The Board of County Commissioners of Brevard County, Florida, met in special session on August 12, 1999, at 5:45 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Sue Carlson and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

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

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE EXTENDING MORATORIUM ON BILLBOARDS

Assistant County Manager Peggy Busacca advised the Board directed staff to schedule a workshop with the public on billboards; it has been scheduled by the County Attorney's office for August 20, 1999; the public hearing is still scheduled for August 31, 1999; and inquired does the Board intend with the scheduling of the workshop for the public hearing to be held on August 31, 1999 or does it want to give additional time after the public workshop.

Chairman Scarborough stated the Board will maintain the dates of August 20, 1999 for the workshop concerning billboards and August 31, 1999 for the public hearing.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to grant permission to advertise public hearing to consider an ordinance extending moratorium on billboards for 90 days. Motion carried and ordered unanimously.

Chairman Scarborough stated the Board will recess until staff has completed making the revisions to the Stipulated Settlement Agreement with Oleander Power Project, L.P. and Constellation Power Development, Inc.

The meeting recessed at 5:50 p.m. and reconvened at 6:13 p.m.

STIPULATED SETTLEMENT AGREEMENT WITH OLEANDER POWER PROJECT, L.P. AND CONSTELLATION POWER DEVELOPMENT, INC.

Assistant County Manager Peggy Busacca advised the audience of the Board's revised changes made at its special meeting today held at 4:00 p.m. in the Florida Room concerning the stipulated settlement agreement.

Lee Bohlmann advised of the Melbourne/Palm Bay Area Chamber of Commerce's support for the Oleander project, and requested the Board accept the stipulated settlement agreement.

Craig Bock, Martha Franco, Mike Stallings, Jan Moody, Muriel Considine, Janice Eide, Dorothy Amstadt, Tom Berringer, and Marlene Waters advised of their opposition to the Oleander power plant project due to truck traffic, noise, water use, property values, environmental concerns, and health issues; and requested the Board deny the stipulated settlement agreement.

Attorney Leonard Spielvogel, representing Oleander Power Project, stated his client thought the community would welcome him; he made every effort, and met with representatives of Brevard County and the Economic Development Commission (EDC) for approximately two years, but apparently it was not sufficient; and Commissioner Carlson indicated the County needed to know more about the project, which was about nine months ago, so his client went to the community. He advised studies have been done of air, buffering, landscaping, economic impact, heat emissions impact, property valuation, noise, traffic, visual, water, wastewater, stormwater, wetland delineation, and mitigation; such studies were presented to Brevard County; and there is no reason for the community to be concerned about their health and whether their property values will be adversely affected by the operation. Attorney Spielvogel stated his client has put into the binding stipulation that the route of trucks will go from the Port to U.S. 1, S.R. 520, and turn right on Townsend Road and to the property; when the trucks leave, they will leave Townsend Road and make a right turn to I-95 and get on the Bennett Causeway and back to the Port; and that is the preferred route. He stated if there is an emergency and Oleander cannot use that route, they can seek an alternate route with approval of the County's Traffic Department. He stated his client has made changes and can meet the requirements and standards because it is the latest technology; and it will be a good business and operation, and a good corporate member of the community.

Attorney Spielvogel suggested the language be revised on page 4, paragraph 7.a., to include "At no time shall the actual noise level emitted by the proposed use exceed 65 dBA at the closest property line for more than two minutes in any one-hour period." County Attorney Scott Knox stated the County talked about that; and the language was taken from the performance standards, but did not reflect a specific dBA.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to revise language on page 3, paragraph 4, to read, "That the type of fuels utilized and the authorized number of hours referred to in Items No. 2 and 3, immediately above, may not be modified or increased regardless of the permitted hours or fuels authorized by Department of Environmental Protection (DEP) or any successor agency without the approval of the County granted at a public hearing." Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to include language on page 4, paragraph f. to read, "Shaded light sources shall be arranged to eliminate glare away from roadways and streets and adjacent properties as required by Section 62.2254 of the proposed Code." Motion carried and ordered unanimously.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to execute Stipulated Settlement Agreement with Oleander Power Project, L.P. and Constellation Power Development, Inc. concerning the operation of a power plant, as amended.

Commissioner O'Brien stated the property was zoned Light Industrial to begin with; power plants are a heavy industrial use; the people have not been treated fairly in the process; and this leaves everyone in Brevard County with no reasonable expectation to trust the process. He stated the people most adversely affected are in his District and do not want the plant; and to remain consistent with his previous votes and position on this specific project, he will not support it or any other agreement with Oleander Power.

Commissioner Higgs stated it is not an easy issue; the Board tries to follow what the law is; and in this case, the law allows a power plant to go in that location. She noted whether that law is right or not is not the compelling issue; Oleander has the legal right to put the facility on that site; and she is compelled to vote in favor of the settlement agreement which gives the County a better set of conditions for this facility.

Chairman Scarborough stated it is the prudent thing to do, because not to do it opens the property up to even greater question as to what could occur there. He noted it is disturbing that so many people involved with economic development have become so concerned over 12 jobs; the whole concept of what is economic development in this County needs to be scrutinized by the County in light of all that has occurred; and he questions whether it has the leadership it should have to drive Brevard County forward. Chairman Scarborough stated some of the words in the FACT book were quite clear to him, such as no odor, no visible emissions, and the issue of property value; some of the information disseminated was purposely misleading; and the prudent thing is to vote in favor of the agreement.

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

The meeting recessed at 7:05 p.m. and reconvened at 7:18 p.m.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, INDUSTRIAL PERFORMANCE STANDARDS

Chairman Scarborough called for the public hearing to consider an ordinance amending Chapter 62, to establish Industrial Performance Standards.

Planning and Zoning Director Mel Scott advised at the Board's workshop on August 10, 1999, a number of items were removed from the initial proposal, including limitations on hours of operation, building materials, exterior storage, truck shipments referring to the size of trucks and amount of trucks, building height, Sections 7, 8, 9, 10 11 and 13 of the initial draft dealing with buffer yards, opacity, and landscaping, and standards for Conditional Use Permits (CUP's) giving positive and negative considerations on a number of factors. He stated the Board adopted a new Ordinance which thoroughly addresses those issues Commissioners will consider before granting a CUP; there was a section in the initial proposal that dealt with deemed conforming uses which has been deleted; so the County will deal with non-conforming uses, using the existing Code. He stated there was a desire to have a trigger mechanism in place for certain uses that required a Title V permit; and it has been refined in the proposal before the Board so that Title V seekers, excluding those that have Title V general permits, would still require a CUP. Mr. Scott advised all heavy industry as defined by the North American Industrial Standards Code will require a CUP; the County will revert to the noise standards adopted last Tuesday as part of the CUP Ordinance; the proposed noise standards will not be used; and the Board deleted the odor panel. Mr. Scott stated one of the things that precipitated the move to look at the Code and refine it was the realization that some of the heavier uses were listed as light industry in the existing Code; one of the changes before the Board would catch the heavy industries defined by the North American Industrial Standards Code, including uses such as animal slaughtering, pulp mills, and concrete mixing; and those heavy uses will now require a CUP and a public hearing before approval. He noted there is not a lot of changes for general industry; however, one of the aspects will affect vacant shopping centers and allow light industry to go into commercial areas which they currently cannot do. He stated it will give the industrial community increased flexibility and latitude to locate in more areas; and the performance standards are designed to insure that if the neighbors know someone is next to them, it is all right for them to be there.

Commissioner Higgs stated one of the concerns is the requirement of a professional certification for certain standards; the review by staff shows that odor would require a professional certification based on what is in the draft ordinance; and inquired if the Board were to deal with such issue in a different way, what is staff's suggested language.

Mr. Scott advised page 46, second line under Odor, states, "Site plans must include a certification assuring that odor standards will not be exceeded by the intended use"; one change that could be made, which would revert the proposal back to way the County currently does business, is to revise the sentence to read, "Site plans must provide assurance that odor standards will not be exceeded by the intended use." He stated currently when an industrial user submits a site plan, staff checks to see that there is assurances made by the engineer that the performance standards will be met. Commissioner O'Brien stated it is a good approach which is fair and reasonable. Commissioner Higgs stated the Board is trying to put a structure in place; the business community wanted a period of time to work on further issues; and it would be consistent with that philosophy.

Discussion ensued concerning BU-1 and BU-2 zoning classifications, restrictions on putting industrial uses into commercial districts, limitations on operating hours, truck limits, building materials, general performance standards, airborne emissions, Title V permits, asbestos manufacturing and fabrication facilities, Title V general permits, certification program and the Electric Power Plant Siting Act.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to direct the County Attorney to prepare a draft ordinance concerning Conditional Use Permits (CUP's) for power plants. Motion carried and ordered unanimously.

Martin Lamb requested the Board delay action on the ordinance to allow the public to have a final document to review for one week.

David Armstrong, representing the Home Builders and Contractors of Brevard, stated there is no final document; since the County has been able to separate the Oleander Power Plant from performance based zoning, there is no reason to rush the ordinance through this evening; and requested the ordinance go back to the Local Planning Agency (LPA) and allow the public two to four weeks to review it.

Roseann DiPrima-McWilliams, representing the Home Builders and Contractors Association, expressed appreciation to the Board and County staff for meeting with some of the local leaders in the past month to discuss the issues. She stated today the Association reviewed the latest draft of the performance based zoning; and there are still items not addressed that the Association had listed on its August 11, 1999 letter, including lighting standards, procedure for mitigating in non-conformity, landscape opacity, and noise, odor, and vibration standards. She noted the Association would request additional time to review the standards specified in the ordinance; and the document today is a much more acceptable, but there are still items that need to be changed.

Chairman Scarborough inquired is it the desire of the Board to proceed with adoption of something this evening; with Commissioner Voltz responding it is not her desire to do that. Commissioner Higgs stated she is ready to proceed. Commissioner O'Brien stated there should be additional time for everyone to work together and come up with a document that is not changing every day. Commissioner Higgs stated the Board made a major effort on August 10, 1999 to reach consensus and take out items that might be objectionable to people; and she is disappointed to see the potential of doing nothing. Commissioner Voltz stated the letters she received requested additional time and have not objected to the content; on August 10, 1999, the Board picked out some of the things it might want to discuss; and those things should be given back to the community to discuss. She noted there is still some tweaking that needs to be done on the document; this is the time when it needs to be given back to the community as the Board has already said these things are important; and requested today's document be given back to the community for its review. Chairman Scarborough stated he feels comfortable letting the community take the document and work it. Commissioner Higgs stated if the Board takes no action on anything here, it will be no where at 12:00 tonight when the moratorium expires; a power plant or slaughter house could come into Brevard County; and it is a real problem if the Board does not do anything. Commissioner Carlson expressed concern if the Board does not act on something, especially in heavy industry; stated it could open itself up to major problems; it can look at this tonight with all the discussion and additional input, and create a framework; and the next step is to take the most controversial pieces and create a time line to do what it wants to do. She noted the Board needs to move forward on something tonight, including those issues and concerns it has already addressed with the community. Commissioner O'Brien stated the County needs to let the public have their say; so he is not willing to support adopting the ordinance tonight, but is willing to make a motion to advertise an amendment to the County's present Ordinance that would make power plants a heavy industry and require a public hearing.

Chairman Scarborough passed the gavel to Vice Chairman Higgs.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve that a proposed motion will be made after the public hearing is concluded, that the Board proceed to adopt the Sections dealing with heavy industry and power plants, and the remainder be referred to the community for further comment and come back to the Board in 60 days. Motion carried and ordered; Commissioners Carlson and Higgs voted nay.

Vice Chairman Higgs passed the gavel to Chairman Scarborough.

Lee Bohlmann, representing Melbourne-Palm Bay Area Chamber of Commerce, inquired if the Chamber needs to address its comments tonight or should it wait. Chairman Scarborough responded there will be plenty of time to address the issues item-by-item. Attorney Knox stated the only issue the Board is considering now based on the motion that passed, is to move heavy industrial into conditional use permit reviews. Ms. Bohlmann stated the Chamber can accept that; and expressed appreciation to Mel Scott for all of his efforts.

Heidi Brandow, representing Cocoa Beach Area Chamber of Commerce, thanked the Board for the motion it just made; and stated the Chamber is interested in helping to educate the business community and work with the County on changes.

Larry Wuensch, representing Melbourne International Airport, advised of his support for the 60-day time extension concerning the performance standards for comment and review by the community.

Marjorie Derrick requested a clause requiring exclusionary devices for birds and bats in industrial areas be included in the regulations; read aloud Resolution No. 99-07 adopted by the Town of Melbourne Village supporting the regulation of industrial uses consistent with the Brevard County Comprehensive Plan; and submitted the Resolution for the public record.

Mike Selig advised of his support for additional time to comment and review on the performance standards.

Douglas Sphar, representing the Sierra Club Turtle Coast Group, stated the Group is concerned about the air emissions, Section 62-2259; there are many people who could be a Title V and beyond with air emissions and not be considered heavy industry; and inquired what type of criteria would protect the people against a major emitting source.

Mr. Scott advised all Title V's, except the general permit Title V's, will require a CUP in this proposal. Mr. Sphar stated the Group had proposed criteria for CUP's; with Mr. Scott responding the Group will have an opportunity to go over the CUP criteria and make a determination whether or not it is satisfactory. Mr. Sphar stated the Group requests the Board consider all the options, including the Group's options; air emissions can have implications on Brevard County's quality of life, the health of the citizens, and potential for sustainable growth of clean industry; and the Group is eager to see this done in a timely manner.

Chairman Scarborough stated his intent is not to do anything that would cause harm to the community, and wants to close the door on that today; it is the liberalization issues that would be deferred for additional comments; and the issues Mr. Sphar is concerned about can be handled this evening. Mr. Scott stated the Board could also adopt the provision for Title V tonight in addition to heavy industry which would include power plants. Attorney Knox stated the Board is taking heavy industrial uses as defined in the Ordinance which includes power plants, and shifting them into the CUP review process; and if it wants to add Title V as heavy industrial, it can do so. Mr. Sphar stated the Group would appreciate the addition of Title V, as there is industry in addition to power plants that could be a major air polluter.

Peter Dilavore, representing Melbourne Area Association of Realtors, requested modeling be done concerning residential, commercial, and industrial to see what is going to happen to each area before any changes are made to the ordinance after it is adopted.

Lillian Banks noted she is not concerned about the Board not being able to tighten stricter standards; gave figures on the cost of environmental regulations in the United States; stated economists estimated that between 1972 and 1985, the federal government's approach to environmental protection reduced national economic output by 2.6%; and the money lost from that would have paid for 2 million new jobs. She noted each dollar increased in cost to control pollution means a loss of $3.00 to $4.00 in productivity which equals less growth and lower wages; several of the Commissioners have mentioned that new jobs are critical to the area to balance the losses of the Space Program; and inquired when is the public to expect the Board to start working for this goal.

Ned Buffington advised of his support for the additional time to comment and review on the performance standards.

Bob Hartman stated if the County had given 90 days, it could strike everything after the enabling clause and it would be back where it was; the improvements seem to be in the line of cutting things; the County basically has someone's term paper for his doctorate and it wants to be the guinea pig; and the question is whether Brevard County is that desperate.

B. B. Nelson stated there are several versions of the ordinance, and it would be wrong for the Board to pass something tonight when it does not know what it is going to pass; the Board needs to take into consideration the price tag for hiring odor detectors and policemen for all these things, as it will add a lot of costs to the project; and suggested CUP's for all adult entertainment centers in industrial parks. He noted the County is being discriminatory if it applies a CUP requirement on all IU-1; and will ask the Property Appraiser tomorrow and to lower all assessed evaluation if the County does this. He requested the Board be specific on CUP's and do not pick on one particular zoning category and say everything in there has to be CUP; and requested additional time to review the issues.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Ordinance of the Board of County Commissioners of Brevard County, Florida, amending Chapter 62 of the Code of Ordinances of Brevard County, Florida, to change the Land Development Regulations for industrial uses; creating new definitions; adding and deleting conditional uses and uses permitted with conditions in industrial zoning classifications; creating new conditional uses in industrial zoning classifications; providing for severability; providing for conflicting provisions; providing for the area affected; and providing for an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 99-45.)

Motion by Commissioner Higgs, to send the original draft document on performance standards from August 10, 1999, to the community for consideration and comment for 90 days. Motion died for lack of a second.

Discussion ensued concerning modeling issues, illustrations depicting scenarios, abandoned strip centers, and buffer yards.

Chairman Scarborough stated there are a lot of things in Lane Kendig's proposals that he cannot support. Commissioner Voltz stated there is a lot of stuff she disagrees with, but the community wants to review the issues further.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to send the remainder of the document concerning performance standards to the community for further comment and come back to the Board in 60 days; and authorize advertisement for public hearing. Motion carried and ordered; Commissioner Higgs voted nay.

Martin Lamb stated it is turning into a positive thing; he has not heard anyone say tonight that they are totally against what exists now; but the public wants additional time to work on it. He expressed appreciation to the Board for its hard work and consideration.

Upon motion and vote, the meeting adjourned at 8:54 p.m.

ATTEST:

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

SANDY CRAWFORD, CLERK
(S E A L)