The Board of County Commissioners of Brevard County, Florida, met in regular session on April 27, 1999, at 9:04 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Nancy Higgs, Sue Carlson, and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox. Absent was: Commissioner Randy O'Brien, due to illness.

The Invocation was given by Reverend Philip Fisher, Three Rivers Church, Melbourne.

Commissioner Nancy Higgs led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve the Minutes of the February 9, February 16, and February 23, 1999 Regular Meetings. Motion carried and ordered unanimously.

MOVE AGENDA ITEM

County Manager Tom Jenkins advised Item III.D.4 needs to be under New Business in accordance with Board Policy.

ANNOUNCEMENT

Commissioner Scarborough advised Commissioner O'Brien is absent due to illness, and the Board wishes him well.

REPORT, RE: APPRECIATION OF ARTS

Commissioner Carlson inquired if any of the Commissioners enjoyed the Appreciation of the Arts event in Building A; with Commissioner Voltz responding she did, and it looks wonderful. Commissioner Carlson extended appreciation to Kay Burk and Janice Kershaw for their work on the event as well as the Very Special Arts Festival. She advised she attended the Festival with her daughter; it was very well organized; and the whole week was a big success which she would like to see repeated next year.

LETTER OF OPPOSITION TO FLORIDA HB 405 AND CS/SB 984, RE: CHARTER COMMISSION

Commissioner Carlson stated she would like to bring forward Item VI.E.6 which is an objection to House Bill 405 and Committee Substitute for Senate Bill 984 dealing with the way that members of the Charter Review Commission are appointed; it is a time sensitive issue; both bodies could vote on the bills at any time today; and recommended sending a letter of opposition. She advised the bills amend the requirements for the number and type of members on Charter and Charter Review Commissions by reducing the number and percentage of appointments made by County Commissioners, and giving those appointments to Constitutional Officers; and last week's amendment to the bills included Charter Review Commissions along with the initial Charter Commission thereby diluting the original intent of authority for Charter counties. She stated Tampa area State Legislators have filed an objection to the bills; however, the bills remain on the calendar.

Chairman Scarborough stated the Constitutional Officers are elected, have a unique perspective on County government, and the Charter does affect them; and there may be merit in the bill. Commissioner Voltz agreed; and stated all of those people should have a say as they are affected by what is done.

Commissioner Higgs stated the Charter outlines who the Charter Review Commission is; the purpose of the Charter is to specify a Constitution by which the County operates; the Review Commission is set up in the document; and the proposed legislation would supercede the local government authority. Commissioner Voltz stated when it was set up, it should have included some of those things. Commissioner Higgs stated she would not mind seeing it as an amendment to the Charter, as opposed to the way the bill is being introduced which takes away local authority. Chairman Scarborough inquired if the authority is being given to the Legislature; with Commissioner Higgs responding the Legislature is designating through Statute how the Charter Review Boards will be set up. Chairman Scarborough inquired if Commissioner Higgs does not mind the Constitutional Officers having a say so, but it should occur here. Commissioner Higgs stated she does not have a problem with changing the Charter; with Chairman Scarborough advising he can concur with that.

Commissioner Voltz stated she has a problem in that the proposed legislation exempts Miami-Dade County; and inquired what gives them the right to do what they want to do. County Manager Tom Jenkins advised the Miami-Dade Charter was done by Special Act of the Legislature, and not the traditional way; it was one of the first in Florida; and as it was created by the Legislature, that is probably why it was excluded. Commissioner Voltz stated that does not matter when talking about who is going to be appointed on the boards; and their constitutional officers should have a say. Commissioner Higgs advised they may not all be elected. Mr. Jenkins stated the Supervisor of Elections is not elected; the Clerk of Court is; and he is not sure about the rest, but it is a mixture.

County Attorney Scott Knox stated the Dade County home rule charter is incorporated in the Florida Constitution so it may not be as easy to change. Commissioner Voltz stated in that case, she has no objection to the bill.

Chairman Scarborough recommended a letter saying the Board concurs with the intent to allow the elected constitutional officers to participate in appointments, but that it should take place at the county level in county charters. Commissioner Higgs stated then the Board opposes the bill. Chairman Scarborough stated the Board needs to state its reasons why.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authority the Chairman to sign a letter to the Brevard County Legislative Delegation and Lobbyist Guy Spearman explaining the Board concurs with the intent of HB 405 and CS/SB 984 to allow the elected constitutional officers to participate in appointments, but that it should take place at the county level in county charters. Motion carried and ordered unanimously.

Commissioner Carlson stated the Legislature will be discussing this today; with Chairman Scarborough directing staff to revise the letter for his signature.

DISCUSSION, RE: CAPPING INTEREST RATES ON CAR TITLE LOANS

Commissioner Voltz stated an article in the Orlando Sentinel addressed counties being involved in interest rates for car title loans; right now the industry is charging 264% annual interest rate which is usury; and the County Attorney advises he does not know if the County can get involved. She stated several counties have already capped interest rates; and suggested directing the County Attorney to look into this to see if there is something the Board can do. Chairman Scarborough stated there are some things going before the Legislature and Governor.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to direct the County Attorney to investigate whether the Board has the authority to cap interest rates on car title loans. Motion carried and ordered unanimously.

LETTER OF SUPPORT, RE: CIRCLES OF CARE

Commissioner Voltz stated she has a letter from Paul Evans, Circles of Care, advising they are applying for a Safe Schools/Health Students Initiative Grant, and requesting a letter of support; and read aloud a sample letter of support.

Commissioner Higgs inquired if there are any others in the County applying for the grant. Assistant County Manager Don Lusk stated he knows nothing about the grant, but can check on it. Commissioner Voltz stated Circles of Care is the only one; and it is a partnership between the School Board, Circles of Care, Chiefs of Police Association, Sheriff's Department, and Department of Juvenile Justice. Commissioner Higgs suggested staff check to be sure it is not in conflict with others. Commissioner Carlson inquired if this is the first year Circles of Care applied for this grant; with Commissioner Voltz responding yes.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize the Chairman to send a letter of support for the application by Circles of Care, in partnership with the School Board, Chiefs of Police Association, Sheriff's Department and Department of Juvenile Justice, for the Safe Schools/Healthy Students Initiative Grant. Motion carried and ordered unanimously.

DISCUSSION, RE: MEETING WITH ORANGE COUNTY COMMISSION

Chairman Scarborough stated Commissioner Higgs set up a meeting for him with Orange County Commission Chairman Mel Martinez; the Orange County Commission is coming to visit the Port on June 18, 1999; and Chairman Martinez suggested a meeting, but he advised Chairman Martinez that is when the Board is on vacation.

Commissioner Voltz stated if everyone is here, the Board could meet. Chairman Scarborough suggested if any Commissioner plans to be in town, they may meet with the Orange County Commission at the Port; and if enough are in town, they may have a joint meeting.

County Attorney Scott Knox advised the meeting needs to be properly advertised.

DISCUSSION, RE: COMMISSIONER O'BRIEN

Commissioner Carlson stated she saw Commissioner O'Brien at the Space Club Meeting; he looked well; and he will be back on May 4, 1999. Commissioner Voltz advised Commissioner O'Brien needs to build up his stamina.

County Manager Tom Jenkins stated Commissioner O'Brien had pneumonia and an infection, but hopes to be back on May 4, 1999.

*Commissioner Voltz's absence was noted at this time.

RESOLUTION, RE: COMMENDING SENIOR RESOURCE ALLIANCE

Commissioner Higgs read aloud the resolution commending the Senior Resource Alliance for its outstanding services to the County's elderly citizens.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution commending the Senior Resource Alliance for its outstanding services to the County's elderly citizens. Motion carried and ordered unanimously.

Judy Thames, representing the Senior Resource Alliance, expressed appreciation to the County for partnerships with SCAT and the Volunteers in Motion Program; and distributed materials advising of expectations for the County in the next few years as well as the money that will be needed. She stated Senior Resource Alliance is a funding, contracting, and monitoring agency for the Department of Elder Affairs; the budget is $13.5 million; and advised of needs assessment, including need for transportation.

*Commissioner Voltz's presence was noted at this time.

Ms. Thames advised other services include homemakers, home delivered meals, adult day care, and respite care with Alzheimer's clients; stated 23% of the total population of the County are over the age of 60; and the County is 36% of the SRA planning and service area. She stated of the 23%, only 2% are low income; and only 1% is medicaid-eligible; and advised it is projected that the State's population of 60 and over will increase by approximately 16%. She stated the 85 and over population will have the highest increase at 43%; and advised of the need for community based services. She advised of increase in Hispanic population, and need for more bi-lingual workers, and of funding levels and sources for various programs; stated Brevard County residents receive over $61 million a month in Social Security; and she was unable to get figures on military retirement income. She stated out of 108,000 seniors in the County, only 4,100 are served, which is less than 3.7%; there is a vibrant senior population; and outlined the variety of services provided. She stated over 50,000 one-way trips are being provided with the County's support through SCAT and Volunteers in Motion. She stated there is a new Governor and Secretary of the Department of Elder Affairs; they are trying to create more dynamic partnerships in the community, and separate case management from services so there is no conflict; and even if they provide service through different vendors, those vendors will come to the County for the match money. She stated for every dollar the County provides, $9 worth of federal or State money is provided; and it is a good value.

Commissioner Higgs stated the Senior Resource Alliance is the County's partner; and it is a way to leverage money and bring greater financial resources to assist the people.

Ms. Thames stated they have done a lot of work with the Orange County Commission; they have partnered with United Way for the evaluation process; and that has leveraged dollars tremendously.

Commissioner Higgs expressed appreciation for the information provided by Ms. Thames. Commissioner Voltz stated this is the information the Board needs for its benchmarking process. Chairman Scarborough stated there are some unique things happening with the aging of America, the historic movement of the aging population to Florida, and what that can mean. He stated generally people move in 25 to 30 years before age 85; they may be very productive, and have more economic freedom to do more things; and there may be three levels of aging. Ms. Thames stated Brevard County has a wealthier older retiree; but if cost effective services cannot be provided to maintain them in the home, it does not matter whether they have the money; and the labor shortage is a new challenge.

Commissioner Higgs presented the Resolution to Ms. Thames.

RESOLUTION, RE: COMMENDING BELLSOUTH FOR PROVIDING EMERGENCY MANAGEMENT INFORMATION

Commissioner Carlson read aloud a resolution commending BellSouth for providing emergency management information.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution commending BellSouth for volunteering to provide residents and visitors of Brevard County with vital information for emergencies in its 1999-2000 telephone directory. Motion carried and ordered unanimously.

County Manager Tom Jenkins stated on pages 27 through 29 of the telephone book, there is information about evacuations, evacuation shelters, special needs programs, protecting homes, what to do with pets, etc.; it is important information; and recognized BellSouth for it.

Judy Spencer, representing BellSouth expressed appreciation to the Board for the Resolution; and stated this type of information is not standard through every directory; and it is a testament to the leadership of Tom Jenkins, Bob Lay, and Steve Benn. Commissioner Carlson presented the Resolution to Ms. Spencer, and Mr. Lay presented Ms. Spencer with a "Be Hurricane Prepared" hat.

FINAL PLAT APPROVAL, RE: SUNSET LAKES, PHASE 5 SUBDIVISION

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to grant final plat approval for Sunset Lakes, Phase 5 Subdivision, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: VIERA, TRACT 12, UNIT 1, PARCELS 103, PHASE IV

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to grant final plat approval for Viera, Tract 12, Unit 1, Parcels 1-3, Phase IV, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: SUNTREE NORTH, PHASE III, SUBDIVISION F, PHASE 2

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to grant final plat approval for Suntree North, Phase III, Subdivision F. Phase 2, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: PORTOFINO BAY SUBDIVISION

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to grant final plat approval of Portofino Bay Subdivision, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary permits. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH DEBORAH AND JAMES CROFT, RE: WINTERGREEN ROAD

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Unpaved Road Agreement with Deborah and James Croft for a building permit off an existing County right-of-way constructed to the standards of the Unpaved Road Ordinance No. 97-02. Motion carried and ordered unanimously.

ESCROW AGREEMENT WITH WINDSOR DEVELOPMENT COMPANY, INC. RE: IMPROVEMENTS IN WINDSOR ESTATES, PHASE 3

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Escrow Agreement with Windsor Development Company, Inc., guaranteeing improvements in Windsor Estates, Phase 3. Motion carried and ordered unanimously.

RESOLUTION, RE: REVISING SCHEDULE OF FEES AND CHARGES FOR SIGNING AND PAVEMENT MARKINGS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to adopt Resolution revising Schedule of Fees and Charges for procurement of signs, pavement markings, and other services. Motion carried and ordered unanimously.

CHANGE ORDER NO. 3 WITH A. D. MORGAN CORPORATION, RE: SOUTH MAINLAND (MICCO) COMMUNITY CENTER

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve Change Order No. 3 with A. D. Morgan Corporation, increasing contract amount by $781.22 and time by 35 days. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: WROBEL PLACE WATERLINE MSBU

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to grant permission to advertise public hearing on May 25, 1999 to consider ordinance creating the Wrobel Place Water Line Municipal Service Benefit Unit in District 3. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH COMMUNITY HOUSING PARTNERSHIP, INC. AND ASSOCIATION FOR RETARDED CITIZENS OF BREVARD COUNTY, INC., AND LETTER OF SUPPORT, RE: EXTEND MILESTONES AND DEADLINES AND AMEND RESIDENT PLAN FOR THE HOME INVESTMENT PARTNERSHIP PROGRAM CHDO

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Amendment to HOME Investment Partnership Program Consortium Community Housing Development Organization Set-aside Funds Agreement with Community Housing Partnership, Inc. and Association for Retarded Citizens of Brevard, Inc. to provide for acquisition and development of two group homes for the developmentally disabled, extend the project milestones and deadlines, and approve amendments to the Resident Plan; and authorize submittal of a support letter from the County Manager or his designee with the application for HUD Section 811 funds. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH CRISIS SERVICES OF BREVARD, INC., RE: FUNDING TO EXPAND HELPLINE/COMMUNITY RESOURCE DATABASE

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Amendment to Agreement with Crisis Services of Brevard, Inc. for $6,000 to expand Helpline/Community Resource Database. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA DEPARTMENT OF EDUCATION, RE: SUMMER FOOD SERVICE PROGRAM

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Agreement with Florida Department of Education for reimbursement to provide the Summer Food Service Program at Cuyler Park, Campbell Park, Boys and Girls Club at Gibson Complex, Woody Simpson Park, Joe Lee Smith Park, and Cocoa West Park from May 24, 1999 to August 6, 1999. Motion carried and ordered unanimously.

AGREEMENT WITH YMCA OF BREVARD COUNTY, INC., RE: USE OF TITUSVILLE HIGH SCHOOL AND MADISON MIDDLE SCHOOL POOLS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Agreement with YMCA of Brevard County, Inc. for use of Titusville High and Madison Middle School's pools from June 1, 1999 through May 31, 2000; and authorize the Department to include in the Agreement any future Board approved contract clauses. Motion carried and ordered unanimously.

AMENDMENTS TO RESOLUTION, RE: CREATING ROTARY PARK AT SUNTREE COMMUNITY COMMITTEE

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to adopt Resolution amending Resolutions creating the Suntree Community Committee, to rename it Suntree-Viera Parks Committee, broaden the scope of assistance to include other leisure opportunity sites, increase membership to fifteen, and increase ex-officio membership to five. Motion carried and ordered unanimously.

NAMING OF COUNTY FACILITY, RE: SOUTH MAINLAND COMMUNITY CENTER-MICCO

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve naming the community center located at 3700 Allen Avenue in Micco as the South Mainland Community Center-Micco. Motion carried and ordered unanimously.

INTERLOCAL AGREEMENT WITH CITY OF SATELLITE BEACH, RE: BREVARD BOATING IMPROVEMENT FUNDS FOR NAVIGATIONAL SIGNS IN CITY WATERWAYS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Interlocal Agreement with City of Satellite Beach to provide $4,922.50 of Brevard Boating Improvement funds for navigational signs within City waterways. Motion carried and ordered unanimously.

ACCEPTANCE BY ASSIGNEE AND AUTHORIZATION TO EXECUTE CONTRACTS, RE: ACQUISITION OF LOTS IN COASTAL SCRUB ECOSYSTEM CARL PROJECT

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to authorize the acquisition of 1.35? acres from Cora G. Wade and 1.4? acres from Abbie Lou Allen located in the Coastal Scrub Ecosystem CARL Project, for a total of $12,375; and authorize the Chairman to execute the Contracts and all necessary documents to complete the sale. Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF PALM BAY, RE: SCAT BEACH PLUS BUS SERVICE

Motion by Commissioner Voltz, seconded by Commissioner Higgs, execute Agreement with the City of Palm Bay for SCAT to provide Beach Plus Bus Service from May 24 through August 6, 1999, excluding Monday, May 31, 1999, at a cost of $14,185 to the City. Motion carried and ordered unanimously.

MEMORANDUM OF UNDERSTANDING WITH FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, RE: MITIGATION FUNDS FROM CHARLES KEENER FOR REMOVAL OF EXOTIC VEGETATION IN SYKES CREEK HEADWATERS MITIGATION AREA, AND IMPLEMENTATION OF LONG-TERM EXOTIC VEGETATION REMOVAL PROGRAM

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Memorandum of Understanding with Florida Department of Environmental Protection for acceptance of mitigation funds from Charles Keener that will be used to perform exotic vegetation removal in the Sykes Creek Headwaters Mitigation Area; and authorize staff to implement a long-term exotic vegetation removal program in accordance with the Agreement. Motion carried and ordered unanimously.

APPROVAL OF ADDITIONAL NOMINEE TO GOVERNOR, RE: CHILDREN'S SERVICES COUNCIL VACANCIES

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve the submission to the Governor of Irene Burnett as an additional nominee for consideration of appointment to the Children's Services Council. Motion carried and ordered unanimously.

RESOLUTION, RE: CREATING THE JUVENILE JUSTICE COMPREHENSIVE STRATEGY PLANNING COMMITTEE

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to adopt Resolution creating the Juvenile Justice Comprehensive Strategy Planning Committee. Motion carried and ordered unanimously.

AWARD OF PROPOSAL P-3-9-13, RE: ATM AT BREVARD COUNTY GOVERNMENT CENTER

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to award Proposal #P-3-9-13, ATM for Brevard County Government Center to Sun Trust Bank. Motion carried and ordered unanimously.

MODIFICATION OF AGREEMENT WITH OFFICE OF STATE COURTS ADMINISTRATION, RE: ARTICLE V TRUST FUNDS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Modification of Agreement with Office of State Courts Administrator for distribution of $56,946 from the State of Florida's Article V Trust Fund. Motion carried and ordered unanimously.

JOINT MOTION AND STIPULATED FINAL JUDGMENT, RE: ATTORNEY'S FEES, EXPERT WITNESS FEES AND COSTS FOR BREVARD COUNTY V. DAIRY ROAD PLANT FARM (McCALL)

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve Joint Motion and Stipulated Final Judgment as to attorney's fees, expert witness fees and costs for Brevard County v. Dairy Road Plant Farm (McCall) case. Motion carried and ordered unanimously.

AGREEMENT, CONSENT AND AMENDMENT TO DECLARATION OF RESTRICTIVE COVENANTS AND PLAT, RE: LOT 21, BLOCK G, VETTER ISLES ESTATES, SECTION 4

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Agreement, Consent and Amendment to Declaration of Restrictive Covenants and Plat for Lot 21, Block G, Vetter Isles Estates, Section 4. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: REPORT ON FINANCIAL ACTIVITY OF MELBOURNE'S COMMUNITY REDEVELOPMENT AGENCY

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to acknowledge receipt of the City of Melbourne's Comprehensive Annual Financial Report for the period ending September 30, 1999, including the financial activity of the Melbourne Community Redevelopment Agency. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: FINANCIAL REPORTS FROM SEBASTIAN INLET TAX DISTRICT, BREVARD SOIL AND WATER CONSERVATION DISTRICT, FLORIDA INLAND NAVIGATION DISTRICT, BREVARD COUNTY HOUSING FINANCE AUTHORITY, AND TITUSVILLE-COCOA AIRPORT AUTHORITY

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to acknowledge receipt of the Sebastian Inlet Tax District, Brevard Soil and Water Conservation District Florida Inland Navigation District, Brevard County Housing Finance Authority Financial Reports, Titusville-Cocoa Airport authority Annual Financial Audit, Public Meeting Schedule, and Annual Financial Report of Units of Local Government for fiscal Year 1997-98. Motion carried and ordered unanimously.

APPOINTMENT, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to appoint Dick Rabon to the Employee Benefits Advisory Committee replacing Chuck Maxwell. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve the Bills and Budget Changes as submitted. Motion carried and ordered unanimously.

PURCHASE OF EQUIPMENT AND SOFTWARE PROGRAMMING, RE: INTERGOVERNMENTAL RADIO SYSTEM

Chief Keith Chandler, representing the City of Melbourne and the Brevard County Chiefs of Police Association, stated the item before the Board is critical for law enforcement and fire services, particularly from Melbourne to Viera; it is funding for a tower at the corner of Wickham Road and Lansing Road; and it has the support of the Police Chiefs Association. He requested the Board move forward with the funding.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve Budget Change Request for transfer of $190,000 from Information/Communications Systems Balance Forward; and authorize purchase of radio and site equipment for the new Eau Gallie tower and a system reprogramming for all users to incorporate the new tower into existing radios. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENTS IN BAREFOOT BAY, UNIT 2 - EMIL A. PIZZULO

Chairman Scarborough called for the public hearing to consider a resolution vacating public utility easements in Barefoot Bay, Unit 2 as petitioned by Emil A. Pizzulo.

There being no comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Voltz, to adopt Resolution vacating public utility easements in Barefoot Bay, Unit 2 as petitioned by Emil A. Pizzulo. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENTS IN BAREFOOT BAY, UNIT 1 - WILLIAM AND GLORIA BABUSCHAK

Chairman Scarborough called for the public hearing to consider a resolution vacating public utility easements in Barefoot Bay, Unit 1 as petitioned by William and Gloria Babuschak.

There being no comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Voltz, to adopt Resolution vacating public utility easements in Barefoot Bay, Unit 1 as petitioned by William and Gloria Babuschak. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY IN PLAT OF TOWN OF PINEDA - DONALD AND RUTH WILLIAMS

Chairman Scarborough called for the public hearing to consider a resolution vacating right-of-way in Plat of Town of Pineda as petitioned by Donald and Ruth Williams.

There being no comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution vacating right-of-way in Plat of Town of Pineda as petitioned by Donald and Ruth Williams. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE CREATING TURNER ROAD WATERLINE MSBU

Chairman Scarborough called for the public hearing to consider an ordinance creating the Turner Road Waterline MSBU.

There being no comments or objections, motion was made by Commissioner Carlson, seconded by Commissioner Voltz, to adopt an Ordinance of Brevard County, Florida; creating the Turner Road Water Municipal Service Benefit Unit; incorporating the terms and provisions of Chapter 98, Article II, Code of Ordinances of Brevard County, entitled "Special Assessments and Bonds", to authorize the acquisition and construction of certain capital improvements within such improvement area and the imposition of non ad valorem assessments within such improvement area; providing an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE GRANTING ECONOMIC DEVELOPMENT AD VALOREM EXEMPTION TO SUTTON PROPERTIES ON BEHALF OF DRS OPTRONICS, INC.

Chairman Scarborough called for the public hearing to consider an ordinance granting the economic development ad valorem exemption to Sutton Properties on behalf of DRS Optronics, Inc.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to adopt an Ordinance granting an economic development ad valorem exemption to Sutton Properties on behalf of DRS Optronics, Inc., 2330 Commerce Park Drive, NE, Palm Bay, Florida 32905; specifying the items exempted; providing the expiration date of the exemption; finding that the business meets the requirements of F.S. 196.012; providing for proof of eligibility for exemption; providing for an annual report by Sutton Properties on behalf of DRS Optronics, Inc.; providing an effective date.

Commissioner Carlson stated the memo from the EDC to Mr. Jenkins showing the economic impact analysis, the number of new jobs created, and average annual pay is different from the Agenda item; and inquired what is the discrepancy. Economic Development Director Greg Lugar responded he has a call into the EDC; the total amount of payroll was approximately $8.9 million on the original application; divided by approximately 220 employees, it comes out as a little bit over $40,000; and it also included benefits at $22 per hour. Commissioner Carlson stated the date on the memo is April 22; and inquired if it was revised since the item came to the Board. Mr. Lugar stated at the time it went to the EDC Committee to determine eligibility, the numbers must have been adjusted.

Commissioner Higgs inquired if Commissioner Carlson wishes to hold the item until Mr. Lugar gets the number resolved; with Commissioner Carlson responding she does not know that it would make any difference in the overall abatement issue. Mr. Lugar stated it actually sets the percentage recommendation at 70% instead of 80%. Commissioner Carlson stated she has no problem going forward; but it would be helpful in the future, when the exemptions are presented to the Board, to have an attachment like what was provided as to the other abatements so the Board can see the total amount of incentives. She stated if the Board requested the EDC to readdress the ten jobs, ten years scenario; and inquired when will that be coming back. Mr. Jenkins stated it is scheduled, but he does not know what meeting. Commissioner Voltz requested staff give the Board the real figures in writing.

Chairman Scarborough inquired if the exemptions are being tracked after the fact; with Mr. Lugar responding yes. Mr. Lugar stated the County's program, as well as the Florida Statutes, require that the company provide an annual report; and the report must contain verification information. Chairman Scarborough inquired if a report is being prepared now; with Mr. Lugar responding yes. Chairman Scarborough requested staff share that with the Board.

Commissioner Carlson stated she met with Lynda Weatherman on several occasions, and asked for a summary of everything that has been done to see the total; and she can bring that to the Board, but there are some discrepancies in the numbers in terms of jobs and the cost of each job. Chairman Scarborough stated the Board sees them when they come in, but to get a flavor of what the Board is doing to the economy, it would be nice to see, after a number of years, how many high paying jobs have been brought in and at what cost. Commissioner Carlson stated she did the numbers on this one; over ten years, the County is giving $3 million in incentives; and giving more incentive in the short run versus spreading it out over time seems to be a more prudent way of doing it. Chairman Scarborough stated the Board needs to have the measures. Commissioner Higgs noted a number have been canceled because of non-performance. Chairman Scarborough stated he would also like to see the ones that are succeeding more than expectations.

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

PUBLIC HEARING, RE: ORDINANCE AND RESOLUTION ESTABLISHING MAXIMUM FEES FOR WRECKER AND TOWING SERVICES IN BREVARD COUNTY

Chairman Scarborough called for the public hearing to consider an ordinance and resolution establishing maximum fees for wrecker and towing services in Brevard County.

Commissioner Voltz stated she does not know how the rates compare with what some of the cities pay, so she does not know if they are out of line or not. Commissioner Higgs stated Mr. Jenkins has checked with the municipalities. Code Enforcement Director Bobby Bowen responded Florida Statute 321.051 authorizes the Division of Florida Highway Patrol to establish maximum rates; the County has adopted that rate schedule; and the only difference is the municipalities have been given authorization to enforce. County Manager Tom Jenkins stated it was circulated to each of the municipalities prior to it being sent to the Board; and any comments which came back were incorporated. Commissioner Voltz inquired if it is a Countywide ordinance; with Mr. Bowen responding it is.

There being no further comments, motion was made by Commissioner Voltz, seconded by Commissioner Carlson, to adopt an Ordinance of Brevard County, Florida, Code of Ordinances of Brevard County, Florida; setting forth that Brevard County Board of County Commissioners shall adopt maximum fees for wrecker and towing services, and providing for violations and enforcement; providing for conflicting provisions; providing for severability; providing for area encompassed; providing for an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING ARTICLE III, CHAPTER 62, SETTING FORTH COMPREHENSIVE PLAN AMENDMENTS 1999A.1 AND 1999A.2, AND AUTHORIZING TRANSMITTAL TO DEPARTMENT OF COMMUNITY AFFAIRS

Chairman Scarborough called for the public hearing to consider ordinance amending Article III, Chapter 62, Setting forth Comprehensive Plan Amendments 1999A.1 and 1999A.2 and authorizing transmittal to Department of Community Affairs. He stated this is in two parts; and requested a show of hands for each part.

James Beadle, Attorney representing applicant Dr. Kenneth Fulton, stated there are now certified questions in accordance with the Supreme Court of Florida as to what process is filed in Small Scale Comprehensive Plan amendments; and he would like Dr. Fulton to give brief testimony regarding the parcel of property. Kenneth Irving Fulton stated he lives in South Melbourne Beach at 7830 Casuarina Drive. Mr. Beadle inquired is Dr. Fulton the owner of the property which is the subject of the application, and how long has he owned it; with Dr. Fulton responding yes, since 1980. Mr. Beadle stated Dr. Fulton has agreed to reduce his application from four units to three units, which would reduce it to RU-2-4; with Dr. Fulton advising he wants his property to be as useful as the surrounding property is. Mr. Beadle inquired why did Dr. Fulton purchase this property; with Dr. Fulton responding for investment. Mr. Beadle inquired if that intent has changed; with Dr. Fulton responding no. Mr. Beadle inquired at the time Dr. Fulton purchased the property, was any of the property around the parcel developed; with Dr. Fulton responding yes, to the north is a resort/restaurant/motel complex, and to the south is a condominium. Mr. Beadle inquired if that was in place at the time Dr. Fulton purchased the property; with Dr. Fulton responding the resort to the north was there. Mr. Beadle inquired if the single family residence immediately to the north was there; with Dr. Fulton responding affirmatively. Mr. Beadle inquired if Dr. Fulton is proposing that the ability to develop the property be increased from one unit as presently allowed to three units. Dr. Fulton stated his property was zoned RU-2-10; and the surrounding property was correspondingly zoned, and was developed as multi-family. He stated he could see that there would be objections if he wanted to put in a fertilizer factory, but he is in the middle of multi-family zoning; and with the new zoning of one unit per acre, it is difficult to sell the property at the expected market value. He stated all he wants to do is sell his property with a zoning commensurate with what is around his property, which is reasonable, fair and non-discriminatory. Mr. Beadle stated he would like to make some points regarding the South Beaches Small Area Plan as it was developed and promulgated at the time in 1992, and also provide to the Board a summary that was provided by Parks and Recreation regarding the EELs acquisition program, which reflects that slightly more than 240 acres of land in the South Beaches has been purchased under that program and came off the tax rolls. He stated he has been unable to get information on the total number of acres that have been purchased or set aside through the Mellon Foundation, Parks and Shores, or under the federal land acquisition programs for the Archie Carr Project; the Plan specifically indicated there would be insufficient infrastructure to support the traffic that would be generated under the then existing zoning; and that was one of the primary impetuses for the adoption of the Plan. He stated the other primary impetus was for evacuation times, but if a substantial number of acres have been taken off the tax rolls, those lands will not be developed; and submitted the summary. He stated the Mellon Foundation and the State acquisitions probably equal another 500 to 700 acres; so a substantial number of acres are not in the system. He pointed out Dr. Fulton's property, the single-family residence, the restaurant/hotel complex, the South Shores Subdivision, two triplexes, and the South Seas Condominium on the map; and stated what Dr. Fulton is referring to is reverse spot zoning where all the property around his property has been developed pursuant to the RU-2-10, and now Dr. Fulton cannot develop in the same manner. He stated he is not looking to relax the regulations in the South Beaches; and they are dealing with this because of the site specific facts that relate to Dr. Fulton's property. He stated he was provided with a copy of the proposed plan amendment in 1998 which requested an increase in density on a parcel south of Dr. Fulton's property; in that situation, the land around the property was predominantly undeveloped; the Board was looking at traditional spot zoning; and that case is not analogous to Dr. Fulton's because there was not pre-existing development in the area. He stated Dr. Fulton just wants the option of developing the property in the same manner in which the area around his property has been developed. He stated in reviewing the staff report for the 1998 proposed amendment and Dr. Fulton's proposed amendment, there are fewer trips of traffic in 1999 than there was in 1996; so from a concurrency standpoint, things have improved over the last three years. He stated the character of the area under the South Beach Area Plan reflected in excess of 63% of that area was undeveloped at the time; and this area did not fit within the general description of that undeveloped character of the South Beaches because the area where Dr. Fulton's property is located is substantially developed. He stated based on Dr. Fulton's reasonable investment expectations, he wishes to have the option to develop the property as provided in the Comprehensive Plan.

Commissioner Higgs requested Mr. Beadle describe the recent construction on three parcels immediately north of South Shores. Mr. Beadle stated the last time he was down there, two residences were being built between the South Shores and the triplex, and he does not know if there is a third one or not. Commissioner Higgs advised they have begun construction on the third parcel; and inquired what is north of the Fulton property; with Mr. Beadle responding a single-family residence which was in existence at the time the property was purchased. Commissioner Higgs stated Mr. Beadle brought up the issue of expectation on investment and the parcel the Board dealt with in 1998; and inquired if Mr. Beadle is familiar with the conditions under which that parcel was purchased and what it recently sold for; with Mr. Beadle responding he does not know. Commissioner Higgs stated in 1994 it was purchased at $165,000; and in February, 1999 it sold for $255,000. Commissioner Higgs stated she spoke with Mr. Beadle; Dr. and Mrs. Fulton are her neighbors; they spoke about this property years ago, but have not specifically talked about the Comprehensive Plan amendment, although she had a brief discussion with Mrs. Fulton; and she has made no commitments in regard to how she will vote.

Robert Toppe, Past President and Trustee of the Sunnyland Beach Property Owners Association, voiced objection to Amendment 99.A.1. He stated the Sunnyland Beach Property Owners Association is strongly opposed; it would reverse the lower density provision of one unit per acre to the prior high density level of four units per acre; the parcel is only three-quarters of an acre; and it is his understanding they would like to put four units on it. He described Sunnyland Beach; and voiced support for lower density. He advised of traffic increases, strain on infrastructure and level of service, possibility of hurricane evacuation traffic jams, possibility of houses burning because tankers carrying water reserves cannot get there in time, and salt water intrusion. He stated the Board has correctly planned the development of the South Beaches; and encouraged the Board to reject Amendment 99.A.1 and maintain the necessary control of the development of one of the County's environmentally fragile and valuable resources. He advised they were present last year concerning Amendment 98.A.1; and described the request. He expressed concern about the LPA's 6 to 5 approval of this proposal.

Commissioner Voltz inquired how many wells to date have been contaminated; with Mr. Toppe responding two that he knows of, one in Sunnyland Beach and one in Floridana Beach.

Susan Simoes, President of BIPPA and Melbourne Shores Homeowners Association, stated enormous effort went into creation of the Small Area Plan which downzoned to one unit per acre south of Crystal Lakes, and the administrative rezoning has been completed; but a few people do not agree. She stated she hopes the Board sees the Pandora's box that could be opened by making an exception; and requested the Board uphold the one unit per acre for everyone in the South Beaches. She stated everyone in the South Beaches understands the reasons for the downzoning, public safety, quality of life, and the unique nature of the South Beaches; Dr. Fulton had this property prior to the administrative rezoning and had plenty of time to change, but chose to hold onto the property for more money; and the South Shores Subdivision Dr. Fulton referred to reduced its density in the final buildout. She requested the Board be careful about setting any precedents.

Rebecca James advised, for the reasons just stated by Susan Simoes, they are opposed to the change in the Comprehensive Plan. She submitted a letter from a neighbor in opposition to the change. She stated there was plenty of opportunity to make changes, but that time has passed now; and although they respect Dr. Fulton, the rules are for everyone, and the property should remain with the new Comprehensive Plan.

Cordelia Lavery spoke in support of the Comprehensive Plan the way it is; stated she is concerned about safety in evacuations; the Comprehensive Plan is like a string of pearls, and if it is broken with spot zoning for one person, eventually the whole string will be lost. She stated she is sorry if Dr. Fulton will not make as much money as he would if it was changed; but she doubts he will lose money on property he bought in 1980. She stated if the Board allows this, there will be people lining up right behind Dr. Fulton because everyone wants to make as much money as they can; but the Board needs to look at the consequences if it is changed. She advised of the possibility of low lying areas near the causeways flooding during hurricanes; stated people do not necessarily evacuate at the first warning; and commented on previous evacuations.

Mr. Beadle stated some comment was made about spot zoning, but this is spot zoning in reverse; it is a site specific issue; and it will not set a precedent because they would not be here if everything around the property was not developed. He stated Dr. Fulton does not have a problem with the South Beach Area Plan, just as it is applied to his property because of how the surrounding property is developed. He stated the reason they are back is because this is not like last year's application; the DCA made comments that the amendment should not be adopted unless it could be established that it is consistent with established development patterns, infrastructure limitations, hurricane evacuation times, environmental conditions and constraints, and projected services needs; and based on the report provided by staff, they have done that. He stated they have established that it is consistent with the existing development patterns; based on the staff report, the traffic numbers are less than they were in 1996; they are talking about two units; and it will not set a precedent because it is a unique situation.

Commissioner Voltz inquired when this came before the Board at a Zoning meeting for the South Beaches administrative rezoning, did the Board say they could go for a Small Scale Plan amendment if they objected; with Planner Todd Corwin responding that is correct.

Commissioner Carlson stated she is having difficulty in determining that this is a unique situation; and inquired if Dr. Fulton had an opportunity to participate in the South Beach Area planning process; with Dr. Fulton responding no, he did not. Commissioner Carlson inquired why was that; with Dr. Fulton responding he knew about the Comprehensive Plan, but it was suggested to him that perhaps he could put up a site plan which would hold for a number of years, but he had no need for a site plan because he had no intention to build on the property. He stated his intent was to hold the property for investment purposes, and then sell it; and advised a statement was made that he wants to put four units, but he wants to put three units. Dr. Fulton stated he will not make a profit because the amount of taxes he has paid based on the zoning, plus the money he paid for the property, is more than he could possibly sell the property for. Commissioner Carlson advised of the risk in speculative investments; and stated she cannot support the change based on the speculative nature of it, and because so many people put so much of their time and effort into the Plan. Dr. Fulton advised he has other properties in the beaches in residential areas which he has no intention of ever trying to change; he is against changing in residential areas where there is single family; he is in favor of the Comprehensive Plan; and he is concerned as much as anyone about the density; but his is a special case. He stated there is multi-family existing around him; and inquired why he should not be able to sell his property to someone who might want to put three units on that property. Commissioner Carlson stated the Plan addresses all those issues; and it has to do with public safety, etc. Mr. Fulton stated in this case, it is discriminatory.

Commissioner Higgs stated the staff analysis talks about the Small Area Plan, and that it was based on a study of the existing roadway network in regard to residential densities and what could be supported based on what was programmed; that study indicated deficiency in the roadway capacity could potentially cause excessive evacuation times; and as a result a series of Plan amendments were developed. She stated she was a part of the Small Area Plan study as well as the Commission since 1992; the desire was to achieve and maintain an acceptable level of service on SR A1A; it was critical to the planning in that area; and the methods that were brought forward in the analysis are the best available data. She advised of staff's reference to Coastal Management Element, Policy 6.7 which calls for small area plans for the unincorporated areas of the barrier island, and for land use decisions to be based on the South Beaches Growth Management Plan prior to the development of such small area plans. She stated Objective 7 calls for limiting of densities within the Coastal High Hazard Zone and direction of development outside that area; and Objective 6.8 calls for no increase in residential densities within the Coastal High Hazard Zone above those programmed for the infrastructure, including specifically any new bridge or improvements. She stated staff also provided information concerning the character of the area; it states the surrounding vicinity is primarily single-family residential with some multi-family residential uses and a few commercial/institutional uses; there are seven single-family subdivisions located within .5 mile of the subject property; and a visual analysis of the applicable aerial photographs indicates the area surrounding the Fulton property is primarily single-family residential. She stated throughout the South Beaches single-family homes are located adjacent to commercial or multi-family establishments; and provided various examples. She stated single-family homes, in many instances, provide a transition between commercial uses and residential uses; and additionally suburban density single-family units successfully exist adjacent to urban densities throughout the South Beaches without detrimental property values. She stated the report she is reading from is authored by the Planning and Zoning Department; and inquired about the qualifications of the people. Mel Scott responded he received his Masters Degree from Florida Atlantic University in Urban and Regional Planning, is a member of AICP, and is currently the Director of the Planning and Zoning Office; and all the planners who work for him have their Masters Degrees in Urban and Regional Planning. Commissioner Higgs stated the staff report talks about transportation infrastructure which was a major focus; Todd Corwin provided information on seven segments of roadway between US 192 and Indian River County; the segment between Miami Avenue and has a maximum acceptable volume of 17,000 trips at level of service E; the current volume as of October, 1998 was 17,720; and that is a level of service F. She stated traffic from the South Beaches as well as Indialantic and Melbourne Beach must move north on A1A on that segment.

Chairman Scarborough requested an explanation of level of service. Mr. Scott advised level of service A through F seeks to characterize the ease with which a vehicle will travel down a roadway; at level of service A, a vehicle can be characterized as traveling freely along a roadway without interruption; and at level of service F, a car will have frequent stops, to the point where there will be gridlock at certain points. Chairman Scarborough stated F is the lowest level.

Commissioner Higgs stated in 1998 the Town of Melbourne Beach completed a mobility plan draft which stated as a consequence of surrounding growth and A1A's realignment, the Town has become a small coastal community with a big city traffic problem; and outlined the problems of Melbourne Beach and control measures. She stated in talking about the traffic, the Board cannot just focus on the one segment where the proposal lies which does not have a volume that exceeds capacity, but must look at the towns to the north of the property. She stated the State's Comprehensive Plan and the County's Comprehensive Plan talk about limiting infrastructure in high risk zones; and it was those plans as well as the East Central Florida Plan that led to the recommendations in the South Beaches. She stated if the Board makes a decision for one property that is not consistent with all other properties, it injures the ability of the law to be applied; and she has to act on this proposal consistent with other proposals and consistent with the long-term plan that allows the capacity of the road to be adequate. She stated according to staff there are 1,025 platted lots south of Melbourne Beach; if those lots are developed, there will be an additional 9,000 trips on A1A; there are segments of A1A that can handle that, but in the long term, it causes significant problems; the Board should not further that problem; so she cannot support the amendment before the Board.

Commissioner Voltz stated if the level of service of the roadway is the issue, and there are that many lots and single-family homes, the Board may want to consider widening the road for the safety of the people. She inquired if the administrative downzoning is done for that area; with Mr. Scott responding that process is 99% complete, but there may be one or two unique parcels that are still in the pipeline. Commissioner Voltz inquired how many of those have there been objections on; with Mr. Scott responding after this one, there are two others. Commissioner Voltz stated the problem she has is when they came to the Board during the zoning process, they were told that the Board would not consider downzoning at that point, and they could do a small plan amendment; and inquired why would Commissioner Higgs want them to go through the bother of going through the small scale plan amendment process if they were going to be turned down. Commissioner Higgs stated she was not given any choice about putting them through that; they applied for a small plan amendment; but she was never asked if she supported a plan amendment. Commissioner Higgs stated it is their right to apply for an amendment; and it is the Board's policy that when there is a small plan amendment, it will not go forward on the zoning action. Commissioner Voltz stated this was turned down at the Zoning meeting; with Commissioner Higgs advising it was not turned down, but it was not heard. Commissioner Voltz stated the Board chose not to hear it at that point because they were doing the small plan amendment; and inquired was it zoned RU-2-10. Mr. Scott advised it is currently zoned RU-2-10. Commissioner Voltz inquired what is the Board in the process of downzoning it to; with Mr. Scott responding SR to be consistent with the residential density.

Commissioner Voltz stated she does not mind the downzoning, if that is what the people want; but when someone has a problem with that, she has a problem with it, and will not support the motion.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to deny the request for Small Scale Plan Amendment 99A.1. Motion carried and ordered. Commissioners Scarborough, Higgs, and Carlson voting aye; and Commissioner Voltz voting nay.

Chairman Scarborough stated there are no cards in opposition to Amendment 99A.2; and there was a unanimous recommendation.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve Small Scale Plan Amendment 99A.2. Motion carried and ordered unanimously.

Planner Todd Corwin requested the transmittal hearing be continued to the May 4, 1999 hearing when the updates to the other elements will occur.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to continue the public hearing to consider an ordinance amending Article III, Chapter 62, setting forth Comprehensive Plan Amendments 1999A.1 and 19999.A.2, and authorizing transmittal to the Department of Community Affairs to May 4, 1999. Motion carried and ordered unanimously.

The meeting recessed at 10:35 a.m. and reconvened at 10:54 a.m.

RESOLUTION, RE: APPROVING ISSUANCE OF BREVARD COUNTY HEALTH FACILITIES AUTHORITY REVENUE BONDS FOR EXTENDED CARE OF MELBOURNE, INC.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution approving issuance of Brevard County Health Facilities Authority Revenue Bonds in the aggregate principal amount not to exceed $11,000,000 for Family Extended Care of Melbourne, Inc. Project. Motion carried and ordered unanimously.

REPORT, RE: FERAL CAT MANAGEMENT

Animal Services and Enforcement Director Joe Ward stated feral cats are an issue all over the world; and today's trend is to manage the cats rather than eradicate or ignore them. He stated feral cat populations are indicators of rabies; when managed, the cats become a buffer zone between raccoons where most of the rabies come from and people; there is a significant amount of interaction between feral cats and raccoons in that they share the same habitat and hours of activity; there is competition for food; and interaction is routine, but often violent. He stated managing cat populations reduces the potential for rabies epidemics because the cats are vaccinated against rabies; and with managed cat populations, any outbreak of rabies can be quickly addressed, reducing the probable exposure to humans. He stated improperly managed feral cats often become nuisances to neighborhoods; nearly 20% of animal enforcement cases deal with nuisance cat complaints; in San Diego County, California, nuisance cat complaints decreased by 40% within three years of implementing feral cat management; and it appears in the best interest of the County to manage feral cats through a cooperative venture with local cat groups and veterinarians. He stated the Trap, Neuter and Release (TNR) programs have proven effective in many areas; the program in San Diego County reduced the number of cats impounded and those euthanized by over 50% in six years; and similar results have been found in Phoenix, Washington, D.C., and Orlando. He stated the cost reduction to those counties has also been great because it costs twice as much to catch, euthanize and dispose of a cat than to trap, neuter and release it. He stated innovative methods of adopting impounded cats through working with local cat rescue groups and feral cat caregiver groups have given Maricopa County, Arizona an 80% adoption rate for cats; and this reduced impacts to the euthanasia rate. He stated the Board has several options to choose from, and no matter which option it chooses, the County will continue to be involved in feral cats.

Becky Robinson, representing Alley Cat Allies, advised of her work with feral cats and implementation of a non-lethal control method for approximately ten years; and stated interested parties in the County wish to implement this method, but need resources. She stated the trap, neuter, return method is effective; advised of cohabitation of feral cats with stray cats; and stated the feral cats are returned to their colonies, and the strays are put back into homes. She stated the number of cats will be reduced immediately; and on a long-term basis the cats will die out through natural attrition. She stated the goal is to work as rapidly as possible; and more resources put into this today will help solve the problem even faster. She advised areas that implemented the program two to five years ago have already seen tremendous results.

Commissioner Carlson inquired how feral is defined versus a stray. Ms. Robinson advised the strays will be interactive with humans, but ferals are not interactive with humans because they have reverted to a wild state. She stated the ferals may be born to stray tame mothers, but genetically they have reverted to a wild state; they must be trapped; and they cannot be handled. She advised of workshops on how to deal with feral cats. Commissioner Carlson inquired how are they dealt with once they are trapped; with Ms. Robinson responding they are anesthetized through the trap, and not removed from the trap until they are under anesthesia.

David Sheriff advised of the feral cat situation at the Kennedy Space Center, how it was dealt with in the past, and how it is dealt with now. He stated the problem has gone away; and explained how the cats have disappeared through attrition. He stated it is a humane method; although some of the cats that are sick do get put down, most are healthier now and able to live their lives out; and they are given rabies shots so they are not a threat. He stated people never supported NASA destroying the cats; and advised of support of the TNR program. He stated it is a community problem, and this gets the community involved in fixing the problem.

Deborah Williams, representing Feral Cat Network, a branch of Space Cats Club, Inc., stated this is a throw away society; and in its haste to unburden itself of responsibility, it has created a condition of suffering and confusion in the feral cat problem. She advised of the evolution of the feral cat problem; and stated traditional methods have not been effective in controlling feral populations. She advised of the efforts of feral cat caregivers and groups; stated the feral groups she has been involved with have trapped 312 feral cats since 1996; the largest colony is at Kennedy Space Center; and the next largest colonies are in Cape Canaveral and Cocoa Beach, with a total of 60 cats trapped in each colony. She advised in the Cape Canaveral colony 36 were kittens which were adopted out; in the Cocoa Beach colony 18 were placed in homes; and in each of the two colonies one individual paid for most of the surgeries performed. She advised of the expenses involved in the program.

Commissioner Carlson inquired when did the NASA program start; with Ms. Williams responding at the end of 1995 or beginning of 1996. Commissioner Carlson inquired how effective has it been; with Ms. Williams responding they have done 98 to 100 cats; 20 could not be placed; one escaped; and a couple had to be euthanized. Commissioner Carlson inquired if there is an estimate of how many cats there were on the NASA property before the program began; with Ms. Williams responding no, but some are still there. Commissioner Carlson stated Mr. Sheriff said he does not see the cats as frequently as he did before; with Ms. Williams advising a lot have been placed; but 20 cats are being cared for onsite. Ms. Williams stated they have a $10,000 grant from IFAW for the purchase of land for a sanctuary for the cats which are not adoptable. Commissioner Carlson inquired if they are somehow tagged; with Ms. Williams responding they are ear clipped which marks them visually.

Susan Canada stated in Orange County, Florida the number of cat impoundments dropped 10% in 18 months of initiating the program; they estimated savings of $109,172 for that period despite the cost of $56 per animal neutered; and that is quite a cost savings. She stated currently Animal Control does not have enough manpower to enforce half the Ordinances; and advised of her experience transporting injured wildlife and rescuing domestic animals. She stated if the County is willing to give money to set up a feral cat management group, it would help all groups; and requested the Board provide funds through the budget, fundraising, sale of license tags, or tax write-offs. She stated the TNR program decreases the population humanely.

Commissioner Carlson inquired if Orange County has an established program; and inquired if it is the same as what the Board is discussing. Ms. Williams responded she does not know if it is exactly the same; outside organizations handle the feral cats, not the County; but it is County-funded. Ms. Canada stated there are a lot of volunteers in this area willing to help with the cats.

Gwen Thompson stated she belongs to Space Coast Cat Club; and advised of her experience trapping, testing, spaying or neutering, finding homes, and caring for cats from her neighborhood, from a group of 35 cats at Aurora and Wickham Roads, and from a group of 20 cats at a local business. She stated since 1990 she has personally paid to have over 200 cats spayed or neutered; and the problem is getting to be more than she can handle as an individual. She requested the County provide funding.

Ellen Dozier, a member of the Feral Cat Network, stated everyone wants to reduce the population of homeless cats; and she strongly supports the proposed ordinance. She stated the ordinance recognizes that managed feral cat programs are an acceptable way to deal with reducing populations of homeless cats; it provides for a partnership between Animal Services and the various groups so there is a more unified effort; and it provides for some funding so measurable results can be achieved in a short period of time. She stated there are many individuals working with feral cats; and outlined the process for an individual to trap and neuter a cat. She stated with a focused effort, it would be possible to stabilize colonies more quickly; and even though a lot of good things are being done individually, great things could be done if the County would sponsor a program. She advised of her experience working with feral cats, trapping approximately 70 cats, using donations and personal funds. She stated within the past two months, she had ten referrals of people who needed help with feral cats; it is a slow process to deal with one or two cats at a time; and she strongly supports the ordinance and hopes it will be funded.

Elaine McClung, representing Melbourne Pet Rescue, advised of trapping and maintaining 21 cats at two restaurants in Melbourne; and advised of children playing in the area of the feral cat colonies. She stated raccoons and possums are trapped and released in wooded areas that are uninhabited; she gets approximately 4 to 5 calls a week from people with a colony of ferals; and advised of the need for funding. She stated the cost minus the adoption fees to do 21 cats was $593; and one cat is still up for adoption. She submitted pictures of the cats; and advised how to contact her. She described the various cats which have been adopted.

Cindy Johnson stated she supports the feral cats; she has been working with them for six years; and it has been a rewarding, but financially strapping experience. She stated there are people who will do the work; it will be less expensive than having the County do it; and requested the Board do anything it can to go forward with it. She stated the problem was created by humans, so humans need to take the responsibility and do the humane things to take care of problems.

Paul Jindra stated he recently adopted a feral cat; the cat problem is caused by human irresponsibility; and it is time to reverse the situation. He advised of the evolution of the domestic cat; and stated the County has the chance to make amends for its irresponsibility by writing humane regulatory statutes, and in the process, protecting native wildlife.

Commissioner Voltz stated this is something the Board needs to take care of; there is a severe problem with cats; a lot of people are willing to help; and the Board needs to take advantage of that. Motion by Commissioner Voltz, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider changes to the Animal Control Ordinance to establish a feral cat management program. Motion carried and ordered unanimously.

Motion by Commissioner Voltz, to fund $72,500 and implement the feral cat management program; and establish a trust fund for outside donations to keep the program going.

Commissioner Voltz requested Dr. Ward address the trust fund issue. Dr. Ward stated the Phoenix, Arizona and San Diego, California groups have a large number of trust funds that they use for various programs such as this. He stated it has been an effective program in other places; Maricopa County is building a new $3 million adoption complex based on a fund that was established from public donation. Commissioner Voltz requested the Board ask Mr. Jenkins to come up with that money.

Commissioner Carlson seconded the motion.

Commissioner Higgs inquired if the motion is to implement the program, but not establish the budget at this time. She stated she is willing to vote to move forward on the program; but the Board has funded some changes in Animal Control; and inquired about the fiscal impact. She stated she wants to narrow the costs for this fiscal year and next fiscal year. Chairman Scarborough stated it is contemplated in the motion that staff will report back to the Board on funding. Commissioner Voltz stated the $72,500 is an approximate number; and they do not know how much it will cost. Commissioner Higgs stated the Board is not making a decision to allocate, but just a decision to come back and look at the numbers again. Commissioner Voltz stated the Board needs to allocate a set dollar amount. County Manager Tom Jenkins stated it is $51,500 if it goes into effect on July 1, 1999. Commissioner Higgs stated that does not include the possibility that $30,000 in equipment set up for the clinic is also going to be a part of that cost; and she wants to be sure there is no duplication of costs. Commissioner Voltz stated the Board is not going to be spending money it does not need to spend. Dr. Ward advised there were separate issues at the time the agenda was done; there is $35,000 to provide the cages and clinical area for the North Brevard shelter, and the setup costs for the feral cat management, which could be reduced by half. Discussion ensued on the figures.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to allow Dr. Ward to spend the necessary money to accomplish the feral cat management program, and come back in one to two weeks with a better budget; and authorize establishing a trust fund for the program.

Chairman Scarborough stated Commissioner Voltz used the word "find"; and he likes that because it contemplates all of the means of making the programs work efficiently. He inquired if Commissioner Higgs wants to include further language before the Board votes; with Commissioner Higgs responding with the revised figure, she is not sure the Board can authorize the County Manager to implement the program. Chairman Scarborough stated the motion is not to implement the program, but for staff to come back with a budget. Commissioner Voltz stated the Board also has to authorize a public hearing of the ordinance; with Commissioner Higgs responding the Board already did that. Commissioner Voltz stated in the meantime the other things will come back. Chairman Scarborough inquired if the motion is to come back with a budget indicating the source of funds and how they will be allocated; with Commissioner Voltz responding affirmatively. Commissioner Higgs inquired if the Board wants to assume an implementation by July 1; with Commissioner Voltz responding absolutely. Chairman Scarborough stated the trouble is there are only meetings in May.

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

Commissioner Carlson stated number 4 was to look to non-profit industry to fund and operate the management program; and inquired if that will be rolled into the program as well; with Chairman Scarborough responding it could be. Commissioner Higgs stated the cooperation with the non-profit groups is outside of number 4 because that is without implementing the ordinance, and the Board has already said it wants to do it, so the Board is assuming the cooperation of the groups.

Commissioner Carlson inquired about the money that has been spent from General Revenue, and the level of the Contingency fund. Mr. Jenkins advised it is $217,000. Commissioner Carlson inquired about the $7,000 allocation for communications, and was that an oversight; with Mr. Jenkins advising the item was put together quickly, and that could be an oversight.

PUBLIC HEARING, RE: ORDINANCE AMENDING ARTICLE XIII, DIVISION 4, LAND ALTERATION REGULATIONS, ESTABLISHING CRITERIA FOR DEPTH MODIFICATION PROCEDURE

Chairman Scarborough called for the public hearing to consider an ordinance amending Article XIII, Division 4, Land Alteration Regulations, establishing criteria for depth modification procedure. He stated the Board has gone through this discussion previously; and inquired if there are any questions.

Commissioner Carlson inquired what adequate assurances are there that no adverse impact will occur to adjacent resources of particular concern or hydrologic conditions so as to cause a connection between aquifers, and who will be held liable if something like that happens. Debbie Coles advised staff wants to assure this by reviewing and having the applicant provide data that would show if there are any confining layers that would suppress an artesian flow aquifer; adequate is only a descriptive word to show that staff wants the Board to have enough information to make a decision; and if the Board wants something more specific, staff will come up with something. Commissioner Carlson stated staff talked about another pit where they had gone through the layer and salt water intrusion was involved; and she wants to know if that happens, who is left with the liability. She stated there is nothing that can be done if that happens; there is nothing the developer can do; and how can the Board keep that from happening. Ms. Coles stated the methods for getting the information and having the St. Johns River Water Management District do a tandem review of the project would provide some assurances; in the example that was discussed, that data was not provided as part of the application process; and if it had been, it may have been able to be prevented. Assistant County Manager Steve Peffer stated the way the Ordinance works is that it will come back to the Board for a determination whether the applicant is allowed to go deeper; it will be up to the Board to decide whether the applicant has provided adequate assurance; and staff will review it and provide a recommendation. Commissioner Carlson inquired if individuals have approval to go ahead, what oversight does the County have to make sure it is done correctly so there is no possibility of error; with Ms. Coles responding staff would be provided with periodic sampling data on chloride levels, periodic inspections are done on the pits as they are being constructed, and the final step is to provide the County with an as-built survey of the bottom contours of the pit. Chairman Scarborough stated he understands Commissioner Carlson's concern because the terms are very subjective. Commissioner Carlson inquired what kind of assurances can Mr. Chesney give the County.

Ed Chesney, representing Bishop and Buttrey, Inc., responded it is not so much a depth issue at this point; the Board is looking for assurances; and they should be looked at any depth. He stated if he was digging 25 feet, he would be allowed to by the Ordinance; and he could go through a confining layer and give the County no assurances. He stated the assurances are with the St. Johns River Water Management District; they have installed deep monitoring wells for sampling salt water intrusion; and they are not allowed to excavate clay.

Chairman Scarborough stated Mr. Chesney is answering this for his project; but the Board is changing the Ordinance; and how will the Board have assurances for every project. Mr. Chesney responded they submit monthly monitoring reports to the St. Johns River Water Management District.

Bill Kerr, representing Bishop and Buttrey, Inc., advised there is an extensive permitting process through St. Johns River Water Management District which requires geotechnical information to be submitted along with monitoring wells, advanced data, and core sampling to determine where the confining layers are; and explained what happened when they excavated through a confining layer. He stated with the technical information that is put into the permitting process with St. Johns River Water Management District, the confining layers are identified in advance; there is a lot of hydrologic information provided; and that was put into place to prevent things like what happened in Merritt Island. He stated the changing of the Ordinance is not a blanket change; not all permits allow going below 35 feet; each permit will have to come to the Board; and at that point staff can request additional information. He stated since the permitting processes run parallel, there is the option of looking at the hydrogeologic data provided to St. Johns River Water Management District at the same time to make the decision; and the ultimate responsibility lies with the Board of County Commissioners.

Chairman Scarborough stated the Board should get the hydrological data for review as part of the process. Commissioner Voltz inquired if staff asks for that. Chairman Scarborough stated he does not know if it is written into the Ordinance. Commissioner Carlson stated all she wants is adequate assurances; and she is more comfortable hearing from Mr. Kerr that the problem will not happen again.

Mr. Kerr stated there is a concern about double permitting; it is not a wise use of resources, and is burdensome; but he understands the Board's concern about having responsibility. He stated in the St. Johns River Water Management District permitting process, if there is a problem the responsibility and financial cost to fix the problem lies with the person who caused the problem; and the Board has that option in the Ordinance. He stated if someone comes to the Board to get approval to go below 35 feet, the Board can put it in the wording that it is the individual's responsibility to take care of problems. Commissioner Carlson inquired how can a price be put on breaching the aquifer; with Mr. Kerr responding it is a difficult thing to put a price on, but if the staff looks at the technical information, a reasonable assumption can be made that is not going to happen. Commissioner Carlson stated if nothing else, a fine could be levied.

Commissioner Voltz inquired if there is a possibility of plugging up once it has been opened; with Mr. Chesney responding affirmatively. Mr. Chesney stated there is so much investigative effort going into the sites, that it is continually breached; and it is plugged with a concrete solution. He stated someone excavating with a bucket would know immediately when they hit clay; a confining layer could not be breached with just one sweep of the bucket unless it is only a few inches thick, and then it is not confining; and the St. Johns River Water Management District considers confining units to be at least ten feet in thickness. Commissioner Carlson inquired by plugging them, do they do away with the salt-water intrusion; with Mr. Kerr responding there are ways to seal it off. Mr. Kerr stated at that point, the person could not go below that layer or within "x" number of feet of that layer so the confining layer is not broken in the excavation. Commissioner Carlson recommended language be added to the Ordinance so when it comes to the Board to go beyond the 35 feet, there is some incentive to not breach. County Attorney Scott Knox stated he will draft something for the Board to look at.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt an Ordinance amending Article XIII of Division 4, Brevard County Code, entitled, "Land Alteration Regulations"; establishing criteria for a depth modification procedure; providing for severability; and providing for an effective date.

Mr. Peffer stated when the Board discussed this last time, Section 2.b.2 required that the soil profile be to a depth of five feet below the proposed depth; and the Board wanted to increase that to ten; with Commissioner Carlson advising the Board wants that included.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to amend the motion to adopt an Ordinance amending Article XIII of Division 4, Brevard County Code, entitled, "Land Alteration Regulations"; establishing criteria for a depth modification procedure; providing for severability; and providing for an effective date, to include change to Section 2.b.2 from five feet to ten feet.

Chairman Scarborough inquired if this ordinance is coming back to the Board; with Mr. Peffer responding this is the final hearing. Chairman Scarborough stated the Board cannot vote on something that is tentative in this manner. Commissioner Carlson stated it is based on the condition of putting in some legal language. Chairman Scarborough stated he cannot vote on something he has not seen. Mr. Knox stated if the Board wants to address that, it will need to continue it to another meeting. Commissioner Voltz inquired what does the Board need to do to get it through today; and stated any changes can come back.

Mr. Kerr inquired if it would help to say that it is necessary to have an authorized St. Johns River Water Management District permit; with Chairman Scarborough advising that is required. Mr. Kerr stated if that is required, he does not believe any additional assurances can be drawn up to provide additional comfort. Commissioner Carlson stated she is looking for accountability and responsibility on the part of the person excavating. Mr. Kerr stated under the St. Johns River Water Management District permit, they are accountable. Chairman Scarborough stated in that case the Board can drop the whole thing, and just require a St. Johns River Water Management District permit. Commissioner Higgs stated if a permit is obtained and supporting data is brought to the Board, then there is the backup data. Commissioner Carlson stated if anything negative happened, St. Johns River Water Management District would fix the problem. Mr. Kerr stated they would be responsible to enforce the violation; and that responsibility would fall back on the applicant. He stated if there is an overexcavation of a confining layer, resulting in water bubbling in the bottom of the pit, it is an observable and foreseeable problem based on technical data. He stated the way the Ordinance is written now, if the County staff does not believe the St. Johns River Water Management District permit has covered all the issue, it will have the technical data, and could recommend additional things.

Commissioner Carlson stated the added legal language is not necessary based on what was explained; and inquired as long as the 2.b.2 is ten feet, will that work. Chairman Scarborough stated if the Board take's Mr. Kerr's suggestion, it deletes everything the Board is involved with; and it may as well happen at staff level, with the applicant bringing in a permit from the St. Johns River Water Management District. Commissioner Carlson stated 35 feet is the way the Ordinance reads, and if they want to go further, the Board has to see the St. Johns River Water Management District permit. Chairman Scarborough stated the question is whether the Board wants to stop at the permit or go to other assurances. Commissioner Carlson stated under 2.b.2 the Board could increase the depth to 10 feet. Chairman Scarborough advised he is not going to support that; he would like to look at this to see what is there and see what the hydrological data looks like that St. Johns River Water Management District is reviewing; and perhaps later this can be made a staff matter with the permit at the St. Johns River Water Management District level.

Discussion ensued on what Chairman Scarborough objects to, reliance on St. Johns River Water Management District permit, reviewing St. Johns River Water Management District data, second guessing the St. Johns River Water Management District, and lack of information.

Mr. Kerr stated the data supplied for the St. Johns River Water Management District permit is comprehensive; if the Board is uncomfortable about just relying on the St. Johns River Water Management District permit, the way the Ordinance is written now, the Board has the St. Johns River Water Management District permit, plus the technical data; and explained how it would work. He stated he does not know how much more protection there can be; it will not be a double permitting process unless there are issues that County staff believes are not answered; and in that case, there will be data in place to make the decision in the revised Ordinance. Commissioner Carlson stated she had an issue with 2.b.1; and the Board is putting its assurances in the St. Johns River Water Management District. Commissioner Higgs stated the Board is saying it will request data to provide that assurance; and the Board can ask for whatever data staff feels gives that level of assurance.

Mr. Knox stated adequate assurances is a very broad standard; and explained how the Ordinance would work. He stated the language is fine; but there is no sanction for violating any of the conditions that may be imposed by the Board.

Chairman Scarborough stated sanctions can work if the entity is around; but sometimes they are not; and inquired if there should be some provision for bonding. Mr. Knox stated that is a possibility. Commissioner Carlson inquired if it should be put in such a way that these are the things the Board can do if its comfort level is exceeded. Commissioner Higgs suggested saying the Board "may." Chairman Scarborough stated a Section 6 could be added saying the Board may require bonding. Mr. Knox stated the Board can do it, but he is not sure what the language will be. Commissioner Carlson inquired if it needs to be continued to bring the language back, or can the Board go forward with the consideration of that being included. Mr. Knox advised the Board would not want to do it without having the language before it.

Chairman Scarborough stated the Board will continue with this item later in the meeting.

Commissioner Higgs inquired if Mr. Kerr has dealt with any entity which has a bonding requirement; with Mr. Kerr responding there is a possibility there may be a monetary penalty until it is corrected; and he will bring that information back after lunch.

PUBLIC HEARING, RE: APPEAL TO CONSERVATION ELEMENT'S POLICY 5.2.F.2 OF THE COMPREHENSIVE PLAN, AND SECTIONS 62-4396(B)(2)B AND 62-4399(A)(2)B OF BREVARD COUNTY CODE, RE: JOHN W. BUTTREY OF BISHOP AND BUTTREY, INC.

Chairman Scarborough called for the public hearing to consider an appeal to Conservation Element's Policy 5.2.F.2 of the Comprehensive Plan, and Sections 62-4396(B)(2)B and 62-4399(A)(2)B of Brevard County Code, by John W. Buttrey of Bishop and Buttrey, Inc.

Mr. Chesney, representing Bishop and Buttrey, Inc., stated this is a separate issue from the previous one.

Commissioner Higgs stated she has problems with the Board approving commercial/industrial in wetlands, and will not vote for this. Chairman Scarborough stated staff had minimal negative comment.

There being no further comments heard, motion was made by Commissioner Voltz, seconded by Commissioner Carlson, to approve appeal of John W. Buttrey of Bishop and Buttrey, Inc. to allow a Land Alteration Permit for property located north of Cidco Road and east of Grissom Parkway. Motion carried and ordered. Commissioners Scarborough, Carlson, and Voltz voted aye; Commissioner Higgs voted nay.

ADMINISTRATIVE APPEAL TO COMPREHENSIVE PLAN AMENDMENTS, RE: WETLANDS

Chairman Scarborough stated staff has put some ideas together; and distributed paperwork. Mary Todd, representing Sierra Club, Turtle Coast Group, stated two weeks ago it appeared that acceptable settlement language for the Comprehensive Plan wetlands amendment was within their grasp; but today she is worried that the opportunity to do what is best for Brevard County will slip away. She stated the language has been revised with all good intention; changes were made to encourage commercial development at future interstate highway interchanges with unrealized capital investments; and changes were also made to attempt to contain sprawl. She stated they are good considerations, but this is the wrong time and place for the new language. She stated changes have been suggested at the last minute without the chance to properly assess the impacts; and changes were made just at the time when the County was about to implement environmental performance standards. She stated the Board should learn from its consultant, Lane Kendig, before it attempts to place such detailed specifications affecting interstate vicinities in the Conservation Element. She stated the interchange wording has been placed in Conservation Element Policy 5.2.f.2 which deals with future designations; a look at future I-95 interchange sites reveals that jurisdictional wetlands do not need to be impacted by commercial development; and the language is unnecessary for future designations. She stated they would not like to see the exception for interchanges serving as a wedge for other exceptions; and if new language is decided on, it would be more appropriate as a condition in Policy 5.2.f.3.a which deals with existing designations. She stated the new language is somewhat ambiguous; and suggested rather than agree on hastily drawn up wording, the Board consider returning to the language contained in the Agenda package two weeks ago or something very similar. She recommended adding the word "only" in Policy 5.2.f.3 before "if all of the following criteria are met." She stated their preference is to omit the new interchange wording for the moment and get educated by Mr. Kendig before attempting to articulate such specifications. She stated their second choice is to correct the ambiguities in the new interstate interchange language and place the new section in 3.a as a condition; and 3.a would then say "the property is substantially surrounded by land developed as commercial and industrial as of the date or meets the new I-95 interchange criteria. She requested the Board seriously consider their recommendations.

Charles Moehle, representing Modern, Inc., stated over 125 acres of commercial/industrial land would be affected by the ordinance; he was given language that was prepared this morning that has blanks in it; and he is not sure what the Board is dealing with now.

Chairman Scarborough stated he expressed concern that sometimes there is an old development of infrastructure; when they looked at the language "overriding public interest", it was in the public interest to use an investment in infrastructure and not abandon it; and explained why there are blanks in the new language.

Mr. Moehle stated Policy 5.2.f seems to be in the right direction for the future; and the handout seems to be replacing that language while not directly talking about I-95 interchanges with major highways. He stated he heard the comment that major intersections can be somewhere else; he does not disagree with that; however, it seems to indicate in the language that it is talking about interchanges with I-95. He stated 2.b is totally overburdening to any intersection because it talks about projecting the roadway capacity within four miles, and the intersection will be no more than 80% of capacity after development of an unspecified amount of commercial space. He stated the language does not talk about the roadway capacity of the intersecting roads, but any roadway; that would be almost impossible to qualify; and commercial space is not mentioned. He stated further on it says, "a maximum of 40 acres of commercial uses shall be allocated in proximity to the interchange, counting both sides"; and inquired who is going to allocate them, and what is proximity. He stated although it might be in a good direction, he does not know how the public can comment on that until those things are cleared up. He stated the mediation language gets to be complicated; and the Board has taken out the verbiage that qualified that lands which are designated as commercial or industrial on the land use map as of a certain date are consistent with the criteria. He stated lands that had infrastructure and commercial/industrial land use on the 1988 Land Use Map should have that kind of qualifier; the qualifier got put to another date which is reasonable; but one of the main problems is the Board has lost what it started out to do which was to take the unreasonable burden off of the initial determination by staff that there is a wetland, and nothing can be done in it if it is commercial or industrial use without going to horrendous expense. He noted essentially it is necessary to bring legal action to get any attention; and commented on the cost. He stated he does not know what the language that was added about the Bert Harris Act means; and the Board has not done right by the citizens, because it has not made clear the original Ordinance and intent. He stated the comments he made last time about the proposed mediation language hold true today; the language does not include a date; Objective 4 adds language that there shall be uses directed to sites where there is sufficient uplands for the intended use and all other measures; and recommended removing the word "all." He voiced objections about the identifiers of types of wetlands. He stated at the very least the Board needs to put in a time when the commercial, industrial, and residential uses were deemed consistent with the criteria, at the very least in 1988. He recommended the Board not take any action, but go forward to the administrative hearing.

Kim Zarillo, representing the Florida Native Plant Society, stated she wants to be sure which version the Board is working from; and inquired if it is the April 13, 24, or 26 version.

Commissioner Carlson stated it is confusing; and she does not know if the Board is doing any justice today, since everyone just got another version; and so much is being put in, that it will take an attorney to figure out what is what.

Chairman Scarborough stated the current Comprehensive Plan and Stipulated Settlement use the words "overriding public interest"; and that is a weak point in the discussion. He stated there has been talk about areas that are surrounded with commercial or industrial; one place the Board should look are areas where there is a tremendous investment in capital infrastructure; and the County should not walk away from those areas and create commercial sprawl. He stated while it is clearly an overriding public interest, it is such that there are probably not that many occasions where it will come up in reality. He stated the question is how to deal with it; and the Board may find there are other overriding public interests because it could mean it is detrimental to the County to allow commercial sprawl rather than concentrating commercial development He stated the intention of all that has been presented today has been for the purpose of defining; Ms. Zarillo and Ms. Todd were faxed copies of the new language yesterday; and they have been involved in knowing where his thoughts were going.

Commissioner Carlson stated her concern is placement of the language; she understands the intent; and suggested referring to an interchange commercial zone under a land use.

Chairman Scarborough stated the Board is restricting the building in wetlands, but there could be overriding public interests; and commented on the need to define when tens of millions of dollars have already been spent. He stated there are a lot of good objectives in the Comprehensive Plan, but sometimes they conflict; the Board wants to cluster and not have commercial sprawl, as well as protect the wetlands; and his attempt is to integrate the two concepts. He stated he does not mind walking away from it today if it is going to bog everyone down; but there is a need to see one as a part of the other.

Commissioner Carlson stated this is a big issue that needs to be addressed; and she is worried that the Board is diluting the work that has been done over the past three years.

Commissioner Higgs stated she does not have a problem defining it without interchanges on I-95; but it is getting too definitive when it gets into curb cuts.

Chairman Scarborough stated if the Board lets commercial development blossom out, it is defeating its purpose; and commented on each aspect, including size, road capacity, wetland mitigation, connection from the off-ramp to the development, and limiting curb cuts. He stated when the County allows something in the wetlands, it wants to extract something, and does not want to end up having to four lane a road because of what it allowed in the wetlands. Commissioner Higgs inquired if Chairman Scarborough is talking only about I-95; with Chairman Scarborough responding they started talking about all intersections and ended up with the concept that I-95 is probably the big one that needs to be addressed. Commissioner Higgs stated if the Board limited the language to I-95, she does not have any strong opposition to it. Chairman Scarborough stated the purpose was to define "overriding public interest"; and he could find only two. Commissioner Higgs stated this is a better position than where the Board was with a term like "overriding public interest." She stated the Board needs to define it in terms of I-95; and things can be defined, and the blanks filled in, then the Board should try to complete this today.

Kim Zarillo stated she concurs with Commissioner Higgs; and what the Board is trying to do is good, but this is not the right place or time. She inquired if the Board is going to use the new edition of subparagraph 2, would it be inserted in the other editions. Chairman Scarborough stated there were a number of drafts going back and forth; and he would like to talk about the most recent draft rather than any of the prior drafts. Discussion ensued on which edition to use. Planning and Zoning Director Mel Scott provided a copy of the most recent draft to Ms. Zarillo.

Ms. Zarillo stated if the Board is going to include the new language under Section 2 or 3, it needs to specifically reference I-95 interchanges where it talks about the exception; and b should talk in terms of congestion ratios, which is the terminology of the MPO, rather than overcapacity. Chairman Scarborough stated Transportation Planning Director Bob Kamm wrote that language. Ms. Zarillo stated no more than 80% of capacity after development will probably be mall size. Chairman Scarborough advised it will be on both sides. Ms. Zarillo stated she does not have a suggestion for this blank. Mr. Scott stated the Merritt Square Mall takes up 80 acres of land, and has 992,000 square feet of leasable area; and the way it is now is 40 for the entire interchange on both sides. Chairman Scarborough stated it will be cut in half, so that would be approximately 500,000 square feet.

Discussion ensued on amount of traffic at buildout, what if only one corner has wetlands, excess capacity on the roadway, development of the wetland, massive development on corners without wetlands, example of buildout used to run numbers, "buildout" being ambiguous, impact on roadways, different scenarios, what 500,000 square feet looks like, and over 40 acres being a DRI. Ms. Zarillo stated under d, it says the development is located one-half mile of the intersection of the off-ramp with the connecting roadway; and off-ramps on the interstate are at a specified distance. Ms. Zarillo stated it may actually be approximately three-fourths of a mile. Chairman Scarborough stated when it intersects, then it goes the half-mile because there cannot be connections on the off-ramp. Ms. Zarillo stated d is expanding the sphere of development. Chairman Scarborough stated that is the only place it can develop because there is no way to use the land with the connections off the off-ramp; only when it hits the off-ramp does it become an issue; and lights on the off-ramp create problems. Ms. Zarillo stated under E, it should be a maximum of 40 acres; and inquired if that is 40 acres of land. Chairman Scarborough stated it is land used for commercial. Ms. Zarillo advised that should be clarified. She stated if the Board is going to keep the language in the draft provided today, she agrees with Ms. Todd's suggestion to add "only." She stated 3.a was supposed to have language address the interchange situation; in the Conservation Element, 3.a is still "has sufficient infrastructure in place to serve the commercial or industrial use"; she does not know why that language would still be necessary because the infrastructure would have to be defined; and it should end at the date.

Chairman Scarborough stated the next issue is curb cuts; and while the Board is willing to compromise, it does not want to end up with so many curb cuts that it will be necessary to four-lane because traffic moves so slow. He stated Mr. Thompson said once there is a connection coming in from the off-ramp, it is necessary to go a quarter mile for safety so people can merge before getting to the entrance; with Dick Thompson advising that is a recommended distance for signalization. Chairman Scarborough stated the next issue is whether another cut is needed at a half mile; with Mr. Thompson responded assuming a median situation, there could be a right-in, right-out entrance at a 440-foot minimum from the ramps, and then another at 440 feet or 600 feet after that. Chairman Scarborough advised of the problem in Titusville which can never be straightened out. Mr. Thompson stated ideally there should be as few intersections as possible for the specified distance. Chairman Scarborough inquired if one is enough in one-half mile. Mr. Thompson responded for major signalization, it should go a half-mile total; a quarter-mile is the recommended minimum on signalization; and if it develops well, there will be signalization. He stated there could be right-in, right-out driveways, but they would not be signalized; and that would be to go in, come out, and go in the same direction. He stated it is difficult to limit it to a half mile. Chairman Scarborough stated once there is a connection, it has to go a half mile before there is signalization; so it would be one major entrance into a shopping area; and suggested the wording, "no more than one curb cut on each side, after the intersection of the off-ramp of the connecting. . . ."

Discussion ensued on a quarter-mile being necessary for traffic to merge, full signalization at one-half mile; capacity to move traffic and direct it to the shopping areas, what limiting to one curb cut will mean, limiting people going into the area, whether it has anything to do with the wetlands issue, one curb cut per project, multiple curb cuts destroying the objective, looking at individual projects, reference to standards, and acres per quadrant.

Commissioner Carlson expressed frustration at trying to define what will be developing around an I-95 interchange; and requested recommendations from staff on how to address this. She stated she is not comfortable approving language she does not completely understand. Assistant County Manager Peggy Busacca stated staff could be more help if it understood the policy direction of the Board; and that is still evolving. Mr. Knox stated there is a generic way to handle this which is to address the issue of an exception tied to the commercial development activities in the vicinity of the I-95 interchanges as established by implementing land development regulations which can be specific. Commissioner Higgs stated that was what she was suggesting, but what the Plan has done in many places is reference development of an ordinance by 1992, and that never evolved. She stated Chairman Scarborough is trying to use this opportunity to provide for working intersections. Mr. Knox stated no matter what the Board decides, the DCA has to be dealt with.

Chairman Scarborough suggested in lieu of F, put "there will be no more than two curb cuts on each side of the interchange, within one-half mile of the connection with the off-ramp." He stated the Board can talk about designing the interchange, but if it is not included in this language, then the wetland policy will restrict it, and the Board will have to address it later; and recommended doing it now.

Commissioner Carlson inquired what is the deadline; with Assistant County Attorney Christine Lepore responding the hearing officer needs to hear it before May 15, 1999. Commissioner Carlson stated the Board has some time to make it understandable.

Commissioner Higgs stated she is comfortable with the language in the Agenda Package with the addition to number 2, including the definition that it is at I-95, and including that all of the following criteria apply.

Commissioner Carlson suggested getting more feedback from staff during lunch to better understand what the Board is voting on.

The Board postponed discussion on the appeal to Comprehensive Plan Amendments concerning wetlands until later in the meeting.

Bill Kerr stated in the St. Johns River Water Management District permit there is a limiting condition that says, "legal uses of water existing at the time of the permit application may not significantly adversely be impacted by the consumptive use. If unanticipated significant adverse impacts occur, the District shall revoke the permit in whole or in part to curtail or abate the adverse impacts unless the impacts can be mitigated by the permittee." He stated it also says that the permittee shall immediately notify the District in writing of any previously submitted information that is later discovered to be inaccurate; and there is a law in effect that says the District, for violations of the permit, can fine the applicant $10,000 a day until it is fixed. He stated County staff suggested that the ordinance include the wording, "the permittee shall notify the District or the County in writing if any previously submitted information is later discovered to be inaccurate; and if unanticipated significant adverse impacts occur to resources of particular concern, which is defined in County regulations, the County shall revoke the permit in whole or in part to curtail or abate the adverse impacts unless the impacts can be mitigated by the permittee; and it shall be the financial responsibility of the application to curtail or abate any adverse impacts."

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to adopt an Ordinance amending Article XIII Division 4, Brevard County Code, entitled, "Land Alteration Regulations"; establishing criteria for a depth modification procedure; providing for severability; and providing for an effective date, amended to include the language suggested by staff.

Commissioner Higgs inquired if there is any problem with the advertisement; with Mr. Knox responding no, that is not a problem. Mr. Knox advised he did have bonding language and thoughts about the adequacy of 6 and 7.

Chairman Scarborough recommended bringing the issue back after lunch. Mr. Kerr advised he will be unable to be here, but Mr. Chesney will be present.

Commissioner Carlson stated on 2.b.2 the Board was in some agreement on the ten versus the five feet; and requested Mr. Peffer address that. Mr. Peffer inquired if Commissioner Carlson wants a brief description of what is being done there; with Commissioner Carlson responding no, she wants what the Board talked about last time. Commissioner Higgs stated everyone is okay with that.

The meeting recessed at 1:09 p.m. and reconvened at 2:15 p.m.

Mr. Knox stated the new conditions are 6, 7 and 8; advised of the modification to 7, adding "if the adverse impact is caused by a breach of permit condition;" and stated the rest is okay.

There being no further comments or objections, motion was made by Commissioner Voltz, seconded by Commissioner Carlson, to adopt an Ordinance amending Article XIII Division 4, Brevard County Code, entitled, "Land Alteration Regulations"; establishing criteria for a depth modification procedure; providing for severability; and providing for an effective date, amended to include the language suggested by staff and the County Attorney. Motion carried and ordered unanimously.

Commissioner Higgs inquired about the square footage; and stated she is not sure that 100,000 square feet can go on five-acres. Chairman Scarborough stated acreage is not the issue; and the five-acre minimum is not needed, if there is the 100,000 square feet. Commissioner Voltz stated that will dictate the size of the project. Chairman Scarborough stated the 40-acre concept is also absent; and it is the lineal distance on the connecting road that is at issue, and not whether they expand more than 40 acres into the side property. Commissioner Higgs inquired why that was eliminated. Chairman Scarborough responded this is talking about within the confines of a half-mile from the connecting road and off-ramp, but the 40 acres is arbitrary. Commissioner Higgs stated it would minimize the potential impacts to wetlands which is the issue the Board is dealing with; and it is being expanded.

Discussion ensued on scenario where the wetland would not be impacted as much if expanded, position of the 40 acres at the interchange, size of the wetland, conditions to allow a wetland to be impacted, size of acreage with exception policy, development description, area of wetland as ratio of property, ways to deal with small wetland areas, and going to 120 hearing.

Charles Moehle stated the five-acre minimum project size with no less than 100,000 square feet precludes things like stand-alone restaurants; and inquired if that is the Board's intent. Chairman Scarborough stated they can be there, but need to be in a manner that will not burden the road system; and advised the Outback Steakhouse at Merritt Square Mall is an example. Mr. Moehle stated the confusion is the definition of project; most people think a project could be just the restaurant, and the next project could be the building next to it; and the Board is talking about a project like a PUD. Commissioner Higgs stated the planning is what the amendment is trying to achieve; and these kinds of criteria would have to be met. Mr. Moehle inquired if a restaurant would have to have five acres, and generate another 80,000 square feet in building; and stated that is not good planning. Chairman Scarborough stated the idea is if you take each quadrangle with a level of development, limited curb cuts and under utilization of infrastructure, it will not foul up the infrastructure by allowing the development; and advised of the problems at SR 50. Mr. Moehle stated the problem at SR 50 and I-95 is addressed in d and e; there are existing crossovers less than a quarter of a mile and a lot of curb cuts on SR 50; and that is the problem there, not the size of the projects.

Commissioner Voltz stated if there were six or seven businesses all coming in one driveway, they would have to have one owner; with Chairman Scarborough disagreeing. Commissioner Higgs stated people would have to cooperate.

Discussion ensued on multiple owners with businesses on one driveway, keeping infrastructure intact, who will pull the projects together, leaving the wetland alone being preferable to multiple businesses with multiple curb cuts, mall concept, and commercial PUD.

Mr. Moehle inquired if there is a definition of project in the Comprehensive Plan; with Assistant County Manager Peggy Busacca responding no, although the term is used in talking about planned industrial park having a minimum ten acres for a project. Mr. Moehle stated if someone called something a project, it would be a project because there is no definition.

Chairman Scarborough stated someone could put a 7-Eleven on five acres; but it requires no less than 100,000 square feet of commercial building within a project; so the acreage issue is dropped because there is a certain degree of mass. He stated his concern is one person putting in a 7-Eleven on five acres with one curb cut because he will destroy the whole thing; and the Board wants to be sure this moves in the right direction.

Mr. Moehle stated there is some planning for curb cuts; two in one-half mile may be a little tight, but at least it makes people do what the Board wants; but it is talking about future planning, not retrofit. He stated the biggest thing that is missing is that it has not solved the problem it started to solve and that is the existing conditions on February 23, 1996, or at least when the Comprehensive Plan came into law. He stated the Board is providing for things that can happen after this time; but the people that had the properties are not able to have the same opportunities. He stated the proposed mitigation language only goes back to impossible situations to accomplish; and the problem of the abuse that started out the whole thing is not solved. He recommended retaining the stipulated language about the lands that were designated as commercial on the Future Land Use map as of February 23, 1996 or no earlier than when the Comprehensive Plan was done, which deems them consistent with the criteria as being the only fair thing.

Mary Todd stated grandfathering all the properties which had the designation on the Future Land Use map as of February 23 1996 brings around the problem concerning the flawed data analysis. She stated in September, 1995 the transmittal came with the rationale that 635 acres of wetlands were impacted; but it was not supported by adequate data as noted by the Department of Community Affairs in its ORC Report, which cited the County for inadequate data analysis. She stated after the Stipulated Settlement Agreement was adopted by the Board on July 1, 1997, the Board received a memorandum from staff indicating that as many as 2,148 acres could be affected by the new language; and this data analysis was completed after the adoption procedure. She stated the Sierra Club had a problem with the data analysis all along; they are having a big problem today; and requested legal staff advise how the County is or is not falling into line with the requirements of Rule 9J-5, Florida Administrative Code. She stated when the Sierra Club was given its interrogatory, one of the questions was what data analysis should the County have relied on and did not; and advised Rule 9J-5 states that data analysis for Comprehensive Plan amendments should form the basis for the amendment, and should not be an after-the-fact justification. She stated the data should be available to the public during the amendment formulation process; the best available data should be used; and the amendment should be based on that data which should be collected by an accepted procedure. She stated with all the changes she has seen in the past few days, there is a good possibility that the County's data collection methods may jeopardize its legal basis for the Comprehensive Plan amendment; and suggested not including any language that the County does not have data for. She suggested waiting to learn from Mr. Kendig; and agreed with Chairman Scarborough that the Board should not run into this.

Mr. Knox stated the data issue is not an issue as far as what the Board is considering today which is a proposed stipulation; if everybody agrees with it, it will go forward; but if the Sierra Club as an intervenor does not agree, it will go to the hearing. Chairman Scarborough suggested tabling the item.

Kim Zarillo stated Mr. Moehle means well, but does not understand that those properties were already designated on the map as of 1988 are already part of this; and the data analysis was done. She stated now there are 2,000 acres; they have a handle on what has been designated; and that would go forward except for approximately 190 acres which would fall under the forested wetlands or wet prairies. She noted even those could go forward if they put a buffer around them, but not go forward to building on them.

Chairman Scarborough inquired if Ms. Zarillo thinks this will be resolved today or should it be tabled; with Ms. Zarillo responding the organization she represents thinks this is acceptable. Chairman Scarborough stated he is happy with the status quo; but if people think the Board is pushing something, he would prefer to table it; stated he does not know where the wetlands are going to be impacted; the number of interchanges and acres that will be addressed are a minute area of the County in a total sense; but if scientific data is needed of what those areas are or could be, it should be deferred to get a staff report.

Commissioner Higgs stated Ms. Zarillo indicates what the Board has will be acceptable; suggested trying to come up with agreeable language; and stated then it is up to the intervenors to respond. She stated if the response is that it is unacceptable, the Board is back where it was, but at least it had the discussion. Chairman Scarborough stated the Board worked hard with the intervenors; he does not want people to say they did not have enough time to think; and he never wants to push an item. Commissioner Higgs stated if the Board says this is where it is, that gives the Sierra Club a place to look as opposed to just tabling it; and suggested making additional comments and a determination.

Ms. Zarillo stated this problem started in 1995 with the data analysis issue; the language was changed at the meeting; there were many different versions; and she is not sure she even had the last one or that anyone left the room knowing exactly what was said. She stated if the language is changed during a meeting, the impact is changed; but if wording is added to Section 2, everything else is left, and 3a is adjusted, it is fine. She stated the Board has addressed Mr. Moehle and property owners that have the designations; it allows them to proceed forward; and that is acceptable to her organization.

Commissioner Higgs stated the 40 acres is an important thing that should be in the language. Ms. Zarillo stated she has that as a note to be added; there was not an overwhelming objection to adding it, and she does not have a problem with the clarifications. She stated she sees what the Board is trying to do and the actual impact; two interchanges are proposed now; and there are other things that have to be done, so that is why it is acceptable.

Margaret Hames urged the Board, if it is going to make changes, to make them at such time as they can be considered by the intervenors, public and all Commissioners; and reminded the Board of the deadline. She stated if the deadline is not met either by the Board or the intervenors, it goes back to square 1, to start where former County Commissioner Scott Ellis put the County when he tried to do away with control of the wetlands.

Chairman Scarborough stated the Board wants to make sure the people in the audience are comfortable with what it does today; some people have commented the Board is going too fast, while others would like to see it over; he could vote on something and be comfortable; but if there is somebody in the audience who would like it to be deferred, he has no problem with that. He stated Ms. Todd has indicated she would like to see more data presented. Ms. Hames stated she had a problem with the data from the beginning. Chairman Scarborough inquired if Ms. Hames wants to see a motion to table; with Ms. Hames responding she wants the Board to get on with it.

Chairman Scarborough stated the discussion is whether the Board should take more time before voting this afternoon; there was a feeling that the intervenors would like more time; but then a couple of people encouraged the Board to go ahead and take action. Ms. Hames stated if all the Commissioners are satisfied that he or she knows where the Board is going, that is fine; but every time new language is introduced, everyone goes back over all this again; and recommended deciding on something and letting everyone hassle it out. She advised she does not want to get caught by the pressure of the deadline.

Charles Moehle stated he does not see language that protects the uses as they were in 1988 or 1996; and inquired if he is wrong, what is the big objection against leaving the words in that are part of the stipulated settlement agreement, that lands designated as commercial on the Future Land Use map as of February 23, 1996 are deemed to be consistent with the criterion. Planning and Zoning Director Mel Scott stated he will meet with Mr. Moehle to show him the map because wetlands have been identified that would be forced to be preserved no matter what the Future Land Use designation is prior to or after the 1996 date; that has been quantified; and if they have an opportunity to share that information with Mr. Moehle, he may have a higher degree of comfort. Mr. Moehle stated that could be right; but people he represents have gone to the County on some of the parcels, and said there are wetlands, and the County will not give a permit no matter what. Assistant County Manager Peggy Busacca stated under the new language of subparagraph 3 of the Conservation Element, it says "commercial and industrial development may be permitted in wetlands contained in properties designated on the Future Land Use map as commercial and industrial prior to 1996"; but there are stipulations which include that certain kinds of land uses have to be surrounding that property or a certain number of wetlands are to be preserved. She stated they have estimated the amount of forested or wet prairie wetlands as approximately 191 acres throughout the entire County. Mr. Moehle suggested the map be made part of it. He stated the forested wetlands include bottomland forest, basin swamp, floodplain swamp, tidal swamp and hydric hammock; but some hydric hammocks are palm tree groups or pines growing in hydric soil; and 85% of the County is hydric soil. Commissioner Higgs suggested Mr. Moehle meet with staff to look at the maps; and stated while Mr. Moehle may never agree with the language, he would find some useful information. Chairman Scarborough advised the key issue is whether the Board wants to table this item today. Commissioner Higgs stated with a few changes, the Board has acceptable language; and it should adopt the proposed settlement language and forward it to the intervenors for consideration. Chairman Scarborough stated what he would like to do with the five-acre minimum project site is say there will be no less than 100,000 square feet of commercial building within the project. Commissioner Higgs indicated she is not concerned about the five acres. Commissioner Voltz stated she thought the Board took that out; with Chairman Scarborough and Commissioner Higgs advising that is fine. Commissioner Higgs stated f, which was previously shown as e, would be added; with Chairman Scarborough advising f is a maximum of 40 acres of commercial uses shall be allocated in proximity to the interchange, counting both sides.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve mediation language as shown on the handout dated April 27, 1999, 2:08 p.m., amended as follows: A. Five (5) acre minimum project size with no less than 100,000 square feet of commercial building within a project and F. a maximum of 40 acres of commercial use shall be allocated in proximity to the interchange, counting both sides. Motion carried and ordered. Commissioners Scarborough, Higgs, and Carlson voted aye; Commissioner Voltz voted nay.

Commissioner Higgs stated staff will type this up and forward it to the intervenors for response.

CONTRACT WITH SPEEGLE CONSTRUCTION, AND LAND TRANSFER FROM WATER RESOURCES DEPARTMENT TO SURFACE WATER IMPROVEMENT, RE: FISKE AREA- PHASE 4 DETENTION POND

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Construction Contract No. 31070-99-001 with Speegle Construction for construction of the Fiske Area-Phase 4 Detention Pond; and authorize the transfer of the property from the Water Resources Department to Surface Water Improvement. Motion carried and ordered unanimously.

APPROVAL OF APPLICATION TO FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, AND EXECUTION OF AGREEMENTS, AMENDMENTS, RENEWALS, REVISIONS, AND ADDENDA, RE: FOSTER AND SHELTER CARE BEDS AT COUNTRY ACRES PARENTAL HOME

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to execute Application to Florida Department of Children and Families for foster and shelter care beds at Country Acres Parental Home from July 1, 1999 through June 30, 2002; and authorize the Chairman to sign any and all amendments, renewals revisions and addenda related to this Agreement upon approval of the County Attorney and Risk Management. Motion carried and ordered unanimously.

EMERGENCY ORDER, RE: DECLARATION OF STATE OF LOCAL EMERGENCY

Commissioner Higgs expressed concern that the Emergency Order has been drafted so that under page 2, number 2 there is no clarification that the Board is declaring a state of emergency only for those activities related to the fire emergency; so by declaring a state of emergency, the Board is implementing the Comprehensive Plan which means certain things have to occur; and recommended limiting waivers of standard policies only apply to the fire emergency. She stated on page 3, it would be appropriate that repeal of the emergency order would be approved by the Policy Committee; and advised of the procedure when an emergency is declared. Commissioner Voltz stated last year there was a declaration of emergency relating to fireworks; and this is the way it was done. Commissioner Higgs stated that was the Ordinance about fireworks displays. Commissioner Voltz stated it was from the Governor. Commissioner Higgs stated the Governor's Order confined it to certain activities related to the fire emergency, and that is one issue; but the second issue is the use of the Policy Committee. She stated under the Comprehensive Plan, the Policy Committee, upon the declaration of the state of emergency, becomes an important decision-making body; and it is important to the coordination of the overall effort.

Assistant County Attorney Kyle King stated the language Commissioner Higgs referenced may already be in the Order; and read aloud, "provided such waiver relates or affects the delivery of the disaster emergency assistance." He stated the relaxation of the purchasing procedures is only affected to the extent it relates to the emergency, so there is limiting language; and inquired if that is satisfactory. Commissioner Higgs stated it needs further clarification.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to execute the Emergency Order declaring a State of Local Emergency due to the extremely dry weather conditions which have created a high fire danger, amended to include under Section 2, "provided such waiver relates or affects the delivery of the disaster/emergency assistance as they pertain to the fire emergency previously described," and under Section 8(b), "The Policy Committee, in consultation with the Chair or Acting Chair, recommends repealing this Emergency Order." Motion carried and ordered unanimously.

Public Safety Director Jack Parker requested permission to advertise a public hearing to consider an ordinance prohibiting open burning and the use/discharge/sale of fireworks, and providing for enforcement.

Commissioner Carlson inquired if this puts a ban on fireworks now; with Mr. Parker responding the Order has nothing to do with fireworks at this time; but the ordinance will discuss the possible banning of the use or sale of fireworks under certain drought conditions.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance prohibiting open burning and the use/discharge/sale of fireworks, and providing for enforcement. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - GINGER FERGUSON, EXECUTIVE DIRECTOR OF THE COALITION FOR THE HUNGRY AND HOMELESS OF BREVARD COUNTY, INC., RE: CONTINUUM OF CARE FOR THE HOMELESS HUD GRANT PROCESS FUNDING

Ginger Ferguson stated there is a crisis situation in the County; there are over 2,500 men, women, and children on any given night who have no place to sleep; and they are a networking organization which has become a provider of housing and services. She stated for the last four years they have applied for the Continuum of Care grant from HUD; and advised of the process. She stated the first year they got nothing; the second year they hired a grant consultant and received $673,000; the third year, they hired a local organization which facilitated the process and got a small amount of consulting, and received $396,000; and this year they are facilitating the process themselves. She stated there are six proposals on the table; she had asked for $6,000 to pay for the grant consultant and cover costs of her organization to facilitate; and the grant consultant is confident he can get them up to $750,000. She stated this year HUD is giving an extra $250,000 to an area that puts together a permanent housing component; and they have a proposal for $544,000 for a permanent housing component for the homeless; so they are hoping they will receive over $1 million this year. She advised of meetings and workshops on the process, identification of what is available in the community and needs, a gap analysis and prioritization of needs, and ranking of projects. She stated the original request was for $6,000; since that time, $3,000 was allocated through CBO; and the balance of $3,000 is needed.

Commissioner Voltz inquired what has the Coalition done in the way of fundraisers; with Ms. Ferguson responding a fundraising event is scheduled in September, 1999, and nothing is scheduled right now. Ms. Ferguson advised they are working on two grants, and have limited office staff. Commissioner Voltz stated if the group does not get the money from the County, it would have to do something. Ms. Ferguson stated they will foot the bill one way or another; she went to her board to request approval to go ahead with the process; and she was allowed to do that with the stipulation she would try to get participation and support from the County and other government entities.

Commissioner Higgs stated this collaboration of groups is able to leverage money to get multiples of it; and that is the kind of thing the Board needs to encourage. She stated she is struck by the number of families that are now part of the homeless population, so she will support this allocation.

Motion by Commissioner Higgs, to allocate $3,000 from Contingency to the Coalition for the Hungry and Homeless of Brevard County, Inc. to facilitate the process required by HUD in order to apply for Supportive Housing Grant funds; and direct staff to draft an appropriate agreement to assure the Grant Application will be submitted to HUD.

County Manager Tom Jenkins stated the $6,000 from the Board is a match for federal and State dollars, but will be spent for direct program services; and inquired if that is correct; with Ms. Ferguson responding no, the match money has to begin at the time the grant begins, and nothing that is spent prior to the grant approval is recoupable. Commissioner Voltz stated it would be paying for the grant writer. Commissioner Higgs stated the group is using a grant writer to enhance the probability that it will get the money; and the County's agreement with the group will be that the grants will be submitted, but there is no assurance they will get the grant.

Commissioner Carlson seconded the motion. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - PRISCILLA GRIFFITH, RE: SCRUB JAY REPORT

Priscilla Griffith, Co-President of the League of Women Voters of the Space Coast, described the living habits of scrub jays; and advised she mailed a copy of Dave Breininger's report to each Commissioner. She stated in 1993-94, 376 scrub jay families were documented on non-federal properties in the County; of that number the barrier island population has essentially disappeared; and mainland population is also in decline because of development, fragmentation of habitat, and fire suppression. She stated too many years have gone by with the County unable to do anything toward the preservation of the scrub jay population; and the County needs to act with deliberate speed on this matter. She stated the League requests the Board direct staff to do the research and planning necessary to produce recommendations as to how the County should proceed; and these recommendations should include strategies for management, land acquisition and financing. She stated because of the popularity of this species, the League is sure the Board will want to help preserve Brevard County's bird.

Commissioner Higgs stated there are a number of indications that the species is in serious jeopardy in the County; and the Board should direct staff to develop a report to inform the Board and the public of the current situation and the options to insure the survival of the scrub jay in the County. Commissioner Carlson agreed and stated she would also like to look at habitat loss and what has been mitigated. She recommended the Board direct staff to bring back an update on financing, land acquisition, planning, and options.

Commissioner Voltz stated before she would think about spending money on doing any of this, she would prefer to look at another population that is in jeopardy, which is the County's children. She stated she does not have a problem with staff doing a report on the scrub jays; but before the Board spends money on a bird, it needs to seriously consider the amount of money being spent on children in the community.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct staff to provide a report on the current status of the scrub jay in Brevard County, the Board's options on management and land acquisition to insure the survival of the species in the County, and what financial resources would be needed to do that. Motion carried and ordered. Commissioners Scarborough, Higgs, and Carlson voted aye; Commissioner Voltz voted nay.

PERSONAL APPEARANCE - CHARLES ABBOTT, RE: GOPHER TORTOISE: A SPECIES IN DECLINE

Chairman Scarborough inquired if Mr. Abbott brought a film or slides; with Mr. Abbot responding the Gopher Tortoise Council's video is in bad shape, but he brought his friends.

Charles Abbott stated he is not asking for money, but is here on behalf of turtles and tortoises; and displayed a Florida box turtle and a gopher tortoise. He stated the Florida box turtles are a species of special concern; individuals are allowed to have two box turtles, but they cannot be bought or sold; and gopher tortoises can only be kept by permit from the Fish and Game Commission. He distributed a pamphlet on upper respiratory tract diseases which affect tortoises; and stated in Brevard County there are approximately 30 tortoises that are confined to a development south of South Shores. He noted the Fish and Game Commission will not allow the barrier island tortoises to be transported to the mainland because there is a genetic difference between mainland and barrier island tortoises, and some of the tortoises have the upper respiratory disease. He stated tortoises are always being displaced by development; explained how to tell if a tortoise has the disease; and advised one of the country's leading experts in tortoises is doing testing at the University of Florida. He stated some Florida box turtles may also be infected; some Eastern common box turtles, that are found from Cape Cod, Massachusetts to northern Florida, have been found to be infected; and he has been distributing pamphlets to all the County's veterinarians and the wildlife hospitals. He stated he appreciates the chance to let people know that April and May are the season when tortoises are moving about; recommended people not move them; and stated if they are in a dangerous place, individuals can call the Fish and Game Commission to deal with the problem. He stated there is no cure for the respiratory infection; and the pamphlets are funded by the Gopher Tortoise Council and Disney.

Chairman Scarborough stated many times people will see a tortoise and think they can find a better place for them; but that is not good because it may spread the disease to previously non-infected tortoises.

Commissioner Carlson stated it is important not to locate diseased tortoises with a healthy group of tortoises; but with the current Code, the County does not require developers to have a permit from U.S. Fish and Wildlife before the development is approved to go on. She stated she has heard things about tortoises being onsite, but are covered over and not moved; and requested Mr. Peffer comment on the permitting process. Assistant County Manager Steve Peffer stated a landowner must do a survey of the property and identify the number of tortoises; if there are above a certain number, permits may be required for relocation and other matters; and they do have State protection which is administered by the Florida Game and Freshwater Fish Commission. He stated if the Board desires, he can give a more thorough report in writing or as an Agenda item. Commissioner Carlson requested a report to let the Board know what the current process is to deal with the gopher tortoise. Mr. Abbott stated the developer is supposed to get a permit from the Game and Freshwater Fish Commission; they assign a biologist to relocate the tortoises; sometimes if they cannot be relocated, they are euthanized; and expressed support for requiring a permit from the Game and Freshwater Fish Commission. He advised it costs a developer $800 to $1,000 to relocate a tortoise. Commissioner Carlson stated it is important to track which tortoises have the virus and which do not, especially during breeding season when they are active; and staff will bring back a report in the next couple of weeks, so the Board can discuss it further.

PERSONAL APPEARANCE - O. DEAN MADISON, RE: FINE IMPOSED BY BREVARD COUNTY CODE ENFORCEMENT SPECIAL MASTER

Chairman Scarborough stated the cost has been recalculated.

Commissioner Carlson inquired if the applicant should be appealing the fine to the Special Master and not the Board; with County Attorney Scott Knox responding no, it comes to the Board for waiver or reduction of fine.

Commissioner Voltz stated it says that each site visited equals one hour at $24 an hour; but it does not say how many hours were incurred; and inquired if it only took one hour. Chairman Scarborough stated he has the April 23, 1999 paperwork which says it is $342.32. He stated the report has multiple dates and activities; and $342 still seems low. He stated the Board may need to address a new methodology in calculating; these Code things do draw on other resources; and $342 for all this involvement does not come together. He stated he is reticent to second guess the Special Master who has heard the case in full.

Commissioner Higgs inquired if the Special Master reduced the amount; with Chairman Scarborough responding yes, from $10,100 to $2,600. Commissioner Higgs stated it was reduced to $2,600, and that the Special Master's recommendation should stand.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to uphold the recommendation of the Special Master for a fine reduction for O. Dean Madison to $2,600.

Dean Madison stated it was his understanding the fine was going to be waived except for the administrative costs which had not been decided; and he did not receive notice that this was on the Agenda.

Commissioner Voltz inquired why was Mr. Madison not notified; with Code Enforcement Manager Bobby Bowen responding Mr. Madison was present at the last hearing, and he assumed he knew this was going to be brought up today.

Discussion ensued on the previous Board action, Mr. Madison's presence at the last meeting, punitive damages, and notification of people involved.

Chairman Scarborough stated anytime a staff report is prepared that pertains to a person's rights before the Board, in addition to the Commissioners getting a copy, that person and any interested party should be provided with a copy.

Chairman Scarborough passed the gavel to Vice Chairman Higgs; and announced intent to make a motion. Commissioner Voltz noted there is already a motion on the floor.

Vice Chairman Higgs passed the gavel to Chairman Scarborough.

Chairman Scarborough stated the amount could not be $342; $1,700 is what he would say is the actual cost; and it should not be less than that. Commissioner Voltz stated Chairman Scarborough cannot make that decision, because he does not have anything to back it up. Chairman Scarborough stated he has the option of voting for the $2,600 or $342; and inquired if that is all he can do. Commissioner Voltz stated the Board has to trust the numbers staff has given; with Chairman Scarborough stating the numbers are wrong, and nobody can say this is a legitimate figure because it is impossible to do this much work for $342. Commissioner Voltz stated that may be all they did; with Chairman Scarborough stating he has a listing of all the actions starting on August 29, 1997 and going on; and it is impossible for it to be less than $1,500. Mr. Bowen stated it is a chronology of the case; the expenses were based on the time spent on an actual function; nothing was charged after the public hearing; and these are the best figures staff could come up with under the current procedures. Commissioner Higgs stated after the public hearing, the case went on for a long time; and inquired if no further charges were made; with Mr. Bowen responding that is correct. Commissioner Higgs stated that is not consistent with the real costs.

County Manager Tom Jenkins suggested tabling the item to get additional information. Mr. Madison stated he only met with the Special Master two or three times; and nothing happened between October, 1998 and February, 1999.

Chairman Scarborough inquired if Mr. Madison saw the memorandum of April 21, 1999 which lists 15 events; and stated there cannot be 15 things on a time card adding up to $342. Commissioner Voltz stated in that case, staff needs to look at every one of the items to advise where there was cost involved.

Discussion ensued on costs, being just to everyone, right to appeal to the Board, and all costs not calculated.

Mr. Madison stated he does not think the Board realizes the magnitude of the project; and the time he was given was unreasonable. He outlined problems involved with coming into compliance.

Commissioner Higgs stated the case came to the attention of Code Enforcement on August 29, 1997; the Special Master gave Mr. Madison until August 30, 1998 to come into compliance; Mr. Madison was given additional time on more than one occasion; so Mr. Madison had approximately 15 months. Mr. Madison stated no deadlines were put on until August, 1998; that was when they were supposed to get it rezoned which fell through; and outlined the work which had to be done. Commissioner Higgs stated from August, 1997 to July 16, 1998, there was no action against Mr. Madison; and Mr. Madison was given additional time. Mr. Madison advised of problems with his manager, no one contacting him for a meeting, and being given a certain amount of time to come into compliance; and stated August, 1998 was the first time he came before the Special Master.

Chairman Scarborough stated someone goes to the Special Master because they have not come into compliance; and this has been ongoing and extensive. He stated somewhere between $1,500 and $2,600 is probably actual cost; and he would not mind going with actual cost if everything Mr. Madison says is true, but Mr. Madison knew he had a responsibility to come into compliance. He advised of the implications of not requiring people to come into compliance; and stated someone cannot walk away with impunity after years of ignoring what is required. Mr. Madison stated he did not ignore it; and there were discussions going on.

Commissioner Higgs stated if she went to the IRS on April 15 to discuss tax bills, she does not think there would be much sympathy; and the Board needs to recognize that people need to comply.

Commissioner Voltz inquired what percentage of people who go before the Special Master come before the Board; with Mr. Bowen responding it is very low, but he cannot give a percentage.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered. Commissioner Scarborough, Higgs, and Carlson voted aye; Commissioner Voltz voted nay.

Chairman Scarborough passed the gavel to Vice Chairman Higgs.

Motion by Commissioner Scarborough, to reduce the fine of Dean Madison to $2,000. Motion died for lack of a second.

Commissioner Voltz suggested it be amended to $1,700.

Vice Chairman Higgs passed the gavel back to Chairman Scarborough.

Chairman Scarborough stated the Special Master's fine stands; Mr. Madison came to the Board for affirmative action; there was no affirmative action; that results in the status quo; and inquired if that is correct. Mr. Knox advised that is correct.

Mr. Madison requested the Board review the video of the last meeting in which Chairman Scarborough indicated he had no desire to impose punitive fines, only administrative costs. Chairman Scarborough stated he thought the Board was going to administrative costs, but the costs they got were so ridiculously low, they did not represent anything. Mr. Madison inquired if the Board should arrive at actual costs rather than going back to the original fine; with Chairman Scarborough inquiring if Mr. Madison wants to pay $10,000. Chairman Scarborough noted the fine was reduced from $10,000 to $2,600; it would require affirmative action of the Board to reduce it further; and there is not support for that. Mr. Madison stated what Chairman Scarborough said at the previous meeting was just his opinion; with Chairman Scarborough responding each Commissioner has one vote, but it takes three votes to change things.

Chairman Scarborough passed the gavel to Vice Chairman Higgs.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct that any time there is an item before the Board, from any Department, on any issue, that pertains to an individual's interest, staff will provide the individual with a copy of the staff report in a timely manner.

Commissioner Carlson inquired if Commissioner Scarborough will amend the motion to include when something like this comes before the Board, staff will provide the Board with options. Commissioner Scarborough stated he is talking about any report on anything because he wants the individual before the Board to have the same material he has and be fully prepared.

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

Vice Chairman Higgs passed the gavel back to Chairman Scarborough.

Commissioner Higgs stated in this instance, Mr. Madison was here and heard the discussion. Chairman Scarborough stated it would have been nice for Mr. Madison to have the same report the Board did.

Discussion ensued on providing an accurate itemized list of all costs incurred; reviewing how the costs are put together, not second-guessing the Special Master, right to appeal, people who have appealed paying less than those who voluntarily complied, reviewing how fines are assessed, having the Special Master appear at appeals, and written recommendation of the Special Master.

Chairman Scarborough requested the Board get an accurate itemized list of all costs for future cases.

APPROVAL, RE: PARTICIPATION IN U.S. DEPARTMENT OF JUSTICE COPS SCHOOL BOARD PARTNERSHIP GRANT

A representative of the Sheriff's Office stated this is a U.S. Department of Justice grant for school-based partnerships; they intend to evaluate some of the school-based policing efforts utilizing the grants to determine what is occurring in the schools; and some of the things they intend to do are crime mapping, crime trend analysis, incident profiling, and tracking serious habitual offenders who are in the schools. He stated they are hoping to be able to identify some of the problems and some long-term solutions to those problems; the grant is 100% paid for by the federal government with no match; and they are hoping it will provide some significant data that complement the comprehensive strategy effort.

Commissioner Voltz stated they will work with the person the Board is going to hire to oversee the Juvenile Justice Delinquency Prevention Program.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize participation in the U.S. Department of Justice Community Oriented Policing (COPS) School-based Partnership Grant to provide 100% funding for research staff and equipment to evaluate school-based crime and disorder problems, analyze existing prevention and intervention programs to determine their effectiveness, and provide tailored solutions to more effectively deal with school-related crime and juvenile delinquency; and execute Application for the grant. Motion carried and ordered unanimously.

Commissioner Higgs stated they will be able to measure the effectiveness of the crime prevention and other activities to know what works and what does not. Commissioner Voltz stated she also asked them to look at the DARE Program to see if it has been effective.

REPORT, RE: 36TH SPACE CONGRESS

Commissioner Voltz stated she went to the 36th Space Congress; and advised of the community-related projects done by young people.

WARRANT LIST

Upon motion and second, the meeting was adjourned at 4:05 p.m.

ATTEST:

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

SANDY CRAWFORD, CLERK
(S E A L)