening to some background music; but he is not talking about rock concerts or having a band, especially now with the no smoking regulation; it gives people another place to sit, relax, and enjoy the evening; and he would like to see staff come back with a more focused idea as to what could be done in order to provide this. He stated there is the issue of live versus taped music; it is easier to control the volume of taped music; controlling the volume on live music would be dependent on whether they were on amplification; and the time is right to address this as well as the zoning issues. He stated he agrees if there is a restaurant near residential, there needs to be a diminished sound from the restaurant; and he would like staff to come back with recommendations on how to construct this so they can make background music available for restaurants.

Commissioner Carlson stated in discussion with staff, everyone came to the same conclusion; most of the establishments that have outdoor seating have a link to outdoor music that is attached to the building and there is no amplification unless it is part of the building, which she does not think anyone would have a problem with; and the issue in her district concerns special event permits that allow very high amplification of music, which seems to be exempt from noise regulation. She stated she has a problem with that; but she has no problem with bringing this back to look at it in terms of legislative intent and permission to advertise, so it can be regulated, especially around residential communities. She noted she previously asked for a report concerning the special even permits; and inquired about the status of the report. Mr. Scott stated approximately two months ago the Board received a memo identifying the ways in which one can obtain a special use permit and the ways in which noise is regulated in the County.

Commissioner Pritchard stated he agrees regarding the special event permit in particular; he knows the venue Commissioner Carlson was talking about where it blasts across the water to a residential neighborhood; in that case there are two miles of water, which amplifies the sound and carries it over; but that was addressed as was the restaurant north of SR 528 that is on the river where the Board denied the special event permit based on the one that had been issued previously. He stated this is a little different; and he would like to see it come back.

Commissioner Scarborough stated he is of the same opinion; music with dinner can add to the ambience; and in the winter months, the County can have some of the nicest weather in the country. He stated the Board needs to be sensitive to the type of music, the amplification, and whether or not the property abuts residential areas; and it cannot describe the type of music, but by putting certain parameters, it can be less offensive. He cautioned once the Board does this it is going to have the potential of having a whole neighborhood come out and want to have this abolished.

Chairperson Colon stated she is not sure if that is a yea or nay; with Commissioner Scarborough responding it is yes, with proper tweaking.

Commissioner Carlson stated Mr. Scott said a couple of months ago, the Board got reports; she would like this agenda item to include those activities that occur when there is a special event permit in terms of how it is amplified; and inquired if this would be the proper place to put limitations on that sort of thing. Mr. Scott advised currently the special events permit exempts the event from the Noise Ordinance. Commissioner Carlson stated that is the whole point of getting the information back; in the case she has been referring to, it has not been in the best public interest for those who live in the area, whether across the water or next door; and she is not sure how that can be regulated. She stated most of the questions come back to her when there is issue across the water. Mr. Scott suggested doing the special events permit, which is a separate Ordinance in a different section of the Code, on a different track running parallel to the other issue. Commissioner Carlson stated that would be fine to bring them both back together.

Chairperson Colon inquired how many calls does Code Enforcement get on a yearly basis about noise from music; with Code Enforcement Director Bobby Bowen responding not that many; most are permitted; and there are occasions where the sound bleeds across the water, but not very often.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to direct staff to return to the Board with a combined legislative intent/permission to advertise regarding outdoor music that may be offered by restaurants in conjunction with outdoor eating and see where the County could regulate it, especially near residential communities, and bring back special events permits on a parallel track. Motion carried and ordered; Commissioner Colon voted nay.

PERMISSION TO ADVERTISE, RE: ORDINANCE REGULATING TOW TRUCK PARKING
AT LISTED ADDRESSES

Planning and Zoning Director Mel Scott stated staff is bringing this back for the Board’s consideration; and it includes the recommendations of the Board made previously. He stated they have also include the provisions that would be found in similar administrative permits that can be issued under certain conditions for heavy equipment such as the parcel must be developed as a single-family residential lot and must have signatures of all property owner within 200 feet of the proposal.

Chairperson Colon stated some homeowners associations have been in opposition to this; and inquired if they will be notified. Mr. Scott stated if the Board directs staff to advertise this ordinance, it is not typical to identify particular neighborhoods; but if the Board wishes, staff can attempt to do that. He stated the genesis of this issue was the result of a resident who owns a tow truck business and had a Code Enforcement issue because he was parking the tow truck at the residence; the discussion was at the Board level; and that has brought the Board to this place. Chairperson Colon stated each Commissioner knows who has had issues in their District; and they could let those homeowners have a say.

Commissioner Higgs stated this is a bad idea.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct staff to take no action to advertise an ordinance allowing parking of tow trucks at residences.

Commissioner Pritchard stated the intent of bringing this to the Board’s attention was because of the issue of having timely response so that vehicles could be removed in cases where some sort of enhanced extrication is necessary; many times it is the tow truck that has the capability; and a fire truck may not have a winch to pull something out of the water, which could be the difference between life and death. He stated the Brevard County Traffic Incident Management Team has reviewed a policy between Florida Highway Patrol and Florida Department of Transportation called the Open Roads Policy; it was adopted in November 2002; and it states the intent is to expedite the removal of vehicles, cargo, and debris from roadways on the State highway system to restore in an urgent manner the safe and orderly flow of traffic following a motor vehicle crash or incident on Florida roadways. He stated the purpose of the policy is to make the roadways safer for incident responders and the motorists; there are only two states that have such an ambitious goal for quick clearance, Washington and Florida; in Florida if a lane or road is blocked there is a 33% chance of a secondary crash occurring; and Florida is the highest in the nation for that. He stated a 15-minute blockage of a major road has an economic price tag exceeding $50,000; when he was on the fire department, arriving at an accident, their first call was for a tow truck to get the vehicles off the roadway; it is necessary to get the lanes open, remove the debris, and treat people properly; and the best way to do this is to have as rapid a response as possible. He stated this issue came about because many of the tow truck companies are having to leave their trucks quite a distance from where they reside; at the time accidents happen, the truck and operator may not be together; so, they may have to get in their car, go pick up the truck, and come back, only to find they have passed the accident twice in route to get the tow truck. He stated he would like to bring this back to a meeting in August; he received several phone calls from tow truck companies that wanted to be here but could not today; and they would like to present their issues. He stated this is not just a matter of making it convenient for the tow truck operators; it is a matter of public safety; and it also has an economic price tag. He stated the Board will do a disservice if it shuts down the discussion today; and he would like to see this brought back.

Chairperson Colon stated this was on the agenda; anyone who wished to speak in regard to the issue was more than welcome to be here; it was also discussed at the last meeting; and she does not know what difference it would make to put it back on the agenda, as she knows it would not change her mind about supporting this.

Commissioner Pritchard stated the reason why the operators chose not to come today was because the agenda says “permission to advertise”; it does not say anything about shutting down the discussion; and the drivers did not realize the ramifications if the Board denied the advertisement.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioner Pritchard voted nay.

Chairperson Colon stated the tow truck drivers are more than welcome to come to speak under Public Comment.

APPROVAL OF MINUTES

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve the Minutes of the January 14, 2003 Regular Meeting (Revision), March 18, April 8, April 29, and May 1, 2003 Regular Meetings, March 6 and April 10, 2003 Zoning Meetings, and May 15, 2003 Special Meeting. Motion carried and ordered unanimously.

The meeting recessed at 3:12 p.m. and reconvened at 3:20 p.m.

APPEAL OF ADMINISTRATIVE DECISION, RE: ISLAND LINCOLN MERCURY, INC.

Philip Nohrr, representing Island Lincoln Mercury and Bruce Deardoff, stated they are present today appealing a decision denying any exemption from the Impact Fee Ordinance, specifically dealing with the Transportation Ordinance. He stated Island Lincoln Mercury has been in business at its present location for 18 years; prior to that the previous owners were at the same location for six years; starting in 1999 the trends at this business showed they were faced with decreasing market shares both from imports and from the type of product they were selling; and as a result, faced with a decline, they started looking at what they could do. He stated they were losing business; they could upgrade with the hope of maintaining their existing business base and/or reduce the level of loss that they were going to see in the future; and either way, any additions or improvements to their property were not meant to generate additional traffic. He stated their problem is not unique; it is a problem that a lot of business owners who have been in a location for a number of years have; and that is how to keep up and maintain competitiveness. He stated the fact that they increase the size of their property or business does not, in and of itself, support the fact that they are going to generate additional traffic on the road. He submitted paperwork to the Chairperson but not the Clerk; and stated Mr. Deardoff has spent a lot of time and effort in coming up with a bold plan to keep his existing customer base; he not only planned for the modernization of his existing facilities, but added amenities to try and keep the customers already coming to his place of business; and the amenities included things like a theater, haircuts, and a computer room. He stated the amenities were not for the general public, but were for the people coming to his place of business to buy a car; and too much attention has been placed on these amenities, which constitute less than 25% of the expansion. He stated the amenities are not the issue here; they are not adding additional trips; and they submitted a letter to staff that says a persuasive argument can be made that they actually reduce trips. He stated Section 62-808(a) says, “any person who, after the effective date of the Ordinance from which this division is derived, seeks to develop land by applying for a building permit to make an improvement to land, which will generate additional traffic”; the theme through the whole Ordinance is whether it will generate traffic; and if it does not, the basic threshold has not been met. He stated it is their contention that the net effect of their redevelopment will not increase traffic; and without that there is no basis for an impact fee assessment. He stated the paperwork he submitted shows the sales of new and used cars at Island Lincoln Mercury since 1998; the first page just shows January to June 2003; since 1998 there has been a decrease in sales of new cars of 22.1% and 22.7% of used cars; the second page talks about the full year through calendar year 2002; and the percentage of decrease is less at 19.5% for new cars and 9.3% for used. He stated in any event it is conclusive that there has been a reduction in sales.

Chairperson Colon stated Mr. Nohrr’s time has expired.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to allow Mr. Nohrr additional speaking time. Motion carried and ordered unanimously.

Mr. Nohrr stated the renovation is now complete; the months of May and June have been included; so, there is a comparison between 2003 before the renovation was complete and 2003 since the completion; and there is a decrease occurring. He stated going back to the assumption of increased traffic, it is not there; and commented on sales in general between domestics versus imports. He stated in Brevard County in 1998 foreign cars made up 42.6% of the sales and domestics made up 57.4%; and in 2003 the foreign imports have gone to 63.8% and domestics have gone to 36.2%. He stated in trucks, the foreign imports had 22.8% and domestic had 77.2% in 1998; and in 2003 imports went to 35.1% and domestics had decreased to 64.9%. He stated in Merritt Island, the foreign imports made up 45% in 1998 and in 2003 they had increased to 68.1%; domestics had decreased from 55% to 31.9%; and for trucks, the imports had gone from 24.2% to 39.8% and domestics had gone from 75.8% to 60.2%. He stated these are the facts for the automobile industry and any dealership that is selling a domestic brand; and Island Lincoln Mercury only sells domestic products. He stated the Board can question the business decision of Mr. Deardoff; but the bottom line is if the Board takes the position that an increase in square footage will generate additional traffic on the road, which is the basis under which the study was done for the Ordinance, it fails that test here. He stated Section 62-815 deals with exemptions; and the only one he found that might apply says, “the replacement of a non-residential building or structure with a new building or structure of the same size and use provided that no additional trips will be produced over and above those produced by the original use of the land.” He stated they cannot get there because they have increased the size; but the exemption talks about not increasing the traffic; and inquired what difference does it make and what logic should there be if the size is increased and traffic is not increased. He stated the Ordinance says as long as one keeps the same size and does not increase the traffic; but it is not the size but the increase of traffic that has to be addressed; that is their problem and where they are hamstrung; and they cannot tuck themselves into one of the exemptions to get where they need to be. He stated it has been suggested it is an all or nothing decision; but that is not the case. He referenced Section 62-303 (3), says, “Upon hearing such appeals the Board decision shall not be contrary to public interest where owing to the special conditions a little enforcement of the provision of this chapter will result in unnecessary hardship, so that the spirit of this chapter shall be observed and substantial justice done”; and that gives the Board substantial rights and leeway as does subsection 2. He stated they do not believe they should be forced into spending at least $15,000, which is what an alternative study would cost to deal with traffic engineering; and that is what they are talking about because a traffic engineering study does not deal with marketing or sales and does not get to the issue of whether there will or will not be more customers. He stated they are forced into a box that they should not be; and they do not believe that was the intent.

Bruce Deardoff stated the renovation that was done in Merritt Island is not going to increase traffic on any Brevard County roads; and the overall effect of the facility design is to reduce trips. He stated the employees and customers will now eat in their restaurant rather than leaving for lunch; and with 80 employees, that is a reduction of 80 to 160 trips per days. He stated the customers will work out in the health club, get a haircut, or watch a movie while they get their car serviced rather than having their next door neighbor follow them or take a loaner car, so that is going to reduce trips. He stated the employees after work usually go to the mall to work out at the health club; now they are going to work out at the onsite health club; and the whole facility design is about reducing traffic trips. He noted that was not the reason he did the renovation; but it happens to be an effect of it. He stated they are a mature business; they have been there for 18 years; they have a customer base; a new facility is not going to change their sales; and if it would just keep the customers, he would be happy. He stated the only thing it is going to do for him is to double his taxes; he had several discussions with staff, primarily Mr. Scott and Mr. Swanke; they were most sympathetic; but the Ordinance tied their hands and there was nothing they could do. He stated the Board is the only body that can do anything.

Planning and Zoning Director Mel Scott stated the issue has been framed very well by Mr. Nohrr; the issue is that there was a 50,000+ square-foot expansion to the business; and what is being appealed is the assessment of an impact fee only on the 9,000+ square-feet, which is being characterized as the amenity space that is part of the auto dealership. He stated staff wrestled with this and did not make its decision lightly; and it sought the input of in-house traffic engineers. He stated the amenity space includes a therapeutic massage, stock trading, apparel retailing, food services, video exhibition, a fitness center, and a barber shop; even though they were not being offered with the intent of having the general public benefit from them, the businesses within the amenity space can receive customers from the general public; and so, it became difficult for staff to rationalize the exemption of the amenity space because it could lure trips off the road. He stated they recognize there is a mixed use component, which they applaud the owner of Island Lincoln Mercury for; but with the ability to draw trips off the road and this being a substantial increase, staff was hard pressed to justify the elimination of this impact fee for the space. He stated staff continues to keep its mind open to alternative solutions; and with the impact fee schedule, it is able to identify the uses specifically and attach an impact fee to them. He stated if the 10,000 square-foot amenity space is acting as a mixed use component of the development, that would justify the assessment of the retail impact fee, which is lower than the new and use car dealership impact fee; if 10,000 square feet of the business are going to be dedicated to a sundry of amenity uses that are retail based, the Ordinance justifies that assessment; that will have the effect of reducing the impact fee by $10,000; and he offers that as an alternative solution.

Chairperson Colon stated it makes it difficult if it is not understood that this is supposed to be just for customers; if it is for people from the outside, then it is a completely new business; and inquired if the owner is going to allow folks from the outside who are not customers. Mr. Deardoff stated they have a concierge who sits at a desk in front of the area; if someone is not an Island Club Customer, which means they bought a new or used car from Island Lincoln Mercury, they are not allowed in that space; there has been a bit of a dilemma concerning
customers coming in for service who did not buy their car from the dealership; and they have not allowed them upstairs, but have set up a separate waiting room downstairs for them. Mr. Deardoff stated while he appreciates the offer allowing a $10,000 reduction if it is space anyone can use, it is not; and it is all part of the customer waiting area, which can only be used by Island Lincoln Mercury customers who have purchased new or used cars. He invited the Commissioners to try and get into the space; and stated if they do not have an Island Club Card, they will not get in.

Commissioner Higgs stated functionally the 10,000 square-foot space functions in a manner similar or the same as retail space; and inquired if Club members using the facilities pay additionally. Mr. Deardoff responded no, they do not pay anything; and it is a glorified customer lounge.

Chairperson Colon stated she heard stockbroker and things like that; and that is for the high end folks while they are waiting. Mr. Deardoff stated they call it a stock trading room; but it is just a couple of computers; and people can go online and do anything they want. Chairperson Colon stated the key thing is whether they are being charged. Commissioner Higgs inquired if they do not charge for haircuts; with Mr. Deardoff responding they do charge $2 for haircuts; and explained the rationale for the nominal charge. Commissioner Higgs inquired would customers have to buy food; with Mr. Deardoff responding having the restaurant there is just a convenience; and they would have to pay for the food. Mr. Deardoff advised the restaurant is just for customers and employees; and it is not open yet because of permitting problems.

Mr. Scott advised it was explained to him that a haircut would be $5 for a preferred customer and $10 if someone came in off the street. Mr. Deardoff stated that may have been, but as this evolved, they have run into a lot of things, such as what to do with customers who did not buy a car but are just in for service; and they are making them sit downstairs. He stated they had a lot of discussions with staff about this; initially they started not wanting to pay anything; and they discussed various exemptions trying to reach a solution. He stated in all those discussions, they kept getting turned down; they asked for less and less, but were still turned down; there is the idea that the only thing they are appealing is the amenity space, but that is not true; and it just happens to be the last thing they asked for.

Chairperson Colon inquired what happens if the amenity is not cost effective, yet everything is in place for the barbershop, restaurant, etc.; and how would the County protect itself from anyone being able to come in or the dealership being able to lease out the space. Mr. Deardoff stated someone would have to get a license; and then it would go back to whether a building permit is required. Mr. Scott advised it would be change of use with no building permit required. Mr. Deardoff stated it would be a change of use because it is not a barbershop but a customer lounge that happens to have a barbershop in it. Chairperson Colon stated she is just giving a worst case scenario.

Commissioner Carlson stated the previous discussion was about change of use with no building permit and not collecting an impact fee; but the Board was not sure about that. She stated many, if not all of the Commissioners have been in business or done marketing; one would be hard pressed to see something like what is being discussed fly if it is only with an employee base; so even though that is the intent, it seems that it would be difficult to make the margins. Mr. Deardoff stated he wishes the Commissioners would look at the space; it is not a big thing; the stock trading room is four computers in a tiny room; the health club is large, but there are 80 employees and all their customers; and they have been limiting employee use because it was interfering with customer use. Commissioner Carlson stated Chairperson Colon is saying down the road if something does not work out, Mr. Deardoff may lease the area or sell it; and the next person who comes in for change of use would not pay impact fees at all. She stated the impact of the 50,000 square-foot addition would not have an impact fee at all, which is not fair to everyone else who pays impact fees. Mr. Deardoff stated the amenity area is 10,000 square feet; another 15,000 or 25,000 square feet is showroom for display of cars; and he does not see how that increases traffic on the roads. Commissioner Carlson stated she does not see how that would increase traffic either; but she is not clear on the use of the 10,000 square-foot amenity space, even though Mr. Deardoff is saying it is not open to the general public. Mr. Deardoff stated it is not open to the public; he is sorry that ever came up; this is a new idea; nobody has ever done it before; and he had a lot of discussions about how it would be handled, which may be where staff got the idea about $10 for a haircut. He stated even if someone wants to pay $10 for a haircut, they cannot do it; and he does not know if that will change or not. He stated if he was going to rent out that space, and the County charged an impact fee, he would pay it, but would request the rest be exempted; but the business is not going to increase traffic in the County; and it is blatantly unfair for him to be paying an impact fee of $200,000 for something that is not going to change the traffic of the County.

Chairperson Colon inquired if Mr. Deardoff would agree that in the future if something happens to the facility, those people would have to pay their fair share because they are creating the impact and traffic; or would he still feel they should not pay anything. Mr. Deardoff responded it is upstairs in an area out of the way where they have the amenities; he cannot envision anyone but a car dealer using that space for what they are using it for; and he does not know who could afford to rent the building and use it is a barbershop or movie theater. He stated it is a small 20-seat theater; the barbershop has one chair; and he hopes no one thinks it is a real movie theater or barbershop. He advised it is a real health club; it is pretty nice; and if it would not get him into trouble, he would invite the Commissioners to use it.

Commissioner Pritchard stated he is not fond of having to purchase a car; as soon as you go through the front door, you are inundated by sales people; and he does not think the general public would want to face that just to go get a haircut, etc. He stated this is something innovative and creative; it is a great concept; and he would like to see it at other dealerships. He stated the Board is talking about the transportation element; Mr. Nohrr has pointed out that an increase in square footage ipso facto does not mean an increase in traffic; the data shows that; the basic assumption of increased traffic is not there; so, the County is charging for something that is not happening. He stated there is a certain element of fairness that needs to be addressed; he does not see how an impact fee can be justified based on something that has not happened; and Mr. Nohrr’s data has shown that it is not happening.

Commissioner Carlson stated Mr. Nohrr mentioned a traffic study; and inquired was that something that was relayed to him through staff; with Mr. Scott responding yes, staff reviewed it. Commissioner Carlson inquired if a traffic study was done; with Assistant County Manager Peggy Busacca responding the applicant was told he could show different data, which was the report Mr. Nohrr referenced. Commissioner Carlson stated she thought Mr. Nohrr said it would cost $15,000 to do it, and she assumed it was not done. Mr. Nohrr advised it was not done; the problem is a traffic study is approximately $15,000; and what they tried to do is come up with something short of a traffic study that might generate some interest and discussion. Commissioner Carlson stated she is not sure what a traffic study would show; it is the before and after that are at issue; and that would be a long traffic study. Mr. Nohrr stated if the use upstairs changed and the general public could be enticed to go there, that would be a specific condition in the future for the imposition of impact fees; but that is not their intention; and they will stipulate that the use is for their customers. He stated to alleviate fears, in the future if it became open to the general public, then the impact fee issue would come back on and it would be assessed. Chairperson Colon stated then the Board would take out the minutes of this meeting; with Mr. Nohrr responding the Board would take out the minutes, and he and Mr. Deardoff would get a call.

Commissioner Higgs stated the County bases impact fees for traffic on the square footage of buildings and their use; and inquired do other jurisdictions base it on something else; with Mr. Scott responding not to his knowledge. Mr. Scott stated staff relies on the analysis that is provided nationally in the ITE manual, which analyzes uses and their trip characteristics. Commissioner Higgs stated this is talking about the foundation of impact fees based on square footage and uses; and if the Board says this 50,000 or 20,000 square feet is not going to generate traffic, it will go to the foundation of the impact fee program potentially; with Mr. Scott agreeing. Commissioner Higgs stated she understands the rationale of not wanting to pay impact fees; she understands the concern that it was done this way for a long time and now it is just enclosing it; but if the Board goes off track here saying the building is not a generator of traffic, then it has to start all over again on traffic impact fees unless there is some other foundation to justify the traffic based on this usage. She commented on fluctuating customer base and need for a solid impact fee system; stated the impact fee system has been built based on national norms, national studies; and as much as she appreciates the creativity shown, the Board cannot do this without saying the whole system does not work. She stated impact fees are a fair way of assessing cost for growth; and she does not know how else it can be done. She stated she cannot agree that 50,000 square feet is going to be something that is not part of the impact fee program; she has no problem with staff going back and working with the applicant and attorney to see if there are other parts of the program that more closely parallel the impacts of the new space; but she cannot say the space should not be assessed an impact fee any more than she thought it was rational to have the discussion the Board had previously; but if the Board is going to go down this route, it has to be ready to go down the whole street.

Chairperson Colon stated she does not feel it is all or nothing; if the Board wants to open the whole issue in regard to impact fees for new development, that is a very sensitive line; but she cannot see how the County would charge a business for space to be used as a showroom. Mr. Scott stated the $147,000 represents a 72% discount when looking at the justifiable costs that have been identified; and impact fees are assessed at approximately 28% of their justifiable maximum. Chairperson Colon stated it is charging $150,000, but the business is not bringing in more cars; and there is something wrong with seeing things as all or nothing. She stated the Board creates Ordinances; when things are brought to the Board’s attention, it has been happy to look at them; but this is one the Board wants to be able to talk about as far as economic development into the community. She stated it does not involve just Mr. Deardoff but all of Brevard County; and the Board needs to be sensitive to that.

Commissioner Scarborough stated the Board needs to put the whole conversation together; this morning it talked about change of use; then it talked about music at establishments; now the discussion concerns traffic; and pretty soon the Board will have talked itself in a complete circle. He stated staff has to have some degree of definiteness; and commented on staff’s ability to make a decision and changing markets. He stated the Board needs to give staff clear instructions; the route of adding this additional factor can be exactly where the Board does not want to go; and that is for the Board to have 12 hours of review of the administrative decisions made on different criteria. He stated this has been one of the craziest meetings he ever sat through; and he does not know if the Board is encouraging it. Chairperson Colon stated this is a matter of an Ordinance that was put together by the Board; and whenever the Board puts something in place that affects the citizens, it cannot expect the citizens not to say something about it. Commissioner Scarborough stated that is fine; but the Board should make it such that staff has clear rather than more complex instructions when it leaves at the end of the day. Chairperson Colon stated it is very true; but there have been times when the five Commissioners have not been sure what their intent was. She stated she has been here two and one-half years; there has been discussion where the Board has not been clear on what the intent was; and staff looks like a deer caught in headlights.

Commissioner Carlson stated she agrees with Commissioner Scarborough; the Board knew this was a black and white scenario when it adopted the Impact Fee Ordinance, basing it on square footage, buildings, etc; and what it is seeing are impact fee exceptions to the rule where it does not make sense to charge an impact fee for something that is not going to enhance anything, but is just an addition. She stated the Board has always used the mentality that down the road the facility may turn into something else and produce three times as much traffic, so therein lies part of the logic with the building footprint and determining how much traffic the building will create whether it is retail, commercial, etc. She stated that is how it has been done nationally; she does not have a problem looking at impact fee exemptions and how those are defined so staff can have a clear path and the Board is not left with the quagmires that do not make sense. She stated there is a business owner who has put a lot of money into the community through his business; now the County is adding $150,000 in impact fees just to grow the business; and inquired is traffic going to increase enough to justify that.

Commissioner Scarborough inquired if the Board goes down with this one, what other arguments will it be encouraging by considering it. He stated this is very wide open; it is leaving the objective and getting into the subjective; the Board is going to be micromanaging everything and everybody’s business for the sake of discussing impact fees; and it is not going to work.

Commissioner Carlson stated the Board already knows impact fees are not going to pay for growth or all the impacts growth creates; it is at 27.5% of 100% that it could be charging; and the Board should not overlook that. She stated it was pretty black and white the way staff used the current Ordinance; that is why they came up with this and why there is a question; but whether the Board leaves it black and white or makes it fuzzy is the Board’s choice. She stated the Board has attempted to make it black and white, but all issues do not fit; and that is why the Board is discussing it.

Commissioner Higgs stated staff has indicated a willingness to do some additional consideration on the quality of the space or the use of the space and looking at it in another way; so maybe the discussion is not all or nothing; and there is an opportunity for staff to look at it again. She stated the Board would be wise to not approve the appeal that is before it for reduction; but that does not mean that staff cannot work in additional capacity with the applicant, the attorney, and the transportation experts to look at it again.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to deny the appeal of Island Lincoln Mercury of an administrative decision by the Planning and Zoning Office that denied a request for reduction in transportation impact fees.

Commissioner Pritchard stated the Board needs to shake the tree; it is not off-track by revisiting this; what it has is something that is black and white and wrong; and it needs to be addressed. He inquired if $147,000 represents a 70% reduction, what would the full amount have been. Mr. Scott stated this would be very similar to what is found in Orange and Osceola County and other counties that have 100%; and the full amount would be approximately $2 million. He stated the business community incorporates that into their preliminary estimates. Commissioner Pritchard stated the joke is a million here, a million there, and pretty soon you are talking real money; $147,000 is an incredible amount of money to pay as an impact fee when the County cannot justify the transportation element because of the traffic count; and inquired if the fee is based on a national study or some sort of matrix that was developed outside the County. Mr. Scott stated the ITE manual looks at typical trip generation; sometimes when the use is specific for a state, there is a study that is in that state; but most are wide enough that they have drawn from the national perspective. Commissioner Pritchard stated the ITE manual is what he referred to when the Board talked about $50,000 for a 15-minute delay; so the Board can pick and choose whatever parts of information it wants to justify where it wants to go; but with this, he cannot see a justification, and cannot see charging a fee for something that does not exist. He stated when he ran the Fire Prevention Bureau, they would charge for plans review per square foot; it did not matter if it was a high-rise or a parking garage because the Fire Department encompasses all of the elements of all of the disciplines; but it would take five weeks to go through a high-rise, while it would take six hours to go through a parking garage with the same amount of square footage. He stated it did not make any sense to charge the same for that work; so it had to be changed; and that is his point. He stated to have something that is black and white so staff can make an interpretation that is based on something that is wrong to begin with is inherently wrong; and the tree needs to be shaken. He stated Mr. Deardoff is entitled to a reduction or at the very least to get back into discussion with staff to see if there is some other number they an work on; and what he has done is not going to increase trips, but rather decrease trips; and the trend is shown by the data that he had decreased trips anyway.

Commissioner Carlson stated if the Board makes a special consideration at this point without justification, it does more damage than good; although it appears from all the information the Board has received, that it is not a just application of the Impact Fee Ordinance, the Board cannot make a special consideration in one case without seeing it cascade into multiples where the Board is going to be making subjective decisions everywhere. She stated that would not be good; and suggested if there is not full agreement on the Board, it should deny this. She suggested going in to a study of impact fee exemptions that are being done nationally and bringing back something that would clarify any exemptions that do not increase traffic; stated it cannot be black and white every time; and she cannot believe there have not been some exemptions to impact fees given for all the things the Board has been talking about.

Commissioner Pritchard stated he agrees about the exemptions; but he disagrees with a flat denial at this point because that would put the applicant behind the curve of being able to be a recipient of a reduction. He stated it has been shown that the transportation impact fee that has been assessed is not justified; and inquired how can it be said there is a basic assumption of increasing traffic when it has not happened, yet the County is charging for it. He stated it would be better if Mr. Deardoff and staff would go back into discussions and come back with a decision at the next meeting; the Board needs to shake the tree regarding impact fees; there is something that is grossly unfair with impact fees; and it is doing more to discourage economic development than it is to offset any of the alleged costs of construction.

Chairperson Colon stated she did not think that a vote that she supported in regard to impact fees would create such a hardship in the community; Mr. Deardoff is able to extend his business; but he should not be treated any different than someone who is trying to make ends meet. She stated it is very unfair if the Board does not look at considering, not just Mr. Deardoff, but every business owner in the County; and it has left a bad taste in her mouth that she was even a part of this in the sense that the Board would not even want to consider opening this to look at it a little better just because it would have more people coming before the Board giving it more work. She stated that does not justify the decisions the Board is making; she wants to give Mr. Deardoff an opportunity to comment; and reminded the Board there is still a motion on the floor for denial.

Mr. Deardoff stated when he first found out about the impact fee, which was probably a year and a half into the project, it struck him as being terribly unfair. He stated he has 80 employees and 2,000 customers; but he is being charged the same amount as someone coming in from Pittsburgh, buying a lot, building a 50,000 square-foot building, hiring 80 people, and bringing in new customers. He reiterated he already has the customers and employees; he already had the land; but he is being charged the same amount. He stated there should be one set of impact fees for new businesses coming and another for existing businesses in the County that simply want to upgrade their facilities.

Mr. Nohrr stated there is something in the Ordinance that gives the County Manager some discretion in the way it works; it is delegated to staff under Section 62-809; so, there may be a mechanism already there without opening the whole Pandora’s box. He stated when it is an existing business that is not changing the use and there is five years worth of data, it should be possible to construct something that does not open up Pandora’s box. He stated Mr. Deardoff has a successful business; but this could be a mom and pop business that had to expand to survive; and something could be worked out when they go back into discussions. He stated it is not a traffic study because it is not about trip generations; it is going to be something more than a traffic study; and it is going to be more of a market study that might be able to be constructed to convince the County Manager of his designee that this could fall into the exemptions. He stated there are provisions in the Code today for exemptions, but they require a very extensive traffic study, which in this case, is not the issue because they are not generating the traffic; so, there may be something else staff can come up to look at. He suggested the Board not deny them but give them the opportunity to have those discussions and see if something can be worked out.

Commissioner Scarborough stated the Board did ask, with its prior action, that it come back to it on the building permit issue; and within the Board’s instruction to staff, this could be part of the discussion, if the Board wished it to be. He stated this is an existing business that is expanding; it goes to the point whether there was a building permit pulled; and he wants to have a definition where everything that comes before staff is not ultimately appealed because the Board has been ambiguous; the Board set itself up for this; and it can either go in one direction or the other depending upon the report coming back, so the door is already open.

Mr. Nohrr stated he does not want the door to be shut for them, which is where he thought the motion was headed. Commissioner Higgs stated that is not what her motion did; her motion was in regard to the specific request that is before the Board today based on Mr. Lassiter’s study; and that is what she would deny. She stated she has no problem with staff continuing the discussions based on other factors that might be a part of that; she does not have a problem looking at the exemptions; but she does not believe the Board should approve the request that is before it today. She stated she wants the Board to use common sense and a realistic assessment; people do not invest huge amounts of money without expecting a return; that is business; and Mr. Deardoff expects a return on his investment as he is a smart businessman with a lot of experience. She stated she does not know if the return expected is increased sales, increased profit, or happier employees; but people who invest expect a profit from their investment; and the Board should not lose that perspective in what is going on here. She stated her motion is to deny the request; and it could include asking staff to continue discussions in regard to what has been proposed and give a report on the exemptions, if the Board wants.

Chairperson Colon inquired if Commissioner Scarborough is comfortable with that as he seconded the motion. She stated she hopes the County is not dipping into the profit the community is supposed to have as it is the Board’s job to protect that.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioners Pritchard and Colon voted nay.

CONTRACT FOR SALE AND PURCHASE WITH ACTION CAPPA, LLC, RE: PINEDA
CAUSEWAY EXTENSION AND REALIGNMENT PROJECT

Commissioner Carlson stated there have been some long discussions, and Mr. Denninghoff can best summarize.

Transportation Engineering Director John Denninghoff stated this proposed contract is for purchase of a piece of property that is necessary for the Pineda Causeway Extension and the realignment portion east of Wickham Road; it is for the purchase of a four-acre parcel; the appraised value is $795,000; and the contract that the owner has offered to the County, including closing costs is $904,575, which is approximately 114% of the appraised value. He stated staff followed all current policies associated with land acquisition; in acquiring the parcel, there will be 2.2 acres of property that will not strictly be necessary for the Pineda Causeway Extension itself; but the seller refuses to sell only the portion that the County needs to have for the road and insists on selling all of it. He stated otherwise the County would have to go through the process of condemnation and litigation over the portion it needs; the estimated value of the 2.2 acres is approximately $440,000; that would be available for disposal or use by the Board following the purchase; so the approximate value above the appraised value is $105,000 for a net difference in favor of the County, on a potential profit basis, of $235,000.

Commissioner Higgs inquired who gave directions to the appraisers; with Mr. Denninghoff responding he and the Land Acquisition office staff. Commissioner Higgs inquired what were the assumptions in the value of these parcels. Mr. Denninghoff stated the central assumptions were the existing zoning and the highest and best use of the property based on that zoning and location; and they did not give any extraordinary instructions to the appraisers. Commissioner Higgs inquired who were the appraisers; with Mr. Denninghoff responding two appraisals were performed; one was by Benson; and the other was by Clayton, Roper and Marshall. Commissioner Higgs inquired if they appraised it based on their professional opinion and on the existing zoning with no change of that; with Mr. Denninghoff responding that is correct. Commissioner Higgs inquired if the presence of a new road affected the value or was it assessed today without the road; with Mr. Denninghoff responding in an appraisal process typically the effect of the project on the value of the property is not considered. Mr. Denninghoff advised the per acre price of the remainder of the parcel will actually go up as a result of the project; but in terms of the appraisal value of the property, that did not factor in. Commissioner Higgs stated the appraisals are based on today’s value, not a future value or future use value, although Mr. Denninghoff is advising the County could recover some of its costs because the road would be there and it would sell off two acres. Mr. Denninghoff stated that is an option that would be available. Commissioner Higgs stated the Board was criticized regarding the landfill acquisition because it was not going to use it immediately; the Board is not going to use this immediately; and inquired if there is money to build the road; with Mr. Denninghoff responding money for construction has not been allocated. Mr. Denninghoff advised one of the biggest factors associated with any transportation project is land values; they typically escalate at a rate far greater than the general inflation rate; and if they become occupied and developed, the cost goes up astronomically, so the direction the Board has given staff was to begin the process of trying to acquire these parcels, and money was allocated for that purpose. He noted in addition, staff is also pursuing the design of the realignment portion of the Pineda Extension. Commissioner Higgs stated it makes sense to buy it now as opposed to waiting until somebody puts a building on it even though it is not going to be used for five or ten years; with Mr. Denninghoff advising staff does not exactly know when that will be; the power of the purse is with the Board; but clearly the risk of the cost going up is very high if the Board does not move now, which is why the Board directed staff to do that. Commissioner Higgs inquired why would they not condemn it; with County Attorney Scott Knox responding to condemn it would cost probably the same as it would to buy it outright because the County probably would end up having to pay damages. Mr. Knox clarified if the Board takes the 1.8 acres it needs to build the road, it leaves a balance of 2.2 acres; and typically the property owner would then claim a depreciated value on the remainder of the parcel because he is left with less than what he started with. Commissioner Higgs stated that may or may not be true because Mr. Denninghoff just said it is going to have more value because the road is going to be there. Mr. Knox noted the Board does not get to include that in the valuation process, and has to look at the value of the property the day the County takes it. He stated if the County has taken the 1.8 acres and diminished the utility, it pays the difference of before and after.

Commissioner Higgs stated if the County builds a four-lane road and takes part of somebody’s land, they get a four-lane road, which is going to enhance their business; and the County still ends up paying; with Mr. Knox advising that is right. Commissioner Higgs inquired if Mr. Knox sees any advantage to holding to the average of the appraised value in condemning it. Mr. Knox responded in the long run the County would end up paying attorney’s fees on top of the extra severance damages plus the value of the property that is taken, so, the County could end up losing, depending on how the appraisals work against the other side’s appraisals. He stated if the other side’s appraisals are twice what the County’s appraisals are, and the jury cuts the verdict in half, the County ends up paying more than what it would have paid to buy the property outright. Commissioner Higgs inquired if this seems like a good business deal; with Mr. Knox responding generally speaking, when the County buys all the property, it ends up better off because it can sell of the excess property. Commissioner Higgs stated the last time she was told it was a good business deal, it blew up all over; and inquired if Mr. Knox is representing that this is a good business deal; with Mr. Knox responding he is representing that it is a good legal strategy, and Mr. Denninghoff is saying it is a good business deal. Commissioner Higgs stated the Board got such criticism over the land acquisition that she wanted to have a discussion about who made assumptions, who did what, and what the values were so there would be some of this on the record.

Commissioner Carlson stated going back to the 2.2 acres that is left over, if the Board held on to it and the road was not built for five years, Mr. Denninghoff said that piece would potentially be worth $440,000 after it was built out; but in five years, it would be worth a lot more, so the County might be able to get the cost of the property back twofold. She stated that is a good business decision for the County; and that is the only reason she thought it was ripe to come in front of the Board to get it done because it has taken this long since the Board had the initial Pineda discussions to get Mr. Price to agree on this amount, which is lower than what he initially wanted by quite a bit.

Commissioner Pritchard stated this is roughly $225,000 an acre; with Mr. Denninghoff advising that is correct. Commissioner Pritchard stated that seems like a lot of money for an acre of property that does not front on anything. Chairperson Colon stated the property fronts on the existing Pineda Causeway right now. Commissioner Pritchard inquired if it is only being used for the realignment; with Mr. Denninghoff responding yes, and the other 2.2 acres would be utilized for the road purposes. Commissioner Pritchard stated it says, “acquisition of properties necessary for the Pineda Causeway Extension”; but the reason it is needed is for the realignment, so it has nothing to do with the actual land where the extension is going other than the realignment portion; with Mr. Denninghoff agreeing that is correct. Commissioner Pritchard reiterated it seems like a lot of money at $225,000 an acre; but apparently the appraisers think this is what it is worth.

Commissioner Carlson stated that is without the roadway, so the cost of the property is going up. Mr. Denninghoff stated the appraisals of property on Wickham Road have gone up dramatically over the course of the last three and one-half years. Commissioner Carlson inquired if this is close enough to Wickham Road to be affected; with Mr. Denninghoff responding it is one parcel away from Wickham Road.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to execute Contract for Sale and Purchase with Action Cappa, LLC, in conjunction with the Pineda Causeway Extension and Realignment Project for a four-acre parcel at $904,575. Motion did not carry; Commissioners Pritchard and Colon voted nay. (See explanation below.)

Commissioner Higgs stated she would like to reconsider the item because if there are two Commissioners who think it is not a good deal, she would want to think about it. Commissioner Scarborough stated Mr. Denninghoff advised the item required a vote of four to one to pass, so the item failed.

Commissioner Carlson stated that means the alignment will not go forward.

Commissioner Pritchard stated that is something he wanted to address; from what he read, had the Board taken action 12 years ago, it could have picked up the property for pennies on the dollar compared to today; and he does not want to make a bad business decision based on what he considers to be a lack of information. He stated $225,000 an acre seems to be an extraordinary amount of money; and he would like much more verification; but he does not want to stand in the way of the Pineda Extension because it is necessary.

Commissioner Scarborough inquired if Commissioner Pritchard would be willing to have a later discussion; there is a lot of building in that area; and ultimately there will be a connection to I-95 and a connection to the beach. He stated this is something the Board needs to discuss a little more; if it does not like this, it needs to give staff instructions because it is going to be a tremendous problem to figure this out; and inquired if the Board does not like this, where it is going to go and is there a new alignment. He requested the item be rescheduled. Commissioner Pritchard agreed.

Commissioner Carlson stated that can be done, but the Board needs to understand what has been said; the cost to condemn the property, which would be the only avenue if the Board continues with the current alignment, potentially might cost more depending on how long the Board drags it out.

Commissioner Pritchard stated the word “might” raises a bit of concern; he would like to know a little more specifically about what the costs could be; and while he wants to be fair to the property owner, he does not want to be unfair to the taxpayer.

Commissioner Scarborough stated Commissioner Pritchard has a right to a full briefing on it, the history, and some of the extensive and contentious discussions on various alignments with a lot of people in attendance; and in fairness to Commissioner Pritchard, he needs to have an opportunity to have that information when the Board discusses this issue again. He stated if the issue can be brought back, he would feel more comfortable. Mr. Denninghoff stated he has no objection to bringing it back; however, the contract, which the seller has executed, has an acceptance date of today. He stated they wanted it at the first meeting after the break; it was the seller’s choice, not his; and he has no objection to bringing it back and providing more information.

Chairperson Colon inquired what date does the Board want it to come back. Commissioner Pritchard stated he does not want to inundate the first meeting in August; he does not know how much time this might take; and inquired if it would be better to bring it back to the second meeting in August. He stated he did quite a bit of reading on the whole Pineda issue going back 12-plus years; and he would like to know more about the verification of the four acres for $900,000, which seems like an enormous amount of money. Commissioner Higgs inquired if he would like comparables. Commissioner Pritchard stated he would like to have copies of the appraisals more than just a summary sheet; he wants to know if the Board is spending money appropriately; and he knows that five years from now this is going to cost more, but he would like to know what the threshold is today.

Chairperson Colon stated this will come back at the second meeting in August, which is August 26, 2003. She noted she does not want to give anyone a sense that she will be changing her mind, because it will still be no.

PUBLIC INTEREST DETERMINATION, RE: MAINTENANCE DREDGING OF
TUCKER CHANNEL

Dan Winkler submitted paperwork to the Chairperson; stated he and his partner own the property down in South Melbourne Beach; and they also own Certified Building Corporation. He stated a year ago they had a public interest determination on the property; the determination was that they were limited to dredging up to 300 feet of the existing channel, 20 feet wide, and four and one half feet in depth; and after the determination, he met with Commissioner Higgs, who recommended he bring better information to the Board on why they want to dredge the existing channel deeper. He stated the channel has been around since 1968; Mr. Tucker of Merritt Island owned the property, and dredged it 50 feet wide, 600 feet in length, and seven feet deep; they purchased the property three years ago; they have an existing maintenance permit in place with the Corps of Engineers, which has been reissued; and they would like to be able to continue to maintain the channel at 50 feet wide, 700 feet in length, and seven feet in depth. He stated in meeting with Commissioner Higgs, they came up with a plan that she thought was doable with the new data he submitted; on the third page is information about soundings that start from the end of the property to the mean high water line, and continue to go out in five to ten-foot increments for sounding; the depths of muck are very deep; and they would like to remove it. He stated he and Commissioner Higgs discussed that 30 feet wide, 600 feet long, and six feet deep would be more accurate; and after speaking with Commissioner Higgs and Natural Resources Management Director Conrad White, they have agreed to mitigate by removing two acres of Brazilian peppers on the South Beaches.

Commissioner Higgs stated she agrees this would make the project much better; it is an existing project; this would remove the muck; and it is an acceptable project as described.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to determine maintenance dredging of the Tucker Channel 600 feet long, 30 feet wide, and six feet in depth to be in the public interest, with the applicant agreeing to mitigate by removing two acres of Brazilian peppers at a Board-approve south beaches site. Motion carried and ordered unanimously.

LEGISLATIVE INTENT, RE: PROPERTY TAX REDUCTION FOR CONSTRUCTION OR
RECONSTRUCTION OF PROPERTY FOR LIVING QUARTERS FOR PARENTS OR
GRANDPARENTS

Commissioner Scarborough stated when he was briefed on this, they got into some of the concerns; it is not that this is not a good idea; but he is concerned about the administrative capacity of the Property Appraiser. He stated people can apply in March; that type of information would have to be incorporated in the TRIM notices; so there are just several months for the Property Appraiser to act to make the determination, which is not a simple decision. He inquired if Mr. Whitten got any feedback from the Property Appraiser. Assistant County Manager Stockton Whitten responded the Property Appraiser advised he would handle this program similar to the way other exemption programs are handled. Commissioner Scarborough inquired if they thought it would be a problem to administer; with Mr. Whitten responding they did not have any issues.

Commissioner Higgs stated the language in Section 2 is ambiguous; it says “natural or adoptive” parents; and recommended it just say “parents.” Commissioner Higgs stated it would be natural or adopted children; but even that is irrelevant as parents are parents. Commissioner Scarborough stated it would mean the parents have adopted the children. Commissioner Higgs stated it is not appropriate and clouds it up.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve the legislative intent and authorize advertising a public hearing to consider an ordinance to provide property tax reduction for homesteaded property owners who construct living quarters for parents or grandparents, deleting the words “natural or adoptive.” Motion carried and ordered unanimously.

REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIENS,
RE: 2534 DATE DRIVE, COCOA, FLORIDA

Gloria Tito stated she bought a lot at the tax sales; she did everything she was supposed to do; she had an attorney for a quiet title; the lot was next door to her house; and when she sold her house she discovered there was a zoning lien on the lot. She stated it had nothing to do with her and was from the previous owner.

Commissioner Scarborough stated the recommendation is for $786; and inquired if that is acceptable to Ms. Tito; with Ms. Tito responding yes.

Motion by Commissioner Scarborough, to approve the Special Master’s recommendation to reduce the accrued fine for Case #00-0532 from $3,448 to twice the enforcement costs, $534; and direct staff to prepare and execute Release and Satisfaction of Lien upon receipt of payment in the amount of $796.

Commissioner Higgs stated when the Board started looking at costs again, it was including additional costs other than ones shown in this item; and inquired if that is correct. She inquired in the future would the Special Master see other costs included. Code Enforcement Director Bobby Bowen responded not exactly; there are certain costs that can be charged, but others cannot be charged; and Ms. Jones may be able to articulate that more clearly. Assistant County Attorney Terri Jones stated the costs that were submitted to the Special Master in this case were the historical costs that could be assessed; if this is a reduction, the Board is not bound by that cost; and if the Board wants, it may direct the Special Master to include another factor in that cost, so there would be two separate cost issues, one for reductions and one for what is legally assessable as far as cost in the original case. Commissioner Higgs stated in the original case, the actual costs were $1,028; with Ms. Jones responding that is what the reformed costs would have been if this case would have gone to the Special Master today. Commissioner Higgs stated in the future, when the Board sees the real cost, it will be much different than the $534 it is seeing today. County Manager Tom Jenkins stated Commissioner Higgs is saying in the future, but it is here now. Commissioner Higgs stated what the Special Master saw was different. Ms. Jones stated in 1999 the costs were different; Code Enforcement has changed how it assesses the cost; and this case went to the Special Master in 2000. Commissioner Higgs stated she wants to be sure in the future the Board and Special Master get the real costs. Ms. Jones stated the Special Master now gets the new cost sheet on every case; but in 2000, it was the previous form. Commissioner Higgs stated she wants to see the actual costs and overhead if the Board is reducing a fine, although she does not mind going along with the Special Master on this item. Mr. Bowen stated that is what staff plans to do; and that is noted in the body of the Agenda Report as well.

Commissioner Carlson inquired if there is a directive to give the Special Master to recoup costs; with Mr. Jenkins advising they were calculating the costs differently back then, but from this day on, the Special Master is going to get the revised cost calculations. Commissioner Higgs stated those costs should include overhead; with Mr. Jenkins responding they will in the future.

Commissioner Pritchard stated if the cost is going to include overhead, then it goes back to the full cost of performing a service; at the last meeting, he said the Board is looking for full cost accounting, yet the people are paying taxes, which are providing the building, etc.; and if the Board goes to the full cost assessment, then taxpayers are paying twice. He stated he objected to that at the June meeting; if someone is charged full cost accounting, they are paying twice; and if they only pay a portion, it is similar to renting a tennis court for an hour. Commissioner Higgs stated it is different; these are fines for people who did not do what they were supposed to do, which was not Ms. Tito; but what the Board was talking about before was what is paid for in regard to a fee, which is where Commissioner Pritchard’s objection was. She stated these are people who violated the Code, went before the Special Master, and then went for a longer period of time, so it is a fine plus; and they are getting a reduction, so at least they ought to cover the cost. She stated it is a different concept, fees plus fines; and the County should recover at least the actual cost of having the people prosecuted. She stated Ms. Tito cleaned up the property after she got it; but Commissioner Pritchard is talking apples and pickles because paying a fee is different than paying a fine.

Chairperson Colon inquired why Commissioner Pritchard does not like the word overhead; with Commissioner Pritchard responding the taxpayers are paying the overhead. Chairperson Colon inquired what if the person is a habitual offender; with Commissioner Pritchard responding the overhead is still there. Commissioner Pritchard stated his point is the building is there; what the person is paying for is the additional time on the previous owner; so he can see a portion of it, but not the full cost accounting; and that is the part he objects to. He stated the building, lighting, air conditioning, etc. are there; the person is there; a certain amount of those costs should not be continuously duplicated because it is already there; and when the person comes in, he is paying a service fee and the taxes are already paying for the building, the overhead operation, and the maintenance. He stated it is like renting a tennis court; a person rents it for an hour for $5; but the public at large paid for the tennis court. Chairperson Colon stated she sees what Commissioner Pritchard is saying.

Mr. Jenkins stated there is a fixed cost that all the taxpayers in the unincorporated area of the County are incurring to have Code Enforcement; if the people come into compliance, there is no additional cost; but the philosophical question then becomes should the people who come into compliance and who are law-abiding should have to pay for the additional expenses associated with someone who does not come into compliance after repeated notices. Commissioner Pritchard stated he does not have a problem with the person paying a fee; but he does have a problem if the fee includes the same overhead operating and expenses that are there anyway. Mr. Jenkins stated the revenues are used to augment the operating budget; therefore, taxes are lower; and the people who demand the most time and attention have to pay a higher percentage of the cost of Code Enforcement because those revenues go back into the budget.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIEN,
RE: 3835 COREY ROAD, MALABAR, FLORIDA

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the Special Master’s recommendation to reduce the accrued fine for Case #98-3163 from $34,049 to $3,570; and direct staff to prepare and execute Release and Satisfaction of Lien upon receipt of payment in the amount of $3,570. Motion carried and ordered unanimously.

CANCELLATION, RE: JULY 10, 2003 WORKSHOP

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve cancellation of the first Budget Workshop scheduled for July 10, 2003. Motion carried and ordered unanimously.

APPROVE CONTINUATION OF WAIVER, RE: LAND DEVELOPMENT FEES FOR PARKS
AND RECREATION PROJECTS AND FACILITIES PROJECTS

County Manager Tom Jenkins stated this is a request from the Parks and Recreation Department to not have to pay the normal permitting fees for land development review; he allowed the Department to submit this; however, he felt it should pay as the public does for the same service. He stated it takes staff time to review those applications; and staff has to inspect as it does for anyone else; so, his feeling was the Department should have to pay; but one could also make the argument that it is public funding, so they should not have to pay. He advised only the Board can waive these fees.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve exemption from Land Development fees for Parks and Recreation Department as being in the best public interest. Motion carried and ordered; Commissioner Higgs voted nay.

Commissioner Pritchard stated Land Development is self-supporting; but he does not agree with that because it is a duplication of payment for the taxpayer.


CITIZEN REQUEST - ANN ADAMS, RE: REMOVAL OF NO PARKING SIGNS

Ann Adams, Property Manager at Shoreview Apartments, representing the owners, management company, and residents, stated they have a parking situation that they hope the Board can help on; the location is in unincorporated Satellite Beach; Berkeley Street is on the north side of the property; and displayed a map showing no parking signs and parking spaces. She advised two of the no parking signs are from 7 a.m. to 4 p.m.; the one in the center says no parking any time; and the number of parking spaces in the area are 49. She stated there are currently 82 drivers; there are ten vacant apartments that could potentially have more drivers; right now people parking where the signs are located are being ticketed; and she has no solution for them on the property. She stated when the facility was built 41 or 42 years ago, there were probably fewer cars per household than there are today; and she does not have any more land to build additional parking. She stated the front of the building is on A1A and Berkeley Street; although there are other spaces on various places throughout the property, they are quite a distance from the apartments; and there are concerns about the elderly or young ladies coming home after dark and having to travel from one side of the property to the other. She stated to help eliminate this situation, they would like the no parking signs removed and residents be allowed to park on the outer swale, which would abut the parking spots that are onsite.

Chairperson Colon inquired who has Ms. Adams spoken to on County staff. Ms. Adams responded she came in at the center of this; but she believes Jim Statlick with Land Development was spoken to as well as Commissioner Carlson. She stated she is not sure what the conversations were; but they were told the County was the only one authorized to remove the parking signs.

Assistant County Manager Peggy Busacca stated before the signs were put up, the road was posted for no parking for certain hours; however, there were problems with enforcement; the Sheriff’s Office said there is a significant problem; so the no parking anytime signs were erected. She stated according to Traffic Engineering, if the no parking signs were removed and there was striping put on for parking, only three additional parking spaces would be accommodated on the road; during the site evaluation, it was found that there were at least six boats on the property; and if those boats were moved to another location, that would more than double the available parking that could be provided by removing the signs and re-striping the street.

Commissioner Carlson inquired if Ms. Busacca is saying that would only give her nine spaces; with Ms. Busacca responding the re-striping of the road could result in three additional parking spaces. Commissioner Carlson stated that is not the number Ms. Adams is looking for obviously because there are ten vacant apartments. Ms. Adams stated even without the vacant apartments, there are still 82 drivers; specifically in building A there are 42 drivers and 10 to 20 parking spots to choose from. She stated she has been there for three years, and there was never a boat there; there are designated parking spaces for boats in the far southwest corner of the property; and there are also three additional handicapped spots. Commissioner Carlson stated staff is saying that Ms. Adams is going to have to accommodate the residents the best way she can and optimize what is within the site because there is no off-site parking; and she might be able to work with staff to get the three additional spots on Berkeley Street, but that is the maximum. Ms. Adams stated it is not paved there; and inquired if they can just park on the swale there; with Commissioner Carlson responding generally that is not allowed. Ms. Adams stated it is currently allowed after 4 p.m. and before 7 a.m. Commissioner Carlson recommended Ms. Adams make an appointment with her office so they can sit down with staff and see how they can maximize the number of parking spots for the apartment complex.

CITIZENS REQUESTS - LINDA A. TAYLOR, PATRICIA HESTER, AND TERRY GIBSON, RE:
DISPUTE OF INTEREST CHARGES FOR CITATIONS

Linda Taylor stated the citation was her son’s from 1998; he was 16 at the time and used a public defender; and she was unaware there was a charge for the public defender. She stated evidently they had her son sign a paper at the time, but they did not have her sign it; and there was never anything that made her aware of that charge until she received something in March 2003, which was notification from a collection agency. She stated she is not disputing the fact that they used the public defender; she has no problem paying for that; but she does have a problem paying the interest charges that are being assessed from 1998, since she never received any kind of notice for payment over the four-year period. She stated if she had known about it, she surely would have paid it.

Commissioner Carlson inquired is it normal that they allow a minor to sign something like that at a court appearance, and would it not have been given to the adult. County Attorney Scott Knox stated typically the minor is not competent to sign anything. Commissioner Carlson inquired if Ms. Taylor was at the hearing; with Ms. Taylor responding she was there. Commissioner Carlson stated it is her understanding the judge makes the proclamation that the cost of the public defender is $200; and if Ms. Taylor was there she would have heard that. Mr. Knox advised typically that is announced in open court, but sometimes it is very quick.

Chairperson Colon stated she does not want the Board to make any decisions on this; and it needs to find out what the other folks did and if there was anything sent out to them, and so forth. She inquired if this is done by the Clerk of Courts.

Ms. Taylor stated she went to the Clerk of Courts to get her son’s license reinstated; they ran a printout to be sure all fees were paid; and the employee said yes, therefore he got his license. She stated her son is now 21; he bought a house with no problems; and she has no problem paying the fee, but she does not agree with the interest.

Chairperson Colon stated she does not know if notices have been changed or anything. Commissioner Higgs stated there are three people today on the same type of issue; and inquired has anyone contacted the Clerk’s office in regard to these. Chairperson Colon stated she faxed information yesterday; but she does not think anybody on County staff notified the Clerk of Courts in regard to this issue. Commissioner Carlson stated the Board needs to get some input from the Clerk to find out when or if they served notice.

Ms. Taylor stated she was in touch with the Clerk of Courts; they pulled records for her; and all they could give her was the paper her son Wesley signed and could not find anything she had signed. Commissioner Carlson inquired does the paper say that interest will be accrued on the $200; with Ms. Taylor responding no. Commissioner Higgs inquired has anybody made an attempt to collect this before now.

Chairperson Colon stated she would be more comfortable if the Board had that information in its packets that Ms. Taylor is providing; and recommended when citizen requests are coming forward that affect a certain district, that district be notified. She commented on citizens’ rights to address the Board; stated in this particular case, effort should have been made to make sure that someone from the Clerk of Courts would be present; no one is here because they do not know about it; and she faxed information to the Clerk, but does not even know if it was received.

Ms. Taylor stated she had to go to the Clerk of Courts to find out what the charges were. Chairperson Colon stated the Clerk does not know that Ms. Taylor is before the Board disputing the charges. Ms. Taylor stated the Clerk’s office told her where to come. Chairperson Colon inquired if they knew what date Ms. Taylor was given to appear; with Ms. Taylor responding they may not have known that. Chairperson Colon stated she is sure if the Clerk had known that this was on the Agenda, a representative would be here; she does not feel comfortable making any decisions; but she would not want Ms. Taylor to have to wait another entire meeting, so the Board will figure something out.

County Manager Tom Jenkins stated if it is the Board’s desire, they can confer with the Clerk’s office, and see if they can pull up the history and see what kind of notification, if any, was sent.

Commissioner Carlson stated the third one says it has been eight years and then they got a letter from a collection agency.

Commissioner Higgs recommended hearing from the other two speakers to see if they have similar situations.

Patricia Hester stated she went to court seven years ago; her letter shows that she left without signing, so she did not know anything about paying a public defender; and when she went to court, she was told that a public defender would be appointed for her if she could not afford an attorney. She stated when she left, the public defender said everything was okay and she was free to go; she never said anything about signing papers; and as this was her first time going to court for anything, she did what the public defender told her. She stated the first letter she received since July 26, 1996 was on December 19, 2002 telling her she was going to jail or could get a misdemeanor; she phoned because she was very concerned and spoke to someone named Amy; and she explained she did not have the money at this time. She stated it was a $200 fee; but the letter said it was $377; so, she called the Clerk of Courts in Titusville, who advised they could only add a 13% fee, which would be $26. She stated she also spoke to someone at ACS; she explained she was not working, is in school, and has three children; she is not trying to run away from the charge because she did use the public defender seven years ago; and if she had known about the charge, she would have paid it. She stated she advised ACS she did not have the money right now, but would pay $10 a month to pay this off; but she was told if she could not pay half with three months installments, she could not pay it. She stated that is when she went further as far as contacting the Clerk of Courts and the Board to dispute it.

Chairperson Colon stated Ms. Hester is the second one with a similar story; and there are probably more out there. She stated that is why the Board needs to get the Clerk of Courts, and should not make any decisions today because it does not have both sides. She advised Ms. Hester that staff will be in touch with her. She advised Terry Gibson was unable to be present because he had to go to work. Commissioner Higgs noted his information said eight years. Chairperson Colon stated it is a similar scenario; the Board has the information from the three citizens; advised the speakers to give their telephone numbers to Ms. Busacca; and stated the Board will be in touch with the Clerk of Courts.

Commissioner Scarborough stated both speakers admitted responsibility to pay; apparently a number of these have been referred to collection agencies because it is not a random thing; and he does not know if they knew or did not know about the interest, but it is fundamentally unfair to have interest accruing that one does not know about. He stated they have an obligation, which is fine; as to whether they knew or did not know, he was advised that something could be established through the County Attorney’s office to do the inquiry; and inquired if Mr. Knox discussed this with his staff. Mr. Knox advised they have talked a little about it. Commissioner Scarborough stated there are a number of people coming in with individual cases; most of it is just for $100 or so; and if these people miss work or school, and have to have babysitters, then it becomes marginally beneficial to them to sit all day long for $180. He expressed desire to pursue a methodology with the County Attorney’s office to examine these things at staff level so people do not have to sit all day long; and he has no problem with not seeking the interest if they did not know that interest was accruing, although if they do not pay the original charge, that becomes another issue.

Chairperson Colon stated the Clerk of Court is not here; the Board is not able to know if notification was provided in the past; and that is why she is not comfortable making any decisions today.

Commissioner Pritchard stated he agrees with Commissioner Scarborough that the interest is a bit out of line considering all three people are saying the same thing; he has a feeling the Clerk’s office caught up with a backlog of bills that may have been lost; and he is taking the speakers at their word that this was a surprise for them. He stated Mr. Gibson is saying he thought the public defender was free, but it was $200; and now, eight years later for the first time, he got a letter advising what he owed. He stated he can believe that; something similar happened to a friend; it was an unheard of bill he had no idea he owed; and all of a sudden he got a letter. He stated things like that are fundamentally unfair; he does not want these people to have to come back; and suggested this be handled by mail. He stated he does not see why the Board cannot have Mr. Knox’s office contact the Clerk’s office to find out whether there was certified mail sent to these people; and if not, it can be handled in a manner that would waive the interest.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to direct the County Attorney’s office to contact the Clerk of Courts office to find out whether there was prior notification of the amounts owed for public defender charges; and if not, provide a method for waiver of interest in those cases, and notify Ms. Taylor, Ms. Hester, and Mr. Gibson by mail.

Chairperson Colon stated the Board is assuming too much; with Commissioner Pritchard responding he is not assuming anything. Chairperson Colon stated there are three people before the Board today; but the Board does not know the amount of letters that have gone out to other residents. She stated it would be best if there was discussion between the Commissioners and the Clerk of Courts office so the Board can understand exactly the interest, percentage, and so forth; this is not just about the three people before the Board today; and she does not if there are hundreds more similar cases.

Commissioner Scarborough stated he would hope that it would apply to anybody similarly situated; the Board can set up a methodology; it can get a report back from Mr. Knox that this is how it will work; and if the Board has to have everyone come before it and the Clerk of Courts be present for a few hundred dollars, that is not the way the Board needs to do business. He stated if they did not know about the interest, he would favor forgiving the interest; but he does not think it should be handled at Board level.

Commissioner Higgs stated as long as the Board can document that the people have not been sent a certified letter or other notification, she can go along with that. Commissioner Scarborough suggested that be part of the motion.

Chairperson Colon expressed concern about making the decision today, people coming to the Board, and this only applying to public defender charges. She stated there are other areas where letters have gone out such as traffic tickets; it is not just these three people; and recommended waiting to make the decision.

Commissioner Pritchard stated that can be handled in part by saying the County Attorney is going to look into it and have a procedure set up between the County Attorney’s office and the Clerk of Courts office; if there is verification of mailing, then they would pay the interest; but if there is not, then the interest would be excluded; and that would apply to everyone, whether it is DUI’s, etc.

Commissioner Higgs stated she wants to deal with one thing, public defender liens; and if they were not advised and they pay the public defender lien, she would be willing to forgive the interest as of this day. Commissioner Scarborough expressed desire to limit it to just public defender liens. Commissioner Higgs stated the interest is going to start if the lien is not paid, up to the date of notification.

Commissioner Scarborough stated part of the concept is that interest is forgiven upon the payment; and a person who does not pay in full does not have interest forgiven. He stated a person could come in and say he did not know about it; if the County Attorney’s office does a check and cannot find any record of notification, the person can send in the $200 and the interest is forgiven; and it is not a matter of the Commission saying all interest is forgiven.

Commissioner Higgs stated she wants to be sure there is a cut-off date, and it is not going to be six years down the road; and the interest starts with the reasonable time of advising; with Commissioner Scarborough agreeing.

Commissioner Pritchard stated all three of the cases involve public defenders; with Commissioner Higgs advising that is the only thing the Board is dealing with.

Chairperson Colon inquired why is the Board rushing; stated it would not hurt to discuss this at the next meeting with the Clerk of Courts so there is an understanding; and the Board is about to affect that office by saying they cannot charge this fee. Commissioner Scarborough stated the Board is not saying that at all. Chairperson Colon reiterated her desire to have the Clerk of Court present. Commissioner Carlson stated she does not want to forgive interest for everyone; she wants to do it for those persons who have come forward and indicated a willingness to pay, but did not get notification; it will be checked by the County Attorney’s office with the Clerk’s office, case-by-case in detail; and then it will be forgiven on a case-by-case basis. Chairperson Colon stated she is saying give the Clerk of Courts the courtesy to be present so that he can know what the Board is about to do; that is not asking a lot; and it would apply to any constitutional officer the Board was about to affect.

Commissioner Higgs stated the Clerk’s office develops the Agenda; and inquired if Chairperson Colon believes he did not read it. Chairperson Colon stated no one is here.

Commissioner Pritchard stated this can easily be accomplished by having the County Attorney’s office work with the Clerk’s office; and the idea of micromanaging everything does not appeal to him.

County Attorney Scott Knox stated there is also the issue of the collection company being involved that needs to be resolved.

Commissioner Pritchard stated he does not know how much money the collection company receives for doing this; but all of it can be avoided if a rapport can be established with the
Clerk’s Office. He stated that does not free the three people from doing anything at this point until it can be verified with the Clerk’s office whether they received any type of certified mail.

Ms. Taylor stated without the Board being involved at this point, if she pays the $200, it is going to go toward this and they will still be charged the interest.

Commissioner Pritchard stated the Board will say the interest does not have to be paid when the County Attorney’s office gets verification that Ms. Taylor did not have any prior notification; and at that point, she would be notified in writing that the interest has been waived. Commissioner Higgs stated they are notified now, and if it is not paid, the interest rolls. Commissioner Pritchard inquired if it rolls from this date or from the date the letter is received. Ms. Taylor stated they need a letter. Commissioner Pritchard stated that is something that will have to be worked out, but that was the motion he made. Commissioner Higgs noted the $200 is due now. Ms. Taylor stated if she pays it now, it is going to go toward the interest. Commissioner Carlson stated they are trying to alleviate the red tape problem.

Commissioner Scarborough stated Mr. Knox mentioned the collection company; Commissioner Colon mentioned the Clerk; if this is done right, the Clerk’s Office, the collection agent, and the County Attorney’s office will deal with these people case-by-case, making those determinations and taking care of it so when they send the $200, it is taken care of; and the Board will only make it more difficult for all parties as opposed to just empowering. Commissioner Carlson stated the process needs to be administered and not brought before the Board.

Commissioner Higgs inquired what is the status on the contract with the collection agent; with Mr. Knox responding he does not know; and it will either be that they are paid a portion of what they collect or they pay the County and then go out to collect; and if it is that way, it is going to be a problem trying to forgive any interest. Mr. Jenkins advised he thinks they pay the County after they collect. Commissioner Higgs expressed concern.

Commissioner Carlson noted there is a motion on the floor. Commissioner Pritchard restated the motion was to have the County Attorney’s office contact the Clerk’s office and set up a procedure whereby the Board can be taken out of the loop; and verification would be pending from the Clerk’s office as to whether these three people had received prior notification; but if they had not, then they would be able to get the interest portion of the bill removed. Commissioner Scarborough stated that would apply to all public defender similar situated cases; with Commissioner Pritchard agreeing it would.

Chairperson Colon stated whenever anyone disputes any charges with the Clerk of Courts, they are told the only ones who have the authority to waive charges is the Board, so regardless of what the Board does, it will always be the one that will have to waive fees. Commissioner Carlson stated that is unless the Board changes the rule, which is what it is attempting to do to make it administrative so it does not have to come to the Board each time to make a subjective decision; and it will be administered the way it ought to be.

Commissioner Higgs stated if the Board is making a huge blanket thing, she is more scared about it; and with the collection agency involved, she believes Chairperson Colon is right and the Board ought to not make a decision. She stated the Board has the basic scope of what it wants to do; staff should just check it out and bring it back; but it would be best not to do anything. Commissioner Scarborough stated if this does not come together, the Board is going to hear from Mr. Knox and the Clerk that it needs to come back for further instructions. Commissioner Higgs suggested directing the County Attorney to draft the policy that was just outlined, bring it back in a couple of weeks, and the people be notified it is all set; and that way there is not a potential big problem with the collection agency and others. Commissioner Scarborough stated he does not mind having it come back as a policy; but he does not want to see people sitting through another meeting. Commissioner Higgs stated the speakers will be notified when the policy is coming back to the Board; and if they think it is okay, they do not have to appear.

Chairperson Colon called for a vote on the motion, as amended. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE, RE: ORDINANCE AMENDING ANIMAL-RELATED ZONING
REGULATIONS FOR CONSISTENCY WITH STATE REGULATIONS, ENHANCED
USABILITY, AND CLARITY

Commissioner Higgs stated in the proposed ordinance, starting on page 10, she is concerned about pet kennels, veterinary hospitals, clinics, and related offices; the presence of a large number of dogs in a neighborhood can be disconcerting to people; and in this case, they would be permitted in the AU zoning classification, which in most cases is a residential large lot area. She stated in (a) it allows it to be 300 feet from the nearest residence; expressed concern about vacant lots; and suggested it be 300 or 500 feet from the nearest property line rather than the nearest residence. She stated kennels need to be separated and on more acreage than 2.5 acres; when there are a large number of dogs, 2.5 acres shrinks quickly; and she would like to see staff work on this more so that kennels in particular could be permitted with conditions. She stated veterinary clinics and hospitals are businesses; they do not belong in AU, but in a business classification; and AU is not a suitable place for those things.

Commissioner Carlson stated some veterinary hospitals have backyards with kennels. Commissioner Higgs stated in that case, they need to have that property not in the middle of an AU residential area; it may need to be on a collector or arterial or something like that; but it needs to be further defined. She stated clinics, hospitals, and kennels are businesses; they are not residential; they do not need to be 300 feet from the nearest residence; and they need to be on more than 2.5 acres. She stated on page 5 is the language concerning kennels as a permitted use in AU; recommended it be permitted with conditions; and advised she would like staff to work that out before this moves forward.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct staff to work further on the proposed ordinance on animal-related zoning regulations as outlined in her previous statements. Motion carried and ordered unanimously.

SUBORDINATION AGREEMENT, RE: NORTH TITUSVILLE GARDEN APARTMENTS

Commissioner Scarborough stated the County is being requested to subordinate its encumbrance of real property known as North Titusville Garden Apartments; normally, one does not subordinate if one has a prior position; he spoke about this with Ms. Williams; and apparently the County’s loan is not a loan but a grant that will expire February 2004. He inquired if the whole thing is going to go away in February, why do they want the County to subordinate.

Housing and Human Services Director Gay Williams stated the institution providing the loan to complete the transaction would have to be in first position; they are loaning out a substantial amount of money for the purchase of this piece of property; and they need to be in the superior position in case there is a default later in the years of this loan. Commissioner Scarborough stated later in the years is not going to be a problem because come February 6, 2004 there will be no Brevard County lien. Ms. Williams stated the institution providing the mortgage is requesting to be in the superior position; and advised the $32,000 that would have been due to the County based on the sale has been paid. Commissioner Scarborough inquired what is the purpose of the lien; with Ms. Williams responding it is because there was a seven-year affordability period. Commissioner Scarborough inquired if they violate the seven-year affordability period in November, is there any way the County could call this in default based on the lien; with Ms. Williams responding yes, if they do not keep the seven-year affordability period that also expires in February 2004. Commissioner Scarborough inquired if they could within the next six months find themselves in a default position; with Ms. Williams responding that is right; and staff could continue to monitor them up until that time.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve the subordination of an existing Note and Real Property Lien recorded against North Titusville Garden Apartments in conjunction with the purchase of the property by Millennium Investment Holding Company, LLC; and execute the Subordination Agreement. Motion carried and ordered unanimously.

WAIVER OF TITLE EXCEPTION FOR DITCH, RE: WEBER PROPERTY

Commissioner Carlson stated Commissioner Pritchard made comments about this item and said they applied to a previous item; and inquired if he meant to pull this item.

Commissioner Pritchard stated the other item was the resolution by the Marine Resources Council; and the only comment he has is there is no mention of taxes. He stated the County is making a purchase; it is acquiring a property; and future impacts are shown as site security, capital improvements, and land management activities, but it does not say what the cost of the impact is. He stated he keeps asking what the cost will be, what is the dollar value coming off the tax roll, and what kind of money are they talking about. He stated no one would buy something unless he or she knew what the eventual cost would be; and he would not either, which is why he pulled this item and several others. He stated he wants to know the cost of doing business.

County Manager Tom Jenkins stated from now on staff will include the taxes paid the prior year so the Board will have that information. He stated the Planning and Zoning Office is working with Hank Fishkind who has developed a model with the State of Florida that is doing the type of cost Commissioner Pritchard is describing; they are close to having that ready; in the not too distant future, there will be a documented model that will calculate some of those costs that Commissioner Pritchard is describing; but for the moment staff will display the taxes.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to waive the title exception for the ditch located on the Weber property to facilitate closing on the property. Motion carried and ordered; Commissioner Pritchard voted nay.

CONSENT AGREEMENT WITH FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION, RE: RESOLUTION OF DISPUTES REGARDING OPTIONS OF LANDFILL
GAS COLLECTION SYSTEM AT CENTRAL DISPOSAL FACILITY

Commissioner Pritchard stated this represents a $1.5 million cost to the County; and although he understands it is something the County would inevitably have to do, the reason the County has to do it does not make sense to him because the County is in compliance.

Assistant County Manager Stephen Peffer stated the landfill is in compliance with the performance standards meeting the air emission requirements; and the particular issue here is that there is a difference of opinion with the Florida Department of Environmental Protection, in which the County maintains that by being in compliance with the performance standards, the landfill design that it had proposed was also in compliance with the permitting standards. He stated they ended up at a point of disagreement over that where DEP has decided over the past several years that there is actually a design requirement, which it is going to impose and require on all future permits; that design requirement requires the County to put landfill gas wells in any area that has material placed longer than five years; so, there is a difference in what the County was doing before where the design of the landfill system was meeting the performance requirements and now with the State no longer finding that to be sufficient and requiring the County to meet the design requirements. He stated the County agreed it would let the Environmental Protection Agency be the arbiter of the disagreement; and ultimately EPA determined it agreed with the revised way DEP was reading the regulation. Mr. Peffer stated the net result is that in order for the County to obtain its permits and operate in compliance under the revised interpretation, it has to place the landfill gas wells in at a date earlier than anticipated. He stated it is staff’s intent, and always has been staff’s intent to operate in compliance with the regulations; the impasse came about because of the revised interpretation; DEP eventually prevailed; so the County is resolving the difference of opinion by constructing the landfill gas collection system. He stated it is being done earlier than it had been anticipated; but it is something that is necessary in order to meet the new requirements.

Commissioner Pritchard stated what gets him is that the discharge meets the performance standards, but the operational design has changed so that the County has to spend $1.5 million to meet the operational design requirement; yet it will probably not have much, if any, effect on the performance standard, which has been under the threshold that would be considered dangerous. Mr. Peffer stated that is his understanding as well; and the one offsetting factor is that since they will be collecting more gas, they will be able to get more beneficial use out of the landfill gas. Commissioner Pritchard stated besides the additional $1.5 million, the DEP determined that an incident involving the shutdown of the landfill gas system for more than five days during 2002 was also a violation of the County’s Title V permit, and it intended to fine the County for that. He stated it took a considerable amount of staff time and negotiations to work that out; the shutdown was due to lightning striking the main power line supplying the landfill gas flare station; and because the main power line is high voltage, an outside electrical contract was needed, leaving the system down for 13 days. He inquired where is the reasonableness with DEP fining the County for a lightning strike and having to bring in a certified electrician capable of handling the high voltage line; and stated it does not seem as if any sort of common sense is being applied at both ends of this spectrum. Mr. Peffer stated in this matter DEP held the County to what it felt was the letter of law, which would have allowed no more than five days of shutdown; explained why the shutdown lasted so long; and advised of the steps taken to prevent such an occurrence again with two electrical contractors under contract. He stated to avoid a future violation of this nature, they have put into place several steps, which will prevent this from happening. Commissioner Pritchard stated he was not admonishing staff, but was admonishing DEP for taking such a hard-line position without looking into the reason behind the shutdown; and he would hope in the future that DEP would use a bit more common sense so the County does not have to spin its wheels and use a lot of staff time that could be used for other purposes just because the “letter of the law” says it should have been five days.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the County Manager to execute Consent Agreement with Florida Department of Environmental Protection to resolve compliance disputes regarding the expansion and operation of the landfill gas collection system at the County’s Central Disposal Facility. Motion carried and ordered unanimously.

PUBLIC COMMENTS, RE: LETTER TO DEP

Carol Pope stated this is a housekeeping issue, and is not concerning any of the criteria discussed this morning; but it does concern the same project. She stated the project has a permit pending with DEP in Tallahassee; part of the permit is written evidence provided by the appropriate local government agency having jurisdiction that the proposed activity does not contravene local setback requirements; the letter DEP has on file is dated December 16; and it does not reflect that the issue has not been decided, and is not going to be decided until August 12, 2003. She stated when she called Beaches and Shores because they were aware there was supposed to be a hearing on it today, she advised it had been delayed to August 12; and they said the appropriate direction would be to have the Board direct someone to send a letter rescinding the previous letter and advising the final decision should be made on August 12, 2003. She advised the original letter was signed by Cindy Fox of the Planning Department. She stated this is not prejudicial to either side; it does not say the Board is going to vote for the developer or the other side; and it simply says that is where the decision is now. She requested the Board direct staff to send a letter to DEP; and submitted a copy of the letter to the Chairperson, but not the Clerk.

Chairperson Colon inquired if Ms. Pope had the letter this morning; with Ms. Pope responding she did not call until after she left. Ms. Pope stated she would like to have a recommendation to staff; and surely the Board would not have a problem saying the letter is not correct and sending the correct letter to DEP.

Commissioner Higgs stated it would be appropriate to refer that to the County Manager to take appropriate action to insure DEP has accurate information.

WARRANT LISTS

Upon motion and vote, the meeting was adjourned at 5:47 p.m.

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JACKIE COLON, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK
(S E A L)