MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

October 29, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on October 29, 2002, at 5:33 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Susan Carlson, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Commissioner Susan Carlson, District 4.

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

APPROVAL OF MINUTES

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve the Minutes of September 5, 2002 Zoning Meeting, and September 11, 2002 Special Meeting. Motion carried and ordered unanimously.

REPORT, RE: PLAQUE FOR HOLLAND AMERICA LINE

County Manager Tom Jenkins advised in the Agenda package is a copy of the plaque that will be presented to Holland America Line by Commissioner O'Brien, who will be representing the Board, which says, “Welcome to Holland America Line Zaandam for her inaugural voyage from Port Canaveral on Florida’s Space Coast on November 9, 2002. May she visit the Space Coast for years to come. The Brevard County Board of County Commissioners.”

REPORT, RE: HALLOWEEN CAUTION

Commissioner O'Brien donned a Halloween mask, and requested people driving in neighborhoods from 4:00 p.m. to 10:00 p.m. on Thursday, October 31, 2002, to be extremely careful because children will be running around collecting treats with costumes that may impair their vision; and requested parents check all the treats to insure they are safe for consumption.

REPORT, RE: ABATEMENT OF CODE ENFORCEMENT ACTION ON
CRISAFULLI PROPERTY

Commissioner O'Brien advised he requested the Board direct staff to look into allowing grazing of cattle in GML zoning classification; the staff report has not come back to the Board yet; and requested the Board abate Code Enforcement action until the report is received.

Assistant County Manager Peggy Busacca advised staff is trying to get the report to the Board on November 12, 2002.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to abate Code Enforcement action on Crisafulli property until receipt of the report regarding grazing of cattle on GML-zoned lands. Motion carried and ordered unanimously.

REPORT, RE: SAMPLE OF THE ARTS OF SPACE COAST POPS

Commissioner Carlson advised the Sample of the Arts is featuring the Space Coast Pops in the lobby this evening; and Mr. Nolan Masters is here to tell what is going on.

Nolan Masters thanked the Board for the opportunity to talk about their organization; stated they are pleased with their accomplishments, especially in the past year when most other nonprofit publicly-funded organizations have suffered; and he said pleased and not proud because the Lord does not like proud and they are seeking His blessing in all that they do. He stated the Pops is a humble organization trying to maintain and restore a phase of culture of good wholesome music along with the classics that seem to be passing on; and they have changed their venue to the First Baptist Church on Merritt Island and lowered their ticket prices. Mr. Masters advised they now have a seating capacity in excess of 2,000; and they are presenting a free concert to the community on November 9, 2002 that will feature mostly local talent. He stated they have a gifted young girl who has performed with them on several occasions and is still in grade school; they are pleased to sponsor the Young Artists Competition and the Youth Music Festival; and they feel it is extremely important in perpetuating the culture of the young generation. He stated Richard Haymon will be performing with them in their April concert and they are bringing a repeat performer from Chicago to their February concert who does a great job imitating Frank Sinatra by singing many of his hit songs from the 1960’s, 1970’s and 1980’s. He stated while those performers are from out of town, they rely heavily on local talent for most of their concerts; their conductor, Robert Coleman comes from the St. Louis Symphony; and if there was one thing they could point to that has brought out the successes they have had, it would be Robert Coleman. He stated he is a consummate showman whose slogan is, “You bring them in, and I’ll bring them back.” Mr. Masters advised they have free tickets in the lobby along with refreshments provided by their past president and longtime benefactor Vera Walker; thanked the Board for its attitude towards the arts; and stated they feel they have an ally in their effort to affect the culture of Brevard County.

RESOLUTION, RE: PROCLAIMING SCOUTING FOR FOOD DAY

Commissioner Carlson read aloud a resolution proclaiming November 9, 2002 as Scouting for Food Day in Brevard County.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution proclaiming November 9, 2002 as Scouting for Food Day in Brevard County; and encouraging residents to contribute generously to the efforts of the Boy Scouts to fight hunger. Motion carried and ordered unanimously.

Amber Carroll, local District Executive for the Central Brevard County Boy Scouts, advised the Central Florida Council of the Boy Scouts of America is located in Apopka, Florida and covers Brevard, Flagler, Lake, Orange, Osceola, Seminole, and Volusia Counties; Scouting for Food Day was adopted in 1988; and during the past 14 years, they have collected over 6.5 million meals for the Central Florida community. She stated last year was a difficult year for Brevard County and the nation; but the Brevard County citizens went above and beyond and raised over 219,000 pounds of food, which was over 37% of the Council’s food raised that year. She stated she is proud to be a part of this County. Ms. Carroll advised the Cub Scouts, Boy Scouts, Venture Cruise, and Explorer Post will be out quietly placing empty bags on doorknobs in request for all citizens in Brevard County to fill those bags with non-perishable and canned foods; and the next week, those same groups will be back to pick up the food on November 9, 2002. She noted all the food donated stays local; last year Pat Bright, Director of Daily Bread Distribution Center, advised the 219,000 pounds of food filled their shelves until April or May; so Brevard County is the largest food drive in the Central Florida area; and they appreciate the Resolution adopting Scouting for Food Day. She noted scouting is alive and well in this community.

Commissioner Carlson advised the Resolution will be framed and presented to the Central Brevard County Boy Scouts or a local group at a later date.

REPORT, RE: FAMILY EMERGENCY

Commissioner Colon advised two weeks ago she did not attend the Board meeting because there was a personal emergency in her family; on October 11, 2002, her brother-in-law was in a horrible explosion and had second and third degree burns; and she flew out the next day to be with her family. She thanked the people for the words of encouragement she received while the ordeal was happening; stated her brother-in-law is young and a great father and husband; and she did not know what she would be dealing with when she got to New Jersey; however, the words of encouragement from the community were incredible. She thanked the Commissioners for their words of encouragement and prayers that were definitely heard; her brother-in-law is doing much better; he stopped breathing four times the evening it happened; but he has been fighting for his life and the Lord was definitely there, as she witnessed those miracles while in New Jersey. She thanked the churches that sent cards to her in New Jersey to give strength for her family, including the folks from House of Prayer, letters from Zion, Reverend Francis Falatico, Mitch Needelman, and Congressman Weldon; and stated her brother-in-law could not read them, but she read them to him and he nodded. She stated Mayor Geier ran to her house and prayed with her to let her know everything would be okay; Mel Scott, Yvette Torres, and other County employees were there for her also with words of encouragement; and thanked the Redmans who took care of her children while she and her husband flew out immediately. Commissioner Colon thanked her staff, Rob, Mary, and Evelyn, who handled themselves professionally in the two weeks she was gone and did a tremendous job for her bosses in District 5. She stated she received tremendous words from County staff of how professional her staff was; and thanked them for their efforts. She thanked her husband who was there for her; and thanked the Lord for her brother-in-law who is doing well. She noted he underwent surgery again yesterday; and thanked everyone for their prayers because they were definitely answered during those two weeks.

REPORT, RE: LETTER FROM TICO AIRPORT AUTHORITY ON ENCHANTED FOREST

Chairman Scarborough advised there is an issue going on between TiCo Airport Authority and the Enchanted Forest; on November 9, 2002, the Enchanted Forest Sanctuary will be opening; they raised questions regarding the letter that went to the Governor from the Authority; and if there are questions, he will be glad to discuss it, but if not, he would like to try and find answers to those questions and correct the record as requested.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to authorize the Chairman to send a letter clarifying the issues in the letter from TiCo Airport Authority to the Governor regarding the Enchanted Forest Sanctuary. Motion carried and ordered unanimously.

Chairman Scarborough inquired if the Board wants him to bring the letter back before sending it; and stated if not, he will copy each of the Commissioners beforehand.

RESOLUTION, RE: COMMENDING GEORGE BROYLES

Chairman Scarborough advised George Broyles is moving out of the area, and has served many years on the North Brevard Commission on Parks and Recreation; and requested adoption of the Resolution commending Mr. Broyles.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution expressing appreciation to George Broyles for many years of dedicated service to the citizens of Brevard County as a member of the North Brevard Commission on Parks and Recreation. Motion carried and ordered unanimously.

RESOLUTION, RE: COMMENDING WESTSIDE ELEMENTARY SCHOOL GRAMMY
AWARD WINNING MUSIC PROGRAM

Commissioner Carlson read a loud a resolution commending Westside Elementary School and its music teacher for their outstanding achievements in music education and being selected as a GRAMMY Signature Elementary School.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution commending the students of Westside Elementary School and their music teacher Chuck Brooker for their outstanding achievements in music education, which brought great credit to the school, music education, and Brevard County. Motion carried and ordered unanimously.

Chuck Brooker advised they strive to share music with all the students; music is in all their lives and helps everyone; and they integrate it as much as possible. He stated he is proud to represent Brevard County Schools and Westside Elementary, which is the only one in the top ten this year. He introduced his son Matthew who is also a music student.

Commissioner Carlson presented the Resolution to Mr. Brooker and his son Matthew.

RESOLUTION, RE: PROCLAIMING CHRONIC OBSTRUCTIVE PULMONARY DISEASE
AWARENESS MONTH

Commissioner Colon read aloud a resolution proclaiming the month of November 2002 as Chronic Obstructive Pulmonary Disease Awareness Month in Brevard County.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to adopt Resolution proclaiming November 2002 as Chronic Obstructive Pulmonary Disease Awareness Month in Brevard County, and requesting citizens to be aware of this disease and seek adequate treatment. Motion carried and ordered unanimously.

Commissioner Colon presented the Resolution to Clark Swayze who advised most people never heard of COPD; it is the only major disease that is rising while others are going down; and he is honored to accept the Resolution for all the people in Brevard County who have COPD. He stated 16 million Americans have COPD and are not diagnosed; shortness of breath has been blamed on age, cigarettes, and other things, but there has to be a reason for it because people should not be out of breath without major exertion; and requested anyone who gets short-winded doing normal tasks to consult a pulmonary doctor.

RESOLUTION, RE: PROCLAIMING BREVARD COUNTY PHILANTHROPY DAY

Commissioner O'Brien read aloud a resolution proclaiming November 7, 2002 as Brevard County Philanthropy Day.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt Resolution proclaiming November 7, 2002 as Brevard County Philanthropy Day in honor and recognition of the Central Florida Chapter of the Association of Fundraising Professionals and the critical role philanthropy plays in the well-being of our citizens and the community. Motion carried and ordered unanimously.

Bernadine Douglas thanked the Board on behalf of the millions of people who are helped each day by their neighbors. Commissioner O'Brien presented the Resolution to Ms. Douglas.

RECOGNITION, RE: FALL 2002 CITIZENS ACADEMY GRADUATES

Special Projects Manager Marea Assante advised the Fall 2002 class started on August 28, 2002 with morning and evening sessions; it is a free nine-week educational program for three hours per week and a half day on Saturday for a tour; and almost every County Department participated in the educational program. She stated those interested in the Spring 2003 class can call 633-2010 and request an application from the County Manager’s Office, as it is on a first come/first serve basis.

Annie Frame from Rockledge advised she is privileged to represent and speak on behalf of the Citizens Academy graduating class; and thanked the Board for the opportunity to become involved with civic consciousness. She stated they will take what they have learned and begin to be part of the solution rather than the problem; and thanked all the presenters, Mr. Jenkins, Marea Assante, and Pam Shoemaker for their efforts. She stated her classmates wanted her to make special mention of the refreshments. Ms. Frame advised if the County needs to call on them to do something, they will be ready to support the preferred future of the Brevard Tomorrow where the County will be economically sound and have a great quality of life.

Commissioner Colon presented certificates and gifts to Cathy Danner, Jan Erickson, Marvin Ferebee, Rose Johnson, Annette Melnicove, Patti Plant, Steven Woodford, Nell Anderson, Angelina Burns, Nancy Carbonari, Annie Frame, Georgina Landon, Corine Small, Beverly Vogt, and Crystal Wenkstern.

Chairman Scarborough advised Brevard County is fortunate to have bright people in the community and those who take time to learn more and serve on committees. He stated the good thing about Brevard County is the people; and thanked Mr. Jenkins and the staff members for sharing their valuable time.

RESOLUTION, RE: PROCLAIMING MAKE A DIFFERENCE DAY

Commissioner Higgs read aloud a resolution recognizing Melbourne Central Catholic High School, St. Joseph Catholic School, and all the volunteers for their contributions in memory of Bernard Curtis Brown II, during Make A Difference Day on October 26, 2002.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution recognizing Melbourne Central Catholic High School, St. Joseph Catholic School, and all the parents, teachers, staff, and volunteers for their contributions, in memory of Bernard Curtis Brown II who lost his life on September 11, 2001, to restore the natural habitat of the Indian River Lagoon in partnership with the Marine Resources Council. Motion carried and ordered unanimously.

Mary Lochiava advised she is one of the parent volunteer coordinators for the Schools’ Make a Difference Day project; this is their fourth year participating; and the two students from St. Joseph’s School are Mark Rankins and Rachel Rankins, who are here with their mother Robin Rankins. She stated Anna Adams is the Principal of St. Joseph’s Catholic School; Mr. Joe Mancini is the Principal at Melbourne Central Catholic High School; Susan Sanders is another coordinator of the Make a Difference Day project; and she and other coordinators Susan Sanders, Anna Fagan, and Gina Bardy, would like to thank the Board for honoring their students with the Resolution that recognizes young people for doing good things. She stated Ms. Adams and Mr. Mancini support this type of community involvement as part of the educational process; they, along with almost 300 volunteers, which included administrators, teachers, parents, and students as well as volunteers from Marine Resources Council, spent the day restoring shoreline habitat of the Indian River Lagoon in honor of Bernard Curtis Brown II. Ms. Lochiava stated thanks to the generosity of the Marine Resource Council, the Brown family was flown in for the event; they were touched by the project and number of people who volunteered in their son’s honor; and Ms. Brown said if Curtis was here, he would have been right in there with the other children for that is the type of thing he loved. She stated they cleared over 500 feet of shoreline on the Banana River, filled eight dump trucks full of chipped pepper trees, planted 200 red mangrove and 20 white mangrove seedlings, and 1,800 native wildflowers along the shore of the Indian River, and potted 2,800 red mangrove propagules, 510 white mangrove propagules, and 300 black mangrove propagules. She stated they also collected over 500 propagles for future potting and picked up over 20 bags of trash. She thanked the Outback Steakhouse for providing lunch to all the volunteers, Sam’s Club for the bonus grant awarded the project, Carl’s Medical Supply, The Medicine Shoppe of Palm Bay, The Salvation Army, Fine Design and Screen Printing, Pelican Plumbing, Space Coast Honda, Florida Power & Light company, Krispy Kreme Donuts, Brevard Rentals, Waste Management, Coca-Cola, Gad About Travel, Publix, B.J.’s, Quick Key, the Boy and Girl Scouts, and St. Joseph’s School who provided water and desserts, Keep Brevard Beautiful, and Brevard Community College Road and Bridge Department, for without their support the day would not have been possible. She encouraged others to mark their calendars for next year’s Make a Difference Day, which occurs the last Saturday in October, and plan to do a project, because no matter how small an act it is, it is through volunteerism that they demonstrate to the world what Americans are all about.

Commissioner Higgs presented the Resolutions to Principals Adams and Mancini; and the Board applauded the Schools for their outstanding efforts.

RESOLUTION, RE: RECOGNIZING REPRESENTATIVE RANDY BALL

Chairman Scarborough advised Representative Ball is not present tonight, but he would like to present him with a resolution expressing appreciation for his efforts on behalf of the citizens of Brevard County.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution congratulating Representative Randy J. Ball on his many accomplishments during his term as State Representative, thanking him for his untiring efforts on behalf of the citizens of Brevard County, and extending appreciation to his family for their unfailing support of his efforts. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: PLANTATION SUBDIVISION, PHASE 3

Motion by Commissioner Carlson, seconded by Commissioner Colon, to grant final plat approval for Plantation Subdivision, Phase 3, subject to minor changes if necessary, receipt of all documents required for recording, and developer obtaining appropriate jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: AUBURN
LAKES SUBDIVISION, PHASE 2

Motion by Commissioner Carlson, seconded by Commissioner Colon, to grant final plat approval for Auburn Lakes Subdivision, Phase 2, subject to minor changes if necessary, receipt of all documents required for recording, and developer obtaining appropriate jurisdictional permits; and execute Contract with The Viera Company guaranteeing infrastructure improvements in said Subdivision. Motion carried and ordered unanimously.

CONTRACT WITH THE VIERA COMPANY, RE: SONOMA AT VIERA SUBDIVISION,
PHASES 1 AND 2

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Contract with The Viera Company, guaranteeing infrastructure improvements in Sonoma at Viera Subdivision, Phases 1 and 2, which does not relieve the developer from obtaining required jurisdictional permits. Motion carried and ordered unanimously.

CONTRACT WITH THE VIERA COMPANY, RE: AUBURN LAKES, PHASE 1

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Contract with The Viera Company, guaranteeing infrastructure improvements in Auburn Lakes, Phase 1, which does not relieve the developer from obtaining required jurisdictional permits. Motion carried and ordered unanimously.

EXTENSION AGREEMENT WITH THE VIERA COMPANY, RE: WICKHAM ROAD,
LAKE ANDREW DRIVE, AND NAPOLO DRIVE

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Extension Agreement with The Viera Company guaranteeing infrastructure improvements to Wickham Road, Lake Andrew Drive, and Napolo Drive, which does not relieve the developer from obtaining required jurisdictional permits. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN WITH THE GREAT OUTDOORS PREMIER RV/GOLF
RESORT, INC., RE: REZONING

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Binding Development Plan with the Great Outdoors Premier RV/Golf Resort, Inc. for rezoning in Section 6, Township 23S., Range 35E. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN WITH AIR LIQUIDE AMERICA CORPORATION,
RE: REZONING

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Binding Development Plan with Air Liquide America Corporation for rezoning in Section 13, Township 23S., Range 36E. Motion carried and ordered unanimously.

APPROVAL, RE: PARTIAL ZONING MEETING SCHEDULE FOR 2003

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve February 6, 2003 and March 6, 2003 as the first two zoning meetings of the Board of County Commissioners in 2003 to accommodate uninterrupted workflow through the end of 2002. Motion carried and ordered unanimously.

RESOLUTION, RE: SETTING PUBLIC HEARING FOR WOODLANDS WATERLINE MSBU
ASSESSMENT ROLL

Motion by Commissioner Carlson, seconded by Commissioner Colon, to acknowledge preparation of the preliminary assessment roll, and adopt Resolution setting the public hearing for December 3, 2002 to confirm the preliminary assessment roll for The Woodlands Waterline Municipal Service Benefit Unit (MSBU). Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF TITUSVILLE AND BUDGET CHANGE REQUEST,
RE: REPLACEMENT OF PLAYGROUND AT WILLIAM J. MANZO PARK

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Agreement with the City of Titusville for Community Development Block Grant funds in the amount of $58,670 for replacement of playground at William J. Manzo Memorial Park, and approve Budget Change Request for the project. Motion carried and ordered unanimously.

AGREEMENTS AND AMENDMENTS WITH ATTORNEYS, RE: LEGAL REPRESENTATION
OF INDIGENT PERSONS IN DEPENDENCY PROCEEDINGS

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Agreements with Kathleen Henretta and Philip Mitchell for legal representation of indigent persons in dependency proceeds from November 1, 2002 through September 30, 2004; and execute Amendments to Agreements with Shari Wilson, Thomas Thompson, Kelly Swartz, and Stephen Mays, extending current Agreements for legal representation of indigent persons in dependency proceedings from September 30, 2003 to September 30, 2004. Motion carried and ordered unanimously.

RESOLUTION AND AGREEMENT WITH FLORIDA DEPARTMENT OF TRANSPORTATION,
RE: SCAT PUBLIC TRANSIT BLOCK GRANT

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution and execute Joint Participation Agreement with Florida Department of Transportation, allowing the FY 2003 allocation of $947,924 from the State Public Transit Block Grant to Space Coast Area Transit. Motion carried and ordered unanimously.

APPROVAL, RE: TRANSFER OF FUNDING TO SHERIFF’S OFFICE

Motion by Commissioner Carlson, seconded by Commissioner Colon, to authorize payment of one-twelfth of the total amount budgeted for the Sheriff’s Office and partial funding budgeted for equipment for FY 2002-03 at a total of $4,657,908 for Judicial, Law Enforcement, and Corrections Programs, and $751,927 for the Law Enforcement MSTU. Motion carried and ordered unanimously.

AGREEMENTS TO EXTEND EXISTING CONTRACTS WITH CLEANNET OF CENTRAL
FLORIDA, INC., RE: COUNTYWIDE JANITORIAL SERVICES

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Agreements to Extend Existing Contracts with CleanNet of Central Florida, Inc., for janitorial services at the Government Centers, Courthouses, and Service Complexes for 30 days. Motion carried and ordered unanimously.

STIPULATED SETTLEMENT AGREEMENT WITH HELMUT AND DANNA SWAROVSKI,
RE: BREVARD COUNTY v. RAYMOND AMY, ET AL, SHORE PROTECTION-SOUTH
REACH PROJECT, PHASE 2 EASEMENT

Motion by Commissioner Carlson, seconded by Commissioner Colon, to authorize the County Attorney to execute the Stipulated Settlement Agreement with Helmut and Danna Swarovski regarding easement value and attorney’s fees in Brevard County v. Raymond Amy, et al Shore Protection Project, South Reach, Phase 1 Easement, in the amount of $3,750 plus $2,000 for attorney’s fees. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Carlson, seconded by Commissioner Colon, to appoint and/or reappoint Joel Taft to the TiCo Airport Authority with term expiring July 7, 2005; Kendall T. Moore to the Tourist Development Council replacing Ed Palmer, with term expiring December 31, 2005; Linda McKinney to the Art in Public Places Committee replacing Louis Kasper, with term expiring December 31, 2003; Dr. Marion J. Soileau to the Economic Development Commission replacing William van Engelenburg, with term expiring December 31, 2002; and Duane Watson to the Merritt Island Redevelopment Agency replacing Dave Hawks, with term expiring November 13, 2004. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve bills and budget changes as submitted. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST BY RONALD D. COLE FOR DETERMINATION OF
VESTED RIGHTS

Chairman Scarborough called for the public hearing to consider a request by Ronald D. Cole for determination of vested rights.

Attorney Leonard Spielvogel, representing Roland Cole, Sr. and Jr., advised his clients purchased the property on March 9, 1998 at 2020 Shannon Avenue; and on June 28, 2002, they were served with a notice of violation by Code Enforcement. He stated the alleged violation is that his clients were renting to four separate tenants and using their property as a multifamily residence when it was and is zoned single-family; and he is here to request a vested rights determination that his clients are using their property legally and can continue to use their property for multifamily residential purposes. He stated his clients and the Florida licensed real estate brokers who were involved in the transaction acted so reasonably and professionally in the acquisition of the property that his clients’ filing fees should be returned to them. Mr. Spielvogel advised his reasons for claiming vested rights and reimbursement are set forth in his letter of October 14, 2002 addressed to Mel Scott, Director of Planning and Zoning Office, which, together with sworn affidavits from Nancy McGinley, the listing broker; Michelle Foden, the selling broker; Judy McKinnon, the daughter of his clients’ grantor Mary McKinnon, who is deceased; and an affidavit from his client Ronald Cole, Sr., all clearly establish that they did all they could reasonably expect to do in investigating the use of the property as a multifamily rental investment. He advised all of the affidavits and supporting documents and exhibits are part of the Agenda Report and part of the record of these proceedings; and the property has been used for multifamily rental since 1960, according to Judy McKinnon who lived there at that time and for many years thereafter. Mr. Spielvogel stated on January 7, 1998, Code Enforcement received an anonymous complaint that 2020 Shannon Avenue was being used for rental to four individual tenants in violation of single-family residential Code; those are the same charges that are contained in the Notice of Violation that was served on his clients earlier this year; and inquired what happened to the complaint filed in January, 1998, just two months before his clients purchased the property. He stated Code Enforcement Action File 98-0002, which is page 20 of the Agenda Report, states, "Case closed as unfounded"; and the official County documents in the January 1998 proceeding also contained the statement, “In its present status, no zoning violations or any consumer health issues exist on the property.” He stated the property is 2020 Shannon Avenue; there was talk about a five-year rule and discussion that Code Enforcement supervisors had with staff from the zoning Department; but in the last analysis, it was complete agreement that the case, which was brought in 1998, should be dismissed or closed as unfounded. Mr. Spielvogel stated on January 20, 1998, the information was conveyed by the Code Enforcement officer to Judy McKinnon, the owner’s daughter; on January 7, 1998, Code Enforcement sent a fax transmittal and the complaint sheets to the listing broker Nancy McGinley; and in the common section of that transmittal, it says, “No violations. Zoning Code.” He stated all that information and findings were shared with his clients prior to closing; and they relied on the information and paid $100,000 for the property at closing on March 9, 1998. He stated they wanted an investment property and exercised due diligence in purchasing 2020 Shannon Avenue; his clients and the real estate consultants acted in good faith; and his clients are bona fide purchasers for value without actual or constructive notice of any violations. He requested the Board favorably consider his clients’ request for vested rights and reimbursement; and requested an opportunity to respond to any staff or public comments.

Henry Wallen advised he has lived on Shannon Avenue for 31 years; they understood the situation prior to the people who bought the house now; it was a “could rent”; but when the people bought it, they should have not been grandfathered in. He stated it is a residential area and that is the way they would like to keep it; and it is not a multifamily area.

Ruth Wallen advised in the 1960’s it was a kind of “good ole boy” thing, from what she remembers; they have a neighbor who was going to speak today but she is in the hospital; and there are no records of the meeting approving the structures to be built by Mrs. McKinnon. She stated nobody can find what it was zoned; originally it was single-family; they cannot find anywhere where it was multifamily; and how it happened, they do not know. She stated they were evacuated from their neighborhood because of one of the renters; and there were police and helicopters. She stated the rooms are 10x10 and very small; they do not have kitchens; and they have to share a bathroom, which is a very strange setup. She stated when Ms. McKinnon lived there, she would allow the tenants to eat in her kitchen; she passed away; and when they sold the house, the new owners have been renting the tiny rooms on the street. She stated they want to know what the zoning of the property is because as far as they know, it is single-family.

Patricia Hobby advised she lives directly across the street from the residence and has lived there since 1989; she was led to believe it was grandfathered in as multifamily from the previous owner; when it was sold, there was a complaint made in 1998; and the Code Enforcement officer came out, but they do not know why the case was closed. She stated they figured they had no recourse to go on so they let it be; but since 1998, she has seen many renters come and go; there were a lot of situations; but this last situation brought the whole neighborhood together to bring this issue to the Board and let it help them find out if it really is multifamily. She stated it is not on the County records as multifamily; the area is zoned single-family residential; the owners are renting rooms that are 10’x10’; and they could probably get a twin bed in it and maybe walk a couple of feet. She stated there are no kitchens; two out of four rooms share a restroom; she has been in all the rooms; and it is a very strange setup. Ms. Hobby stated she faxed a letter to the Commissioners this morning and hopes they were able to read it; it gives a little history of when this item came about; a long-time resident who was there during the meetings of the Board in the 1970’s is in the hospital and could not be here; but she remembers them getting a building permit to have the four rooms added to the main house, then they asked for rezoning and were denied. She stated somebody made a mistake in the Building Department and gave them a building permit; it is stated in a notarized letter from the lady that someone made a mistake and it continued on; but this summer there was an incident with a renter and they were all evacuated and had to crawl across their lawns to get out. She stated there were officers and helicopters there; they were not allowed to go to their homes for five hours because one renter said he had a gun and a hostage; and inquired if the Board knows how much that cost the taxpayers. She stated they were on the roof trying to get the guy out; the residence is close to Hoover Junior High and Indialantic Elementary Schools; the children pass that house daily; so Ocean Park residents are asking the Board to bring it back to single-family dwellings, make it one main house, and get rid of the apartments. She stated they have a single access and do not have access to the main house or main bathroom; and inquired if the zoning is single-family. Planning and Zoning Director Mel Scott advised the zoning on the property is RU-1-9, which is a single-family zoning classification. Ms. Hobby inquired why do they have to deal with something that is multifamily; with Mr. Scott responding this is the forum where the Board has the opportunity to consider that question; the vested rights claim is based on a 1998 investigation of the property, which cited a five-year rule at the time of the case being closed; and the five-year rule stated so long as a building or site-related improvement to a property, even if it was contrary to Code, existed for five years or more and did not pose a health, safety, or welfare risk. He stated the evidence was lacking to prove whether or not it was done in conformity with the Code at the time; those types of claims were closed; so in 1998, that was the determination rendered by the Code Enforcement Office. Mr. Scott advised the five-year rule is no longer in place; another anonymous complaint came forward recently; and in the absence of that five-year rule, the investigation went forward. He stated a special master is scheduled to hear the case; and it is this forum that would potentially offer the remedy to the current owner if the vested rights is granted. Mr. Scott advised it is not solely the strict criteria that the Board has the ability to entertain, which are the property owner acting in good faith reliance on an act or omission of the County, and substantial change in position of the property owner, which typically means financial; the Board also is able to consider whether or not a determination would create imminent peril to public health, safety, or the general welfare of surrounding residents; so the Board has fairly broad discretion in considering this case. Ms. Hobby inquired if Mr. Scott is saying it was not a health and safety issue in 1998 and that is why the case was closed; with Mr. Scott responding it was closed because they cited the five-year rule, and it had not been called upon in five years; the house had been there in that state in excess of five years; and nobody contended it. Ms. Hobby stated there is definitely a health and safety issue; and the pictures Theresa White has will prove it.

Theresa White advised she and her husband reside on Avenida Central which borders the house in question on the north side; and presented pictures to the Board, but not the Clerk, showing the condition of the house and the property. She stated Hoover Junior High School is located 500 feet south of Ocean Park; next to it is Indialantic Elementary School; across the street is a privately-owned day care center; and north of that is the First Baptist Church, which runs a very active pre-school and day care on a daily basis throughout the school year. She stated the types of people they have seen who rent those little cubicles are not people who should be allowed around children who are supposed to be protected; they have enough predators they do not know about without allowing them to rent in the immediate area; and that is their biggest concern, not only their safety, but the safety of the children who come in contact with whatever is living there. She stated they hope the Board can see the potential danger of the situation regardless of the monetary gain or loss of the individual.

Richard Normyle stated he has always lived on the beach since moving to Brevard County 12 years ago; there was no anonymous call; he called and told them who he was; and how it became anonymous, he does not have a clue. He stated the last time he called he got calls back from various people; and how they got his name within two hours of him calling is another question he has for another time. He stated he has a three-year old daughter who thinks policemen come with machine guns and bulletproof vests when they come to a house, which is all due to an incident up the street; and they are talking about a house that has been divided and has no Codes. He stated there is no fire protection from indiscriminate smokers; there is no system for putting out any such fires; people are cooking on hotplates on their floors and beds; people stand outside their doors smoking their cigarettes and flicking them out into the streets; and it is a very small neighborhood. He stated they are on the edge of Indialantic and Brevard County and he loves where he lives. Mr. Normyle stated he called when the house went up for sale and will call again next time it goes up for sale; they have a small problem with a few homes in the neighborhood where people feel they need to rent their extra rooms out; it would probably be okay if they rented to family members; but what they have there is an indiscriminate renting situation with no checks on where the people came from. He stated it is a monetary thing and not about anything else at that house. He stated they seem to be okay people who are a little weird and live in some very strange circumstances; they come and go often; and if they are not living at the house, they are living across the street in another house. He inquired if they are paying taxes for those people living there; and do Brevard County and the Commissioners deserve that tax base out of that house. Mr. Normyle stated they do not want to live in Indialantic and love the County, Commissioners, and Sheriff; and taking note of the times the deputies have come into the area, 2020 Shannon had more stops than anywhere else, as well as more run-bys and more time spent cruising the neighborhood in that area. He stated it is a money thing and it is wrong; he does not care if they have been doing it since 1930, it is wrong; it scares children when they see strange people coming in and out of the house; and every two or three months there is somebody new. He stated they have four or five cars parked in the area from different states with different plates and different everything; and inquired if it was in the Commissioners’ neighborhoods, how would they want it presented. He stated he bought in a single-family neighborhood, paid a lot of money, pays his taxes, and does not deserve to have this abuse on their neighborhood; and that is what it truly is. He stated it is an abuse of the rules, abuse of County laws, and abuse of Code Enforcement; and it is wrong and has to be stopped now.

Elizabeth Cline stated she lives at the other corner on the same block; the night the police came around her husband had just gotten out of the hospital with a back operation; and they were told they had to get out. She stated when they came back, they were told it was a hostage taking and a man had a gun at the corner; everybody had to get out; so they should not have multifamily property when everything is supposed to be single-family property.

Joy Kimble advised Henry and Ruth Wallen are her parents; she grew up in the house diagonal to the house they are talking about; and when Mrs. McKinnon had the house, she did not even know she had renters in there because she kept it very different than what is there now. She stated she lives in Melbourne Beach now, but many times when she went to see her parents there were strange people on bicycles; she asked them where those people live, and was told across the street; and it is a very strange situation like everyone has said. She stated she remembers getting a phone call from her dad saying do not come into the neighborhood, everything is blocked off; and he was dragged out by the arm by the deputies and could not even lock his door. She stated Ms. Hobby has two small children and she lives directly across the street; and she cannot imagine what Ms. Hobby had to go through with that whole situation. Ms. Kimble advised they bought the house for $100,000 in 1998; since then a house in the neighborhood has gone for $113,000; and one just sold for about $150,000; so the owners have not lost anything because they can sell it for a fortune now. She stated he could rent it to a single family and make a profit.

Mr. Spielvogel advised he conceded in his letter that the property was zoned single-family; and he does not know whether any of the comments heard from the neighbors really relate to his request for vested rights determination. He stated one speaker said some mistake had been made along the way as a result of the hearing that was held by the Board; that may well be so; and he is here on the basis that mistakes were made, and his clients were not aware of it when they bought the property. He stated a lot of what the Board heard is hearsay; if there are violations, the only violation that has been brought is that they are utilizing the property for multifamily purposes and it is zoned single-family; and as to whether there is a health hazard, strange people there, and a menace to the community, Code Enforcement should be made aware of them so an investigation could be made. Mr. Spielvogel stated he is not here to answer to that because he does not think there is anything to answer to; there are allegations; and apparently there was an incident where someone had a mental problem and made a phone call or allegation and it caused a problem in the neighborhood. He stated the property has been rented since 1960, more than 40 years ago; an incident can happen in any neighborhood whether there are renters or not; people, through stress or whatever the reason may go over the edge; and that is a mental health problem and can happen anywhere, so he does not see that as establishing a precedent or making the property less desirable because of it. Mr. Spielvogel advised his clients relied on representations, findings, and the official records of the County, when they purchased the property; it is nice to find something that offers a lot of flexibility, like it may endanger the health and welfare of the neighborhood, or the public, or the world at-large; but the Code Enforcement officer who responded to the complaint in 1998, which said the place was filthy, found that none of that existed. He stated if there are claims that they are endangering residents and a peril to the neighborhood and allegations that the Sheriff had been there a lot of times, he wants to know how many times; and inquired where is the record as to the calls the Sheriff had to make to 2020 Shannon. He inquired how do you defend against people who get up and just make those kinds of allegations; and stated he expects accusations to be supported by facts because they are entitled to that. He stated he brought material to the Board upon which it can rely because they are the official documents of the County; and if they are wrong, his clients did not know they were wrong and relied on those documents and the representations made by representatives of the County. He stated they made an investment to purchase the property; it is not relevant for someone to say they did not lose money and can get more for it today; and that has nothing to do with what he brought to the Board today. He stated he brought a hard problem; he wishes the neighbors had made this kind of presentations prior to the time his clients purchased the property; they would not have bought it if they knew there were violations; but the brokers and his clients really made an effort to find out whether they could use the property for multifamily use. He inquired how many people take the trouble to make that kind of inquiry; how many real estate brokers make that kind of effort; the fact is that it was done; and stated his clients had a right to rely on it. He stated if there are other problems, Code Enforcement will look into it; and he will be back responding to it or they will correct it.

Commissioner Colon stated this case is pretty simple; she does not think there are any grounds for vested rights; it is clear by the Attorney’s letter which says, “my clients acknowledge that the property is zoned single-family; however,. . .”; so they have acknowledged that the property is zoned single-family. She stated the whole issue is about multifamily use; it is self-explanatory that it is a single-family home; and whatever the realtors did, that was not the Board’s fault; so it should not grant vested rights.

Motion by Commissioner Colon, to deny request for determination of vested rights by Ronald D. Cole.

Chairman Scarborough stated he will second the motion for two reasons; and one is that the substantial reliance says, “expenditures for acquisition of land are not an act of reliance.” He stated he has continually held that to be true; and he will not take the acquisition of land as an act of reliance. He stated in Item #2, it refers to the property owner, meaning Mr. Spielvogel’s clients, had to have done something more than buy the land and pay taxes on it; and even legal expenses are not considered unless for the design to get in and create a new project. He stated a case has been made for public health and safety in the most generic sense because there is dissimilarity in the people living there and the single-family established neighborhood.

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

County Attorney Scott Knox inquired if the motion includes direction to his office to prepare an order and bring it back to the Board at the next meeting; with Commissioner Colon responding yes.

The meeting recessed at 6:48 p.m., and reconvened at 7:01 p.m.

PUBLIC HEARING, RE: REQUEST BY ROBERT AND JOANN SCHUETT, JEAN WALKER,
AND RUTH FAZIO, RE: DECLARATION OF EMERGENCY AND APPROVAL OF
SANDBAG SYSTEM

Chairman Scarborough called for the public hearing to consider a request by Robert and Joann Schuett, Jean Walker, and Ruth Fazio to declare an emergency and approve installation of a sandbag system pursuant to Section 62-4213(b) of the Coastal Setback and Control Lines Ordinance.

Hank Wilhide with Dune Erosion Control, advised he has been licensed in Brevard County for more than 18 years in the marine construction business; he has done projects along Brevard County coast and the Panhandle, as well as other areas through the eastern United States; he has been appointed to take care of many different erosion problems that are going on along the County’s coastline; and in the past, for each individual dwelling that had problems, there were solutions for those problems. He stated he represents owners of two homes; they have received approval from the State but not the County’s approval of vertical walls to hold up two structures from erosion caused by past storm events, which caused their patios to fall off the dune; they submitted an application to the County to save the structures, but were denied; so they had to fall back to a soft solution. Mr. Wilhide advised soft solutions are sand and sea oats; they have done that for the two properties and spent thousands of dollars over the past few years; the County did a beach renourishment project in the area, and that has washed away; so they are looking at an emergency situation and putting in a soft solution, a geo-textile tube system placed at the toe of the slope, to take the everyday average impact of the northeasters because the dunes are eroding from the toe, and the top of the dune is collapsing. He stated the booklet he gave the Board shows their sidewalks laying on the beach; they lost their dune crossovers, which they received permits for in the past and rebuilt them; but the beach has receded so far landward towards the homes that the foundations are now at risk; so they are looking for the best protection they can get. He stated according to the Comprehensive Plan, the best protection seems to be the geo-textile sandbags; so they are requesting approval of the geo-textile solution for the two homes. Mr. Wilhide advised he has other situations like this in the County; they broke ground for a 160-foot vertical wall in Satellite Beach and will be installing it to save a condominium, which is three or four stories versus the Villagers, which is 13 or 14 stories high; and they have installed vertical walls in the different cities in Brevard County, but have been denied in the unincorporated area, so they are trying to go with what the Board may let them have to save those structures.

Peter Deeks, Dune Erosion Control, advised he assisted Mr. Wilhide in putting together the presentation the Board has in its package; so if there are any questions, he will be glad to answer them.

Dave Levitt, General Contractor, advised he lives at East Wind Condominium in Satellite Beach; they have 750 feet of beachfront property; and in the mid 1980’s, their dune was destroyed by the elements, and they lost 20 feet of land between the building and dune line that was 75 feet. He stated they needed to rebuild the dune; Hank Wilhide’s father put in geo-textile tubes, which is what their dune rests on; and they have never had to replace their dune since, but have added sand to it several times. He stated a house or building is usually placed on a foundation; if they did not put it on a foundation, in a few years the walls on the outside might settle and drift laterally causing parts of the house to cave in; so the simple thing to do with the dune is to put it on a foundation so they do not have to build it over again. He stated during stormy weather, the sand may wash away from the long bags, but the bags are belted together and do not move, keeping the dune from sliding into the ocean. He stated generally he has seen the sand come back; last year they lost 40 inches of sand and every turtle egg was gone; but most of the beach has come back and covered the sand bags. He stated the residents at East Wind bought 100 tandem truckloads of sand to put over the bags because they did not want to wait a few years for the sand to come back; but they did not lose their dune. Mr. Levitt stated when they did lose their dune, it took thousands of dollars from each person to have sand brought in again; he has seen it done along Satellite Beach where they keep putting sand in and losing their dunes; and finally they lose enough sand to embarrass the foundation of the house and come to the Board in need of a seawall. He stated if they would put a foundation under the dunes, which are geo-textile bags, the dunes would stay where they are supposed to be; and the beach would be preserved, and the land would be preserved on the other side. He stated as a homeowner on the beach, he has seen just as many if not more turtles nesting at the toe of their dune than anywhere else along the beach; and he defies anyone to tell him the turtles do not like their dunes or sandbags. He stated it is an easy solution to put a foundation under the dune so it stays there forever.

Karen Wilhide advised she has been to the job site many times with her husband Hank Wilhide; over the years they have put thousands of tons of sand on the property, so this is not a knee-jerk reaction to get them some help; it is a very serious problem; and they have spent a lot of money on it. She stated they have lost their property and replanted vegetation; one house to the north is within five feet of the edge of the dune; and one more good storm will tumble the house onto the beach. She stated that does not make for good turtle nesting.

Mark Shantzis advised he lives a mile or so from the property on the ocean; all the arguments the Board heard against seawalls in the past are applicable to geo-textile tubes; and the Board has turned down much more severe situations based on its five-year ban on armoring. He stated the Comprehensive Plan restricts armoring on the beaches; there are State law and Endangered Species Act repercussions; geo-textile tubes and seawalls are basically the same; and they destroy turtle nesting beaches, contrary to the applicant’s statement that geo-tubes are turtle friendly. He stated Florida Statutes Chapter 161.54 says, “Coastal or shore protection structure means shore hardening structures such as seawalls, bulkheads, revetments, rubble mound structures, growing in breakwaters, and aggregates and materials other than beach sand”; and geo-tubes are other than beach sand although they contain sand. Mr. Shantzis stated Policy 4.1 of the Comprehensive Plan says, “No new shoreline hardening structure shall be permitted in unincorporated Brevard County south of Patrick Air Force Base and/or within the Archie Carr National Refuge”; the applicant talked about Satellite Beach; that is not in the heart of the Archie Carr National Refuge where the County is spending $2.2 million of taxpayers’ money to put in an eco-center a half mile down the block from where they want to install geo-tubes, which are detrimental to the turtles the County is trying to teach people about at the eco-center and why it is preserving that habitat, with the exception of emergency provisions as provided in Florida Statutes. He stated this request will be precedent setting; and if the Board allows it, it will have a lot of people coming in and wanting the same thing in the future. He stated there has not been a declaration of a shoreline emergency by the County or the State, which is required in order to put in armoring; and inquired if everybody received a copy of the letter from the Caribbean Corporation. Mr. Shantzis stated the County Ordinance, which calls for an emergency says, “Any unusual incident resulting from natural or unnatural causes which endanger the health, safety, or resources of the residents of the County, including damages or erosion to any shoreline resulting from a hurricane, storm, or other such violent disturbance”; there has not been an incident, storm, or hurricane; therefore there is no emergency declared either by the State or by the County. He presented pictures to the Board, but not the Clerk taken a year ago when the applicant came in and pictures taken today, which show the Board that there is an additional two feet of sand on that beach and the dune has additional foliage on it; so the process of nature taking over and helping restore what has been eroded is happening, and just has to be given time. He explained the pictures of the house next door and the walkway going into the sand from a year ago and today; stated there is no emergency from the south and north; the dune is growing because the sand gets blown up there and caught by the foliage; and that is the idea for planting on a dune. Mr. Shantzis stated geo-tubes are a source of litigation, controversy, and regulatory violations repeatedly in Florida; there is an article from Boca Raton he will give the Board where the State told the City to remove the geo- tube; and the Board should read the article because the State is saying the City violated the State Statute. He stated in the Department of Environmental Protection procedure of 1998 regarding coastal construction, in reference to armoring, says the structures need to be vulnerable and imminent collapse means the structure’s foundation will fall due to its own weight under normal conditions resulting in structural damage to the supported structure; that is not the case here; so from the State’s standpoint, it violates the State law. Mr. Shantzis stated the last time the Board heard about a seawall, Commissioner Scarborough said to declare an emergency for the Villagers will send hundreds of property owners to the County asking for similar exceptions; and if it becomes something that fundamentally changes the nature of the shoreline, then it compels the Board to keep the native environment. He stated that was miles away from the National Refuge; and in addition to that seawall, when the Breakers came up, there were over 200 people who signed a petition against armoring on the beach.

Chairman Scarborough advised Mr. Shantzis his time was up; with Mr. Shantzis responding the major issue here is that it is in the Archie Carr Refuge; the Board spent $2.2 million to build an eco-center there to notify people about the habitat; and it would be going in the opposite direction of its investment by allowing the armoring.

Dorothy Levitt advised she has lived at East Wind Condominium on the ground floor for 12 and a half years; there is no garage below her unit; they were warned to be careful because of dune erosion problems on the beach; but they looked into the situation, were told they had geo-tech bags under the dune, and after doing some investigating, they found that was the way to do it; and that is the reason they purchased at East Wind in Satellite Beach. She stated she walks the beach almost every day; there are turtle nests all over the beach; she talks to the people who come in to count the nests; and since 1989, the nests have increased. She stated they see them lay their eggs, and see the eggs hatch; the biggest problem is that people do not seem to be important and their homes do not count; and inquired why should their homes be in jeopardy. She stated if they did not have the bags, they would lose their area; and requested the Board consider that people are important, particularly today.

Bob Schuett advised he is one of the applicants; they have an emergency and had things fall into the ocean; the foundation of the house house next door is within five feet of the ocean; so structures are falling into the ocean and existing residents and homes are being threatened. He stated the homes were built 30 to 35 years ago and have no pilings; that is a critical and dangerous thing for those homes to have recession of the dune because over the years the dune has moved back substantially; so it is threatening to the homes there, including his and the home next door. He stated they have tried very hard to do it on their own and spent tens of thousands of dollars; the County has come out and put sand there; they have put sand there; they revegetated the dunes; but in each occasion, a northeaster came along and swept it away, so they have a situation where there is nothing they can do. Mr. Schuett stated they have been screaming emergency since 1999; it is not something that occurred this year; and the request happened because the storms and hurricanes that occurred have caused an emergency situation. He stated they had an emergency event several times over the last three years; the proposed sandbag system is not a rigid system and is a proven system; the book will show the Board where it has lasted and done wonders over the years; and it is turtle friendly. He noted the Board could look at the Spanish Main Condo and Beachwinds Condo projects. He stated when the County grants a permit to a homeowner to build a house and they do so on the beach, then outside forces create the problem, it seems that the homeowner deserves to have the help of the County; and the County should allow the homeowner to protect his or her property since it granted the permit in the first place. He stated they are not the cause of the problem; those are things outside of their control; the act of permitting should include allowing homeowners to protect their property; and they have an emergency here and circumstances beyond their control. He stated what they are asking for is very reasonable and has been done before; and it has been successful. Mr. Schuett advised Mr. Shantzis spoke as if this came up all of a sudden; if the Board followed their paper trail and what they have done, it will notice they have been screaming emergency for years; Mr. Shantzis showed the Board pictures of the plantings one year ago and today; but he did not show the pictures of three or four months ago because much of that growth that is there was put there by him, and people who live around him. He stated they have been working extremely hard on that beach putting stuff in there; they have found certain things that will grow besides sea oats and sea grapes; so it is not Mother Nature coming in and putting all that grass there; it is Bob and Joann Schuett, and Ruth Fazio. He stated they really need the Board’s help and respectfully request it to declare an emergency and allow them to use the sandbag system, which is a proven system.

Joann Schuett stated, in response to Mr. Shantzis’ comments, the State has declared their home to be in an emergency situation; Mr. Shantzis looks only at the foot of the dune where they have been able to plant successfully, fertilize, and water; they have done that every year; and this year they have gotten better results because they did not have a large northeaster and it was a fairly gentle winter. She stated the dune is concave; they do not dare go into the concave part to plant anything; their engineers told them and everybody says if they did, their house would really fall in; and they have to get something that will hold firm enough, get the tons of sand in there, and plant where it is concave. She stated if they get another northeaster, their property will go into the ocean; they did not build the house; when they bought it, there was a much deeper lot and a lot of grass; and there are old tree roots there which help to hold the sand, and they planted around the roots before they northeaster in 1999 when they had problems again. Ms. Schuett advised she researched the turtles extensively; she likes the turtles and likes living where she lives because of the natural environment; and she is doing her best to keep it that way. She stated she found 1,460 sites from one search on sea turtles or endangered sea turtles; and 75% of those sites say the most serious threats to turtles are fishing and shrimping; those are the big ones; and that is what the Board should be going after. She stated she does not want a seawall and prefers the sand; but they have spent close to $50,000 so far and still have to worry about it. She stated another thing that bothers her is the arbitrary position that is taken in the County; Mr. Wilhide has permits in four cities to put in seawalls; and inquired why should one area be allowed to do that and another area where people are truly losing their homes is denied. She stated there must have been half a dozen articles in the past six months in the newspapers talking about the need to preserve the beaches; preserving them requires work; and they are more than willing to do it, but everybody else up and down the beach is getting sand pumped in, building seawalls, using the sandbags, etc., and the Board should take those things into account. She stated laws are important and so are plans; but there is usually some exception; in her experience, nothing is black or white; they have a situation where their property is going to be condemned if they are not allowed to do something; and in view of their past record and how hard they tried, they cannot afford to wait any longer.

Commissioner Higgs stated the picture on the front does not represent either of those houses; with Mr. Wilhide responding no, that is a typical property in Brevard County that he runs across all the time. Commissioner Higgs stated it is hard for her to understand the drawings of the three tubes that are on the beach; and requested an estimate of how far out that is; with Mr. Wilhide responding the tubes weigh seven tons each; they are laid out where they want them to be pumped with sand; and once pumped they are four feet wide and about 18 inches high. He stated they can only stack them two high by State Code; and the drawing is based on the State’s Code where they have put them in previously. Commissioner Higgs inquired how far out are the first set and the other set; with Mr. Wilhide responding they do not have a set dimension; it is a generic drawing to show their proposal; the engineer would have to tell him how far out to put the sandbags; but right now if they put them against the toe of the slope at the bottom, that is about 15 feet from the house and the other is five feet from the house as shown on the back page of the booklet. Commissioner Higgs inquired how far is the final tube that is covered. She stated there are three, then filter fabric, and it indicates it is below the waterline; with Mr. Wilhide responding it goes to zero elevation so if all the sand is taken away, the bags will not be undermined and topple over. He stated with the additional cloth to the front the sand tube, it would be approximately ten feet out beyond the banks, so it would be about 18 feet all together. Commissioner Higgs inquired if Mr. Wilhide said zero elevation on the beach; with Mr. Wilhide responding yes, they dig down below the waterline. Commissioner Higgs stated that is about 100 feet to get to zero if that is what he is saying; with Mr. Wilhide responding no, the slab elevation to the house is 19 feet above sea level, so to get to zero is only 19 feet; that is by surveys they submitted to the State; the zero elevation was done by a professional surveyor, Bob Horizon Surveys, which he has with him; and they do not go down 100 feet to find zero elevation. He stated zero elevation is actually the mean high water mark; and that is where the toe of the sandbags will be placed. He stated it is based on approved systems by the State; and they have put in many systems up and down the coast in the past. Commissioner Higgs inquired if Mr. Wilhide said the seasonal high water mark; with Mr. Wilhide responding the mean high water mark is at the top of the bag and the low mean watermark would be at the 18-inch diameter tube. Mr. Wilhide advised they have been working with Nanette Church and permitting this system for two years; Mr. Shantzis mentioned the past year; it took them a year and thousands of dollars in engineering to get their permits from the State; and he has with him the permits with two exceptions—(1) the State wanted his signature changed to a different location on the permit application; and (2) the State wanted the approval of the County. He stated the State has deemed it an emergency and allowed him to put up vertical walls; but they cannot do that due to the County Code; and they have been working at this longer than a year and about two years.

Chairman Scarborough stated in reading the Agenda item, it seems there are two separate actions; one is the declaration of emergency; and the other is a technical issue whether or not this is the right methodology to use; with Ms. Church responding that is correct. Chairman Scarborough suggested taking one item at a time, and to determine what is an emergency and how it has been defined previously.

Commissioner Higgs stated she walks the beach and wants to show the Board pictures so it will understand that section of the beach.

Chairman Scarborough stated he asked for the generic definition of declaring an emergency; the Board heard the State has done it; and he would like to get that before getting into whatever section of the beach. Commissioner Higgs stated the County Code says, “emergency means an unusual incident resulting from natural or unnatural causes which endangers health, safety, or resources of the residents of the County including damages from erosion to any shoreline resulting from a hurricane, storm, or other such violent disturbance.” Chairman Scarborough inquired how has it been applied previously; with Natural Resources Management Director Conrad White responding in discussions of the Villager Condominium, the Board declared that the issue with the Villager was an emergency. Chairman Scarborough inquired what factors did the Board consider; with Mr. White responding it looked at the building that was constructed without pilings; and the erosion was affecting a cone of influence necessary to maintain the structure.

Commissioner Higgs stated she wants to show the Board more than the stretch of the beach by the Fazio, Walker, and Schuett houses; and explained the pictures starting at the Schuett house and going up the beach. She stated there is a difference in terms of erosion; moving up the beach one will see where the dune line has in some cases eroded and in other cases the vegetation is pretty heavy; and eight to ten houses up there is a dune that was eroded and has actually been restored. She stated this issue is not exclusive and there could be a precedent set by the decision the Board makes regarding the properties.

Chairman Scarborough stated if the Board decides this is an emergency, it needs to be prepared to declare emergencies for the entire stretch of beach. Commissioner Higgs stated the Board could be asked by others. Chairman Scarborough stated being asked and having precedent are substantially different; and inquired if Commissioner Higgs is saying it will create a precedent because of the similarities; with Commissioner Higgs responding each property is different; and she wanted the Board to see where the structures are as well as the structures in question and their effect potentially on erosion. She stated she is concerned about the definition of an emergency as it is in the Code and whether or not this is an emergency; and she is perplexed by the status of the erosion at the site. She stated in 2001, the Board entertained a request for an amendment and staff was looking at the area between Markers 196 and 197; that is the area in question here; the Schuetts’ house is halfway between Markers 196 and 197; and the erosion there, according to the staff’s report of March, 2001, “interpolating between these points would indicate erosion of seven feet of subject property”; that property is three doors to the north of the Schuetts’ property; and it may be useful for the Board to look at the agenda package it had when it looked at the issue in March 2001. She stated it includes a profile of February 13, 2001; what the Board will see is the indication of where the erosion is on the dune; but it will also see a beach profile that does not show substantial change over time. Commissioner Higgs stated when the Board talked about going to zero elevation, the beach profile showed going out 100 feet to get to that elevation; and inquired if that is true. Assistant County Manager Stephen Peffer advised there is a misunderstanding of zero elevation; Mr. Wilhide was trying to say they would be excavating down into the dune to the mean sea level elevation; and it would not be a horizontal extension, but rather a vertical excavation to get to zero. Commissioner Higgs inquired if the zero election on the outward sandbag would be excavated into the beach as well; with Mr. Peffer responding he believes that is the intent. Mr. Wilhide advised it would go below the sand, so it will not become exposed after each storm event. Mr. Peffer advised Commissioner Higgs is saying zero elevation is 100 feet out from the dune; that is not where they plan to put the bags; they are placing them close to the house; but down to zero elevation, which requires excavation and brings up another issue. Mr. Wilhide advised it would require excavating to put the bags in so during a storm event the bags are covered and protect the toe of the dune and the house is not undermined.

Commissioner Higgs stated the staff report from 2001 showed seven feet of erosion between Markers 196 and 197; that is how the Board would entertain the possibility of granting a variance under the Code; she assumes that same level of erosion has occurred within a couple of feet of the property; from the pictures presented by her and Mr. Shantzis, the Board can see there is significant amount of vegetation there; and the profile shows no erosion, but a significant amount of sand there, so she is not convinced an emergency exists. She stated there has been a buildup of sand there in the past couple of years; it is in the Archie Carr National Wildlife Refuge; and hardening of the shoreline has a significant effect on the people who use the beach. Commissioner Higgs stated the Board cannot approve something that would have a detrimental effect on beach users according to the Code; the presence of hardened structures on the beach, in her estimation resulted in erosion; so she does not believe there is an emergency at this point and it has not met the criteria, so the Board should not declare that to be the case.

Chairman Scarborough advised the Board should decide whether it should or should not declare an emergency; if there is an emergency, the technology to be used is the geo-textile bags; the right way to do it is digging into the dune; and as to the declaration of emergency, Commissioner Higgs says she does not think there is a basis for it. Commissioner Higgs noted it is not an emergency based on the Code. Chairman Scarborough stated the Board should go to that question first, because if it decides it agrees with Commissioner Higgs, it would not have to go further as to the digging of sand, using bags, etc.

Mr. Wilhide advised the pictures of the the house that does not show erosion and has sand and sea oats and a good dune north of the subject houses are from ten years ago when he renourished the dunes there; and that is why they have the enhanced dune. He stated he did it for both houses ten years ago; one has a pool; and he has the permits for them. Commissioner Higgs inquired if Mr. Wilhide renourished that section of the beach; with Mr. Wilhide responding yes, with sand, sea oats, and filter fabrics. Commissioner Higgs inquired if there are no sandbags or hardening; with Mr. Wilhide responding the filter fabrics that the sea oats adhere to with a tube on the bottom to hold them in place were approved by the State; and the State inspected the job. Commissioner Higgs stated she does not know what house Mr. Wilhide is think about; with Mr. Wilhide responding the house that is being remodeled right now; and the filter fabric and vegetation plan he implemented as an emergency ten years ago is still holding. Commissioner Higgs inquired if Mr. Wilhide is talking that is success; with Mr. Wilhide responding the pool not falling into the ocean is success. Commissioner Higgs stated it is still falling into the ocean; with Mr. Wilhide responding that is why the owner needs to do something; those people chose to put hand-filled sandbags in the top left-hand corner; that house was sold since Pat Clafton owned it; and there is a new owner who has not hired his services. He stated sea oats adhere to filter fabrics; Mr. Shantzis said the sea oats and natural plants trap sand; the general motion of the beach raises the elevation of the sand and enhances turtle nesting areas; and if they had not put the filter fabric in and tube on the bottom, the pool would not be there now. He stated they have installed many structures up and down the coast; the State calls him about hot spots due to different seasons; and each year one area will be hit worse than another. He stated in the case of Satellite Beach, the area was skipped by the beach renourishment project and took a beating in the past couple of years; there were also hot spots in south Melbourne Beach; and that is where two homes two years ago were hit and have not recovered even after Brevard County spent money renourishing the beach. He stated the homeowners have spent thousands of dollars paying him to plant plants and put sand on the beach; it has been a repetitive thing; they cannot continue to dump sand and plant sea oats and must come up with some kind of soft solution that is environmentally safe and agrees with the turtles; and that can be done to save the houses. He presented the permits from the State for vertical walls for the two homes.

Chairman Scarborough stated if an emergency does not exist and it is defined as any unusual incident, what type of unusual incident would qualify under that section of the Code; with Mr. White advising the Code says that would be hurricane, storm, and other violent disturbance. Chairman Scarborough inquired if they have to have a hurricane first, which basically does the destruction and come in after the fact; with Mr. White responding that is how staff looks at it. Chairman Scarborough stated at this time, the Board does not have an indication that any recent event has done any unusual activity; and inquired if staff concurs with Commissioner Higgs that there is not an emergency; with Mr. White responding he concurs with Commissioner Higgs. Chairman Scarborough inquired if other Commissioners have questions whether or not an emergency exists. Mr. Wilhide stated there are no pilings under the structures; they are vulnerable even to rainfall; there is erosion because there is no dune line to even plant sea oats at this time; it is an escarpment; and the back of his booklet shows there is only five feet from the foundation of the house to the dune. He stated the Board said what declares an emergency is a storm event; the storm event happened two years ago; they have been fighting for two years to do the project; so the storm event has not happened in six months or the homes would not be there now. He stated the conditions happened from Hurricane Opal and other northesters two or three years ago.

Commissioner Colon inquired when did the State say it was an emergency; with Mr. Wilhide responding October 30, 2001. Mr. Wilhide stated the second request from the State was for additional information and to move his signature to be the applicant instead of the Schuetts and to get written evidence of the County granting permission to build the vertical wall to retain the fill dirt that holds up the two homes. Commissioner Colon inquired if the County approved it; with Mr. Wilhide responding no, it denied the request.

Commissioner Higgs inquired if the State declared an emergency; with Mr. Wilhide responding the State did not declare an emergency. Nanette Church with Natural Resources Management advised it is up to the County to declare emergencies; the applicant submitted to the State for permitting of the retaining walls and for a permit from the County; and that is when staff denied it. Commissioner Higgs stated the State provision for an emergency would allow local government to permit some stabilization or hardening, then the applicant would go to the State for a permit; so the emergency is part of the local action that deals with the immediate situation. She inquired if the emergency provision allows someone to put a temporary method of dealing with a particular issue; with Ms. Church responding they can place the structure on the beach with the emergency condition and apply for the permit afterwards.

Chairman Scarborough inquired if the State has criteria for evaluating emergency conditions; with Ms. Church responding that is left to the local jurisdiction to determine whether or not there is an emergency; the State will look at a proposed structure to determine whether or not the structure that is on the property is in jeopardy; and that is one of the criteria for its issuing a permit for the wall. Chairman Scarborough inquired if the State has criteria similar to the County’s, and it found in favor of an emergency, is the Board coming with an inconsistent interpretation; with Mr. Wilhide responding the only way to get a vertical wall from the State in a city or county is to have the State declare the building in imminent danger and any type of wave action would cause cracks to the foundation of the building. Chairman Scarborough inquired if Mr. Wilhide has that provision; with Mr. Wilhide responding not with him, but he can produce it. Chairman Scarborough inquired if staff had a copy; with Mr. White responding no. Mr. Peffer advised he has a copy of it. Chairman Scarborough requested Mr. Peffer read it to the Board.

Mr. Peffer read the section called Emergency Protection, which says,”Upon the occurrence of a coastal storm, which causes erosion of the beach and dune system such that existing structures have either become damaged or vulnerable to damage from a subsequent frequent coastal storm, the agency, political subdivision, or municipality having jurisdiction over the eligible structures may provide emergency protection to protect public infrastructure and private structures within its jurisdiction. Alternatively, the agency, political subdivision, or municipality having jurisdiction over the structures may authorize by permit, pursuant to this Chapter and other appropriate Ordinances, Rules, and Statutes, private property owners within their jurisdictions to protect their private structures once they declare an emergency and notifies the property owners who may be affected, and the Department in accordance with Section 161.085, Florida Statutes. Emergency protection shall be subject to the following. . .:”, and there is a list of conditions. He noted the local jurisdiction can declare an emergency. Chairman Scarborough inquired if the State defers to the local jurisdiction; with Mr. Peffer responding yes.

County Attorney Scott Knox advised what Mr. Peffer just read is the Rule which implements the Statute; and the Statute is close to what he read, but he will read it to the Board anyway. He read Florida Statutes 161.085, subparagraph 3, dealing with rigid coastal armoring structures, as follows: “If erosion occurs as a result of a storm event, which threatens private structures or private infrastructures, and a permit has not been issued pursuant to Subsection 2, the agency, political subdivision, or municipality may install or authorize installation of rigid coastal armoring structures for the protection of private structures or public infrastructures or take other measures to relieve the threat to private structures or public infrastructures as long as the following items are considered and incorporated into such emergency measures”; and stated there is a list of five items. Chairman Scarborough stated it does not speak to the State making a determination of emergency; with Mr. Knox responding it says the agency can do it, but it has not.

Mr. Wilhide advised the permits he has are not the only permits for those two homes; he had several previous permits over the years where the State gave it an emergency situation for sand dumping even during turtle nesting season; the storm events that came in had taken the turtle nests out; and they were allowed to put sand in front of those homes on several occasions. He stated they have repeatedly dumped sand in the area; and it continues to wash out; each time it washes out, it takes more sand; and now they are down to five feet away from a structure that has lost a sidewalk off the back of the sliding glass doors that has fallen onto the beach; and there is five feet to walk on. He stated he considers that an emergency, especially with the structures not being on pilings; and the engineer who is with him can go into it further of how the impact of waves would crack the foundation and loosen the sand that is under the structures.

Commissioner Colon inquired at what point does the Board determine what an emergency is. She stated when the Villagers came before the Board, there were certain criteria put on the project; she was in favor of the rocks, but the Board preferred sandbags; time and time again the Board felt sandbags were the way to go; so she wants to get a clear sense of when the Board starts to determine emergency. She stated with the Villagers, the Board determined an emergency existed and a sandbag system could be installed with conditions and certain criteria; the applicant would maintain cover and vegetation over the sand tubes in perpetuity; placement of the tubes would not impede public access; the vegetative cover would be insured through either a bond or MSBU; and the system would not adversely affect properties to the north or south. She stated it was basically a compromise to protect the turtles and citizens using the beach; and this is an awkward situation because at what point does the Board become engineers or when is a structure stable and when is there an emergency. She stated the State is saying it is an emergency, but it wants to respect local laws; the cities allowed some of those structures; and she does not support seawalls, but hopes there could be some compromise. Commissioner Colon stated every situation that comes before the Board is unique; for the Board to paint it with one brush is awkward; the Board sits here as a god, quiet and comfortable, to determine whether their house is an emergency or not; and inquired at what point does the Board say the structure is vulnerable.

Mr. Wilhide stated the criteria mentioned by Commissioner Colon is also required by the State; they do that to protect the sandbags and not leave them exposed and vulnerable to damage from vandalism; and it prolongs the life of the bags to cover them with sand and get the vegetation started so the sea oats can mature and trap sand to build a natural dune again. He stated the booklet shows rows of sea oats in front of the Spanish Main condo; the latest photo is a lovely vegetative dune where waves roll up and back out with no erosion; and that is what he is trying to establish in front of the two homes so the energy of the waves is absorbed by the salt tolerant plants.

Chairman Scarborough stated Mr. Wilhide is talking about the engineering, but the Board needs to deal with the emergency issue first. Mr. Knox advised what the Board is dealing with is a case of first impression; it has not interpreted the term of emergency as it exists under the current Ordinance because what happened after the Villager episode was that the Board adopted an Emergency Ordinance, which defined the term emergency because it did not exist before the Villager came up. He stated the Board is now dealing with the first chance to interpret that definition and compare it to the State’s definition; the State’s definition of emergency is erosion occurring as a result of a storm event; and the Ordinance says any unusual incident resulting from natural or unnatural causes and specifically includes hurricane, storm, or other such violent disturbances. Chairman Scarborough stated what bothers him with the declaration of emergency is whether it can be something in anticipation; if they can anticipate a monster storm, every place can perhaps witness that catastrophic event; therefore, potentially every place along the beach could come in and say they have a prospective emergency. He stated there was a storm a few years ago; and inquired if this is an emergency because that occurred; and how long ago does the Board look back. He stated there have been storms that adversely affected folks; if the Board is not willing to talk about the emergency issue and how it will interpret it first, it could set itself up for monstrous messes later on; and it needs to get on with what it means by emergency first and whether it is prospective or retrospective, as well as what it means by an event and if it is going back to a storm event. Mr. Knox advised the County’s definition says any unusual incident resulting. . ., which could indicate a past event; there is a permitting process for future problems in the Statutes that is dealt with by the State; and what the Board is dealing with now is something that has been caused already; so how far back it goes is something it has to decide. Chairman Scarborough stated it is clear that it has to be the result of an event; the Board can amend the Ordinance if it is not happy with it; and maybe it wants to look at it differently; but nonetheless, it is talking about response to an event.

Commissioner Carlson stated when she thinks of an emergency, she thinks of multiple dwellings being impacted; when Mr. Peffer talked about the definition at the State level, it sounded like that was the case, such as hurricane, multiple structures, etc.; then they come in and do something that helps to keep the impact from increasing to multiple structures. She stated it is hard to look at one structure as an emergency because all those structures in the pictures look like they could be under emergency status potentially. She stated it is hard for her to put these homes into terms of an emergency when they are the same status as the rest of the folks who are living on the beach who are not here requesting an emergency.

Commissioner O'Brien stated the Board has a moral obligation to help people protect their properties, whether on the beach, in the woods, along the St. Johns River, or any place else; and inquired if the Board considers it an emergency to put in fire prevention systems, or build roads in the woods in case a fire takes place. He stated those people have been trying for two years since the event occurred; an event did occur and the sand is only five feet away from their back door; and a year and a half later, they are here after going to the State, because this is the proper forum. He stated their property is in imminent danger; if the Board does not step forward and say it is an emergency, it is going to wait until the house falls down to say it is an emergency; and inquired if they all have to fall down before it is declared an emergency. He stated he does not think the Board should sit here as responsible people and say first it wants to see their house fall down because if that does not happen, then an emergency cannot take place; emergency can be the same thing as a person holding a gun to one’s head while robbing that person; he has not pulled the trigger yet, so it is not an emergency; and inquired if a cop should arrest that person. Commissioner O'Brien stated the vulnerability of subsequent storms leaves the entire property in peril; they should not have to wait for another storm event to take place, nor does a cop have to wait until someone is shot by the person holding the gun; a storm will come, whether a northeaster or hurricane does not matter; and the Board should not sit and wait until the house falls into the ocean with four or five other houses or 20 other houses and say now they have an emergency, because that is not right. He stated the houses are not in the Archie Carr Habitat; they are owned by the applicants; Archie Carr is owned by the government; so that should not be a consideration except for turtle protection, which the Board can work out with the applicants. He stated they have years of history to get to this point; and inquired what would happen if there was a storm and people came in six months, a year, or three years later after they recovered emotionally and financially to talk about their properties. He stated with the next storm those houses will be gone; so it is an emergency.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to declare an emergency exists for properties owned by Robert and Joann Schuett, Jean Walker, and Ruth Fazio.

Commissioner Higgs stated the Archie Carr National Wildlife Refuge is the beaches; this item is about the beaches and placement of hardening structures on the beach; it is considerably different from the Villagers; and that is where it gets tricky because the Board is talking about different properties when talking about emergencies. She stated the shoreline hardening that was allowed was not on the shoreline; it was seaward of the dune; it is not placement of sandbags on the dune or on the beach and excavation of the beach; so there are a significantly different set of circumstances. She inquired is there another way to protect the property and the public beach as well as the properties north and south of the two houses; and advised she believes there is. She stated had the installation included the dramatic alteration of the shoreline structures that both of those properties had back then, there would not have been the impact of erosion; and if they went backwards from the dune and planted vegetation, not just on the dune, but back into the properties, they would have been able to stabilize the dune. She stated it was only seven feet of erosion; that is hardly an emergency; that actually qualifies for a variance of the Coastal Construction Control Line in the Code; so if seven feet is an emergency, the Board better change the Code real fast and declare a moratorium immediately. Commissioner Higgs stated the Board has data that shows what the beach was in 2001; it received data showing the dune is coming back; the dune can be stabilized without hardening the beach; this project is a structure on the beach and not above the dune; but there is a way the properties can be stabilized. She stated she agrees they have a problem and would respectfully suggest there are structures in front of those homes that are not helping at all; and there are actually steps in the dune, which cannot help and are assisting erosion of the property.

Commissioner Carlson stated staff’s report mentioned the Villager; and although the Board said it was an emergency, it did not authorize excavating into the dune to place tubes nor did it relieve the applicant from any local, State, or federal permits. She stated staff requested, whatever decision the Board makes, that it get a current topographical survey certified by a land surveyor registered in the State of Florida, and the sandbag system design be signed and sealed by a professional engineer registered by the State to be sure the public’s health, safety, and welfare are protected and the system would cause minimal impacts to sea turtle nesting.

Chairman Scarborough stated the motion is to declare an emergency exists; and if so, the next question is how. Commissioner O'Brien stated they have already experienced seven feet of erosion and have five feet more to go; if the next five feet goes, so will part of the house and foundation because there are no pilings; the steps are there because the erosion took out the sand they walked up to get to their houses; and government already took most of the sand away from them by building the deep port at Canaveral. Commissioner Higgs stated this property does not get anywhere near the deep channel; with Commissioner O'Brien responding all the sand that is off the beach is because of Port Canaveral; and there is the same problem below Sebastian all the way down through Indian River County. Commissioner Higgs stated none of the technical experts indicated the effects of the Port Canaveral channel come that far. Commissioner O'Brien stated the mitigation from the Corps of Engineers goes all the way to Melbourne Beach; with Commissioner Higgs responding it does not. Commissioner O'Brien stated then they should not spend any money for sand down there. Commissioner Higgs stated it is not in any kind of renourishment area and is miles from the worm rock. Commissioner O'Brien stated either way it is still an emergency; the steps are there because the erosion made a straight wall prohibiting the owners from getting to the beach they live on; they are part of the public also and want to get to their beach; and they have a right to do that like anyone else. He stated the Board can sit here and talk about what causes erosion all day long and let their houses fall in at the same time.

Commissioner Carlson called a question on the motion. Chairman Scarborough stated he wants to say something to Commissioner O'Brien; he is making good arguments perhaps for looking at the language in the Ordinance; however, he heard Mr. Knox say it uses the words “resulting from”; therefore, the Board cannot look to future events. He stated to break that is too far a deviation from the wording in the Ordinance to get his vote. Commissioner O'Brien inquired if Commissioner Scarborough would be willing to change the Ordinance if the item was tabled; with Chairman Scarborough responding he would prefer to go that route. Chairman Scarborough stated he does not want to say any prospective event because they could talk about catastrophic events that could happen; and there could be tsunamis from the Azores that could wipe out the State of Florida. He stated they could consider something to the effect any minor storm event could place the property in peril or cause substantial damage, then there would be a level of factual basis rather than anybody coming in here and saying something can happen because anything can happen. Commissioner O'Brien suggested setting a distance from the dune line. Chairman Scarborough stated at this moment he cannot find in the current language, evidence to declare an emergency because of the distance from the storm event; whether it was with their efforts that there has not been further deterioration over two years; that could be a way conceivably to look at it in a prospective sense; but he does not know how the rest of the Board feels about it. Commissioner O'Brien stated if the Board can solve this problem, he would feel better about it; he does not think the Ordinance as written is going to help it resolve some of the issues for other property owners; they can come in one at a time or 20 at a time and it does not matter as long as it constitutes serious problems of damage to their properties; and at some point the Board has to address that because not to do it is not right. Chairman Scarborough stated at one meeting somebody wanted to get closer to the ocean by variance of the setback; the next time they want hardening; and he is not hearing consistent concerns on behalf of the property owners. He stated they want to get closer to the water and do things that are fundamentally unsound; and the Board is going to ultimately get in a bad posture. Commissioner O'Brien stated the Board can solve that problem by saying as of an effective date.

Chairman Scarborough stated the motion is to declare an emergency.

Commissioner O'Brien requested Commissioner Colon remove the second and he will remove the motion and make another motion. Commissioner Colon removed the second to the motion; and Commissioner O'Brien removed the motion.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to direct staff to bring back a proposed ordinance with the requested language changes.

Chairman Scarborough stated this is a great item for legislative intent. Mr. Peffer inquired if the Board wants staff to bring back criteria for declaring emergencies; with Chairman Scarborough responding what was heard is that they have to have the event first; and inquired if there is a way to say a minor event is going to cause catastrophic damage and the Board can look prospectively at that event. Mr. Peffer inquired if the Board wants that as part of the ordinance; with Chairman Scarborough responding that is what Commissioner O'Brien wants the Board to look at; but he does not want to open Pandora’s box because the Board could be looking at hardening throughout the beaches. Commissioner O'Brien suggested staff look at ways for the Board to consider property that may be in peril by a fixed distance from the structure to the drop-off point or something like that, and let the Board decide a distance because it should not wait until it is at the back door of someone’s property or the house falling into the ocean. Commissioner Higgs stated the Board needs to look at places on the beach were certain kinds of treatment for emergency situations could occur; and other places that are of a different nature than those may allow other kinds of responses to conditions. Commissioner O'Brien stated an emergency is an emergency.

Mr. Peffer advised the State has wrestled with that issue in its criteria for permitting coastal armoring and related structures; what it has looked at is what it is calling imminent threat from a 15-year storm; and that is just an example that the State has tried to put some numbers in. He stated it is the permit criteria and not an emergency criteria; but that is the kind of approach the State is taking; and he is sensing that is what the Board wants staff to bring back.

County Manager Tom Jenkins advised this is a public hearing, so the motion will need a time certain for continuation. He noted it cannot be done before December 2, 2002. Mr. Peffer noted they can bring back the legislative intent in December. Chairman Scarborough stated the Board has to pass an ordinance before the item comes back or it will be dealing with the current Ordinance; and inquired when would the ordinance come to the Board; with Mr. Peffer responding with advertising requirements, it would be in January 2003. Mr. Jenkins suggested re-advertising the item because the Board does not have a schedule for 2003 yet.

Commissioner Carlson stated before going further with the motion, she has a question for staff; in the Caribbean Conservation Corps’ letter to the Board, it commented on what Indian River and Flagler Counties are pursuing, which is a habitat conservation plan for areas along the beaches; and inquired if staff considered looking into that and what they tried to pursue in that end. She stated the reason she is asking is because there are a lot of these issues and they are not going to decrease in numbers as time goes on; and the Board should have a plan that incorporates some of the issues it is talking about. She stated it would be separate from the emergency definition.

Commissioner Higgs stated the Board needs to know how Fish and Wildlife views certain kinds of alterations to the shoreline, if it views sandbag systems, tube systems, cuts into the dune, covering by 36 inches of sand and vegetation that the applicant proposes as a taking; and if it does not agree that is a taking, then the Board needs to know that also. Commissioner Higgs stated a habitat conservation plan assumes there is a taking. Commissioner Carlson stated the question she asked is exactly what are they pursuing; and they put it in a framework of a taking, but it may not be the case. Commissioner Higgs stated Indian River County did revetments, rocks, and vertical seawalls. Mr. Knox stated if that is a concern of the Board, it may want to add a criteria to its existing four criteria that says no taking will be permissible as determined by the U.S. Fish and Wildlife Service. Commissioner Carlson stated that would be good.

Chairman Scarborough stated the Board is going to re-advertise the public hearing because of some language in the basic definition of what is an emergency has to come back with legislative intent; that is a critical moment when the Board decides what and when it is going to do something; it then proceeds to the hearing on the ordinance; and the people need to be there because there could be other people from the community with other thoughts.

Mr. Wilhide stated Commissioner Higgs is wrong; with Chairman Scarborough advising Mr. Wilhide to meet with Commissioner Higgs some other time.

The meeting recessed at 8:35 p.m., and reconvened at 8:47 p.m.

INTERLOCAL AGREEMENT WITH CITY OF ROCKLEDGE, PERMISSION TO ADVERTISE
FOR CONSULTANT SERVICES, APPOINT COMMITTEES, AND EXECUTE AGREEMENT
WITH CONSULTANT, RE: BARNES BOULEVARD WIDENING PROJECT

Commissioner Carlson advised the Board discussed this issue the last time; it has gone through the City of Rockledge; and staff will give the background, then Mr. McKnight from the City of Rockledge can give further information.

Assistant County Manager Peggy Busacca advised the Board directed staff to coordinate an interlocal agreement with Rockledge for the design and acquisition of right-of-way to widen Barnes Boulevard, from Murrell Road to Fiske Boulevard. She stated the agreement has been revised by the City, whereby the City agrees to a 50% share from its impact fee district to the County’s 70% from the Central Mainland Impact Fee District; and the City is willing to assume ownership and maintenance responsibility of the roadway two years after completion of construction. Commissioner Carlson inquired how does that vary from the previous agreement; with Ms. Busacca responding the previous agreement proposed 70% share from the City and the roadway would be accepted upon completion of construction rather than two years after construction. Commissioner Carlson requested Mr. McKnight justify the City’s position.

City Manager of Rockledge Jim McKnight advised the previous agreement called for a one-year period; the City requested a two-year maintenance bond; and in talking with Mr. Denninghoff, he felt it would be cleaner and better if the City took it over after two years of completion of construction, so that was an agreed upon item. He stated it is a County road, and the City is participating; it has other transportation projects ongoing; so it would commit 50% of its impact fees to participate in the Barnes Boulevard project. Mr. McKnight stated there is a provision that if an alternative funding source becomes available, the City would be willing to negotiate participating in a different way, possibly at a higher percentage; but the 50% is simply based on the ongoing needs within the City.

Commissioner Carlson inquired how does that alter the financing of the project; with Transportation Engineering Director John Denninghoff responding the interlocal agreement contemplated the share on impact fees for construction purposes and any right-of-way which would remain in need after the County expended it current funds that have been set aside for Barnes Boulevard; it has $1.5 million for design and does not anticipate it will cost that much; and some of that money will be available for right-of-way acquisition although they will need more than that. He stated at the end of the design period, staff will come back to the Board to discuss construction funding; for now there is no borrowing or indebtedness incurred based on the way it is structured; but there will be future consideration along those lines or staff could save the impact fee funds until they have enough to do the construction or find another source of revenue for that purpose. Commissioner Carlson stated the Board was not comfortable with the use of impact fees; it is new, but the County and City came together and made provisions that made both agencies feel comfortable; and she is comfortable with that. She stated she is pleased that the City is interested in going forward with the agreement even after it made suggested changes, so she will move approval of the item.

Motion by Commissioner Carlson, to approve the Interlocal Agreement with the City of Rockledge; grant permission to advertise for consultant services; appoint Henry Minneboo, Ed Washburn, John Denninghoff, Ron Jones, and James McKnight or their designees to the Consultant Selection Committee; appoint Tom Jenkins, Scott Knox, and John Denninghoff or their designees to the Negotiating Committee; authorize negotiations of a professional services agreement with the consultant; and authorize the Chairman to execute the agreement for Barnes Boulevard Widening Project.

Commissioner Higgs inquired what is the difference between 70% and 50%; with Ms. Busacca responding at 70% the City’s share would have been $261,000; and at 50% it will be $193,000 for 2002-03. She stated it does not increase the payback period because that is in equal amounts, with the last payment being smaller; so it will be the same number of years. Commissioner Higgs inquired if the County is paying 70% and the City 50% for design and right-of-way acquisition, but not construction; with Ms. Busacca responding the design and right-of-way acquisition are going to be funded from impact fees of the County, assuming they remain what staff estimated them to be; and what they are looking for is money for the construction phase. Mr. Denninghoff advised they have the money for design; the Board directed staff to proceed with selection of a consultant for the design and move forward with the project in that way; and the City participation and future County participation utilizing the 70/50% formula would apply to additional right-of-way expenses and construction above and beyond what the County has set aside of the impact fees. Commissioner Higgs stated the agreement provides for funding of design and right-of-way acquisition phases; and inquired what did she say that was wrong; with Mr. Denninghoff responding it does provide for that and commits the County to expend impact fees, which have been stockpiled for the design as opposed to what it might otherwise choose to spend those impact fees on. Commissioner Higgs stated it also says funding of construction will be discussed at the completion of those phases; and inquired if the County is agreeing to expend all its impact fees; with Mr. Denninghoff responding the agreement provides for the opportunity to discuss alternative funding; however, it does state if the Board chooses to go forward with construction that it would be 70/50% formula using impact fees. County Manager Tom Jenkins inquired if it provides the mechanism to proceed but does not require proceeding; with Chairman Scarborough responding that is not in the agreement; the agreement says the County will use the formula unless another means is found; so it is binding itself to that formula for the construction phase if another funding source is not found. Mr. Denninghoff stated that is correct; and the City is also binding itself to that unless an alternative source of funding is found. Commissioner Higgs stated there is a difference between what Chairman Scarborough said and what is in the cover sheet of the Agenda Report which says, “funding of construction will be discussed at the completion of these phases along with additional design costs, depending on the interval. . .” Chairman Scarborough suggested looking at the agreement instead of the cover sheet because the agreement is what is binding on the County.

Ms. Busacca advised section 9 of the agreement states, “The County and City agree that if transportation impact fees are selected as the funding mechanism for construction of this project by either party, all terms as stated in this agreement shall apply to the construction phase of the project. If the parties determine that alternative funding is available, the decision to use alternative funding must be mutual.” She stated the intent is to give funding so the County can move forward with engineering and acquisition because the point was if the engineering and acquisition lags a substantial amount of time from construction, then it may not make sense to move forward with construction; so after they have accomplished that, if additional funding resources have been identified, then that can be reconsidered. Commissioner Carlson stated it has to be mutual. Chairman Scarborough stated it does not have to be mutual; the County is bound by that if one party wants it; and unless both parties want to be released, one party binds the other. Mr. Jenkins inquired if that should be mutual instead of either party; with Ms. Busacca responding the decision of either party not to use alternative funding requires the continued use of impact fee funds. Commissioner Higgs stated that is different than what is on the cover page; and she would support going ahead with the design and acquisition, but does not agree to the construction phase and the commitment of those impact fees.

Chairman Scarborough stated it is purely County money for the design; with Ms. Busacca responding that is correct. Chairman Scarborough stated so the Board can go ahead and do that without an agreement; the agreement provides for the City to help the County with the construction phase; and the County is throwing money at the design based on the City being willing to share the cost of construction. Ms. Busacca responded that is correct. Mr. Denninghoff stated the agenda report contemplates the County will come back to the Board before moving into construction and probably will have to come back before then because it may not have enough money to proceed that far. Commissioner Higgs stated that is not what the agreement says. Commissioner Carlson stated she assumes County Attorney Scott Knox reviewed it; and requested his input; with Mr. Knox responding the agreement is in two parts; one is design and the other is construction; but it does not seem to require staff to come back. Mr. Jenkins stated if they do not go to alternative funding, it obligates impact fees.

Chairman Scarborough inquired if the Board wants to table the item to next week to get more information from Mr. Denninghoff, as there seem to be a couple of questions.

Commissioner O'Brien stated the last time the Board discussed this item, it was not going to obligate itself to funding the construction; and it talked only about the design although the Board was told by staff if it designs the project and does not build it, then the design may become obsolete.

Chairman Scarborough stated he is in favor of the project, but is scared of using impact fees because they vacillate; bonding them is dangerous and puts every other source of revenue at stake; there is a lot of risk to the County and the City on this project; and the question is does the Board want to move forward and take the risks. He stated like any business, it has to take risks; this is a project where risk is reasonable; construction is occurring in that area; and the cost of acquiring lands for retention and right-of-way is going up. He stated to move expeditiously in this manner, although it is risky, makes common sense in the long run; and he can support it.

Commissioner O'Brien stated they faced the same problems with Dixon Boulevard. Mr. Denninghoff stated they did not need to acquire as much right-of-way for Dixon; the retention areas were provided by the City of Cocoa; and they were able to do what they were going to do in the existing right-of-way with the exception of a couple of small parcels. He noted the volatility of the cost of construction was not as severe for Dixon as it is for Barnes. Commissioner O'Brien inquired why was Dixon not completed; with Mr. Denninghoff responding the preliminary report was presented to the Board.

Mr. Jenkins advised the City of Rockledge will continue to have a high level of motivation to do this project, so if the Board wants to delay the agreement until it has a better comfort level, it can do that and proceed with design using the existing impact fees. Chairman Scarborough stated that does not make sense; the design should not be done unless the County is going to do the construction; and the question is, is the County going to do the project. He stated if it is going to do the project, it is going to have to jump into a risky thing; the City is going to jump onto that risky thing; and they are going to use impact fees that vacillate; and sooner or later somebody is going to have to ante up money in case those impact fees are not there. He inquired if the Board thinks Barnes Boulevard merits taking the risk; with Commissioner Carlson responding she does. Chairman Scarborough stated if Commissioner Carlson makes the motion, he will second it.

Commissioner O'Brien inquired why is the project not going through the MPO; with Chairman Scarborough responding because it is using County funds and not State or Federal funds.

Commissioner Higgs stated paragraph 15, page 4, talks about termination; and inquired how could the County do that; with Mr. Knox responding by providing notice of termination. Chairman Scarborough stated it cannot be terminated without mutual consent under paragraph 9. Commissioner Higgs stated it says they have the right to terminate by furnishing written notice. Chairman Scarborough stated it says the County would like to terminate, but the agreement would not be terminated if it is mutually bound under paragraph 9; and if it is a notice paragraph or contrary to paragraph 9, he would say paragraph 9 would prevail over paragraph 16 if there is a conflict. Mr. Knox stated it needs to be clarified with the City of Rockledge to find out what they want to do there. Commissioner Carlson inquired if Mr. McKnight can answer that question; with Mr. McKnight responding he did not draft the agreement. Chairman Scarborough stated a motion to table is in order.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to table the interlocal agreement with the City of Rockledge; permission to advertise for consultant services, appoint committees, and execute agreement with consultant for Barnes Boulevard Widening Project until November 12, 2002 to get further information and clarification of the termination provisions. Motion carried and ordered unanimously.

DISCUSSION, RE: MEMBERSHIP IN CITIZENS FOR A SCENIC FLORIDA

Barbara Jagrowski, member of Citizens for Scenic Florida, advised she spoke to the Board about five weeks ago about Scenic Florida; the purpose of the organization is to preserve and protect Florida’s scenic beauty; and the Board wanted the budget, which she gave to Chairman Scarborough. She advised they are having another meeting in three or four weeks, and there will be a new budget. Ms. Jagrowski stated she extended an invitation to Commissioner O'Brien to come to the meeting on November 22, 2002 and consider joining the organization.

Commissioner O'Brien stated he asked how much the director or president or CEO is paid a year; with Ms. Jagrowski responding it should be in the budget, or they may do it for nothing. She noted the only person who may be paid is the executive assistant. County Manager Tom Jenkins advised $12,600 is under the salary account for the year. Commissioner O'Brien inquired how do they pay $15,000 for FICA and $12,000 for salaries; with Ms. Jagrowski responding she does not know. Commissioner O'Brien requested a corrected budget.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve membership in the Citizens for a Scenic Florida. Motion did not carry; Commissioners Scarborough and Carlson voted aye; and Commissioners O'Brien, Higgs, and Colon voted nay.

DISCUSSION, RE: AMENDING GML ZONING CLASSIFICATION

Commissioner Higgs advised the Board dealt with the issue of removing muck from the Sebastian River several weeks ago; the Water Management District and others need to use disposal sites for dredge material; and the appropriate category would be GML because it is government managed lands, but it would not allow the receiving of muck. She requested the Board consider directing staff to look at this and come back with legislative intent to amend the GML zoning classification.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct staff to return with legislative intent to consider amending the GML zoning classification to allow disposal of muck for maintenance dredging. Motion carried and ordered unanimously.

CONTRACT FOR SALE AND PURCHASE WITH STATE OF FLORIDA AGENCY FOR
WORKFORCE INNOVATION, RESOLUTION AUTHORIZING COMMERCIAL PAPER
LOAN, EXECUTION OF AMENDMENTS, LOAN DOCUMENTS, AND BUDGET CHANGE
REQUESTS; TEMPORARY LOAN FROM WATER/WASTEWATER DEPARTMENT,
APPRAISALS, SURVEYS, ENVIRONMENTAL AUDITS, TITLE INSURANCE, TITLE
EXCEPTIONS, AND PURCHASE OF PROPERTY, RE: CENTRAL AREA PARKS
OPERATIONS OFFICE

Commissioner O'Brien stated staff is requesting approval of a commercial paper loan to purchase and renovate property, but the Board has not gotten any appraisals to look at.

Parks and Recreation Director Charles Nelson advised the State obtained an appraisal that was for $586,000, so staff believes it will be in that range; staff wants to update the appraisal, so it is picking an appraiser and the State is picking an appraiser, and they will average the two appraisals. He stated the difficulty in negotiating with the State is it has the same difficulties of privacy in determining costs as the County does; so the only way they can get the price determined is through appraisals. He stated this started out as a lease of the space, but the State decided it would like to sell the property; it is in a great location for the County; they will establish the average of two appraisals; and if there is greater than 15% discrepancy, they would look to a third appraisal.

Chairman Scarborough stated it is moving from 4,000 square feet to almost 10,000 square feet with the same cash flow from the District. Commissioner O'Brien stated he understands that and estimated expenses at $83,000; so if it took 20 years to pay it off, it would cost $830,000, but it would apply to assets rather than rental. Commissioner O'Brien stated he will approve it tonight, but at the next meeting, he wants to see how it will be paid off, what the annual expense is to pay it off, and if it is less than $83,000, would their budget be reduced by that amount. Mr. Nelson stated the lease money they currently use will be used to pay off the loan, so there will be no reduction or greater amount in the budget. Mr. Jenkins stated because it is a commercial paper loan, they have the flexibility and can pay if off sooner. Commissioner O'Brien stated if they can pay it off in six or seven years, it will save a lot of money. Mr. Nelson stated he will come back with the pay-off schedule.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt Resolution approving a Commercial Paper Loan for the purchase and renovation of property for the Central Area Parks Operations Office; authorize the Chairman to sign the necessary loan documents; approve the Budget Change Requests; authorize a temporary loan from Water/Wastewater Department if needed; execute Contract for Sale and Purchase of Real Property with the State of Florida Agency for Workforce Innovation; authorize execution of amendments to the Contract for Sale and Purchase as required; and authorize staff to obtain appraisals, surveys, environmental audits, title insurance, accept title exceptions, and proceed with closing on the property; and to return with a pay-off schedule for the Commercial Paper Loan. Motion carried and ordered unanimously.

AGREEMENT WITH IAFF UNION, RE: COLLECTIVE BARGAINING FOR FIREFIGHTERS
AND FIRE RESCUE PERSONNEL

Chief Bill Farmer read a letter from President Hogg who could not be here this evening, as follows: “Dear Board of County Commissioners, Commissioners, we your firefighters of Brevard County thank you for your continued support. We work hard to protect the citizens of Brevard County and we are grateful for the support you have shown us. We have witnessed all of your struggles with the budget and graciously appreciate your resolve to do the right thing. Thank you again. Sincerely, Leslie Hogg, Union President on behalf of the professional firefighters of Brevard County Local 2969.”

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the IAFF Chapter 2969 Union Collective Bargaining Agreement for Brevard County firefighters and fire rescue personnel. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE REQUEST FOR QUALIFICATIONS, APPOINT SELECTION
COMMITTEE, AND NEGOTIATE AND EXECUTE CONTRACT AND SUBSEQUENT
AGREEMENTS, RE: DEPARTMENT OF CHILDREN AND FAMILIES TEMPORARY
ASSISTANCE TO NEEDY FAMILIES

Motion by Commissioner Carlson, seconded by Commissioner Colon, to grant permission to advertise Request for Qualifications from vendors with the experience and capacity to pursue application, implementation, and monitoring for the DCF TANF 2 for one match legislatively authorized for Community Base Care start-up costs under the Community Partnership Matching Grant Program; appointed Don Lusk, Terry Jones, and J. B. Kenna to the Selection Committee; authorize negotiations with the successful vendor; and authorize the Chairman to execute the Agreement and subsequent agreements contingent upon approval by the County Attorney and Risk Management. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE AND SCHEDULE EXECUTIVE SESSIONS, RE: FLORIDA
ASSOCIATION OF COUNTIES TRUST v. BREVARD COUNTY, McGRIFF v. BREVARD
COUNTY, AND NELSON v. BREVARD COUNTY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant permission to advertise and schedule executive sessions to discuss strategies relating to Florida Association of Counties Trust v. Brevard County; McGriff v. Brevard County; and Nelson v. Brevard County, for November 12, 2002, at 11:30 a.m. or as soon thereafter as possible. Motion carried and ordered unanimously.

SETTLEMENT AGREEMENT AND GENERAL RELEASE WITH MIORELLI ENGINEERING,
INC. AND THE HARTFORD FIRE INSURANCE COMPANY, RE: MIORELLI ENGINEER-
ING v. BREVARD COUNTY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize the Chairman to execute Settlement Agreement and General Release with Miorelli Engineering, Inc. and The Hartford Fire Insurance Company relating to the Miorelli Engineering v. Brevard County lawsuit. Motion carried and ordered unanimously.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 9:18 p.m.

ATTEST: __________________________________
TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
___________________
SCOTT ELLIS, CLERK

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