May 6, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on May 6, 2003, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners *Truman Scarborough, Ron Pritchard, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox. Absent was: *Commissioner Nancy Higgs.

The Invocation was given by Tomas Latus.

Commissioner Ron Pritchard led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the Minutes of February 20, 2003 Special Meeting. Motion carried and ordered unanimously.

REPORT, RE: WITHDRAWAL OF AGENDA ITEM

County Manager Tom Jenkins advised the applicant has withdrawn III.B.3.; and there is a last minute item that needs to be resolved with Item VI.F.1., so he would like to withdraw that item also.

REPORT, RE: HARRY T. AND HARRIETTE V. MOORE GRANT

Commissioner Scarborough advised the homesite of Harry T. and Harriette V. Moore, where they were murdered one Christmas eve, was acquired by the County, which received State funds; the State, with its budget activities, is threatening the capacity to go through with that project; it does not appear to be the normal course, once a grant is given and construction has started, to be denied those funds, but they are in question; and requested a letter be sent by the Chairperson to the Legislative Delegation.

County Manager Tom Jenkins suggested the letter also be sent to the leadership of both Houses and the Governor; with Commissioner Scarborough responding it would not hurt at all; it is something that has received national attention; and if they did not proceed, it would have national repercussions on matters in which the State is viewed; so he will move the item.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize the Chairperson to send a letter to the Legislative Delegation, leadership of the House and the Senate, and the Governor, requesting approval of the grant for the Harry T. and Harriette V. Moore homesite project. Motion carried and ordered unanimously.

ANNOUNCEMENT, RE: FDOT WORKSHOP ON WIDENING OF COURTENAY PARKWAY

Commissioner Pritchard advised the Florida Department of Transportation (FDOT) will hold a public hearing on the widening of Courtenay Parkway at Merritt Island High School cafeteria from 6:00 p.m. to 8:00 p.m. tonight.

REPORT, RE: WATERWAY REGULATIONS

Commissioner Pritchard advised he has an excerpt from the Stuart News, which he would like to read; it is entitled, “Drowning in Red Tape”; and it will show a perspective that he has been talking about for quite a while regarding waterway regulations. He stated it is interesting to see that a lot of newspapers are beginning to realize what the Board has been talking about for a while is coming to fruition; and read the following: “No one wants to hurt manatees or marine grass as needed by creatures of the rivers and sea, but the effort to protect manatees and other sea life seems to have created a bureaucratic maze for anyone who wants a dock. Homeowners who want to use their waterfront soon will be facing a wait of almost two years before they get permission for a small pier. A Treasure Coast homeowner who has plunked down big bucks to buy waterfront property must hire a professional marine contractor consultant to shepherd a permit through six different agencies, three federal, two State, and one local, the latter being the county building department. It seems like a plan drawn up by a red tape manufacturer. A homeowner wanting to take advantage of his waterside location must take his desire and application through the U.S. Army Corps of Engineers, the National Marine Fishery Service, and U.S. Fish and Wildlife Service, then move to the Florida Department of Environmental Protection, Florida Fish and Wildlife Conservation Commission, and finally the county building department. The journey will require two appearances each before the Corps of Engineers and Florida Department of Environmental Protection. Each agency charges fees for its services, but those fees do not fund the entire cost, and taxpayers at federal, State, and local levels must pay additional funds to maintain the agencies involved in this morass of regulations, inspections, notices, and hearings.”

REPORT, RE: SIGNATURE BONDS

Commissioner Pritchard advised there has been an article on Channel 6 News regarding the signature bond program; and he has an excerpt of the series that was broadcast on Channel 6 that he would like to show now so the audience here and at home has an opportunity to see what the signature bond program is all about.

*Commissioner Higgs’ presence was noted at this time.

The Board watched the video of the Channel 6 News Series on signature bonds that depicted free passes for criminals who committed grand theft, attempted murder, DUI’s, convicted armed robbery, drug abuse, etc., no money collected for those bonds, signature bonds issued by Judges in Brevard County, 1,000 bonds worth $21 million, and comments from Judge A. B. Majeed, Clerk of Courts Scott Ellis, and Sheriff Phil Williams.

Commissioner Pritchard advised there are people in the audience he would like to bring to the podium to hear their perspective; and the first is Mike Alexander who is a bail bondsman and is aware of the situation the County currently has. He stated his concern is if there is a program that is not working and costing the Sheriff’s Department excessive funds to go out and re-arrest people who are not living up to their promise to show up in court as they do on a signature bond, then it costs the taxpayers; and it could be a program the Board may want to reduce to a minimum level and have a monetary amount for those who are in bad straits, but should have more than just a promise to appear. He noted perhaps the program should be administered by the bail bondsmen; that is their jobs; so that is why he asked Mr. Alexander to speak on behalf of them and see where it goes.

Mike Alexander advised he has been a licensed bail bond agent since 1988; signature bonds have been going on for a long time; criminals know if they get arrested, they go to jail, see a judge, and have 95% chance of getting out of jail free; and they take that chance. He stated yesterday the docket had 88 cases; they will sit in jail and wait to see a judge; and that is why there is an overcrowding problem. He stated years ago the Board had Sarno open, which helped to relieve the jail overcrowding because they did not have to be shipped to Sharpes; now it has Viera open, but they cannot bond anyone out of Viera; and they can post a bond there, but it is very difficult because they do not know what time the vans run for security reasons. He stated looking through all the Administrative Orders that have been approved by the Board of County Commissioners, they always say expansion of pretrial release, request by pretrial release services; and on April 14, 1997, they requested an extra million dollars because they could not do their job properly to make sure some of the bad criminals were not being released. Mr. Alexander stated the computer system Brevard County has is excellent; other counties in his profession love the way the computer works; they type in a name, go back a couple of years, and hit enter, which brings up the record; and a lot of those people that are getting arrested have numerous failures to appear. He stated they cannot get out of jail on a signature bond by Statutes or pretrial release by Statutes if they have a failure to appear in their background; and there are other laws that prevent a lot of those things from happening, but he knows the reason is the jail is over crowded and they have to let them go. He stated there are 9,000 failures to appear warrants out; if all those warrant deputies had to chase those guys, he does not know how long it would take them to find all those people because the warrants are active; then they are put in jail, and there is no room for 9,000 additional inmates. He stated the way the system is set up in Brevard County it is very difficult for a bail bonding agent to even post a bond; the cut off time is 11:00 a.m.; the criminals know they are going to take their chances with the judge; and the pretrial release officer greets them at the backdoor of the jail to offer them taxpayer money to get them out of jail. Mr. Alexander stated he lives in South Melbourne Beach; he went to the jail to post bond for three DUI’s at 3:00 a.m.; he has done his homework and is ready to go; he will guarantee that bond; and when he was ready to drive back to Melbourne Beach they told him to pick up his bond after the bond had already been posted. He stated they cannot get in touch with a pretrial release officer at the jail except on Saturday mornings; but he is constantly running around the bond room, and his phone rings constantly, so no one can talk to him; and it is way out of control. He stated the whole system needs to be revamped; the Board needs to bring down the failure to appear rate in Brevard County; Commissioner Pritchard can add up the money as he has all the statistics; and it will show the County is missing a few million dollars just on signature bonds, which could build a new jail. He noted court costs and fines are also lost, and that could be a couple of million dollars; and the Sheriff’s cost to go looking for those guys could be reduced. He stated they just do not go to the front door and knock and ask if that person is there; a warrants deputy cannot go in and look for the person unless he is invited in; bail bondsmen can do whatever it takes to put that person back in jail because they sign their rights over; and his failure to appear rate is maybe half a percent out of all the business he does. Mr. Alexander stated he guarantees all his clients will be in court; he calls them the night before or get in his car and go to their homes to tell them they have to be in court; their eyes get big when he knocks on their doors and wonder why he is there; and he tells them he has to make sure they are going to court and their phone was disconnected. He stated he is in the appearance business; he is not just a bail bondsman; he guarantees everybody will make their court date; and if not, he has to pay the County then has up to two years to find that person and get a little bit of his money back. He stated if the person is caught in Alaska, he has to pay the Sheriff to bring him back, but it is a win/win situation. He stated the signature bond program in Brevard County needs to be revamped.

Commissioner Pritchard advised of a neighbor boy who had a history of being arrested and came to talk to him while he was in his garage; and a bail bondsman came, cuffed him, and walked him away. He stated he found out the boy’s mother called the bondsman to pick up the child who should have been in court and was not; and the bondman did his job. He inquired if Jail Commander Terry Altman was present.

Chairperson Colon advised the Board will not be taking action on the item today; and recommended Commissioner Pritchard schedule it on the Agenda as new business so the Board can get all the information and can act on it. Commissioner Pritchard inquired if it should be scheduled for the next meeting; with Chairperson Colon responding yes. Commissioner Pritchard thanked the Board for indulging them and thanked those who appeared today. He advised the Board will take action on the item on May 20, 2003.

Commissioner Carlson inquired if the Board should have some sort of idea of what Commissioner Pritchard wants to bring back on May 20th so the folks who have been watching the meeting know what is going to come back to the Board.

Commissioner Pritchard advised he will address the issues; he gave a report to the Commissioners that was prepared by one of his staff members; and it will give Commissioners an opportunity to review the information. He stated the County has a program that is broken; it needs to review the program to insure that people who are not a threat to the community and do not have any money, but are responsible and reliable are released on signature bonds. He stated he does not have a problem with that, but he has a problem allowing too many people who do not have that level of responsibility back into the community committing more crimes. He stated the whole program needs to be addressed; and what he would like to do is bring it back, have the Board address the program and make a decision as to what it would like to do under the guise of saving the taxpayers some money and returning some revenue to the general public. Commissioner Carlson inquired if the County Manager is going to bring back some details so the Board can have a full picture of who sets the criteria and the Florida Statutes that apply to the issue.

REPORT, RE: STRAWBRIDGE ART LEAGUE

Commissioner Carlson advised as part of the Sample of the Arts, Siri German with Strawbridge Art League is here to give the Board an update.

Siri German advised there are material from the Strawbridge Art League and refreshments in the lobby. She stated this year’s Vision 2003 was a total success, as well as the young artists show at Henegar Center for the Arts; and there was a tremendous turn out. She stated from May 6 to June 1, 2003, their members will exhibit art works on the first floor of the Henegar Center; the theme is “In the Garden”; they do it every month during business hours and sometimes on Saturdays; on May 16, 2003, at 6:30 p.m., they will have their general meeting with an abstract expressionism artist performing a demonstration; and the fee is $3.00 to the public. She stated their Africa, Africa, Africa traveling exhibit will be at Melbourne Beach Library from May 6 to September 1, 2003; it is quite a success; they did work with the Zoo recently; and about eight of their artists sold their paintings. Ms. German advised their Patriotism traveling exhibit will be at the Space Center from September through December, and the Art Works of Eau Gallie 2003 Festival Committee is seeking an original work of art for the poster to promote the 7th Annual Art Works on November 22 and 23, 2003. She noted the deadline is August 1st; and anyone with questions can call the Strawbridge Art League.

REPORT, RE: RIVER CELEBRATION

Commissioner Carlson advised Barbara Meyer with the Transportation Planning Office, has interesting information on the river celebration, which is celebrating the St. Johns River as part of the efforts that she has been involved with through American Heritage Rivers initiative. She stated it has evolved into a working group scenario, which she brought to the Board recently; on May 7, 2003 at 1:00 p.m. in the Florida Room, they will have their last working group meeting, which will hopefully define a strategic planning effort for the St. Johns River that came from a river summit in January, where over 1,000 individuals throughout the river basins’ 310 miles came together to try and help define what it is they want to see with the River in terms of restorative issues and rehabilitation issues, as well as educational, recreational, and all sorts of different issues were defined. She stated those issues are going to be culminating into a strategic planning effort tomorrow; and Ms. Meyer will talk about the river celebration, which is going to happen on May 17 and 18, 2003.

Barbara Meyer advised Riverfest will be celebrated along the entire River, from Jacksonville to Indian River County; they are celebrating the historical, cultural, natural, and recreational opportunities of the St. Johns River; the events in Brevard County will be May 17 at F. Burton Smith Park and Barbeau Memorial Park; and they will have bass fishing contest, fish inventory of the river, children’s casting contest for ages 7 to 14, environmental fair, nature scavenger hunt, and Dixie Crossroads will do a fish fry. She stated it has been a tremendous coordinated effort of private and nonprofit groups partnerships; and invited everyone to come out. She stated May 18 they will celebrate biking and hiking along the levee system; the City of Palm Bay is sponsoring that event; there will be a free pancake breakfast at 7:00 a.m.; the bike ride is 17 miles; and there will be a children’s bike ride event and nature scavenger hunts. She stated it is not just celebration but also education; they are celebrating all the history, flora, fauna, and animals along the River; and they will have all types of posters and exhibits that will go along with the events. She thanked the St. Johns River Water Management District, Brevard County Parks and Recreation, and all the people who put the events together; stated they are doing it without a budget and through coordination with people who want to celebrate the River; and they look forward to keeping the event going yearly. She invited everyone to attend the events.

Commissioner Carlson stated Ms. Meyer has done an incredible job bringing it together for Brevard County and working with the City of Palm Bay; and the poster is a culmination of a lot of historical pictures that tell the story of the River. She inquired whose house is in the middle of the poster; with Ms. Meyer responding she does not recall, but it is out there and being restored; they will have tours of the home; and the St. Johns River Water Management District has opened up some gates and areas for them to explore. Commissioner Carlson stated Brevard County will be celebrating on May 17 and 18, 2003, but the whole month of May is a celebration of the River and each basin that makes up the River. She stated there are three basins that are quite different; Brevard County has a very shallow basin and headwaters of the River, so it deals with more recreational activities and low-key types of activities; whereas the middle basin gets more tours and the lower basin at Jacksonville has a lot more activities. She stated the river flows north and widens at Jacksonville; it will be a great event; and thanked Lauralee Thompson for sponsoring the fish fry.

Chairperson Colon inquired about the 17-mile bike ride; with Ms. Meyer responding there are shorter loops; it is a tough ride, but there are hardy people wanting to do it; and bike clubs are looking at how they can improve the levees for better bike riding. Commissioner Pritchard inquired about bicycles built for two; with Ms. Meyer responding there are some who have tandem bikes, but she does not know if they will be out there. She stated it is a family event with kid bike rides, and they are all guided.

Commissioner Carlson stated the St. Johns River Water Management District publishes a recreational guide to all the hiking and things that can be done on the levee, which is phenomenal; and this is the first event to showcase part of that ability. She stated it will open up the educational perspective; and requested everyone get out there and enjoy the landscape, which is different from anything else anyone has ever experienced in Florida. Commissioner Pritchard stated if they have not seen the St. Johns River, they have not seen Florida. Ms. Meyer responded absolutely, the River is one of the few rivers that flow north and is nature’s mystery and Florida’s history. Commissioner Carlson stated it is a huge regional initiative as well; regionalism is key to today’s politics and to a lot of things that are happening in the community; and this initiative covers nine counties and 19 tourist development boards.

REPORT, RE: BREVARD TOMORROW AND LEADERSHIP BREVARD

Commissioner Carlson advised the next persons she wants to bring forward are Christen and Teresa Monroe with Leadership Brevard; Teresa was recently hired as the Program Director for Brevard Tomorrow; and they are going to give the Board an update on what they have done. She stated they are trying to bring to the community quarterly updates on their progress; the last time they met, they were in the process of getting the work groups together; and they have completed their tasks, which Christen will report on.

Christen thanked the Board for the opportunity to share the exciting developments of the strategic plan known as Brevard County’s Preferred Future; and re-introduced Teresa Monroe, the Project Director for Brevard Tomorrow. Ms. Monroe presented packages to the Board, but not the Clerk. Christen stated the packages contain a quarterly report summary, financial report for the quarter ended March 2003, work group reports as of the end of their deliberations, and logic tree models for each work group indicative of the logical processes they followed to insure integration and that a procedure was in place to assist in determining priorities for the first year. She stated specific to the charges of the August 2002 Brevard Tomorrow Business Plan, the following actions have been accomplished and more detail is provided in the package. She stated four members of the original Brevard Tomorrow Steering Committee have been appointed to the Leadership Brevard Board--Dr. Tony Cantanese of Florida Tech, Colonel Beverly Ploserbouser of the 45th Space Wing, Cheryl Lawson-Young of Prevent Brevard, and Anselmo Baldonado; Leadership Brevard’s by-laws were revised to include Brevard Tomorrow as a program of the organization; and the steering committee, including work group co-chairs will become a standing committee of Leadership Brevard effective June 1, 2003 to be known as the Brevard Tomorrow Committee. She stated while that committee carries out the work plans for implementation, they are also forming an advisory council that will look strategically to the future; persons instrumental in the genesis of Brevard Tomorrow initiative will be included in that group; and all six meetings of the issue area work groups were completed during this quarter resulting in the selection of first year goals. She stated performance measures, benchmarks and recommendations are being made to the steering committee for first year action plans; a final set of recommendations will be presented May 16; and they are looking forward to a community event in June to announce and engage citizens of Brevard County. She stated Brevard Tomorrow case statement has been written, printed, and issued with fund-raising letters to persons who they were seeking additional funds from signed by the steering committee members; Brevard Tomorrow presentations have been made to the Brevard Natural Alliance Board, the Kiwanis, and all four local Chambers of Commerce; and once the recommendations are approved by the steering committee, it will be made from work groups to project teams to insure implementation of the priorities. She stated at the end of the first year of project implementation, each project team will assess its performance and recommend any necessary changes to the overall plan based on the current status of the community; and annual work plans are not static as they allow them to recognize and build upon the successes of the previous years and suggest ways in which they may continue to evolve to meet the current needs. Christen stated other quick accomplishments this quarter include the addition of Brevard Tomorrow to Leadership Brevard effectively doubling the staff size, so they are now five; committed funds have been received from Port Canaveral, bringing their year-to-date total to 78% of their targeted first year goal; and stewardship of the funds have kept their expenses at 41% of their budget, so their net revenue over expenses for the quarter is a little over $12,000. She stated known funds committed for next quarter as of today total $34,000; and they have also had initial meetings with municipalities of Rockledge, Cocoa, and Titusville to discuss their financial participation in Brevard Tomorrow. She stated there will be a June celebration; and as soon as they can confirm that date, personal invitations will be extended to the Commissioners as well as the community at large. She stated helping them with inviting the community to that event through an RFP process, they obtained a collaboration from Ron Nicodemis of Nicodemis Communications Group and Walter Wood of MT Advertising to help them plan and assist in the execution of Brevard Tomorrow’s communications plan and a development plan, which will ensure the receipt of funds. She stated they have worked with them for some brand and image development for Brevard Tomorrow; they interviewed key individuals regarding opinions about Brevard Tomorrow to help them come to that culture question of production schedules in place; and a new website is under preliminary development. She stated six or seven meetings of the issue are work groups are completed; and their recommended priorities for the May 16 meeting are (1) Land Use and Growth; (2) Economy; and (3) Civic Infrastructure. She stated those are the tier one top priorities slated for execution early this next fiscal year beginning June 1; and Governance, Education, and Workforce will continue to be priorities, but they will be considered as tier 2 in year one.

Commissioner Carlson stated there is a lot of information in the package and there has been a lot of work that has been accomplished by a lot of great folks in the community; the work groups were made up of about 125 different leaders throughout the community who spent a lot of time on all five of the work group areas; and thanked them for their efforts. She stated the community will thank them as they see some of the things happening; but they are still in the process of integration; May 16 they will be putting the final touches on it with the steering committee; and the co-chairs are coming together to really identify the first year action plan and what is feasible to accomplish that first year starting June 1, 2003.

Commissioner Scarborough stated in a large region, the issue of branding who and what Brevard County is becomes problematic as it deals with individual counties; and inquired how does the branding become a part of regional branding; with Christen responding that is an excellent question; the brand she is speaking to this morning is literally for Brevard Tomorrow so that they can build upon that name; they developed a tag line called a community journey, which they think encompasses what they are doing and how many people it is going to take to continue to move the County forward; and their communications consultant is very aware of Myregion.org. She stated as they move forward, they will have to take that into consideration so it is seamless. Commissioner Scarborough stated while Brevard County has to brand itself to have an identity within the whole, he hopes it does not create a fragmented picture that would go against the common good. He stated they could all build upon each others branding, but he does not know how it can be accomplished; it probably is an initiative that has to be taken at the regional level and reach down, but by the same token, individual counties need to be willing to incorporate. He stated what bothers him is they have a bull’s eye and say this is Kissimmee/St. Cloud and the world is going to identify that and drive people to Central Florida; and inquired how does Brevard County find itself in the region. Commissioner Carlson stated she thought part of the three-year study for Myregion.org was to look at the potential of branding. Commissioner Scarborough stated branding is under discussion and is coming forward, but by the same token, it is incumbent upon the Board and Brevard Tomorrow to express themselves of how they would like that brand, otherwise they may end up with a brand regionally that they do not want. Commissioner Carlson stated from the perspective of Myregion.org, when Jacob Stuart comes over here, and from what she understands, they are watching what Brevard County is doing to start with. She stated Orlando has gone through a branding effort; they went over there for a regional conference and they went through all that stuff about what do they want their city to be; and it turned out to be the same brand they had before or something like it. Commissioner Scarborough stated the conversation is still very dynamic and Brevard County has the ability to influence it. Commissioner Carlson stated it has the ability to influence in a lot of different ways; there is a lot to digest; if the Commissioners have the time to review the logic diagrams, which are for some of them self-apparent, but for others, what they have in the packet, for those who are watching, are basically flow charts, which are logical diagrams that show the flow of tasks that will occur for the end result to occur. She stated each work group has that; and the job of the steering committee and co-chairs is to integrate all those logic diagrams together to make the first year action plan. She stated if anyone has questions, they can contact her office or call Christen and Teresa at 632-8222.

Chairperson Colon advised October 11, 2003 is the next summit for Brevard County School Board and the municipalities, which is a continuing process; and with a community of half a million people, everybody doing their share is critical for the lines of communication. Christen advised they are looking forward to supporting that summit as well.

Commissioner Carlson stated what has come out of the land use and growth work group is a smart growth meeting, which is going to occur on May 9; Dr. Clouser from University of Florida is going to be there to speak on smart growth and its application to the local community; so if anyone is interested in going to that seminar it will be at the Agriculture Center at 1:00 p.m.

REPORT, RE: AGENDA ITEMS

Chairperson Colon advised Item III.B.3., Approval of Recommendation of Affordable Housing Council to Rescind Approval of Funding to Hope Properties, Inc./Carlisle Development Group, LLC for Cherry Pointe Project has been withdrawn; and Item III.D.3., Award of Proposal #P-4-02-32, Digital Voice Recording System, has been pulled by a citizen, so it will be heard immediately after approval of the Consent Agenda.

Commissioner Scarborough stated he has concerns about Item III.A.18, Ratification of TDC Recommendation, Re: Early Termination of Contract with Representation Plus Ltd.; how marketing occurs is within the prerogative of the TDC and its marketing committee; but he will fax each Commission Office an article he received about international marketing. He stated they did quite a bit of research; there are 1.3 million visitors from the UK to Orlando and 90% stay clustered and do not leave the area; and he hopes the TDC does not abandon the international market. He stated a motelier he spoke to in Titusville said the only segment of his visitors that increase in the last year was the international market and it actually doubled; so while they have some negative numbers, he is also receiving things that indicate failure to be there could work to the County’s detriment in the long run. Commissioner Higgs stated the TDC is not abandoning the international market; and it is looking for somebody who will more effectively serve Brevard County. Commissioner Scarborough stated that is within the prerogative of the TDC and its marketing committee, and he will support them.

Commissioner Pritchard pulled Item III.A.1., Resolution Revising Fees for Land Development; and Item III.A.10, Permission to Advertise Public Hearing, Re: Amendment to Transportation Element. Chairperson Colon advised those items will be heard at the end of the meeting.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: WICKHAM
ROAD EXTENSION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant final plat approval and execute Contract with The Viera Company for Wickham Road Extension, subject to minor engineering changes as applicable and developer obtaining jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: SONOMA
SUBDIVISION, PHASE 4

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant final plat approval and execute Contract with The Viera Company for Sonoma Subdivision, Phase 4 improvements, subject to minor engineering changes as applicable and developer obtaining jurisdictional permits. Motion carried and ordered unanimously.

AGREEMENT WITH BRETT R. BOSSENBERRY, RE: TIMBERWOLF TRAIL

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with Brett R. Bossenberry for a building permit off an existing right-of-way constructed to the standards of the Unpaved Road Ordinance, Section 62-102, known as Timberwolf Trail. Motion carried and ordered unanimously.

AGREEMENT WITH DAVID MACE, RE: HIDEAWAY LANE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with David Mace for construction of a road in an existing County right-of-way under the Unpaved Road Ordinance, Section 62-102, known as Hideaway Lane. Motion carried and ordered unanimously.

AGREEMENT WITH JOAN BICKERSTAFF, RE: REPRESENTATION OF CONTRACTORS
LICENSING BOARD

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with Attorney Joan Bickerstaff to provide legal representation for the Contractors Licensing Board at its May 21, 2003 meeting. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE, RE: ATTORNEY FOR CONTRACTORS LICENSING BOARD

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to begin the selection process and approve contract negotiations for an attorney to represent the Contractors Licensing Board on an annual basis. Motion carried and ordered unanimously.

REQUEST FOR WAIVER OF SECTION 62-102, RE: PAUL M. KITCHIN

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve request by Paul M. Kitchin and waive the five-acre minimum requirement for two lots sharing the same access strip under Section 62-102, and the separation distance of 90 feet between easements. Motion carried and ordered unanimously.

BINDING DEVELOPMENT AGREEMENT WITH MICHAEL A. AND COLETTE T.
DiCHRISTOPHER, RE: PROPERTY IN SECTION 23, TOWNSHIP 25, RANGE 36

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Binding Development Agreement with Michael A. and Colette T. DiChristopher, limiting property in Section 23, Township 25, Range 36, to one single-family residential structure. Motion carried and ordered unanimously.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE:
ORDINANCE AMENDING ACTIVE OPEN SPACE PROVISIONS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept legislative intent and grant permission to advertise a public hearing to consider an ordinance amending the active open space provisions. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ORDINANCE #10-2002 FROM CITY OF COCOA,
RE: ANNEXATION OF PROPERTY WEST OF SR 524 AND I-95

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to acknowledge receipt of Ordinance #10-2002 from the City of Cocoa, annexing approximately 455 acres surrounding and immediately west of the intersection of SR 524 and I-95. Motion carried and ordered unanimously.

PERMISSION TO ORDER APPRAISAL AND NEGOTIATE WITH MR. AND MRS.
BENJAMIN ROTGERS, RE: STORMWATER TREATMENT POND PARCELS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize Land Acquisition staff to order an appraisal and negotiate with Mr. and Mrs. Benjamin Rotgers for the purchase of Parcels 251 and 252 for a stormwater treatment facility pond. Motion carried and ordered unanimously.

RIGHT-OF-WAY USE AGREEMENT WITH RIVERWALK AT ISLAND CROSSINGS
HOMEOWNERS ASSOCIATION, RE: LANDSCAPING IN FURMAN ROAD
RIGHT-OF-WAY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Right-of-way Use Agreement with Riverwalk at Island Crossings Homeowners Association for landscaping in Furman Road right-of-way. Motion carried and ordered unanimously.

RESOLUTION AMENDING RESOLUTION NO. 2000-010, RE: CONSTITUTIONAL GAS
TAX BONDS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution amending Resolution No. 2000-010 to reallocate $63,411 of Constitutional Fuel Tax Revenue Bonds remaining in the Fairglen Pedestrian Bridge project to the Valkaria Road Bridge Replacement project. Motion carried and ordered unanimously.

CONSENT TO EASEMENT AGREEMENT WITH ARMY CORPS OF ENGINEERS, RE:
A. MAX BREWER MEMORIAL CAUSEWAY BRIDGE REHABILITATION PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Consent to Easement Agreement with the Army Corps of Engineers for A. Max Brewer Memorial Causeway Bridge Rehabilitation project to replace the submarine power cable within the right-of-way of the intracoastal waterway. Motion carried and ordered unanimously.

PERMISSION TO INCREASE WORK ORDER TO BUSSEN-MAYER ENGINEERING GROUP,
INC., RE: DAIRY ROAD AND SINGLETON AVENUE INTERSECTION IMPROVEMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize an increase in Work Order #94-003-B-041 for Bussen-Mayer Engineering Group, Inc. in the amount of $2,800, for the Dairy Road and Singleton Avenue Intersection Improvement Project for redesign to relocate the storm system and permit modifications. Motion carried and ordered unanimously.

RATIFICATION OF TDC RECOMMENDATION, RE: EARLY TERMINATION OF CONTRACT
WITH REPRESENTATION PLUS LTD.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to ratify the recommendation of the Tourist Development Council (TDC) for a six-month early termination of the Contract with Representation Plus Ltd., the TDC’s European representation agency, and approve reallocation of the funds to public relations or internet advertising. Motion carried and ordered unanimously.

INTERLOCAL AGREEMENT WITH CITY OF COCOA, RE: SEWER AND DRAINAGE
SYSTEM IN PINEGROVE SUBDIVISION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with the City of Cocoa to provide for design, permitting, and construction of a sewer and drainage system within the Pinegrove Subdivision located in the unincorporated area of Brevard County. Motion carried and ordered unanimously.

AGREEMENT AND CONTRACTS WITH FLORIDA DEPARTMENT OF LAW ENFORCEMENT
AND APPROVAL OF POSITION, RE: RESIDENTIAL SUBSTANCE ABUSE TREATMENT
GRANT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the Chairperson to execute participation agreement and contracts associated with the Residential Substance Abuse Treatment Grant award, contingent on approval of the County Attorney and Risk Management, and authorize creating a grant-funded special projects coordinator position. Motion carried and ordered unanimously.

GRANT AGREEMENT WITH U.S. DEPARTMENT OF INTERIOR, FISH AND WILDLIFE
SERVICE, AND PERMISSION TO AMEND BUDGET, RE: RARE PLANT SURVEY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Grant Agreement with U.S. Department of Interior, Fish and Wildlife Service, and grant permission to amend the Natural Resources Management Office Budget for the rare plant survey grant of $36,457. Motion carried and ordered unanimously.

AUTHORIZE SALE OF SURPLUS PROPERTY, ACCEPTANCE OF HIGH BID, AND
EXECUTION OF DEEDS AND NECESSARY DOCUMENTS, RE: PARCEL IN
MICCO OFF HURFORD ROAD

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the sale of surplus property located in Micco off Hurford Road, acceptance of the high bid, and execution of the Deed and necessary documents by the Chairperson. Motion carried and ordered unanimously.

AWARD OF PROPOSAL #P-4-03-13, RE: FOOD AND BEVERAGE SERVICES FOR
THE SAVANNAHS GOLF COURSE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to award Proposal #P-4-03-13, Food and Beverage Services for The Savannahs Golf Course, to sole proposer Putter’s Inn. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS, APPOINT SELECTION
COMMITTEE, NEGOTIATE CONTRACT, AND AWARD CONTRACT, RE: TOWER
MAINTENANCE SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise request for proposals for Countywide tower maintenance services; appoint Charles Burton, Eric Conklin, and Steve Allen to the Selection Committee to receive and evaluate proposals and forward recommendations to the Central Services Manager; authorize the Central Services Manager to award the contract; and authorize the Information and Communications Systems Director to negotiate contract terms and process annual renewals. Motion carried and ordered unanimously.

APPROVE PAYMENT OF AWARDS, RE: EMPLOYEE INNOVATIONS PROGRAM

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve payment of $50 to Ernest B. Knowles, and $825 to Glenn Gary who submitted recommendations to the Employee Innovations Program Screening Committee and had their recommendations implemented by the affected Departments. Motion carried and ordered unanimously.

SUNSET REVIEW OF POLICY BCC-68, RE: LEGAL REPRESENTATION FOR LAWSUITS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Policy BCC-68, Legal Representation for Lawsuits, in accordance with Policy BCC-31, Sunset Review of Programs, Services, Ordinances, and Regulations. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to appoint and/or reappoint Priscilla Griffith to the Environmentally Endangered Lands Procedure Committee replacing Tom Stevenson, with term expiring December 31, 2003; Jim Strickland, Michael Moehle, and John Sternagel to the Charter Review Commission with terms expiring August 31, 2004; and Richard Schneider, Eddie Smolski, Bud Crisafulli, Aneta Ott, Tony Falanga, Carl Signorelli, Tom McFarland, Darleen Hunt, and John Campbell to the North Courtenay Parkway Citizen Resource Group. Motion carried and ordered unanimously.

RESOLUTION, RE: COMMEMORATING ARMED FORCES DAY

Commissioner Pritchard advised it is a privilege for him, being a former member of the United States Air Force, to present this resolution. He stated he met General Pavlovich when he first came to Brevard County at an enlisted appreciation day event; he was helping to distribute the food and General Pavlovich got in line with them, so he was standing there with the General, Colonels, Majors, and senior enlisted people and thought it was not like the last time he pulled KP. He read an excerpt from an article written by General Pavlovich yesterday, which said: “A military Thank you to Brevard. In a word, ‘wow’. Throughout my Air Force career, I have lived in many places, held various command positions, and been involved in several community organizations, but without a doubt the Space Coast and Treasure Coast are the best supporters of the military I have ever experienced.” Commissioner Pritchard requested General Pavolich introduce the men and women who accompanied him to the meeting.

General Pavlovich introduced Command Chief MSgt. for the 45th Space Wing Tony Manson, Mid-level Civilian of the Quarter Greg Ferkle, Sr. NCO of the Quarter Frank Woodard, Military Volunteer of the Quarter MSgt. Randall Harmon, Honor Guard Member of the Quarter SSgt. George Black, Jr., Level Civilian of the Quarter Lazlo Cosack, NCO of the Quarter SSgt. Brandy Hicks, and Wing NCO of the Quarter SSgt. Lanette Savell. He stated they are a small representation of the great force they have at the 45th Space Wing at Patrick Air Force Base.

Commissioner Pritchard stated he was in the Air Force as mentioned earlier; one of his sons-in-law just got out and one became a Mustang and is now a 2nd Lieutenant; and his son went into the Navy, and is a Lt. Commander and flies the Navy version of the Black Hawk. He stated his dad and father-in-law were Army and saw action in WW II, so it is an honor for him to read the resolution. Commissioner Pritchard read aloud the resolution proclaiming May 17, 2003 as Armed Forces Day in Brevard County.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution proclaiming May 17, 2003 as Armed Forces Day in Brevard County to honor the dedication and service of the members of the Armed Forces. Motion carried and ordered unanimously.

Commissioner Pritchard presented the Resolution to General Pavlovich, who thanked the Board for the outstanding support they receive from the County and stated they look forward to continued support and working with the County to keep Patrick and Cape Canaveral the viable institutions that they are.

Chairperson Colon requested, on behalf of Brevard County, that all the men and women overseas know that the Board thanks them for its freedom. A representative stated on behalf of the entire team of outstanding troops at Patrick Air Force Base, their mission is to fly, fight, and win; and they can only do that with the support of a great community, so they are thankful to Brevard County and the Space Coast for their continued support.

RESOLUTION, RE: RECOGNIZING MOTHER’S DAY

Commissioner Pritchard stated they cannot let Mother’s Day come and go without making it a significant day; mothers are the people who hold families together; and he would like to tell a story about a movie he saw a while back because there is a difference between men and women, fathers and mothers, and how they raise their children. He stated in the movie, the son was a stockbroker whose father was a judge; the son always tried to live up to his father’s expectations, but the father did not have high expectations of his son only that he wanted him to do well. He stated the son felt he could not do well and went to his father and tearfully said he is in trouble; and the father said, “if you want a friend, go see your mother, I’m your father.” He stated Dom DeLuise said when children turn 18 it is time for them to move on; mothers never let their children go; a mother is a mother for life; recently his wife was out of town for three weeks because their daughter had surgery; and that is what mothers do. He commented his mother had a mood ring; when she was in a good mood, it turned green; and when she was in a bad mood, it raised red lumps on him. He read the resolution designating Sunday May 11, 2003 as Mother’s Day.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution recognizing Mother’s Day and expressing personal affection, heartfelt gratitude, and everlasting love to all mothers. Motion carried and ordered unanimously.

Commissioner Pritchard stated his son, the Lt. Commander in the Navy, called him and asked if his computer was on; it was 10:00 p.m. and he said he was not that addicted, but he would turn it on; and he emailed him a sonogram of their latest grandchild.

RESOLUTION, RE: PROCLAIMING NATIONAL BEACH SAFETY WEEK

Commissioner Carlson advised the United States Life Saving Association has proclaimed the week of May 19 through 26, 2003, as National Beach Safety Week; and the resolution defines that citizens and visitors remember to never swim alone, always swim near a lifeguard, never drink alcohol before swimming, respect the power of the surf, and learn to swim. She read the resolution proclaiming May 19 through 26, 2003 as National Beach Safety Week in Brevard County.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution proclaiming May 19 through 26, 2003 as National Beach Safety Week in Brevard County, and expressing appreciation to the lifeguards, and encouraging all citizens using the beaches to enjoy themselves while taking appropriate measures to protect themselves and their children. Motion carried and ordered unanimously.

Commissioner Carlson presented the Resolution to Public Safety Director Jack Parker, who stated he would like to recognize the entire lifeguard crew of over 100; they do a tremendous job; last year they pulled over 500 people from the surf during rip currents without a single fatality and responded to more than 6,000 emergency situations. He stated nobody was lost under the Brevard County Ocean Lifeguard Program at the guarded beaches.

Chief Warner advised they are contacting hotels on the beaches to teach their staffs CPR; they have contacted the Holiday Inn in Indialantic and the Hilton in Cocoa Beach; and they will contact the Ramada Inn in Satellite Beach to promote safety. He stated he has tee shirts, hats, and whistles for each Commissioner to recognize them as honorary lifeguards; and presented the objects to the Commissioners.

Commissioner Carlson inquired how many lifeguards does the County have and where are they located so people at home can go to those places where there are lifeguards and feel comfortable being there. Mr. Parker advised there are over 100 lifeguards during the summer months; they have 12 tower sites throughout the beaches; and Jetty Park is run by Cape Canaveral Volunteer Fire Department and operates year round. Commissioner Carlson inquired why do the tee shirts have long sleeves; with Mr. Parker responding to protect against sun burn. He stated they talk about drownings, but they have seen terrible sun burns on the beaches, especially with little children; so sun block is important because it only takes half an hour to 45 minutes to get a bad sun burn.

Commissioner Pritchard stated the Board could take up a study of sun burn and spend a few days at the beach. He stated he spent the last summer he was in the Air Force going through senior life saving water safety instructor program and on Labor Day in 1966, he was a lifeguard at the NCO pool. He stated it has been a long time since he blew a whistle, and blew his whistle at the meeting.

RESOLUTION, RE: PROCLAIMING FLORIDA STATE PARKS MONTH

Commissioner Higgs advised Mr. O’Toole is here representing a favorite State park in Brevard County; and those who will be celebrating Mother’s Day and Father’s Day may want to go to the State park and enjoy it. She read aloud the resolution proclaiming May 2003 as Florida State Parks Month.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution proclaiming May 2003 as Florida State Park Month, and encouraging all citizens to enjoy, protect, and support Florida’s parks so future generations may enjoy and learn about Florida’s unique natural and cultural heritage. Motion carried and ordered unanimously.

Commissioner Higgs presented the Resolution to Terry O’Toole. Mr. O’Toole presented brochures to the Board, but not the Clerk; and thanked the Board for its support and funding for parks and land, the State, federal, and local governments for helping to save lands and put them under the park system, and private organizations that hold trusts for public lands, such as the Nature Conservancy, and the Richard King Mellon Foundation. He also thanked the people of Florida for supporting the parks.

Chairperson Colon advised the brochure says the real Florida vacation pass for $10; and inquired if that is correct; with Mr. O’Toole responding it is a ten-day pass to Florida State Parks, or people can buy a year pass for $30 good at all 158 State parks. Chairperson Colon stated she became a camper this weekend and is now interested in parks; and there is so much beauty that people do not take advantage of. She noted they stayed at a Brevard County park, Manatee Hammock, and she did not want to leave. She inquired if the State has a website; with Mr. O’Toole responding yes, www.floridastateparks.org.

Mr. O’Toole advised when public lands are taken off the tax rolls, there is concern that no money is generated; but according to the Visit Florida Tourist report, Sebastian Inlet has a direct economic impact of $17,800,000 each year to the local economy; and 356 jobs are generated by the Park being there. He stated they have 160 volunteers that provide more than 21,000 hours of help to keep the park going; and they are about third in attendance in Brevard County behind Kennedy Space Center and Cape Canaveral National Seashore. He stated there are a lot of new things going at Sebastian Inlet; they have two museums and a marina where people can kayak, canoe, or rent pontoon boats and power boats; there are boat slips, ranger guided tours of Pelican Island National Wildlife Refuge, mountain bike trails, nature trails, bikepaths, group pavilions, concessions, boat ramps, gift shops, bait and tackle stores, butterfly gardens, and a north jetty will be completed June 26, 2003. He stated they are starting their free turtle walk preservation on May 15; there is a lot going on at Sebastian Inlet; and invited everyone to come down and see the State park. Commissioner Higgs stated when people go to Sebastian Inlet, they should also stop at the County’s Long Point Park and enjoy the resources there.

Commissioner Scarborough stated there are not many counties in Florida that start with a National Seashore Park and end with one of the finest State parks; Sebastian Inlet is third; and Brevard County has unique resources.

RESOLUTIONS, RE: RECOGNIZING FIRE RESCUE OFFICER, FIRE FIGHTER,
INSPECTOR, AND DISPATCHER FOR 2002

Commissioner Pritchard advised he had the honor of attending the awards ceremony several weeks ago, and decided the Board needed to do further recognition of the brave men and women in the fire service. He stated the program was started by Jack Parker and Bill Farmer three years ago to recognize personnel for many different accomplishments; and it compliments the various County Manager’s awards, as the officer of the year was the public employee of the year last year. He stated it is a great program that provides recognition to the men and women doing an outstanding job; it is a valuable asset for the employees; and it also shows the community that Brevard County has outstanding people working for it. He noted only one recipient was able to attend the meeting; and read aloud the resolution recognizing Lt. Dave Hover as the 2002 Brevard County Fire Rescue Officer of the Year.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing and congratulating Lt. Dave Hover for his selection as Fire Rescue Officer of the year 2002. Motion carried and ordered unanimously.

Commissioner Pritchard read aloud a resolution commending Jim Duffy as Fire Rescue Inspector of the year 2002.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing and congratulating Jim Duffy for his selection as Fire Rescue Inspector of the year 2002. Motion carried and ordered unanimously.

Commissioner Pritchard read aloud a resolution commending Carolyn Busch as Fire Rescue Dispatcher of the year 2002.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing and congratulating Carolyn Busch for her selection as Fire Rescue Dispatcher of the year 2002. Motion carried and ordered unanimously.

Commissioner Pritchard read aloud a resolution commending Bill Burns as Fire Rescue Firefighter of the year 2002.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing and congratulating Bill Burns for his selection as Fire Rescue Firefighter of the year 2002. Motion carried and ordered unanimously.

Commissioner Pritchard presented the Resolutions to Mr. Parker for distribution; and asked Mr. Burns, as a bagpipe player, how to tune bagpipes; with Mr. Burns responding he does not.

Chief Bill Farmer thanked the Board for recognizing the outstanding members of the Fire Rescue Department; stated they hope the ceremony they do every year is appreciated by staff; but this recognition by the Board means a lot to the employees and Department. He apologized for those members who were not present due to personal illness and death in the family; and reiterated their appreciation for the Board’s action.

RESOLUTION, RE: PROCLAIMING ELDER LAW MONTH

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt Resolution proclaiming May 2003 as Elder Law Month in Brevard County, and encouraging elder citizens to become informed of their legal rights. Motion carried and ordered unanimously.

RECOGNITION, RE: SPRING 2003 GRADUATING CLASS OF CITIZENS ACADEMY

Marea Assante, Special Projects Coordinator, presented the graduating class of the 2003 Spring Citizens Academy; advised the class started on March 5, both morning and evening sessions; attendance is free for a nine-week educational program consisting of one three-hour meeting per week and one half day Saturday tour; and County Departments were involved in the planning stages as well as guest lecturers. She stated those Departments are County Manager’s Office, SCGTV, Public Safety, Emergency Management, Animal Services, Water Resources, Solid Waste, Natural Resources, Agriculture and Extension Services, Mosquito Control, Transportation Planning, Transit Services, Transportation Engineering, Parks and Recreation, Library Services, Housing and Human Services, Planning and Zoning, and Permitting and Enforcement. Ms. Assante advised they receive positive feedback on the citizens academy; the next session will be in the Fall of 2003; and citizens may register on the County's website or call 633-2010 and request an application. She noted applications are accepted on a first-come/first-serve basis.

Chairperson Colon presented diplomas to graduates Georgia Blainer, Robert Conners, Cindy Earp, Nena Galligan, Maryon Goodell, Leon Leash, Frank Rockwell, Janet Sullivan, Barbara Venuto, and Tammy Vititoe. Ms. Assante advised Leslie Alderman, David Bush, Judy Collier, Shirley Jin, Pam Plimpton, Kenton Sanchez, and Paul Skittone also completed the citizens academy but were not able to attend the meeting.

The Board gave a round of applause to the graduates. Commissioner Higgs advised the Board appreciates everyone who went through the program and took the time to dedicate themselves to learning about County government. She stated the Board appreciates that they made that effort and looks forward to their continued contributions.

The meeting recessed at 10:37 a.m., and reconvened at 10:45 a.m.

AWARD OF PROPOSAL #P-4-02-32, RE: 911 DIGITAL VOICE RECORDING SYSTEM

Brian St. Ours, Director of Marketing for Synergon Solutions, advised Synergon Solutions is headquartered in Melbourne; they won the bid twice; the third time there was a protest; and after the protest, they lost out by a narrow margin. He stated the County is about to spend $115,000 more for a system, which is essentially the same as all other systems proposed; the main reason they are here is because they feel the County is concerned about buying a system that the competition has claimed has only one user, which happens to be in BETA with no real 10-4 references; and they can see the Board's concern were that true, but nothing could be further from the truth. Packages were presented by Synergon representatives to the Board, but not the Clerk. Mr. St. Ours stated the first package is a list of 57 10-4 installations or upgrades that have happened since August 20, 2002, which was actually during the bid process; the second package is a list of references; the reference from South Bay Regional Public Communications Authority dated December 11, 2002, says, “Due to the above reliability on behalf of my organization, we agreed to participate in the BETA test of a new Stanzel 10-4 DVD recorder. We have been utilizing the 10-4 recorder for the last several months and have been so impressed with the reliability of the recorder that we have ordered and taken delivery of a new 60 channel 10-4 recorder." He stated the product, which was not BETA, went general release on August 5, 2002; page 11 of the thick booklet, WordNet 3, which is a product provided by the vendor that was selected first place the third time around, actually stated the product came out of BETA on July 5, 2002; and that is only a one month difference. He stated during the protest period, the selection committee was handed references by the Purchasing Department; the first reference they saw was from the City of Pomona; that reference was very negative; and he has a letter from the dispatch supervisor, saying, “I feel there’s been a misunderstanding for reference given by Pomona Police Department by Sgt. Bill Luman for Synergon Solutions. Sgt. Luman is new to the position. I’m the main user of the recorder; and I haven’t had any service problems. We are pleased with the support we get from Synergon Solutions and are very happy with the recorder.” Mr. St. Ours stated that directly challenges the reference that was given to the Selection Committee at the third voting. He stated they have references from Action Ambulance Service stating how happy they are with the installation and service of the product; they have another one from Tupelo Regional Airport stating they are also happy with the installation, training, services, and the product; and they have a reference from John Wayne Airport dated May 2 stating they are happy with the product. He stated another one is from Tillamon County Emergency Communications District’s 9-1-1 dated December 12, 2002, also stating they were happy with the product; and Miramar Fire Department on the Marine Training Facility also stated they are happy with the system, installation, and training. He stated they understand Synergon Solutions supports the product, does the training, does the installation, and more importantly represents and manufactures the product from Melbourne, Florida. Mr. St. Ours advised the next package has two companies that fall under distributors and dealers/resellers; one is from Westech Marketing and the other from Audio Data Systems, Inc.; they both say they are reselling the 10-4 product and use Synergon Solutions for support, knowing Synergon has been providing support for the Stanzel family of logging recorders for many years and are comfortable stating they find their installation and service to be superior. He stated they do local support and have references from local vendors Melbourne Kidney Center and Williams Construction both stating they use Synergon for local services and trust its judgment. He stated if the County is looking to buy a mission critical system, it cannot do any better than going with Synergon Solutions. He stated there is publicity from Yahoo Finance talking about a recent sale to King County, Washington for two 144-channel systems that would closely meet the requirements of Brevard County.

Bill Passmore advised he has been with Synergon Solutions for over five years and recently installed the 10-4 system at Action Ambulance in Wilmington, Massachusetts, Tupelo Regional Airport in Tupelo, Mississippi, and Capital City Police Department in North Carolina. He stated if Synergon is given the contract, he will be leading the installation on all fronts, i.e. support, manufacturing, and installation.

Alvaro Garcia with Synergon Solutions advised in five months he has developed stewardships in Latin America; sold equipment in the Bahamas, Mexico, and Peru; and the distributors are ready to invest thousands of dollars in their equipment because they trust Synergon and know the equipment works. He stated he has two testimonial letters that he had translated and requested Chairperson Colon read one paragraph of the second letter in Spanish.

Chairperson Colon read the paragraph in Spanish then translated it to say, “We had the opportunity to translate this product that has been installed in our offices and positively surprised of the technical characteristics and visual colors.”

Mr. Garcia stated he is ready to install more stewardships in Latin America in the next couple of months and it has proven to the distributors that they are satisfied with the product and ready to invest thousands of dollars in marketing the 10-4 in Latin America and the Caribbean.

Mike Hanner, Director of Technical Services with Synergon Solutions, advised Synergon has been the nationwide service support center for Stanzel Corporation, software developer of the 10-4 system for seven years; during that time, Synergon has provided not only technical help, but installation, training, testing, and manufacturing services for Stanzel; combined, the Stanzel/Synergon team has over 200 years of experience with telephone recording systems; and their user base is over 400 systems, which include not only national, but international customers. He stated it was evident that service and support were very important in the RFP; they recognized it as important as their standard operating procedure; therefore, the total support package they proposed to Brevard County not only exceeded the RFP, but clearly exceeded that of their competition. Mr. Hanner stated they offered a two-year warranty on their equipment while most only offered one; and the warranty coverage includes 24-hour desk with over 40 people to answer support needs 24 hours a day, 7 days a week. He stated they will talk to a live person within 12 seconds or less guaranteed; it will not be answered by a pager or answering service; and also included with each system and part of the warranty is remote monitoring. He stated if a problem is reported, they can dial in remotely to a machine and make necessary repairs in minutes rather than hours; their warranty also guarantees two-hour response time for onsite service; six people are assigned onsite service in Brevard County; and Replay Systems proposes to relocate one person in Brevard County and open an office once the contract has been awarded. Mr. Hanner stated since Synergon manufactures the 10-4 system, an inventory of spare parts is located in Brevard County at their headquarters in Melbourne; parts do not have to be shipped in overnight; they will be ready in the unlikely event they are needed; and that level of service is not just during the warranty period. He stated Brevard County will receive the same level of service all five years and thereafter, all of which are managed and dispatched from their headquarters in Melbourne. Mr. Hanner advised they installed telephone recording equipment for many years and know what kind of disruption installations those types of equipment have on PSAP centers; that is why they offered to do the installations at the convenience of each center; and if installing the equipment at 2:30 a.m. is more convenient, that is what they propose to do. He stated the same goes for training; they know the difficulty some PSAP managers may have in trying to coordinate training across various shifts; they proposed to provide whatever training is necessary; and if three, four, or five classes are necessary, that is what they propose to do. He stated Synergon is a service-oriented company; they stand by the commitments they make to their customers; with over 40 people at the disposal of Brevard County with years of experience in manufacturing, installation, and support of telephone recording systems, their solution is clearly the best choice for the County.

Dale Mallow, Chief Operations Officer with Synergon Solutions, advised Synergon is a Brevard County company, which currently employs 34 full-time and eight part-time employees; the average salary for full-time personnel is $37,840; they are in the process of adding three full-time and five part-time positions; and they anticipate growth over the next year and plan to add combinations of 50 additional employees driven largely by the anticipated sales volume of the 10-4. He stated Brevard County is an important reference in helping to drive their anticipated growth; if they are not awarded the proposal, their competition would not hesitate to use it against them in future bids and proposals; and this is the County they are based out of and live in. He stated the selection committee voted three times on the bid and Synergon won it two of the three times; prior to the first vote, which Synergon won by a large margin, site visits were added to the decision process; after completing the site visits, the second vote was taken, which Synergon eventually also won; and only after the protest made by Replay Systems did Replay come out on top by one vote. He stated Synergon was never given the opportunity to submit their own protest with the new found evidence; and each of the three times the committee voted, Synergon had a higher raw score than any other proposer. Mr. Mallow stated one of the issues used as grounds for the protest by Replay Systems was that Synergon did not meet the administrative requirement for a proposed bond equal to 5% of the pricing based on the purchase amount; the fact is Synergon provided a cashier’s check, which represented 165% of the requirement; however, Replay Systems’ proposal bond check was only 93% of the requirement. He stated Replay Systems did not meet that requirement, which technically could be considered as not meeting the bid requirements; and in fact all the protest issues raised by Replay Systems against Synergon have been proven to be either untrue or unsubstantiated. He stated Synergon will save the County $114,382, broken down as $52,606 in purchasing cost the first year, and $54,838 in the second year; and in years three to five, the savings is a total of $6,938 for a total savings of $114,382. He stated for warranty, Synergon is including two years at no additional cost to the County. Mr. Mallow advised the project is being funded by 9-1-1 revenue; on every Brevard County citizens’ phone bill, there is an item under services, which states, “emergency 9-1-1 charge. This charge is billed on behalf of Brevard County. Your local government asks you to pay a small charge each month to help provide emergency service in your community.” He states the 2002 Florida Statutes, Section 365.171, Subsection 13, paragraph (6) states what the savings of $114,382 could be used for; and it lists equipment such as call answering equipment, call transfer equipment, station instruments, 9-1-1 telecommunications systems, logging recorders, operating costs such as salary and associated expenses from 9-1-1 call takers for that portion of their time taking and transferring 9-1-1 calls, training costs for PSAP call takers, expenses required to develop and maintain all information necessary to properly inform call takers as to location address, type of emergency, and other information directly relating to the 9-1-1 call taking and transferring function. He stated as a Brevard County resident and Synergon employee, he respectfully urge the Board to award the digital voice recorder proposal to Synergon team and use the savings to further enhance the 9-1-1 operations here in Brevard County.

Jeanette Soucy advised she is not employed by Synergon Solutions and works for Children’s Home Society as Director of Development; many of Synergon’s employees gave wonderful testimonies and letters of recommendations from various companies about how much they do in the community and universally; and she wants to tell the Board what they do to support Children’s Home Society is unbelievable. She stated they all know how difficult it is to find support from various companies for nonprofit organizations; Synergon has given to their organization and taken computers that were donated, cleaned them up for their use; they donated their time and efforts at Hacienda Girls Ranch; and they donated tickets for the girls to attend various events like the Manatees and Marlins baseball games. She stated she supports Synergon and continues to support them and agree they need to stay in Brevard County and need the Board’s support and vote.

Richard Leonardi with Replay Systems, advised they heard a lot about Synergon, much of it was disclosed through the whole RFP process that the Purchasing Department requested of over 12 vendors; so they are not here to rehash the RFP and all the benefits because Replay Systems is well known in the State and has a stellar reputation of supporting 9-1-1 systems. He stated he wants to summarize what they believe to be some of the unique advantages of the Nice recording system provided by Replay Systems and chosen by the 9-1-1 selection committee. He stated Nice is the world’s largest manufacturer and provider of recording platforms in all markets, public safety call centers, and so forth; in the public safety market alone, Nice has over 4,000 sites representing close to 7,500 units installed year to date; and in general the company has 15,000 customers and 30,000 installations across all markets. He stated in the past one to one and a half years, two of the largest public safety agencies in the United States have chosen WordNet platforms; that is the NYPD with over four million invested in the technology, and the LAPD. Mr. Leonardi stated through an extensive RFP process, they have deemed this to be the best of the breed and chosen by those organizations; the market position leads to a unique strength and position to work with all other technology provided in the County’s 9-1-1 center, such as the telephone providers, radio and dispatch, etc.; it also provides for extensive service and R&D investment; and some of the key differences in the proposal they heard of regarding the $115,000 savings, is not comparing oranges to oranges. He stated their proposal comes equipped with RAID 5 technology; if purchased on the street,, it has a list price of over $9,700 per unit and there are 12 units; and doing the match, that is over $116,000. He stated it was provided to eliminate the need for media management, purchase of media at $50 per disk, as well as the time handling them by the resources in the 9-1-1 center. Mr. Leonardi advised the applications desired by public safety answering points (PSAP) are what is currently there in the WordNet and not in their competitor’s product, such as ANI/ALI capture; everyone does ANI, which comes through the phone switch, but does not do the data base step required to find the location of the caller, so when they go to retrieve an event at a particular address, they will find all calls for that; and that did not currently exist at the time of the RFP. He stated there are scenario reconstruction, the ability to rebuild scenarios, creating a single file for all of the courts whether it be for the prosecution or the defense, time stamp capabilities where each of those recordings becomes admissible because they have an independent time channel attached, hostage negotiator is on the way to a scene can dial into the recorder and hear all the 9-1-1 calls relating to a particular incident so when arriving on site they are prepared; those are just a few of the difference that are between the two proposals; and if they were made equal, that savings would not materialize. He stated Replay is a company with a stellar reputation within 9-1-1; they were investigated thoroughly by numerous people within the County; additionally, through the protest process, they heard Synergon won every vote; but the way he has seen it and the way it is on the Agenda Report today, is that three finalists were picked then there was a vote and Replay won that vote, it was overturned due to a mathematical error regarding price, then there was a protest meeting held and separate County Managers came in, and Replay then at post protest, it was sent back for reselection and revote and Replay was chosen again, so they did not see every vote being won by their competition. He stated they have many attributes, which they could bring, but they did not think that was the purpose of this hearing.

Scott Hurley, President and CEO of Replay Systems, Inc., advised Replay Systems is headquartered in Fort Lauderdale, Florida; it is a strong, financially sound, medium size business, and represents Nice recording platforms for 9-1-1 systems; and they have over 100 units in the State of Florida. He stated some of their references are Volusia, Indian River, Polk, Charlotte, Lee, and Monroe Counties; NASA Security, Disney Security, Sea World Security, and Universal Security; and they sell systems to HAT, which is a Brevard County company, for its communication towers. He stated they do an extensive amount of mission program recording business; they have more experience in the business supporting AVCO NINA meetings and associations for the last six years; and they hope to work closely with Brevard County’s 9-1-1 Office and all its communications officers in bringing the best quality, highest technology 9-1-1 recording platform that the industry has.

Gary Bradley, President and CEO of Synergon Solutions, advised they have demonstrated that Synergon is the best possible solution for Brevard County; they have the finest product; technology was never in question; and they have control of its continued development. He stated the hardware is being supplied in Melbourne and the software is developed in Santa Ana, California with input from Synergon Solutions; and they have been intimately involved with Stanzel Corporation since 1996 in doing its support work. He stated Replay Systems has no control over the continued development of their product or if their product would be available in the near future; and it is not only not manufactured locally, it is not manufactured in the United States and comes from the UK or Israel, he is not sure which. Mr. Bradley stated Synergon has the best support; the President of Replay Systems, Scott Hurley, has questioned Synergon’s ability to install and support its own product; and he finds it perplexing as Mr. Hurley is the same individual who called him personally to ask if Synergon would service his systems if he were able to secure this award. He commented why Mr. Hurley did that is because Synergon is first and foremost a service company; they began marketing the product about the same time the bid came out, so they do not have a lot of systems placed in Florida yet; however, they started servicing products for many companies nationwide and some of those products were Replay’s resells, so they had a previous relationship with Replay Systems. He stated being a service company, their reputation is everything; and as a result of that, Mr. Hurley knew that reputation and approached him to support his product because local service and support was a requirement of the bid. Mr. Bradley advised they have multiple service techs, manufacturing, parts distribution, training facilities, and a great desire in Melbourne to secure this award; they are in the best position to install, train, service, and support Brevard County, and have the best price; and there are many unfunded needs for the $114,000 that are better than lining the pockets of a Broward County company or an offshore conglomerate. He stated Synergon won the approval of the selection committee twice; it was only after confusion raised by his competitor and erroneous information supplied to the selection committee that they were narrowly edged out from that position; and even then, three of the committee members still ranked Synergon No. 1, and it had the most points in the raw scores. He stated he believes an injustice is about to occur with the award to Replay Systems and felt compelled to ensure the Board knew the whole story before voting on this item. He stated he hopes the Board will agree with them and support Synergon with its vote.

William Curry, Sales Manager for Nice Public Safety Division, manufacturer of the product that is before the Board today, advised Mr. Hurley mentioned they are the largest manufacturer of recording systems in the world; they have over 24% of the total market worldwide; they have at least 15,000 recorders installed that serve about 30,000 different sites; and in the United States, they sold 800 recorders to public safety alone. He stated they not only do public safety, but call centers, have a large video recording business, and install video recorders in some of the major airports like Miami, Atlanta, Toronto, and Ottawa, and casinos. He stated he is here to support Replay Systems; Nice is the manufacturer and has provided the Board with a letter of commitment for at least five years for the platform; distributors are the life blood of their business; and Mr. Hurley happens to be their distributor in Florida and one of their biggest distributors in the United States. Mr. Curry advised they also distribute through Motorola, Sprint, and others; they have to live with their distributors to be successful; they did $250 million last year; and they have 1,100 employees of which 250 are in the United States and 40 are dedicated to service and technical support besides their distributor net.

Central Services Director Steve Stultz advised the selection committee consisted of the 9-1-1 coordinator, communication managers, supervisors from the Sheriff’s Office, Brevard County Fire Rescue, Indian Harbour Beach Police Department, Melbourne Police Department, Palm Bay Police Department, and Support Services Administrator from Cocoa Beach Police Department; and they recommended the award of the digital voice recording system to Replay Systems. He stated it was a Request for Proposals; proposals were evaluated on 12 criteria by the selection committee; and verification of references and uses of proposed systems in operation similar to the County’s appeared to be factors that heavily influenced the committee’s decision. He stated reference checks were conducted twice during the evaluation period; and in doing so, staff could not verify that Synergon had experience in some instances in installing and/or providing onsite maintenance of the systems being proposed. He stated Synergon could only provide one reference at the time of proposal submission, who was BETA testing one recorder in a PSAP location in California; and Synergon provided only telephone support. Mr. Stultz advised Replay Systems provided the following verified references: Orlando Metro Call Center PSAP, Indian River County Sheriff’s Department PSAP, Holly Hill Emergency Communications System, Lake County PSAP, and Volusia County Sheriff’s Department PSAP. He stated with regard to the use of the systems within operation similar to the County’s, the following information was offered: the committee made site visits for the three short-listed vendors; the Synergon site visit was to their telephone support center with a demonstration of the system; the Replay Systems site visit was to Volusia County Sheriff’s Office with a demonstration of their live system and question and answer period to the PSAP operators; and Voice Print’s site visit was conducted at Gilchrist County Sheriff’s Office with a demonstration of their live system and a question and answer period with their PSAP operators. Mr. Stultz stated staff believes the selection and protest process for this proposal has been conducted in a thorough and professional manner; and given the information presented to the selection committee, staff feels that the committee recommended award to the vendor that has a verifiable history of providing the service to similar size 9-1-1 call centers.

Commissioner Carlson inquired, given that Synergon won the process the first two times, can staff provide enough justification for the $115,000 increase. She stated Synergon tried to provide additional information to fill the gap of some of the questions the committee had; and inquired if staff feels there is still a big gap. Assistant County Manager Stockton Whitten advised staff could clarify the decisions made by the selection committee. He stated first there was a short list of three vendors; the second decision by the selection committee ranked Replay as #1, Synergon as #2, and Voice Print as #3; after the math error, Synergon was #1, Replay was #2, and Voice Print was #3; and after the protest, Replay was #1, Synergon was #2, and Voice Print was #3; so there were three scorings, and Replay won two of those. Commissioner Carlson inquired if the second vote was based on a miscalculation regarding price; with Mr. Whitten responding that is correct Commissioner Carlson stated that is a big issue in terms of the whole effort. Mr. Stultz stated the scoring error involved what Synergon indicated was the inclusion of the second year warranty period in their initial equipment and first year warranty price; and when that was brought to staff’s attention, the price section was recalculated and favored Synergon in the second scoring. Commissioner Carlson stated after the second scoring Replay protested; and inquired if the issues that were brought up at the protest were answered by Synergon today; with Mr. Stultz responding Synergon did provide the list they distributed to the Board and additional references to his office yesterday; and they did have an opportunity to check some of the references again. He stated they contacted Larry Raines, Dispatch Supervisor with Pomona Police Department who indicated the logging recorder system they currently have installed is a Stanzel analog system, which is not a 10-4 system that Synergon is proposing; they indicated the system was installed four or five years ago; and he was present at the installation, but was not sure if it was Stanzel or Synergon that installed it. Mr. Stultz stated Mr. Raines believes Synergon is providing onsite support; and indicated, on previous contact with their office on references, he was not sure if the sergeant who was originally contacted had different input because he is on a different shift. He stated staff also contacted another reference, R. B. Hayes, Tupelo Air Traffic Manager, was the contact person; he did indicate they had a 10-4 system installed April 2003 by Synergon, onsite support is provided by Synergon, it took two days for completion of installation, and training was very good. He stated Telamet County Emergency Communications District 9-1-1 dispatch center administrator in Telamet, Oregon was contacted; he indicated they have a Stanzel 10-4 system, but as far as who installed it and provides onsite support, he only had a name of Mark Enfield which was referenced on a Stanzel invoice, and he could not specifically answer whether Synergon installed the equipment or provides onsite service or provided any other service for the logging recording system. He stated the Administrator did not know what Synergon’s involvement has been and that Stanzel was awarded the contract for the equipment. He advised they contacted the airport operations officer at John Wayne Airport in California who indicated their recording system was upgraded to Stanzel 10-4 on April 22, 2003; Stanzel had the initial contract; he was present when it was installed and believes it was Stanzel Corporation that did the installation; and Synergon provides the onsite support. Mr. Stultz stated Miramar Fire Department dispatch supervisor indicated they had a Stanzel 10-4 recorder in use; the equipment was installed in October 2002; Synergon installed the system and provides onsite support; the contract was with Stanzel; and Synergon provides onsite maintenance. He stated the system had a problem eating disks, but the problems were resolved after about two weeks, and no down time problems have recurred since. He stated since they just got the list yesterday, those were the only references they were able to contact. Commissioner Carlson stated Synergon is home based in Melbourne and Replay is elsewhere; and inquired how important does the committee rank local support and what kind of support is the County going to get based on the proposals that came in from Replay and Synergon; with Steve O’Conor responding the RFP requires two hours maximum response time if there are software or hardware failure; and that is a requirement for any successful vendor. Commissioner Carlson inquired if staff can embellish on telephone support; with Mr. O’Conor responding Synergon maintains a telephone support center here; and from review of their references on the west coast, they appear to be the telephone support center for Stanzel Corporation. Commissioner Carlson stated the question that seems to pop up is Synergon versus Stanzel; they are a partnership of sorts; and inquired who would be executing the contract if Synergon got the award; with Mr. O’Conor responding Synergon. Commissioner Carlson inquired if Synergon would install and support the system locally; with Mr. O’Conor responding that is his understanding. Commissioner Carlson stated she met with Synergon folks in her office and brought up a lot of questions; there was a question about the site being a BETA site and inquired if that was clarified, as Synergon made it clear to her that it was not a BETA site and that is why they provided so much information today. Mr. O’Conor stated at the time staff did the review with the vendors, he understands that the 10-4 recording device was in BETA; it appears that since that time additional units were installed; and they considered that and it was apparent to the committee, but they also considered the history and existing installations of Replay Systems in neighboring Volusia County, which gave it a very favorable recommendation. He noted Volusia County is of similar size and has similar number of PSAP's, which are close to the County's scenario; and he felt comfortable with the ability of Replay Systems to deliver what they propose. Mr. O’Conor stated apparently Replay has done installations not only in Volusia County, but as they indicated earlier, a hundred plus installations in the State of Florida; they appear to have a proven track record; and in the case of New York City, Nice handles 10 million calls a year, so he feels comfortable they can do the job in Brevard County. Commissioner Carlson stated she is not sure she was presented enough information to make a decision; Synergon was ranked first two times by the selection committee; and she does not see the $115,000 difference. She stated having Replay within the State would be an advantage because staff did go to Volusia County to see the operation first hand; it would also seem to her to be a huge advantage to place Synergon first during the first two votes; so she wants to know if it is worth $115,000 to go with Replay. Mr. O’Conor stated pricing was one element of the bid; the biggest pricing difference he could determine was the RAID 1 proposed by Synergon Solutions, which is basically mirrored hard drives versus the RAID 5 proposed by Replay Systems, estimated to cost between $84,000 and $120,000. Commissioner Carlson inquired what is the difference in technology; and stated the Board needs to understand what the number is, what it stands for in terms of level of technology, and if it is something the County really wants. Mr. O’Conor stated Synergon indicated for some critical applications the extra cost of RAID 5 is warranted; and Brevard County has mission critical applications. Commissioner Carlson inquired if that is in the Synergon proposal, they are suggesting RAID 5 would be something the County would want, but they are offering RAID 1; with Mr. O’Conor responding that is correct.

Commissioner Pritchard stated the audience would like to know what PSAP and BETA stand for; with Mr. O’Conor responding PSAP is public safety answering point; it is basically a 9-1-1 call center; that is where 9-1-1 calls are routed to and where the recording devices will be installed; and a BETA is a unit that is under testing to trouble shoot to determine if there are any bugs. He stated Brevard County is a BETA site for another software product it is testing; it has not been sold elsewhere; and staff is evaluating it and determining if the product would suit the County’s needs. Commissioner Pritchard stated he has an issue with the $114,300; he spoke to Mr. Hurley from Replay on the phone on Friday and met with the gentleman from Synergon; he asked the question what is the difference for $115,000 more; and he said $116,000 worth of extras. He inquired, if the higher level is what Brevard County wanted, what is it willing to pay to Replay, why did they not ask for it in the RFP, and why are they now somewhat second guessing. He inquired if Synergon had the opportunity to provide the same extras, what would it cost the County; and noted he is having a problem comparing apples to apples. Mr. O’Conor stated this is an RFP and not a bid; and as a result, they allow multiple vendors to give them proposals of what they have to offer so they can evaluate the products one against the other; and determine who can give them the best product that will best suit the needs of the answering points at a good price and the needs of the cities that they partner with to provide 9-1-1 services. Mr. O’Conor stated they take everything into consideration, including the multiple criteria; and the committee reduced it to one recommended vendor, and that is Replay Systems.

Commissioner Pritchard stated Mr. O’Conor said Replay is offering RAID 5 and Synergon offered RAID 1 and said RAID 5 is a better application; with Mr. O’Conor responding that is what was indicated in Synergon’s proposal. Commissioner Pritchard inquired if staff knows what the increase in cost would be for Synergon to go from RAID 1 to RAID 5; with Mr. O’Conor responding he cannot speak for Synergon, but based on his knowledge, it would range from $84,000 to $120,000. Commissioner Carlson stated the point is they were not asking for a RAID 5; they offered what they had, and the other group offered what they had; and there is a $115,000 difference. Commissioner Pritchard stated if Synergon can offer RAID 5 for x amount more, he is interested and would like to compare apples to apples to get the best value for the County and give the taxpayers the most for their investment. He stated the RFP was broad-based; the County was offered two things so it does not have apples to apples to compare at this point; if Synergon can offer RAID 5 for $84,000 to $120,000, then it will begin to talk apples to apples; and inquired if he can ask a representative of Synergon what it would cost to go to RAID 5. The Synergon representative stated he cannot answer that right now because it is the first time he has heard about it; and had he heard about it six months ago, it would be something they could have addressed. He stated he cannot agree to anything right now without looking at the book.

Commissioner Higgs stated the Board is not in the position to change the proposals made by the vendors; with County Attorney Scott Knox responding that is correct, and if the Board wants to go to RAID 5, it would have to re-bid the project. Commissioner Higgs stated if the Board allowed one vendor to change its proposal, it would find itself in a difficult position; and it can accept or reject all proposals at this point, but it cannot change them. Commissioner Pritchard stated the Board could accept Synergon’s proposal at RAID 1 and offer to upgrade it later; but the problem is it does not know what the cost of the upgrade would be.

Commissioner Carlson stated when staff goes out for proposals and are not specific in terms of technology they want, it is a problem; they are not asking for the best technology or what they think is the best at the best price; and that is a flaw in the process. She inquired if any thought was given to the actual technology they are using as far as what is out there and what is the best the County should use. She inquired, by talking to folks close to the County, were they talking RAID 5 as the best to go with it; and if so, why was the RFP not laid out that way.

Information and Communications Systems Director Gino Butto advised if the Board looks at the process staff has gone through and how many months they have been working on it, it will have a perspective as to the potential of change in the industry; most of them realize it, especially the technology area is changing all the time with additional upgrades to certain solutions; they propose new technology that has not been considered, not only by Brevard County but also by the individuals who made proposals; and as Synergon mentioned this is six months old and even they, in that amount of time, did not consider the RAID 5. He stated they understand their needs and represent the needs of the County; they know the financial situations of what they can do and from a functional standpoint, they can prepare the RFP; but they are not experts in a lot of the very detailed configurations and designs in those different areas to be able to request specific things, which is why they go to the experts in the field and ask them to tell the County what they have in the industry, since they have experience installing those systems in similar counties and organizations and understand what the County needs from a functional standpoint. He stated it will put the County in a situation where it is not always comparing oranges to oranges, but that is where the negotiation process comes in and why they do not just pick one vendor and why they narrow it down and make them closer to similar proposals.

Mr. Whitten advised the RFP asked for a minimum RAID 1; in the proposal process, some companies provide additional products; he thinks RAID 5 is Replay’s baseline product and happens to provide more storage; RAID is actually a storage issue; and their product provides more storage than RAID 1. He noted Replay is saying their standard product is RAID 5. Mr. Butto requested a representative from Replay could respond. The representative stated he does not know what RAID stands for; it is an acronym; it is a technology that basically has eight hard drives in it; and it is meant to protect critical data. He stated as the County has those recordings, they are written to eight independent hard drives so they have almost a 5-9 level of operation; and they included RAID 5 because public safety is their core business. He stated they understand that all the PSAP’s in the State and all the 9-1-1 centers want to move away from removable medium that started out as reel-to-reel tapes; it has gone to DVD and now it is getting to medium less; and based on their experience, they built the system above the RAID 1 specified because it gives much benefit over the cost of the system as there are no consumables and no man-hours going in and switching tapes and re-circulating tapes. He stated it has a 60-day retention of the recordings; if the County violates that, lawyers can take it to court and say there were recordings over 61 days and why was his client’s recording no longer there; so the County has to adhere to its records policy and this system allows it to do that without a tape being somewhere on a back shelf without violating its policy; and that is why they elected to give a much more robust system knowing the requirements of PSAP’s and having sold so many. He stated the difference is five years; it is not a one-time purchase; it is the maintenance difference over the next five years; so the purchase difference is much smaller.

Chairperson Colon inquired if the representative feels the $115,000 difference is not necessarily the fact that it went to RAID 5 or the fact that it was pro-rated into five years’ worth; with the Replay representative responding the difference in value can show in the RAID 5; and if they take out the RAID 5 and go to RAID 1, it would be $9,700. Mr. Whitten advised RAID stands for redundant array of inexpensive disc drive.

A Synergon representative stated it is important to note the difference between RAID 1 and RAID 5; Synergon proposed RAID 1 because of its higher performance; and RAID 5 has a higher capacity with a small sacrifice to performance. Commissioner Pritchard inquired what is the historical and current relationship between Synergon and Stanzel; with a Synergon representative responding Synergon was started as a service and parts company; in 1996, Stanzel approached them to do their service and support; they decided to outsource those activities; and since 1996, they have been the 24/7 help desk for Stanzel and users as well as their dealer organizations. He stated last July or so they signed an agreement with Stanzel to start distributing their product east of the Mississippi and to manufacture their product for delivery not only to the sales they make but also to their other dealers who are east of the Mississippi; and they would bolt the software, build the systems in Melbourne, and ship them out. He stated they have done a good job of that and as a result recently signed an agreement that they are now the sole supplier of all Stanzel hardware for the United States, Latin America, Europe, and so forth. He stated they have brought the companies closer together; but up until about the time the RFP came out, most end users did not even know who Synergon was because their core business was supporting high end RAID systems and servers all over the country. He stated many systems are in critical government installations for other companies, so they are transparent to the end user; when a Winchester Systems customer calls the Winchester 800 number, Synergon employee answers the phone; that customer has no idea they are talking to Synergon; and when they put people on site to install systems, they go on behalf of Stanzel Corporation. He stated over the course of the last six to seven years, they brought the companies closer together; they have several direct employees in California and their office is in the Stanzel headquarters; and that is where their Santa Ana office is located. He stated they proposed RAID 1 for a reason, because of performance; but if the County wants RAID 5 instead of RAID 1, they will provide it at the same cost. He stated they did it for performance versus storage; but if the County wants it switched, it is not an issue with them.

Commissioner Scarborough stated several years ago the County went out for a new software system and chose SAP; he found that those not acquainted with the system was enormous; it is dangerous for the Commissioners to become educated on this system in several hours; and he would feel more comfortable going back out with a more defined RFP or accept staff’s recommendation because anything else has a lot of risks. Commissioner Higgs stated when the Board dealt with SAP acquisition, it had a number of conversations before the Board and it went back; and inquired if Commissioner Scarborough sees any value of this process going back to the committee to review additional information that they have. Commissioner Scarborough stated he became very frustrated with some of the Commissioners at that time because the level of knowledge of participants at staff level and where the Commissioners were responding was an apparent information gap that was threatening a good decision; and he shares that not out of disrespect for the Board at that time. He stated if the Board wants to send it back it could have a Commissioner assigned to work with staff so it can have a level of comfort; but he does not have a level of comfort getting into an analysis of the particular operations at this juncture; and the Board may put itself in less than the best posture.

Commissioner Pritchard stated he has participated in a lot of RFP’s and drafted bids and RFP’s so he has a good idea of the process, but know things change along the way, especially in high- end technology. He stated the CEO of Synergon offered RAID 5 at no additional cost; and inquired if the County can accept that without having to go back out for bids. Assistant County Attorney Terri Jones advised that would be changing the proposal, so the Board cannot accept it; it can reject all proposals and go back out to bid, but it cannot allow a vendor to change a proposal as it would not be fair to the other vendors if they are not allowed to change theirs as well. Commissioner Pritchard inquired if the Board can accept the RAID 1 and a month later install RAID 5; with Ms. Jones responding that is a difficult question because the Board would know that is what it would be asking to change. Commissioner Pritchard stated he is back to where he has been the entire time and that is the $115,000 difference; he appreciates the expertise of the committee, but is not satisfied with the $115,000 difference; Synergon has strong points; and it is a Brevard County company, supports Brevard County, and has the lower bid with a system it is justifying as being an excellent system that offers all the components that the County would look for in a recording system. He stated they have offered RAID 5 at the same price as RAID 1, so if the Board cannot do anything other than re-bid, that is where it is; and inquired if Commissioner Scarborough wants to make that motion.

Commissioner Scarborough stated he has served as well on a number of panels reviewing proposals; and he would like to see Commissioner Pritchard on this panel as the Board’s representative, as this is one case where he would feel more comfortable having a Commissioner on that committee. Commissioner Pritchard noted he would accept that assignment.

Commissioner Higgs stated she has to put on the record that she talked to representatives of both companies; she is concerned the Board is making a decision based on technology it is not fully in a position to evaluate at this point; it heard representatives talk about performance and storage; and she is not sure which capability the Board is giving up by going with RAID 1 or RAID 5. She recommended sending it back to the selection committee to evaluate the information Mr. Stultz gathered in the last day or two, and a recommendation be brought back to the Board after the committee review any current information that may affect how it wanted to vote. She stated there has been new information the committee did not have; whether that would change the vote, she does not know; but she would have real concern about changing the specifications and make a decision based on that. She stated she does not know the full implications of the storage and performance capabilities of those two issues.

Chairperson Colon inquired if Commissioner Higgs would support sending it back to the committee; with Commissioner Higgs responding that would be the proper thing to do if they want to make a recommendation to go back out to bid, she would like to hear from those professionals who have been dealing with the different states of the technology as opposed to what she has been presented by the marketing people trying to get the County’s business. Chairperson Colon stated she feels uncomfortable with the difference in price; and inquired if it would be easier at this point to have bids, as staff should know exactly what they want and are more knowledgeable now.

Commissioner Carlson stated she agrees, because it would be difficult to do a new RFP process from a legal perspective that would put both groups at odds with one another; they were competing to begin with, but now there is a lot of information out there. She stated she has no idea if that makes a difference and would agree with sending it back to the committee to look specifically at local support and performance measures because a lot of times, when things are marketed, they market a thoroughbred when the County does not need a thoroughbred. She stated the County needs upgrades to get faster and higher performance, efficiency, and things like that, but it may be buying something it does not need. She stated they said RAID 5 was for higher quantities of calls coming in and eight drives versus two drives; and the Board needs to make sure what it buys is what it really needs right now. She inquired, considering what Synergon said about RAID 5, is that truly where the County wants to be. She noted the committee should look at the new information and make a better decision and bring it back.

Chairperson Colon stated it is not a small contract; it is for half a million dollars; and that is why the Board is being careful about how it votes.

Mr. Knox stated if the Board is going back out to bid, one alternative is to bid the RAID 1 and the RAID 5 and see what it needs when the bids come back.

Commissioner Higgs inquired, if the Board sends it back to the committee to evaluate the new information that was given to the Board today and come back with a recommendation at the next meeting, is there any problems with that; with Mr. Knox responding he sees problems to the extent they come back and decide to change it. Commissioner Higgs stated that could get the decision to reject all proposals and go back out; with Mr. Knox responding the Board would be better off to put it back out than to come back with a change of the committee’s mind. Commissioner Higgs stated if the Board sends it back to the committee to reevaluate any data, it has not lost anything because it can still make the same decision. Mr. Knox stated they may have it sent back to them and they come back with a recommendation to go out for bid again, because he does not see the committee changing its mind at this point.

Motion by Commissioner Higgs, to send the recommendation on award of Proposal #P-4-02-32, Digital Voice Recording Systems, back to the selection committee for further evaluation and recommendation.

Chairperson Colon inquired if Commissioner Pritchard will be on the selection committee; with Commissioner Higgs responding she is not asking for a new committee at this point, just to send it back to the existing committee. Commissioner Scarborough inquired if the motion is not asking for reevaluation but recommendations on how to proceed; with Commissioner Higgs responding she wants the committee to look at the information that may have been gleaned that was presented to the Board today and see if it wants to make additional recommendations to the Board. Commissioner Scarborough inquired if the recommendation is on the order of award; with Commissioner Higgs responding she is not going to limit the committee. Commissioner Scarborough stated Mr. Knox expressed concern discussing it further as opposed to giving the Board a recommendation on how procedurally to go forward. Mr. Knox advised he does not have a problem with the committee looking at it and coming back and saying it needs RAID 1 versus RAID 5 for example, or go with the original proposal, or need 5 instead of 1, or need to go back out for bids; but if the Board wants to go forward with a decision of one of the vendors, it will have to decide that as a Board because he does not see the committee changing its mind at this time without going back out for bids.

Commissioner Carlson stated a problem would occur if the committee reviews the information and feel Synergon is the one the Board should vote for, and changes it; that would leave the Board open to legal challenge; so the best thing to do is put it out again.

Commissioner Pritchard stated if the Board does not put it out again it will cause additional delays and create more problems, so it needs to reject all the proposals and re-bid the project. Commissioner Carlson stated they should start from scratch and Commissioner Pritchard be on the selection committee.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to reject all proposals for Proposal #P-4-02-32, 911 Digital Voice Recording System; and direct staff to bid the system.

Commissioner Carlson inquired if it will be put out as RFP or bid; with Commissioner Pritchard responding he would feel more comfortable with a bid. Commissioner Carlson stated that is fine with her. Commissioner Higgs stated they have to decide what they are bidding. Commissioner Carlson stated Commissioner Pritchard will be on the committee. Commissioner Higgs stated she does not see the need; the committee is going to do the specifications; it is going out for bid if the motion passes; but she supports sending it back to the committee for an evaluation of what they currently have. Chairperson Colon requested Mr. Jenkins explain to the Board what it is doing; with Mr. Jenkins responding it is going to include Commissioner Pritchard on the selection committee, take the proposal and change it to a bid concept, and be more specific in terms of specifications. Commissioner Scarborough inquired if staff is able to turn it into a bid; Mr. Knox suggested bidding RAID 1 and RAID 5; but if staff has a strong preference, it could be bid one way. Mr. Jenkins responded it should be bid out one way; and inquired if staff can convert it to a bid; with Mr. Whitten responding they can go with a bid concept easily and ask for bids based on price. Mr. Jenkins stated it would have more specifics. Commissioner Scarborough inquired if staff has a preference; with Mr. Whitten responding it should be bid both ways.

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

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to appoint Commissioner Pritchard to the selection committee for the digital voice recording systems bid. Motion carried and ordered; Commissioner Higgs voted nay.

Commissioner Pritchard stated he mentioned Synergon a lot today, but he was not trying to discredit Replay Systems; it is a good company; but he wants it to know the Board is doing it in the best interest of the taxpayers and hopes both vendors recognize that.

The meeting recessed at 12:11 p.m., and reconvened at 1:15 p.m. for an executive session and lunch.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE:
ORDINANCE GOVERNING AMATEUR RADIO OPERATORS’ ANTENNAE AND
SUPPORT STRUCTURES

Commissioner Scarborough advised this is the legislative intent; the Board has been given four options; and recommended Mr. Enos explain the options for the audience, then speakers can advise the Board which option they prefer.

Zoning Manager Rick Enos advised the Agenda Report proposes four options; there are permutations to each of the options; and the four options are: (1) exempt all licensed amateur radio operators’ antennae and support structures; (2) exempt all licensed amateur radio operators’ antennae and support structures up to 70 feet, and permit with conditions above 70 feet; (3) exempt all amateur radio operators’ antennae and support structures up to 70 feet in height, and require a conditional use permit (CUP) above 70 feet; and (4) continue to require a CUP for all antennae and support structures over 35 feet, which is the current Code, but eliminate the required site plan, which is one of the major expenses of the CUP. Commissioner Scarborough requested Mr. Enos explain the difference between permitted with conditions and conditional use permit; with Mr. Enos responding the basic difference is that with a conditional use permit, they must make application for public hearing and the application is similar to a zoning item; the Board of County Commissioners can approve or deny it if the Board feels it does not meet the conditions of the CUP and is not consistent with the character of the neighborhood; whereas permitted with conditions is an administrative effort to indicate whether or not the application meets the conditions; and the conditions are measurable conditions and are not a discretionary thing, so either they meet the conditions or they do not.

Commissioner Pritchard inquired if there is a cost to the applicant to seek a permit with conditions or a CUP; with Mr. Enos responding for the CUP the cost is $941 for the application fee and associated with that is a required site plan, which can vary in cost. Mr. Enos stated it is not a County fee but what an engineer charges to prepare a site plan; and there was a quote of $1,700 so that is over $2,600 in fees and costs for a CUP. He stated for the permitted with conditions, there is a fee of about $277 for administrative review.

Chairperson Colon advised the Board has already heard the testimonies how important amateur radio is; it would like to hear which option the public prefers; and requested they stay focused and give the Board some guidance on the different options.

Robert Osband, Vice President of Titusville Amateur Radio Club, stated if they are not allowed to have antennas, they will probably sell their radios and not be around to help the County when it needs them; they would like to continue to help the Board; and recommend Option 1, which would exempt antennae and structures. He stated looking over historical data, he finds that 35 feet was the height of a fire department’s ladder and the height restriction of buildings because it was as high as the fire department could protect the buildings; with their antennae they do not have expectations of the fire department helping to save those structures should there be a fire; so the height restriction seems to be manufactured from the old fire department regulation of decades ago. He stated he sees no reason for it and hopes the Board follows Option 1 to exempt all federally licensed amateur radio operators.

Ron Wiesen stated he would like Option 1 implemented if it could be, but would prefer it be broadened because for every licensed amateur, there are perhaps 12 to 15 who are not licensed and engage in communication of a receive only nature. He stated those people would not be exempt under the current Option 1; there are many who listen to short wave radio for the purpose related to general service, including folks who do it for their own pleasure; and requested the Board see fit to include them in Option 1. He stated the attachment from staff show some in surrounding counties where receive only antenna structures are exempt.

John Link stated any tower height restriction would degrade amateur operators’ ability to communicate successfully in Brevard County, which is 75 miles long and 20 miles wide, and in other states during disasters, tornadoes, hurricanes, and terrorist attacks. He stated amateur radio operators provide emergency services for the Red Cross, police and fire departments, hospitals, and medical services agencies; and he has petitions for each Commissioner and would like to give them to the Board. Mr. Link presented petitions to the Board but not the Clerk.

Robert Farrington advised he was a pilot of an airplane that crashed several years ago; there were witnesses who saw him go into the forest; and no one could find him until a volunteer showed up with a radio direction finding device. He stated the only reason he knew how to operate it was that he practiced with it on a regular basis; and he found him and two other people in the wreckage of the aircraft. He stated that is the basic point they are trying to make; they cannot be of service to the County in an emergency unless they are allowed to exercise their muscles during the remaining portion of the year; and communication just in Brevard County is not always as important as calling in help from the outside. Mr. Farrington stated Option 1 would give the amateur the widest range to experiment and optimize his or her equipment and provide a voice for Brevard County emergency services.

Greg Turnquist advised Option 1 exempts all amateurs and would be the proper approach; the CUP is lengthy, expensive, and a challenging process; the other has a $277 fee; and for a citizen on ten acres with four antennae, it would be over $1,000 in fees and would be detrimental. He stated the County regulation would not interfere with the homeowners association’s regulations that are added to it; and it does not interfere with cities’ regulations because they have their own zoning restrictions. Commissioner Higgs requested Mr. Turnquist explain the large parcel of land with three to four towers that he mentioned; with Mr. Turnquist responding there are amateurs who communicate on different frequencies for different behaviors, so it is common to build a different antenna for the different structures. He stated he does not live on ten acres, but there are many that would have the circumstances he described. Commissioner Higgs inquired if the Board needs to anticipate there may be a desire for multiple towers; with Mr. Turnquist responding yes.

Raymond Kasis stated he is the emergency coordinator for the amateur radio emergency service and for the radio amateur civil emergency service, which is direction under FEMA through the County. He stated on behalf of several hundred amateur radio operators who assist the County during emergencies, 35 feet is not enough to provide good communications; the amateur radio operators with their towers also have backup power and good equipment so that communication can be made; and they render a public service at no charge to help the County in the way they do. He stated he is in favor of Option 1 to let people have the opportunity to serve the community and the County.

Chairperson Colon requested speakers to focus on the options and give some footage and reasons on the height of the towers and antennae. Commissioner Pritchard inquired if it is possible to put multiple antennae on the same tower; with Mr. Turnquist responding that is an option, and there are certain towers that different groups share. Mr. Turnquist stated he does not want to buy an expensive tower to set up an antenna, but he has 70-foot oak trees and a large lot; so he climbs the trees and raise the antenna, but it would violate the current Ordinance. Commissioner Pritchard inquired if they can put multiple antennas on one tower; with Mr. Turnquist responding yes.

Dr. Eric Smitt advised he holds an amateur extra class license; besides working in disaster relief areas, his main interest in the hobby is d-xing and contesting in antenna design; d-xing is part of the hobby which is involved in communicating with amateur radio operators throughout the world; and political values end and amateur radio operators become part of an international fraternity. He stated there are over 340 countries; he has communicated with about 335 of them in the past 45 years; and efficient d-xing or communication requires sufficient antennae. He stated d-xing is affected by the 11-year sunspot cycle; as the cycle goes through its low end, it becomes more difficult to communicate great distances unless they have antennae up fairly high; his antenna is 80 feet and his friend in Melbourne has a 45-foot and never heard the station from the former Soviet Union; so just the height difference matters. He stated they are heading towards the low portion of the sunspot cycle where antenna height is most critical; contesting is another aspect which he participates in; it is competition with other amateurs through the states and the world to contact the largest number of people and countries in a given period, such as 48 hours; contesting enhances communication skills; it makes them better at disaster preparedness; and it requires efficient antennae systems as well as efficient radio transmitters and receivers. Dr. Smitt advised he lives on a third of an acre in Indian Harbour Beach; he has a tower that is 80 feet with the top antenna at 105 feet; his second tower is 45 feet with the top antenna at 52 feet; and the purpose of that is to enhance where he is trying to communicate. He stated the height factor affects where they go to and how far they get; a 45-foot antenna is great for the Caribbean or South America, but it is ineffective for Australia and Asia; and they can put multiple antennas on one tower or put up multiple towers, which he has. He stated he belongs to a contesting club; there are about 150 people in the club; it is called Florida Contesting Group; the world champion is a member of that club; and no member of the club has an antenna system with a tower higher than 195 feet. He stated the average height of the towers in the club is 140 feet; and he has a smaller tower at 105 feet. He stated amateur radio operators invest a lot of money in their towers; they do not want them to come down, so they put something up that is fairly strong; and typically they service their antennae, which means they climb up the towers. He stated they would not install a tower that would fall over with the slightest of winds; his tower is rated for 110 mph winds; and beyond that, he does not know how much of his neighborhood would be standing if the tower came down, so it is a moot point because everything will be damaged at that point. He stated towers over 195 feet have to be lit according to FAA regulations or if the antenna is in the glide slop they have to cut the height down; his recommendation is Option 1 with no restrictions; and requested the Board not hurt those people who want to do high frequency communications in a competitive nature, and let the amateur put up the tower he can afford, what his land would support, and which will be safe. Commissioner Higgs inquired what does Dr. Smitt mean what the land would support; with Dr. Smitt responding he has a self-supporting tower so he does not need guy wires; his tower has 58,000 pounds of concrete holding it up; but if they put up a 125-foot tower, they would need guy wires, which would take up other areas of land.

Jim Hagan stated he supports Option 1; the main issue is safety of the tower; and if a tower is installed with good engineering practices, safety should not be a problem. He stated every tower manufacturer provides instructions of how to do that in a safe manner; some even have handbooks that cover various towers and various heights and how to guy them; and if a tower is installed as recommended, safety should not be a problem. He stated prior to cable television, almost every house had an antenna at least for 40 feet; so the Board needs to consider the receive only antennae used by hobbyists and for television reception. He stated if it does not, people will be forced to go to cable and that is not the right way to go.

Stephanie Phillips stated she deals with emergency communications and how they fit into homeland security; Brevard Emergency Amateur Radio Service (BEARS) has a 40-foot telescopic tower that flops down, and a flip over tower they can haul on a trailer with a 5KW generator to use in the event of an emergency; it is a very simple practical structure; but if she installed it on her property, she would have to buy a permit. She recommended the Board approve Option 1 with no restrictions on federally licensed operators because it is important that those of them who provide emergency communications have towers or structures they can use after an event or before an event. She stated in the Midwest section of the United States, a lot of people were on the air prior to the storms hitting and lot of them had towers over 40, 50, and 60 feet; the height of the towers is determined by the obstructions in the area; they need to get above trees to communicate outside of the County or to the far end of the County; and if something happened in central Brevard, the north and south ends would be communicating to assist. Ms. Phillips stated they could not communicate with 40-foot or 70-foot towers; they have to ask someone to crank up a tower to 120 or 140 feet; and those crank-up towers would fall under the Ordinance. She requested the Board consider Option 1 with no limits on federally licensed amateurs other than federal regulations. She inquired if the storms that ravaged the nation’s Midwest had come through Florida and they lost the tower in the center of the County, would their volunteer communicators have the resources to provide effective communications to all responders during such disaster, and would they have the assets to clear surrounding obstructions, or would their responses be limited by the County’s restrictive Ordinances and expensive permitting fees. She requested the Board consider those fees because they are high. Ms. Phillips stated she teaches amateur radio to children and get donated equipment for them; she helps them build their first antennae; most of them put antennae on their roofs; and they get involved in the community and provide community services. She stated if a child wants to experiment with a higher antenna above 35 feet, the County has restricted that child from involvement in homeland security efforts; and requested the Board consider exempting federally licensed amateur radio operators from the Ordinances.

Chairperson Colon stated not any child can do that; they have to be federally-licensed; so Ms. Phillips should not say that any child can do it and send the wrong message to the community. Ms. Phillips stated not any child can put up an antenna, but they are interested in what is going on in the amateur radio community and talking to people all over the world. Ms. Phillips stated the Board should be interested in getting more youngsters involved in community volunteer spirit and not limit them by making it too expensive for them.

Norman Wilford stated it is important to get young people interested in amateur radio; they are future engineers; a lot of people at NASA got their start in amateur radio; and requested the Board help those young people get started and stay the regulations.

John Weatherley advised he is a retired electronics and communications engineer, and was led into that profession by being interested in HAM radio when he was a young boy; he has been licensed in six countries around the world; has a tower 75 feet tall; and that suits his situation admirably; however, there are those who desire or need towers higher than that for their diverse interests. He stated the Board needs to understand that amateur radio has tremendous diversity; some are interested in very high frequencies, and others are interested in worldwide communications; most astronauts are amateur radio operators; and every member of the ill-fated Columbia were operators. He stated there is a fixed amateur radio station on the international space station, and there is always an amateur radio operator there; they do not need very high towers to communicate with the spacecraft; that is the only facet of amateur radio where they do not need antennae high in the air; but virtually every other system needs antennae high above the ground. He stated the hobby is so diverse that all of them have different interests; some are interested in communicating by voice, some by Morse Code, and some by various forms of computed data; and their needs dictate different types of antennae at different heights. Mr. Weatherley advised in 1992, he led the County’s communications team from Melbourne to South Florida when Hurricane Andrew went through; they established a communications link from Homestead during the first week, even for the U.S. Army; and they established a high speed data link and were able to leapfrog their signal on very high frequencies from tower to tower all the way up the east coast of Florida using repeaters of various amateur radio clubs into their 80-foot tower at the Red Cross Building in Melbourne. He stated if the stations along the coast were limited to 35-foot towers, they would not have been able to establish that system; therefore, he would recommend Option 1.

Don Winn advised he participated in a number of emergencies in Brevard County, including the collapse of the Harbor Cay condo and Hurricane David; and in 1992, he was part of the team that went to Miami where they lost all their communications. He stated a lot of amateurs have spent a great deal of money for their equipment to provide the County a service; they maintain their equipment, train operators, and provide the best emergency communication they can at no cost to the County; and they need the Board’s help to ensure they have proper antennae and towers. He encouraged the Board to approve Option 1 and provide the best communication service to help the County.

Carl Scheuplein recommended approval of Option 1 and stated anything that removes restrictions on amateurs will be beneficial. He stated he does not see how the Board can consider Option 4, as amateurs spend thousands of dollars on equipment that is not subsidized by anyone and give a lot of time in emergency situations. He stated they provide a great service; and the Board must do what it can to enable them to continue doing that. He stated the fact that they provide communications for the County makes them extremely important.

Tim Madden advised he purchased a home in the County with over one acre of land to build his radio station and settle down; his wife and son are also operators; and they support Option 1. He stated they often put multiple antennas on one structure and in many cases that works fine; Commissioner Higgs used the term tower; he drove up I-95 and came by a tower, which is a big structure along the highway; their antenna support structures called towers are no where near the size and scale of those structures; and their support structure may be 40 or 50 feet, but the antenna sticks up above that. He stated the antenna installation he is planning includes three sites; one is a tower of 64 feet that would have a small mast and skinny antennae sticking up at the top, which would brush off at 87 feet; he has three antennae, two exceed 35 feet and one is an aluminum pole next to the house at 47 feet to the top and hard to notice from the street. Mr. Madden stated Option 1 is a winner; Option 2 is arbitrary and the CUP is prohibitive price-wise and would price them out of the business. He stated Brevard County is his home of choice and he would hate to have something like that tarnish it for him.

Curt Lorenc advised presently there are 4,000 amateur radio operators in Brevard County; they are also voters; Brevard County should be aware and follow State and federal laws; and presented copies of a House Bill regarding amateur radios to the Board, but not the Clerk. He stated the highlighted part of the bill says, “prohibiting counties and municipalities from enacting restrictive ordinances against amateur radio”; so the Board cannot do that. He stated Section 1 says, “no county shall enact or enforce an ordinance or regulation which fails to conform to the limited preemption”; basically FCC, sent it down, but it does not stop there. He stated Florida Statutes mimic some provisions of the federal preemption; Section 125.561 states, “no county shall enforce or enact any ordinance or regulation which does not conform to the limited preemption”; and the Board must carefully craft the regulation and use the minimum amount of regulation. Mr. Lorenc stated the new tower ordinance violates the law; the Cities of Melbourne and Palm Bay exempted amateurs from height restrictions and have had no complaints; the Minutes of 1998, when he informed Brevard County regarding the federal preemption and State law regarding towers, County Attorney comments state he has no problem exempting HAM radio operators; then there was a motion that carried unanimously to exempt amateur radio operator towers, so how the Board got to today he is not sure, but he wanted to bring that up because he does not think the County had any problems since the exemption in 1998. He stated the law requires the Board to reasonably accommodate amateur radio operators; that means every amateur will be different and the height to maintain communications will be different; so the Board does not want to get into setting a height restriction. He stated there are 22 volunteer counsels who are HAM operators in Florida and take those cases; the case law is overwhelming; the amateurs for a change are winning just about all the cases; and attorney fees assessed against the town at $60,000 and another at $13,800. He stated the judge basically exempted amateurs from the tower ordinances and future tower ordinances; with the terrorist threat facing the nation today those individuals provide a free important service; and they need to be exempt as noted in Option 1. He stated he plans to do a mailing to those people at election time to support Commissioners who support amateur radios.

Chairperson Colon stated based on the paperwork Mr. Lorenc gave the Board, that is if the County was going above what the FCC has said about antennae and so forth; it says, “any ordinance or regulation adopted by a municipality with respect to amateur antenna shall conform to above cited limited preemption”; and that allows counties to put ordinances in place. She stated Volusia County has a restriction on height and it is allowed; so counties are allowed to put ordinances together but cannot go above what the FCC has put in place. Mr. Lorenc stated if the Board wants to set a ceiling for 1,200 feet, he does not think there would be any complaints; and as far as an ordinance that is passed, everything is legal until it is challenged. He stated the Board has a 35-foot height restriction right now; it is legal and in place; but if it is challenged in court, it would not hold up. Chairperson Colon stated she is not talking about that; she wants to make it clear for the folks at home to not think the Board does not have a right to put an ordinance in place regarding amateur radios. Mr. Lorenc stated it says the Board has to reasonably accommodate the amateur and use the absolute minimum regulation on them.

Janis Walters stated the purpose of the ARO’s is to provide communications during emergencies free of charge at their own expense and on their own time; and to do that they need to practice and have their equipment where they need it and at the height they need it to effect communications. She stated the federal government requires the Board to reasonably accommodate the ARO and impose the minimum regulation to accomplish its legitimate purpose; for example, Colonial Williamsburg would have a legitimate purpose to maintain its 18th century atmosphere; and they would not want to see anything resembling a television antenna sticking up in the area. She stated towers for amateur radio is practically indistinguishable from television antennae unless people know what they are looking for; and it is not going to look like a cell tower or commercial radio station tower. Ms. Walters stated the Board needs to decide what its legitimate purpose is, bearing in mind one size will not fit all; arbitrary height restrictions at which point a certain amount of regulation kicks in, in some cases are discriminatory, depending on the height established and the place where they are living. She stated they try to choose where they live in order to accommodate their hobby, but there may be buildings in one direction and trees in another or a ridge behind them where they cannot say from the ground level 70 feet is all they need and hassle with the Code Enforcement officers. She inquired what legitimate purpose does the Board need to serve and what purpose is served by imposing large fees and complex permitting procedures on people who are volunteering to help the County in emergencies and who need to practice in order to be of service when the time comes. She inquired what legitimate purpose is served by harassment from Code Enforcement; and urged the Board to choose Option 1 because they are working at the limit of their ability and the limit of their purses. Ms. Walters stated they do not need the County to be skimming off the top and limiting their ability to provide better equipment and better service; and suggested Option 1.

Robert Keim advised they come to request an exemption; he is in favor of Option 1; other things touched on but need details; and Commissioners Higgs and Pritchard mentioned multiple antennas. Commissioner Higgs stated she did not mention it, she just asked a question, and the gentleman who was speaking brought it up which perplexed her because she never considered it. Mr. Keim stated he wants to make sure it is clarified because it can be confusing to those who have never been involved with it. He stated they did the survey Mr. Enos asked for on average lot size, types of antennae, amount of antennae, and height of antennae, and got about 450 responses; 80% of the respondents are in violation; that is 80% of 4,000 operators; and that is not good. He stated 50% of the people who responded have more than four antennae that are in violation; and he is one of them. He stated he was cited by a complaint from a falling out between friends; somebody decided they did not like him and called Code Enforcement; and that is not right either. He stated he tried to comply but realized he could not financially comply with the Ordinance and that is when he realized how wrong it was. Mr. Keim stated he donates a lot of his time doing a lot of work for his community; they need to be respected for their services; the Board needs to realize the value of that service because it is truly important; and without them there is going to be a big gap in communications. He noted it may not be apparent right away, but it will damage the community in the long run; so that is something that needed to be touched on. He stated September 11 opened up a new chapter in the history of society; nobody realizes what will come; they can all speculate; and he watched it on television and was on the air and listened to the amateurs passing messages for the police, fire, and emergency services because they were so overloaded that the communication system they had could not handle the traffic. He stated without the amateurs there would have been more lives lost and more property damaged; Mr. Guiliani did a ceremony honoring HAM operators because they were there; they are always there and always ready; and they get bad back with a $941 permit fee or $250 a day fine for a law that should not have taken place in the first place. Mr. Keim stated it should not have passed and should have been looked at from day one; the amateurs should have been reasonably accommodated; he understands it was an oversight; and they are not angry, but want the problem fixed without having a lengthy court case. He stated a lot of people have wire antennae; it is a length of 14-gauge wire; under the current Ordinance he has seven antennae wires not towers; but they are all over 35 feet, so he could be cited for seven violations because the Ordinance does not say towers, it says antennae, antenna support, and towers; and technically they could be cited for any antenna over 35 feet, and that is a scary proposition when doing emergency communications that need several different antennae. He noted Dr. Smitt likes his for contesting; he uses his for contesting, emergency services, and pleasure; it does serve a purpose for the benefit of the community; so wire antennae need to be addressed. He stated all the counties around Brevard County except Volusia County exempt amateur radio operators; he guarantees Volusia is going to be challenged real soon; there is a group focusing on Volusia’s 70-foot antennae; and Seminole County has agreed to the exemption because it was challenged. He stated in this time of trouble, terrorism, and emergencies they are facing, the amateurs are going to be there.

Commissioner Pritchard stated he was not questioning anything and was clarifying it; a lot of people do not know the difference between an antenna and a tower; he knows they can put multiple antennae on a tower; and the Board is supportive of amateur radio operators. He stated he keeps hearing they need to support the HAMS; and he wants them to know that the Board does support them. Mr. Keim stated they appreciate that.

J. D. Collner stated antenna height does affect reliability of communications and for that reason he supports Option 1 as the Board’s decision. He stated to do otherwise would have a chilling effect on amateur radio in the County; the emergency communications alone are worth the Board’s consideration; and requested the Board vote for Option 1.

Harry Phillips advised all the accolades for amateur radio has been laid out; it is the only noncommercial radio service; they derive no income from doing what they do; and they enjoy doing it. He stated he is in favor of Option 1; he had a tower at 35 feet that was ineffective for what he wanted to use it for, which was long-range communication using frequency modulation FM; and he was not able to do it, so he took the antennae down and left the towers up. He stated frequency requires different heights and depends on the size of the antenna; patrol cars have 800 megahertz which is a small antenna; gigahertz is even smaller; the old patrol cars had 27 megahertz with long antennae; and they still use it today, which is called the ten meter band. Mr. Phillips stated multiple antennae are very possible; the AM radio stations in Brevard County have multiple antennae in order to propagate their signals throughout the County and the surrounding area; and if they did not have multiple antennae they would not be able to broadcast any sort of emergencies. He stated if towers or radio stations were taken out due to a disaster, amateur radio would come into play to help the County; the Board should take into consideration that amateur radio has no income from commercials and is used for hobby purposes and exploring their hobby; and the pagers and cell phones are all from amateur radio.

Mr. Enos advised the Board has four options; Option 1 is complete exemption at all heights; Option 2 is exemption to 70 feet and permitted with conditions above 70 feet; Option 3 is exemptions up to 70 feet, but continue to require the conditional use permit, which requires a public hearing; and Option 4 is a conditional use permit for everything above 35 feet, but eliminating the required site plan.

Commissioner Carlson stated Mr. Lorenc brought up the laws and minutes from 1998 talking about lighting antennae and exempting HAM radio operators’ antennae from lighting; and requested the County Attorney clarify for the Board the antenna law that exists. She inquired if it is still on the books; is it still the case as mentioned in the material from Mr. Lorenc from 1991 and how does it apply to what the Board is doing today, and what is the impact on the County.

County Attorney Scott Knox advised the Florida Statutes give the Board the right to regulate amateur radio antennae based upon health, safety, or aesthetic considerations, but it has to craft the regulations to reasonably accommodate the amateur communications and represent the minimum practical regulations to accomplish the local authority’s legitimate purpose. He stated the Board has to pick out a purpose that it is trying to accomplish and follow those guidelines. He stated the Ordinance is still on the books.

Commissioner Scarborough inquired if staff investigated what are reasonable parameters to restrict the antennae for those purposes. He stated there have been challenges and he heard some places might be challenged; and inquired where is the safe ground if there is any, besides total exemption. Mr. Enos stated the point Mr. Knox made about reasonable accommodation is correct; and it depends on what the Board’s purpose is. Commissioner Scarborough inquired within the general purposes of local government, what are the legitimate purposes. He stated Brevard County has a totally different purpose than Volusia or Orange Counties; there would be little it could bring to the courts that it could have a strange new view of things; and no one has located a safe ground where everybody is going to with tower regulations. Mr. Enos stated it goes back to zoning being a police power to protect the health, safety, and welfare of citizens, and that can include aesthetic considerations. Commissioner Scarborough inquired what kind of words could be put in an ordinance that have been upheld by the courts.

Commissioner Pritchard inquired if the covenants for homeowners associations take precedent; with Mr. Enos responding yes, they are separate from zoning regulations. Commissioner Pritchard stated if the Board goes with Option 1, the homeowners associations can say they will limit it to 35 feet or whatever and the HAM operator would have to work it out with the association if he wants to raise his antenna; with Mr. Enos responding that is correct and the County would not be involved in enforcing those covenants.

Commissioner Scarborough stated the safest ground is Option 1; Option 2 does have a cost; the Board could, to the extent it provides a community service, reduce the fee and make it more reasonable; and inquired if and when does the antennae, not the towers, need to have some parameters that are not unduly encroaching upon the general guidelines of the prohibition against regulation.

Commissioner Higgs stated the Board could talk about licensed amateur radio operators as exempt from some fees; when talking about undue regulations, it can use the licensed amateur status as a special class of people as opposed to commercial radio; so it may be able to define it that way. She stated also the size of lots could be considered; what may be acceptable in terms of height on 2/10ths of an acre might be different on 2.5 acres in terms of fall area; and it could talk about conditions in the Code, such as permit classifications where people can put up fences at different heights. She stated those can be done without requiring a CUP; so if one of the concerns is the cost of a CUP for licensed amateur operators, the Board has a provision or a way of dealing with those as a class of people because of a service they render to the County; so it can set that up and needs to have discussions about it. She noted she used towers and antennae because that is the term used in the Code; and if someone finds it offensive, she does not mean to be offensive. Commissioner Higgs stated the Board could set up some classifications based on having some criteria that would require certain things and exempt some of the costs for licensed amateurs who are operating a service in the community. She stated the size of lots makes a difference of how tall an antenna can be existing in a neighborhood without being a problem to the neighbors.

Commissioner Carlson stated although all the possible ways to regulate the group are evident, she is willing to go with Option 1; and since it is legislative intent, it will be put out to the public. She inquired if it will require one or two public hearings; with Mr. Enos responding one. Commissioner Higgs inquired if it is a land development issue, why would it only require one hearing; with Mr. Enos responding it would depend on how the ordinance is written; if it does not change a permitted use in a zoning classification, it only requires one public hearing; but if it changes a permitted use, it would require two hearings. He stated if the Board does not amend the CUP process but sets an exemption to that process, it could be argued that it is not a change of use. Commissioner Carlson stated before the Board begins regulating this industry, she wants to see what the public feels about having the exemption on amateur radio operators because of the service they provide and the times we live in. She stated at that point, the Board may get enough feedback from the community that says they need some restrictions; and as Commissioner Pritchard mentioned, what supersedes it is covenants of homeowners associations that have criteria against it. She stated she does not know if the Commissioners are leaning that way or not, but she would be willing to take it to that point and craft it so they can have two public hearings, make sure they have an evening meeting, and get as many people that are interested to find out what they think before beginning to regulate the heck out of it and finding out what it needs is something that they cannot get any longer; so that is her suggestion. Commissioner Pritchard stated he would support that.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize staff to draft an ordinance regulating amateur radio operators’ antennae and support structures, and advertise two public hearings, with one in the evening, to get public input.

Commissioner Carlson suggested a frame work that would allow two public hearings, and have it laid out in such a way to get as much public feedback as they can, then staff can craft something that is more amenable to everybody. She inquired if Mr. Jenkins is asking if it will come back to the Board instead of the LPA; with County Manager Tom Jenkins responding it has to go to the LPA, but does the Board want to see the draft ordinance before it goes to the LPA or just have staff take it to the LPA; with Commissioner Carlson responding she would prefer taking the ordinance with the options to the LPA and see where it goes.

Commissioner Higgs stated she does not support the motion to totally exempt amateur towers from regulations; she believes the Board can make special provisions; it is doing a disservice to the image of the community if it goes out with a broad document; and people will react negatively. She stated if staff crafts something that is reasonable based on size of lot, exemption from CUP process at lower levels, etc. the Board would likely have a regulation the community can support that will not be greatly controversial; but the broad brush approach is wrong.

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

ANNOUNCEMENT

Chairperson Colon advised there are nine plan amendments under Item IV.E., Transmittal of 2003A Comprehensive Plan Amendment Package to Department of Community Affairs; some of the speakers have put in cards under that item; and requested the speakers indicate which amendment they wish to speak to, for example, Micco Holdings is Amendment 038.1.

The meeting recessed at 2:30 p.m., and reconvened at 2:40 p.m.

*Commissioner Scarborough’s absence was noted for the remainder of the meeting.

PUBLIC HEARING, RE: 2003A COMPREHENSIVE PLAN AMENDMENT PACKAGE
FOR TRANSMITTAL TO DEPARTMENT OF COMMUNITY AFFAIRS

Chairperson Colon called for the public hearing to consider the 2003A Comprehensive Plan amendments for transmittal to Department of Community Affairs.

Amendment 2003A.1

Attorney Philip Nohrr, representing Micco Holding LLC, advised the request is for future land use amendment on 31 acres located on the south side of Micco Road; and explained an aerial map of the area, depicting Micco Road, U.S. 1, Barefoot Bay Subdivision, FEC railroad, the 31 acres, a Catholic church, and the extension of Barefoot Bay on the south side of Micco Road approximately 800 feet to the east of the property. He stated they are requesting to develop the property for an RV park; the origin of the request is the Port O’ Call located on Melbourne Airport’s 29 acres, which at one time had 624 airstream type of vehicles on it; and they were advised they will have to vacate the Airport property. He stated they have been looking for another place for a number of years; they want to go as a unit and stay together as a group rather than disperse into existing facilities throughout the County; and they have been unable to find a place that would accept all of them until Micco Holdings proposed that they could go on Micco Holdings' property. Mr. Nohrr stated the owners at Port O’ Call have formed an association, hired an attorney, transferred money into his escrow account, and is going to enter into a lease for 20 years with two 20-year options, so potentially it is a 60-year use of the property. He stated the residents of Port O’ Call have been in the community for 34 years and want to stay together in Brevard County; they cannot stay where they currently are; and the Micco Holdings’ property is the only logical place for them to go. He stated under recreational vehicles in the Ordinances are a number of things that are different; they are limited to 1,000 square feet; their occupancy is limited to 180 days a year; and it is appealing to people who are going to be part-time residents, so it may be a little unfair when talking about density to look at as a lot more density than the current density that is there now. He stated it is in the abstract, but utilization is a lot less intense by the amount of time they are going to be there; they are small units; and there is capacity on Micco Road. Mr. Nohrr advised school capacity is not an issue because children will not be there; they have been through that and love their children that are somewhere else; and it is an unusual request to go to ten units per acre, but that is only because of the way the Ordinance is written. He stated what they really need is 7.3 units per acre; they will sign any type of stipulation and will limit it to 7.3 units per acre; and they are pleased to enter into any documentation that would require that and limit the use so it would not be the beginning of something that was less desirable on Micco Road. He stated they are trying to find a place for those folks to relocate; time is running out for them; and the Airport Authority has told them they have to leave, so time is an enemy. He stated they are not permanent structures; however, as far as hurricanes go, they have tie downs; and hurricanes and tropical storms have never been an issue in the past 34 years. He stated Barefoot Bay is developed as four units per acre; he was told it comes closer to six or seven units per acre and the units are much bigger; but there is compatibility even if it is a different use and less intense use.

Mike Cunningham, Vice President of Micco Homeowners Association and Legislative Committee Chairman, stated the majority of the board of directors endorse the project; and there were some issues brought up at the P&Z meeting, which were quite pointed. He stated one of the facts is that 80% of the people are going to be transient most of the year; most of them have permanent homes in other locations throughout the country; they go on caravans all over the country and into Mexico and Canada; and they are not permanent residents. He stated the Board will hear about traffic and density; traffic and density are problems for any community in transition; Micco falls into that category; and within the next few years, they have the potential of seeing 850 site-built homes in their community. He stated what does not compute is people concerned about 200 plus travel trailers that are going to be in and out; and there will be traffic and more people, but they will be able to overcome that as years go by. He stated an emotional approach as opposed to community benefit should be carefully examined; if the Board starts judging projects solely on the dollar sign, it could be unfair to a lot of people; so it has to be realistic. Mr. Cunningham advised another issue that came up was whether there were sufficient shelters; for 20% of the residents, or less if a storm is imminent, who would remain here, they have a community center which has been designated a hurricane shelter a mile and a half from the site; and in addition to the other regular shelters they have had for years in Palm Bay, they will be more than adequate to take care of the problem if it became a problem. He stated they talked about trailer damage; after looking at the news media in the last 48 hours of what happened in the southeast and midwest, it would not make a difference when whole towns are wiped out, including site-built homes; so that is not a major concern.

Glenda Busick stated she is working with citizens on a petition about the exact problem that is happening in Micco about density; the petition would be to get a number of signatures to change the Charter where when people want to change the density, it would take a unanimous vote to increase it or change the density from the Comprehensive Plan. She stated the reason for the petition is to save the quality of life in Brevard County and save the Board’s time; it has a Comprehensive Plan and worked out the densities; that is the way it ought to be; and if people want to change it, they can come to the Board, but it would take a unanimous vote. She stated if people want to help her save Brevard’s quality of life, they can contact her at 639-7174.

Jeanne Osborne advised she is not speaking in opposition to someone establishing an airstream park; she is speaking because there were some facts presented that are inaccurate; they are concerned, not about the zoning, but the fact they want to change the Comprehensive Plan; and they feel strongly that changing the Comprehensive Plan to allow ten units per acre for the small parcel of land is doing a disservice to everyone who will establish a development to the west of them. She stated about five years ago a gentleman came in to do a borrow pit; he met with a lot of opposition and a lot of stipulations were put on him before he could proceed with his project; he has finished the borrow pit and now has a beautiful lake and is going to put 82 or 83 homes around the lake of one per acre; and the property is immediately adjacent to the Micco Holding property. She stated if the Board allows the change, there will be a complete change to the west of them all the way to Babcock Street; and there is nothing that will stop ten units per acre if the Board allows this parcel to go forward. Ms. Osborne stated Barefoot Bay south of Micco, which would be adjacent to the east side of the property primarily, would have approximately 1,200 to 1,500 homes; Barefoot Bay does not have the density they were told they have; they have approximately 4.2 homes per acre; and right now they have less than that because the homes are being put on two lots, so the density is much less than it was when the project was originally started. She stated the Board needs to stop right now and leave the land use as it is; and requested the Board not change the density and let them come back to zoning for approval of their project at a later date.

Ed Keeley, President of Barefoot Bay Homeowners Association, advised they do not have concerns about the project itself or the RV’s or Airstream trailer park, their big concern is the precedent it will establish if approved. He stated all the communities in South Brevard have been meeting with Commissioner Higgs and County staff on long-range planning; they have been educated on the Comprehensive Plan and future land use and feel this will set a precedent of ten units per acre even though it may be 7.3 units per acre. He stated anyone who wants to come in would want ten units per acre up and down Micco Road because the precedent had been set and the Board could not deny them. Mr. Keeley stated the traffic does not sound bad with 200 plus trailers that are here part of the year; Pelican Lakes is talking about 80 plus homes; Crystal Bay is another development along Micco Road; and there are no funds or plans to take care of Micco Road now with the existing traffic. He stated during the winter months the traffic is horrendous; there are more impacts on fire and rescue squads and other facilities; and it is too much of a precedent to set that will open the door on Micco Road to Babcock Street, which cannot be stopped. He noted they will be inundated with everyone coming in for ten units per acre and it will continue to get worst; and they have to look at the future and see what can be worked out. He presented a few more petitions to the Board signed by about one-third of the residents in Barefoot Bay; requested the Board consider the ramifications of going forward with this amendment that will affect the Comprehensive Plan and future land use map; and it will not leave much left for the long-range planning committee to meet on if they have ten units per acre sitting out there.

Vicki Benoit stated she is against the land use plan change that will increase traffic and density and set a precedent for over development. She stated she is from South Florida and has seen first hand what over development has done and not in a good way; and she wants to protect the environment. She stated Central Florida is known for its passive recreation, boating, fishing, kayaking, etc.; people from up north come to visit them because of where they live now and not in South Florida; and when she went before the LPA and Land Use Resource Council, it seemed the reason they passed the change was based on the fact that Barefoot Bay is nearby and the Port O’ Call people are nice people. Ms. Benoit stated it is not an anti-RV or anti-Port O’ Call; even though Barefoot Bay is adjacent, there is also land that surrounds the parcel on three sides that could open up for development; and she did not think that if a developer wanted to change the land use plan he had to show that the people who will be moving in there are nice. She noted that should not be a criteria; and the criteria should be to keep the land use map as it is. She stated she keeps hearing 31 acres, but when she looked it up on the Property Appraiser’s website the land comes to only 27.88 acres, so she does not know where the other 3 acres are that they are talking about. She stated all the people who are making decisions to change the land use in their area do not live in the area; everybody on the Planning and Zoning Board, Resource Council, and Board of County Commissioners do not live in Micco; and even the people who own Micco Holdings do not live in Micco. She stated she hopes the Board considers not changing the land use map and keep it as one unit per acre which she prefers.

Diane McCauley, President of Little Hollywood Homeowners Association, member of the Micco Homeowners Association board, and member of the South Mainland Long-range Planning Committee, stated she was not at the meeting when they voted on that; and there are several issues, one of which is compatibility. She stated there are no RV parks in Micco, but there are several in Palm Bay; property brokered by Mr. Engle seven-tenths of a mile from an RV park; there are many reasons that they could go elsewhere; and she does not understand why they want to go to Micco unless they want to open the land up to the west for development. She stated once the density is changed to 10 units per acre, even if Mr. Nohrr promises things, years from now no one will remember that and they will have ten units per acre for hundreds of acres adjacent to Weber Farms that abuts the property, which will be to their detriment. Ms. McCauley stated there will be growth in the area, but whether it is controlled or not depends on the Board; and quoted J. Harvey Wilkinson of the U.S. Court of Appeals in an article to be published in the Virginia Law Review, “Rules that restrict judge’s discretion to heed the prompting of poignancy have considerable virtues. They give people advance notice as to what is permitted and required. They produce uniform and consistent treatment of comparable cases; and they respect whatever democratic processes have produced the rule.” She urged the Board, in a fiduciary manner, to protect their territory and keep the land use map as it is.

Jan Black advised Lindsay Road is a residential street three-tenths of a mile south of the intersection of Micco Road and U.S. 1; there is a letter in the packet from her and her husband regarding this item; but there are a few things she would like to put on the record. She stated the land use change would set a precedent for introducing an incompatible and completely new high-density use to their area; there is currently no RVP zoning in Micco; the large parcels of vacant land adjacent to and in close proximity to the subject property are currently zoned AU; and to allow encroachment of high density would set a precedent and fuel requests from nearby landowners thereby allowing one parcel after another to fall like dominoes. She stated the change to high density would severely and negatively impact the hard work that has been done by the South Mainland Long-range Planning Committee that is trying to maintain low density in the area. Ms. Black stated the fact that the property is in close proximity to Barefoot Bay community has been used as justification for granting the density; however, they feel there are many more differences than similarities between Barefoot Bay and an RV park, not the least of which is density. She stated in addition to having a lower density than previously stated at the P&Z Board meeting, Barefoot Bay contains large amounts of open space and an interior shopping area with a convenience store, restaurant, card shop, Post Office, laundry mat, bank, medical offices, and the South Mainland Library, all of which tend to keep the traffic inside the community rather than on Micco Road. She stated the increased density will degrade the road from LOS B to LOS C; Micco Road is narrow with narrow shoulders; there are no left-turn storage lands other than at U.S. 1; and it is used heavily by dump trucks accessing the mulching facility and incinerator area, which is further west. She stated the attorney said they are limited to 180 days, which makes the density not that severe; she assumes they will be there in the winter; and that is when they have most dense use. Ms. Black stated they empathize with the folks who have been displaced due to their lost lease; after living in Broward County for 36 years, they were displaced due to overcrowding in schools, libraries, beaches, and particularly on roads; and after much searching along the Florida east coast, they decided the semi-rural and uncrowded feel of Micco was perfect. She stated they built their home in 1992 and do not want to be displaced by overcrowding; included with their letter is a reprint of an editorial from Florida TODAY of April 27 regarding growth in Brevard County; and they agree with the sentiments. She read a portion of the final paragraph as follows: “Our option as a community is this, do the right things to retain the quality of life that makes Brevard so unique or do the wrong things and watch the Space Coast turn into another South Florida.” She stated for those reasons, they ask the Board to deny the change to the land use map.

Frank Jennings, resident of Port O’ Call and full-time resident of Summer Brook community, stated after being informed that the Airport Authority would not renew their lease, they formed a committee, which he and his wife head up; he decided to chair it since he lives here full time; they have a large following of residents who have given them a deposit, which they in turn gave to their attorney; and they hired the attorney to do their overseeing and follow through on their project to ensure they are doing everything according to the rules. He stated he and his wife attended Homeowners Association meetings in Micco and Barefoot Bay and answered questions; they were with the developers at those meetings; they may appear to be a small group in numbers; however, their park is seasonal and most of the residents have already gone North for the summer, but some have stayed here a little longer to attend this meeting. Mr. Jennings advised Port O’ Call has been a home for many years for a lot of veterans like himself and many senior citizens; their park is operated with strict rules; it is an adult park only; but children and other guests are welcome, but they must be accompanied by the leaseholder and their stay is only 30 days. He stated they have never been a burden on the school system nor would be on Micco; very few units are here during the storm season; and if they are, they are anchored front and back so they will not cause any problems. He stated when comparing RV’s and homes, the question of density arises; there is hardly any comparison; their travel trailers average 8.5 feet by 34 feet and motor homes at 8.5 feet by 36 feet; and they occupy less space. He stated he hopes the Board read the letters they sent regarding their situation and that Micco Holdings will build them a beautiful park, and they will blend in with the country setting of Micco.

William Cordsen, resident of Port O’ Call, advised Port O’ Call will be closing as of April 2004 due to the Airport Authority’s refusal to renew their lease, which they have had since 1969. He stated Airstream owners are a special breed of people; they are very friendly, always willing to help others, volunteer in the local community physically and financially, and consider themselves to be a very close knit family; their park was started 34 years ago by an ambitious group of Airstreamers who took it upon themselves to lease a parcel of land from the Melbourne Airport Authority; and at that time the property consisted of trees and wild brush, but they turned the parcel into an RV park so they could spend their winter months with their closest friends and fellow Airstreamers. He stated now that the parcel is considered to be useful, the Authority wants to reclaim it, leaving all the residents of Port O’ Call with no where to go for the winter months; some have suggested other RV parks that could consume them; however, after months of searching, they have found that all the other RV parks are at or near capacity, which would mean they would have to split up and many would not be able to return to Brevard County or Central Florida. Mr. Cordsen stated Port O’ Call consists largely of senior citizens ages 55 and over and whose past occupations were classified as professionals, such as doctors, engineers, and military officers, some of whom fought battles on foreign soils, such as himself; and those veterans would greatly appreciate the privilege of enjoying retirement that includes being surrounded by close friends they met through various Airstream clubs and rallies and who also fought in those wars along with them. He stated Port O’ Call is comprised of the highest ranking upstanding citizens that any American would be proud to call their neighbors; in the audience there are some who oppose the proposal to build the RV park in their area; and he wants to reassure those folks they will hardly know of their presence because they are very quiet, stay to themselves as a group, and depend on no outside resources other than the local merchants and restaurants. He stated they are conscientious and conservative with the use of water and electricity; and they are only in the area an average of five months, from November through March. He stated the Board holds the key to their future and the future of Brevard County as a whole; time is running out for them to find a new place, so they can stay together as a group; and the people of Port O’ Call urge the Board to vote yes and keep them and their money in Brevard County.

Maxine Jennings, resident of Port O’ Call, advised she owns a home in Summer Brook off North Wickham Road in Melbourne and is a full time resident; she is President of the Recreation Association of Port O’ Call; and they have their own activities and do not rely on outside help. She stated they have many activities such as exercise groups, dance club, painting classes, sewing classes, bridge club, social club, bible classes, singing groups, Thanksgiving and Christmas dinners, and their sweetheart banquet for anyone married over 50 years. She stated they have activities from 7:30 a.m. until 9:00 p.m.; and they are not loud and do not cause anyone any harm. Ms. Jennings advised some trailers and motor homes arrive in November, but most arrive in early January and stay until late March; Micco Holdings and Mr. Engle stated he will build a very nice park for them and their Airstreams; and they had many meetings and discussions with him regarding the property. She stated the property is the answer to their prayers; they will have their own recreation facilities and not be a burden to anyone; they know they can be an asset to Micco and surrounding areas; and they hope the community will welcome them.

Virginia High, resident of Port O’ Call, stated it is hard not to get emotional regarding the situation; her summer residence is in Michigan; she served on the board of directors since 1999 and president since 2001; and unfortunately many of their winter residents left to return to their northern residences and regret that they could not be here to tell the Board their personal stories. She stated since they learned the Melbourne Airport Authority will not be renewing their lease in the fall of 2000, they have looked for a desirable available site for their Port O’ Call residents between Mims and Micco; it was a tiring and frustrating effort to find something suitable to which they could move as a community; their time is running out; and they must vacate their present location by April 30, 2004 at precisely 11:59 p.m. according to the attorney for the Airport. She stated the residents of the unique community have been at that location for almost 35 years; they have given a great deal of their time, energy, and financial support the entire time; when there was a volunteer ambulance service in Melbourne, Port O’ Call residents donated thousands of dollars every year to support their continuance; and they have supported the Salvation Army with funds and volunteer services. She stated they attend churches of all denominations and respond to those who need their help; some people have assumed the responsibility of keeping Airport Boulevard free of debris from New Haven Avenue to Sarno Road, which is about a mile; the merchants in the area have benefited by their presence; and a year and a half ago they carried petitions signed by over 1,000 individuals, including at least 30% of the businesses in the area, to the Melbourne City Council. Ms. High stated those who reside in the RV resort park live side-by-side for months; their commitment to the enjoyment of all the residents in the park knows no bounds; Ms. Jennings outlined many of the activities they have, and they will have their own recreation building in the park as well. She stated no one will see laundry hanging outside because it is not a campground, it is an RV resort; they live in their trailers just as others live in their homes; and they have designated drying areas so things are not flapping in backyards. She stated there will never be trash around except in approved containers stored in the back of their rigs; they accepted the responsibility of keeping the park landscaped and neat; and they have a board of directors that continue to monitor residents so that they never become a campground, but a true living community of residents. She stated the only difference is their winter homes are smaller and not made of stucco, brick, or wood; they pay taxes and repair their streets; they pay for waste disposal; they are self-sufficient and have cost neither the city nor the residents of Melbourne anything extra; and they can assure the Board they will bring the same qualities to the proposed site in Micco. Ms. High stated there has been conversations about travel on Micco Road; one of the concerns was that they would impact the traffic on Micco Road; in October 2002, a study was made on the level of service rating for Micco Road; and it had a trip capacity of 10,000 cars a day, but was counted as 2,000 cars a day. She stated residents of Port O’ Call want to remain in Brevard County; for many of them it has been their home away from home; they have relationships that are more like family than casual acquaintances; and they are hopeful what they have offered to Melbourne in the past will be recognized as new and welcome resources by those in Micco and by the Board of County Commissioners.

Ron Archambo, resident of Port O’ Call, advised he is a retired school teacher; lived in Brevard County for 16 years and enjoyed the time; he is secretary of the board of directors; and he and his eight other colleagues are concerned for the welfare of their tenant families, where they will go, and what they will do when their lease expires in 2004. He stated they understand the hesitancy and uncertainty of the people who live in Barefoot Bay and Micco about being encroached upon; it is not their intention to move in there and diminish the value of the area; and if the folks would look at the current park they are at, they will realize that for the past 34 years they have been an asset to the community. He stated there seems to be an unnecessary concern about density, as it was mentioned several times; 7.3 units per acre may or may not be a factor; RV’s average 300 square feet give or take the size of the rig; 10 RV’s per acre would still be only 3,000 square feet of density; and the average mobile home would require 4,500 square feet. Mr. Archambo stated he understands there are varying factors but they would not destroy the area; their Airstreams are built for efficient living; and they use the latest technical devices, minimum water and other recourses, recycle what they can, and live a simple lifestyle, which would be amenable to the community. He stated they are caravaners and represent an upper level segment of society; most of them are retired; they stand for morals and standards expected of American society; and wherever they move they expect to bring those standards with them and therefore improve the community. He suggested the Board ask the average citizen how much they have contributed to the community over the years and it will find they have been more than supportive with their time, energy, and dollars to the overall improvement of the community. He stated they have done much for Melbourne, continue to do much, and will do the same in whatever community they will be allowed to participate.

Chairperson Colon advised she does not know what the future holds for the folks at Port O’ Call, but it is heart wrenching for her to see senior citizens who are supposed to be stable have to go through this situation. She stated she is sorry they have to experience this; but the Board is here to discuss the Comprehensive Plan amendments and make sure it does not adversely affect the community. She inquired if Attorney Nohrr had any further comments.

Attorney Nohrr advised the Board has the emotional part and he has the legal part; they are asking for ten units per acre because those are the parameters they have to work in, but the cap will be 7.3 units per acre; and a lot of folks who came up today concerned about the request, do not have any concerns about the use. He stated if precedent is the issue, they can start to address that now and in the future; and they would enter into any stipulation so that down the road staff wants to come up with a different classification so someone who wants a different development might try to leap frog by virtue of this item would be prevented from doing it. He stated if they were to treat RV’s differently, he thinks it can be done; the Board listened to the residents of Port O’ Call; they have a lot to offer; and looking at the square footage and density, they are not increasing density from a square footage factor; and there is validity in that. He stated they can craft some sort of classification; and he would be happy to work on it to the extent the Board wants him to. He stated it is not their intent to increase density; they would enter into any stipulation that if in the future the Board comes up with a different classification, their request today would be deemed as an application for the new classification and they would not have the option of not requesting it. He stated they will work on the neighbors about their concerns; they need to move the project forward; they have four to six months before it comes back to the Board from Department of Community Affairs; and the Board can put in any safeguards it wants. He stated if the safeguards are not there at the end of the day, it will have another change to not vote to approve it; but they would like the process to go forward and let those folks have a new home.

Commissioner Higgs stated she wants to put on the record that she talked to the applicants some months ago. She stated this is not a decision about the people of Port O’ Call being nice; she knows it is a nice community and they are fine people; but the question before the Board is one of land use. She stated the future land use map is an important planning element that the Board has responsibility to look at; she has great concerns increasing the density south of Micco Road because of the precedent setting nature; and while Mr. Nohrr may make a statement about willing to bind anything, she also knows what will happen down the road with other lawyers and developers who would want to piggyback on that and would want to use that movement to ten units per acre to set other parameters for their developments south and west of the property. She stated anyone who is aware of real estate knows the area is feeling the pressure of development; the first move would be south of Micco Road; and ten units an acre will be precedent setting. Commissioner Higgs stated several years ago the Board looked at that parcel, the Davis parcel, Pelican Lakes; that is being developed at one unit per acre; the Board held firm on that density; and it should hold firm today. She stated the decision before the Board is amending the future land use map for ten units an acre south of Micco Road; the environment there was established a long time ago far in advance of the Comprehensive Plan; the area north of Micco Road is reflected in staff’s report at four units per acre; and it is one unit per acre south of Micco Road. She stated she looks with great sympathy at the dilemma faced by the people of Port O’ Call; but the Board needs to look with equal sympathy at the citizens in Brevard County who will bear the burden and cost of its bad decision if it were to make one today to allow urban sprawl to continue. She stated the State’s Comprehensive Plan talks about urban sprawl; the Board should not allow that to happen; it has to insure the delivery of services and that established levels of service are maintained; Micco Road is a substandard road in regards to the condition of the road; the Board is concerned about the amount of traffic being generated; this project would generate 2,960 trips; but as been established in the record, the condition of Micco Road is not one that can handle many more trips. She stated the entire length of Micco Road is in need of rehabilitation, but the County does not have a plan to do that; Florida Statutes discourages urban sprawl; the adjacent land areas are four units per acre to the north and one unit per acre on all sides to the south of the parcel; so a residential designation of ten units per acre is very inconsistent. Commissioner Higgs stated the east, south, and west are zoned AU with a minimum lot size of 2.5 acres; AU to the south and west have been subdivided; and a decision of ten units an acre at this time would set a very telling precedent. She stated all the properties in the immediate vicinity of the land received their zoning in advance of the Comprehensive Plan; in determining where residential 10 should go, the Comprehensive Plan policies guide the Board; areas adjacent to residential 10 should be located where there are other properties with the same designation; there are no properties designated residential 10 on the future land use map in the surrounding areas; and they are four units per acre to the north and one unit per acre in other areas. She stated Policy 1.5(c) states, “unincorporated areas, which are adjacent to incorporated areas, may be considered as a logical transition for residential 10”; but the subject property is not adjacent to any incorporated area. She stated Policy 1.5(d) states, “areas which have access to an arterial or collector road without impacting existing or designated lower density/intensity areas”; the quality of Micco Road is an issue as well as the amount of traffic on a two-lane road; and there are special characteristics to the road out to the west, which are hard curves that need to be straightened out, making it particularly difficult to additional traffic. She stated people talked about the proposed RV park; the reality is the RV park is not the consideration; the reality is the ten units per acre that is before the Board; and while she shares the concerns expressed for people of Port O’ Call, she does not believe it is in the best interest to residents, visitors, or part-time residents to make inappropriate land use decisions to take care of a short-term problem. She stated the Board needs to try and be of assistance, but this is not the right place; so she will move for denial of the amendment.

Motion by Commissioner Higgs, to deny amendment 2003A (03A.1) to the Comprehensive Plan.

Chairperson Colon inquired if four units per acre would be more compatible for 108 units based on 27 acres and not 31 acres; and is that something the folks would consider; with Commissioner Higgs responding the future land use map designates one unit per acre south of Micco Road, and it would be her strong support to maintain that density. Chairperson Colon inquired if four units per acre would not be acceptable; with Commissioner Higgs responding the Board would be heading down the wrong road if it began redoing the future land use map south of Micco Road. Commissioner Carlson stated she agrees with Commissioner Higgs on precedent setting south of Micco Road and even if four units per acre were offered, it would not do the trick as far as what they are after. She stated since there has been a huge study in the area, the Board needs to make sure it does not continue urban sprawl; and it needs to keep within the Comprehensive Plan requirements.

Commissioner Pritchard inquired if the property located south of the proposed development is also one unit per acre; with Senior Planner Todd Corwin responding yes, all the land south of Micco Road and west of Fleming Grant Road is designated one unit per acre on the future land use map. Commissioner Higgs stated those properties were platted and subdivided in the 1970’s. Mr. Scott stated there is an illustration of that on page 10. Commissioner Pritchard stated he is looking at page 12. Mr. Scott stated page 10 gives the future land use map and page 12 shows the zoning classifications and underlying plats. Commissioner Pritchard inquired what kind of density is identified as single-family lots with residential streets; with Mr. Scott responding that is an extension of Barefoot Bay at TRC-1 zoning. Commissioner Higgs stated considering the open space and dwelling units, Barefoot Bay is built out at 4.3 units per acre and was platted long before the State Comprehensive Plan and future land use map requirements of the State. Commissioner Pritchard inquired if 4.3 units per acre would not work for those folks; with Mr. Nohrr responding it is conceivable it might if that would help any. Commissioner Pritchard stated Barefoot Bay north of Micco Road is 4.3 units per acre; there is a wing on the east side and contiguous with 4.3 units per acre, so there is 4.3 units per acre to the south; and the block in the middle is AU at one unit per acre. Mr. Corwin stated the land use map designates it as one unit per acre; currently the underlying zoning, which is agriculture residential, has a minimum lot size one unit per 2.5 acres; and GU is one unit per five acres. Commissioner Pritchard stated there is the same type of zoning through configuration of Barefoot Bay; with Commissioner Higgs responding the Board is not dealing with zoning, it is dealing with the future land use map. Commissioner Pritchard stated he understands that, but in looking at the future land use map and what is currently existing, he wonders what the applicability is of the future land use map considering there is development south of the Port O’ Call property that looks as if it is intended to go to 4.3 units per acre and fill in the area that is currently AU. Commissioner Higgs stated the intent is clear; south of Micco Road is one unit per acre; the Board has learned over the years that it should leave intense development in the core urban areas; in this case, the core urban area potentially is in Barefoot Bay; but what is south of Micco Road, with the exception of the finger Commissioner Pritchard is looking at, is one unit per acre. She stated it is an anomaly and not the standard south of Micco Road all the way out west of I-95. Commissioner Pritchard stated he mentioned it because the Board was talking about south of Micco Road, then it has a wing of Barefoot Bay; so the area is preserved as one unit per acre but that area is 4.3 units per acre; with Commissioner Higgs responding no it is not, it is one unit per acre; it was built a long time ago; and the future land use map is inconsistent with what is built there. Commissioner Pritchard stated he is looking at what is there and it is 4.3 units per acre. Commissioner Higgs stated that is correct, but the future land use map is not 4.3 units per acre. Commissioner Pritchard inquired if they are taking out 3.3 of the houses to go back to one unit; with Commissioner Higgs responding it is not a joke. Commissioner Pritchard stated he knows what Commissioner Higgs is saying, but what he is saying is it is not compatible; it does not matter what the paper says; what matters is what is in the ground; and what is in the ground is 4.3 units per acre; so the future land use map could say anything it wanted to. He stated the Board cannot have an existing subdivision of 4.3 units per acre and say but the future land use map is one unit per acre; it does not add up; and the reason is because it is already there; so the future land use map for that area has no effect. Commissioner Higgs inquired what would the future land use map show in the intense parts of Merritt Island; with Mr. Corwin responding the central part of Merritt Island has a variety of residential densities, with the highest being 15 units per acre. Commissioner Higgs inquired if many are built out at four units per acre; with Mr. Corwin responding most of the areas that were built were right sized as far as the Comprehensive Plan update accomplished in 1998-99 as part of the Board direction; and properties developed at less than 15 units per acre were right sized at their built density, some at six units and some at four units per acre. Commissioner Higgs inquired if they did not right size Barefoot Bay; with Mr. Corwin responding the Board did not direct staff to right size areas that were less than 15 units per acre. Commissioner Pritchard stated his point is the area is currently developed at 4.3 units per acre; with Commissioner Higgs responding no it is not. Commissioner Pritchard stated a lot of people would be upset to find 3.3 of their houses gone; with Commissioner Higgs responding the lots are grandfathered in. Commissioner Pritchard stated he understands that, and that is his point; Commissioner Higgs was emphasizing it is one unit per acre south of Micco Road, but it is not in that area because it is already there; and grandfathering in notwithstanding, the future land use notwithstanding, it is done and it is there and what he is getting to is he can understand the concern having additional load limits placed on land, but what he does not understand is it is already there at 4.3 units per acre.

Commissioner Carlson stated the Comprehensive Plan as it sets out today looks into the future 30, 50 years down the road, and the attempt of the future land use map is to predict how land will be used that far down the road so that the Board does not promote urban sprawl. She stated it was grandfathered in because it came before the State’s growth management plan occurred, which required the County to set out future land use; and if they took the future land use and applied all the density, they could not support the numbers based on the current future land use plan, which is a telling story. She stated the point Commissioner Higgs is trying to make is it is future long-term planning for the community; if the Board starts setting a precedent increasing the density to ten units per acre, it goes against the philosophy of growth management and what the State required of the County in 1975; and that is what she was trying to get across. She stated those folks houses will not be lessened by two-thirds; but if somehow, someway they get blown off the face of the earth, nobody can go back there and build four units per acre; they can only build one unit per acre; and that is what the future land use map is all about.

Chairperson Colon stated she is sensitive to the fact that the community has gone through a lot to make sure it protects the quality of life in the community; and she heard it did not have a problem with Port O’ Call coming in there, but questioned the density. She stated she is not comfortable with ten or seven units per acre; and inquired what is there that is already zoned.

Mike Cunningham advised the quality of life is without question; they have nothing against Port O’ Call and what they want to do; he does not think the project would be such an adversity for the community; but as he mentioned there is a problem with the density. He stated Mr. Nohrr stated they are stuck between 7 and 10 units and had to go somewhere; and if it can be less, that is fine and there is no problem; but he does not want to lower it to the point where the quality of life for those people will be affected adversely. He stated they have gone through the long-range planning session for seven months and want to keep a certain ambiance in the community; but they have to deal with this density. He stated it is not a matter of not wanting them; it will not be that much of a negative effect; and they can live with it if it dropped to 4 or 4.3 units per acre if the people of Port O’ Call can live with it.

Commissioner Higgs stated she is extremely concerned about the precedent setting nature of the request; when they started the long-range planning discussions about seven months ago, she was not sure they would all agree and feel without question that the overwhelming sentiment of the people is that they want to maintain the lower density outside the established urban areas that are already there; and she feels confident that is in the best interest of the people of Brevard County, and Micco. She stated the project would set a precedent; she understands the dilemma of having existing homes already there; but they are talking about an amendment to the future land use map that would be a huge change to what is already there; and that is a bad mistake.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to deny Comprehensive Plan Amendment 2003A.1. Motion did not carry; Commissioners Higgs and Carlson voted aye; and Commissioners Pritchard and Colon voted nay.

Chairperson Colon inquired can the Board go back and consider the existing plan; with Commissioner Carlson responding the Board needs to have a motion to continue the item until the fifth Commissioner is present to break the tie. Chairperson Colon stated the motion failed so it remains as is. Mr. Nohrr stated he is trying to figure out a way to get it back on board, but understands the ruling.

Commissioner Pritchard inquired if it would be inappropriate to make a motion to address the area at 4.3 units per acre; with County Attorney Scott Knox inquiring if it is in terms of tying it specifically to a particular density, within the range of that land use category, or trying to reinitiate it. Commissioner Pritchard stated what he is looking at is north of Micco Road is 4.3 units per acre; the property that is connected by a flag development is 4.3 units per acre; then they have a large AU area at one unit per acre; it looks as if that area will be more developed than what was previously desired; and that being the case, he would like to know if the Board can address having that area where Port O’ Call would go at 4.3 units per acre. Mr. Knox stated that would be zoning. Commissioner Pritchard stated whatever it will take, whether zoning or Comprehensive Plan amendment, he is posing the question to Mr. Knox or anyone else. Commissioner Higgs stated what Commissioner Pritchard is requesting is a Board initiated Comprehensive Plan amendment; and he can make the motion to do that just as anyone could. Commissioner Pritchard stated it is like a dare; with Commissioner Higgs responding he will not have the votes but can do it if he wants to. Mr. Nohrr stated given the fact it is a two to two vote, if he understands Roberts Rules of Order, what could occur is a motion to consider 4.3 units per acre and deny the amendment for ten units per acre, then table it until Commissioner Scarborough is here. He noted that is one possibility that would comply with the ad that has taken place. Mr. Knox inquired what was the ad; with Mr. Scott responding it was advertised at ten units per acre, so 4.3 units per acre would be less than that and it could be packaged as a directive as it is less than advertised and legally possible. Commissioner Higgs inquired if staff is suggesting a directive on that one parcel; with Mr. Scott responding legally that is a framework the Board could entertain. Commissioner Higgs inquired if the directive would change the land use plan; with Mr. Scott responding the directive would have the effect of changing the land use map, but the density increase would be in directive form; and the reader would have to look at the future land use map and be directed to the land use element to find a legal description of that property, which would have the higher density. Commissioner Carlson inquired if Mr. Scott is saying based on how it was advertised it could go down but not up; with Mr. Scott responding that is correct. Commissioner Pritchard stated so the Board is faced with making a motion to increase the density of the parcel to 4.3 units per acre then tabling it until Commissioner Scarborough returns. Mr. Knox stated Mr. Scott was proposing a directive at 4.3 units per acre; with Mr. Scott responding he was not proposing it, but identifying it as a Board option. Mr. Knox stated if that motion is made and gets three votes, it can be done.

Motion by Commissioner Pritchard, to establish a directive to change the future land use map to 4.3 units per acre. Motion died for lack of a second.

The meeting recessed at 4:00 p.m., and reconvened at 4:05 p.m.

Commissioner Carlson advised she and Commissioner Higgs have engagements they need to be at by 7:00 p.m.; and suggested continuing some of the items until a later meeting.

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

Chairperson Colon called for the public hearing to consider an ordinance creating Article IX, boat ramp construction.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to continue the public hearing on an ordinance amending Chapter 22, Building and Building Regulations, to create Article IX, boat ramp construction, until July 8, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE X,
DIVISION 3, SURFACE WATER PROTECTION

Chairperson Colon called for the public hearing to consider an ordinance amending Chapter 62, Article X, Division 3, entitled Surface Water Protection.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to continue the public hearing on an ordinance amending Chapter 62, Article X, Division 3, Surface Water Protection, until May 20, 2003. Motion carried and ordered unanimously.

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

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

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to continue the public hearing to consider an ordinance creating a special water and sewer district within the unincorporated area of Brevard County until July 8, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, OUTDOOR
RESTAURANT SEATING

Chairperson Colon called for the public hearing to consider an ordinance amending Chapter 62, to add outdoor restaurant seating to the list of permitted uses with conditions in BU-1 and BU-2 zoning classifications.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to continue the public hearing to consider an ordinance amending Chapter 62 to add outdoor restaurant seating to the list of permitted uses with conditions in BU-1 and BU-2 zoning classifications until May 20, 2003. Motion carried and ordered unanimously.

RESOLUTION, RE: SUPPORTING NO REDUCTION IN CURRENT U.S. TARIFF ON
IMPORTED CITRUS PRODUCTS

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to table the resolution supporting no reduction in current U.S. tariff on imported citrus products until May 20, 2003. Motion carried and ordered unanimously.

DISCUSSION, RE: PROACTIVE CODE ENFORCEMENT ON ARTERIAL ROADS

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to table discussion on proactive Code enforcement on arterial roads until May 20, 2003. Motion carried and ordered unanimously.

DISCUSSION, RE: RETAINING FEDERAL LOBBYIST

The Board withdrew discussion on retaining a federal lobbyist from the Agenda as recommended by County Manager Tom Jenkins earlier in the meeting.

Amendment 2003A.9

County Attorney Scott Knox advised representatives from municipalities are here on a Comprehensive Plan amendment dealing with the water issue; they met last Friday with representatives from the city and put together an attempt to come up with some language to reach a compromise on that; that did not go out until yesterday; and he does not think anyone had a chance to look at it. He stated there was a map associated with it that came out today; so no one had a chance to consider all the issues.

Chairperson Colon inquired if time is of the essence regarding the Comprehensive Plan amendments; with Mr. Scott responding if it is the pleasure of the Board, it could continue working on that and insert it in the adoption package as an amendment not previously reviewed. Commissioner Higgs stated that is what everybody objected to the first time, but if everybody knows staff is working on it, they would not get the same objections. Mr. Knox stated he does not think anyone would agree with it as it stands; and the Board needs to continue it. Commissioner Higgs inquired if the Board needs to get it in the Comprehensive Plan; with Mr. Scott responding it is ironic that it is the controversy that surrounded the Comprehensive Plan the last time; however, if staff is working towards it and assume the objections dissipate, Florida Statutes allow amendments to go into the adoption package as long as they are identified as not previously reviewed and they do not benefit from an ORC report. Commissioner Higgs inquired when will the Board get the adoption package; with Mr. Scott responding in the Fall. Commissioner Higgs stated that may not meet the time frame; with Mr. Knox responding the amendment is not critical to the issues the Board has with the Public Service Commission. Chairperson Colon inquired what action needs to be taken; with Mr. Knox responding continuance of the amendment; and Mr. Scott responding continuance of the water-related Comprehensive Plan amendment until the adoption package is submitted for Board consideration, which would be probably in August or September.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to postpone Amendment 2003.A.9, a request to amend the Future Land Use Element to add language referencing public schools and water facilities, until August, 2003, and send it with the adoption package as not previously reviewed. Motion carried and ordered unanimously.

Commissioner Pritchard recommended Item IV.E., 2003A Comprehensive Plan Amendments, be postponed until Commissioner Scarborough is present at the May 20, 2003 meeting. Chairperson Colon stated it has nine items. Commissioner Carlson inquired if there is a time frame for submittal; with Mr. Corwin responding this is the transmittal stage, and there is no set time frame; but there will be a time frame once they come back from Department of Community Affairs; and at that point, there is a 60-day deadline. Chairperson Colon advised the people have been here all day, so she will continue the public hearing on the Comprehensive Plan amendments and see how it goes.

Amendment 2003A.2

Steve Vickery of Melbourne advised his property is immediately adjacent to the property proposed to be rezoned to PIP; on the site are several wetlands; and requested the onsite wetlands be classified by the Florida Land Use Cover and Forms Classification System as wet prairies. He stated the Florida Land Use Comprehensive Plan 643 will eliminate their involvement in a potential mitigation process and their functions be maintained and protected by a 50-foot buffer of natural native vegetation. He stated another factor is the property adjoins their single-family area; and requested the Board’s assurance that an aesthetically compatible concrete wall with vegetation of size and type that would create an opaque screen within one year of planting be constructed adjacent to the entire length of the existing adjoining residential community. He stated they would like to be assured of safety and protection. Mr. Vickery requested the buffer strip be retained in common ownership of a legally constituted property owners association, a taxing authority that would guarantee continuous future maintenance to a degree that would insure protection of the value of their neighboring properties. He requested the developer be directed to bind itself and all subsequent lessees and/or property owners to those conditions by stipulations to Brevard County as conditions of rezoning and deed conveyances and restrictions running with the land for a period of not less than 40 years. He stated they would like to be assured they will be protected, their property values will be protected, and their children will be safe. He noted they would like to be assured they will be protected and their property values will not be affected detrimentally and have an aesthetically compatible neighbor.

Bob Peltz, representing Springs of Suntree, stated in reference to Flagler Development that became Viera Boulevard Joint Venture, Inc., which is now known as Commerce Park, they are in favor and endorse the change from IU to PIP; and they wish to recognize the Herculean efforts that Todd Corwin put forth on this whole development. He stated they had correspondence and meetings with the developers; they agreed that they should have a nice buffer strip between their residential area and the development; and it is almost a win/win situation because they will eliminate a lot of uses. He stated they would like to have the buffer they want maintained; however, there is difficulty with the current binding development plan (BDP); they, their legal counsel, and the residents have talked to Rick Enos about it; and it seems like it is possible to modify the BDP via administrative change. Mr. Peltz stated they would like to see, instead of a mandated 20-foot vegetative buffer plus the 51-foot swale or ditch, is to maintain the 20 feet as it is naturally now and maintain 71 feet of natural foliage. He stated it has a lot of advantages in terms of development costs, drainage, aesthetic value, marketing features, elimination of construction noises, dirt, etc., and would give them a more impervious barrier between their homes and the industry. He stated they would maintain a wildlife corridor for existing animals; the natural canopy of 25% could be used along their homes; and they would get 25% and the residents would get a better vegetative buffer, etc. He stated it would improve the noise barrier and the amicable relationship they now have with the developer. He stated a natural buffer between the residences and industrial parks may have been overlooked in some of the plans; and from that standpoint they endorse the change but hope they can change the buffer administratively. He noted Mr. Enos indicated it was possible to do provided they and the developer agree; and he thinks they are in agreement and hopefully will endorse the plan.

Brian Fletcher of Melbourne advised he has been involved with the project and understanding what is going to happen to the adjacent property; they had a meeting with the developers and it was amicable; and requested the Board consider the 71-foot buffer as a natural buffer and passageway for wildlife. He stated the height of the buildings constructed on the site at 35 feet would not be seen if a 71-foot buffer with present vegetation was left like it is now; the Board has done a good job with development in the area around Suntree and Viera Boulevard; and to do this would be another asset to the total property. He requested the Board consider that it would maintain the property on Bronco Drive and all the property that will be abutting the future development.

Mason Blake advised they support the Comprehensive Plan amendment and are planning their project which has private restrictions to comply with PIP zoning anticipated by the plan amendment; and they support the continued development of the area in the manner Mr. Pletz indicated to be compatible with the adjoining neighborhoods. He stated they have worked with the residents and will continue to work with them; there was concern expressed as a result of their property being administratively rezoned from IU to PIP and the existing BDP; and they will agree to continue with the existing 51-foot buffer that is in place in the existing BDP.

Commissioner Carlson stated what Mr. Pletz brought up was he thought the developer agreed that the 71 feet, which is the 20 feet plus the 51 feet, which are currently under the BDP could be used for retention; and they are requesting it be left in its natural state. She inquired if Mr. Blake agrees with them on that item; with Mr. Blake responding they do not have total agreement because they have not engineered the overall site, only the roadway and drainage for the road. Mr. Blake stated the residents are concerned about almost a mile long ditch; that is not what they intend to do. He stated they intend for a large percentage to be vegetated; 20 feet plus 25 feet on their side of the line will absolutely be vegetated; and they will see predominantly the 51 feet being vegetated as well, but they do not want to preclude themselves from using portions of that for drainage purposes and have not gotten to the point of engineering the entire area. Commissioner Carlson stated this is a Comprehensive Plan amendment cycle and not zoning; what precipitated all this was they did a small area study; the IU did not work in terms of compatibility with the community; so they chose administratively to submit the amendment to make it PIP, which everyone was in favor of because it lowered the intensity and would be a quality and organized development versus IU, which they are always unsure what is going to be developed in that scenario. She stated she understands the developer is developing under IU with PIP standards and has not rezoned the property because it chose to develop under IU; and inquired if that is correct; with Mr. Blake responding that is correct. Commissioner Carlson stated the Board is going through a Comprehensive Plan amendment, normally it does not add stipulations to the Comprehensive Plan; that usually takes place during zoning; but rezoning is not going to occur because they chose not to rezone the property and to develop it under IU. Mr. Blake stated what they chose to do is submit for subdivision plat approval. Commissioner Carlson stated her office understood that joint ventures created the

group that is going to develop the property as a planned industrial park; she spoke to residents and they talked to her about their concerns although the concerns about trying to make all 71 feet natural buffer was not brought up; she is not sure what the correct venue is to apply that because of where the Board is today; and inquired legally what can the Board include or stipulate in the Comprehensive Plan amendment. Mr. Knox stated if the property is going to be used as PIP with the condition that there is going to be some kind of buffer that is in addition to what is there now, the Board can impose that kind of condition if it chose to do that. Commissioner Carlson inquired if the Board could do that at this point; with Mr. Knox responding yes. Mr. Blake stated they already have those conditions; it is putting the cart before the horse; there is an existing BDP that imposes a 20-foot vegetative buffer and 51-foot vegetative and drainage retention buffer, so it is already stipulated. Commissioner Carlson stated her question is, since they chose to use a higher standard on existing IU and it specifically lays out in the BDP that they can use it as such because of what occurred in 1983, can the Board supercede that legally by putting it on a Comprehensive Plan amendment after the fact. Mr. Knox stated it would not be superceding if it is putting the same conditions on the Comprehensive Plan amendment. Commissioner Carlson stated it is different based on what the community is saying; they want 71 feet; the BDP says 51 feet for water retention and drainage; so they have the option and are not changing any of that because they have chosen the way they are developing, which is IU with PIP standards. She stated her question is can they take away that right at this point and time through a Comprehensive Plan amendment changing the future land use to PIP from IU. Mr. Knox stated under those circumstances no, the Board cannot do that now and has to go through a rezoning process.

Commissioner Higgs inquired if there was some comment about the BDP being different and there were minor changes; and the Board said it wants to see any changes to the BDP. Mr. Blake stated they would be happy to bring any changes to the Board. Commissioner Carlson stated her question is they are going forward with engineering and development of the property so at what point can the Board talk about zoning and apply something different to the BDP if they have not chosen to come in and apply for rezoning. She stated she is concerned about how the Board would get there; with Mr. Knox responding what the Board has is an existing BDP with certain conditions; if it wants to change those conditions, it has to go through what amounts to a rezoning process; and that can be done administratively or the developer can come in and apply for it. Mr. Blake stated in order to do it administratively, according to his meeting with Mr. Enos, it would have to be less intense than the existing buffer. Commissioner Higgs inquired if the Board could say at this hearing it wants to see any changes to the BDP; with Mr. Blake reiterating they will be happy to bring any change to the Board. Commissioner Higgs stated she is not familiar with the BDP, so she is not sure what the provisions are; but if the concern is there were changes to that, the Board could tell staff there would be no administrative changes. Mr. Scott stated as a matter of course, the Board will have that opportunity because when the amendment goes through with adoption, it will have to be followed up with an administrative rezoning because the Comprehensive Plan will go down from heavy/light industrial to planned industrial park. He stated at that point, the Board will have the opportunity to take the existing BDP that covers the property and convey the BDP to the new administratively rezoned property if it chooses to or with changes. Mr. Blake stated they would be happy to transfer the BDP when they get to the administrative rezoning process. Commissioner Carlson stated she understands that, but also understands that the joint ventures are going forward with their site plans and all that kind of stuff; and at that point it may be too late to put in any corrections or changes to the BDP. Assistant County Manager Peggy Busacca stated what is being requested today is a subdivision; in order to develop the lot any more than just putting the road in, they have to come in for site plans; so each site plan will be reviewed against the BDP. She stated should the Board choose to make a different BDP or continue the existing BDP into the future when it is administratively rezoned to PIP, then those individual site plans will be reviewed against that BDP. Commissioner Carlson stated she understands that, but maybe she is not making it very clear and maybe they agree, but what Mr. Pletz said he wants to see is the 71 feet stay a natural buffer; and Mr. Blake stated he does not agree completely and wants the latitude to use parts of it for retention if that shows up in the future. She stated the existing BDP says they are going to build a ditch or canal out there; that is what the residents do not want to see in total; and that is probably not what is intended by the developer; so she is trying to get her arms around how the Board can make that happen, if it has to make a BDP change at this point, and if it can do it. Mr. Scott stated he hates to be the bearer of bad news, but the answer is no; right now they have a BDP that vests certain rights; if they were to come in with site plan today and the change the Board is discussing were to come into effect a month from now, they would be grandfathered against it; so he does not think the Board has at its disposal a mechanism that enables it to alter the bundle of rights the property currently has today. Commissioner Carlson stated all the Board has right now is basically what she suggested the community talk to the developer about and vice versa; and the developers have been amicable in trying to understand the concerns of the community and how they want to make sure their quality of life stays the same or improve by the existence of PIP, and that there is a significant buffer for protection, safety, and things like that. She stated that is on record through their discussions; what they are telling her is that is all they have; and they do not have anything they can legitimately put in writing to bind the developer to make that 71 feet a natural buffer. County Manager Tom Jenkins stated at the administrative rezoning the Board will have an opportunity to discuss that; with Commissioner Carlson responding but at that point it may be too late because they will have already submitted site plans. Ms. Busacca stated each individual lot would have to be site planned; she does not know how many lots are there; but if between now and September or mid-August the site plans are not submitted, then there would be an opportunity to amend the BDP. Chairperson Colon inquired if the Board does have an opportunity to amend the BDP; with Ms. Busacca responding yes, at the administrative rezoning process. Mr. Blake stated they have been working with Mr. Pletz and the neighborhood.

Commissioner Carlson stated there is another issue that was brought up in terms of applying it to the Comprehensive Plan amendment and she wants to get clarification on that; Mr. Vickery brought up the issue of wetland designation; and inquired if staff has gotten feedback on that. She stated she has never heard of applying a wetland designation during a Comprehensive Plan amendment cycle. Mr. Corwin advised in the general sense the Comprehensive Plan currently prohibits industrial and commercial development in wetlands; in this case, although it was granted IU prior to 1996, it would have to be substantially surrounded by IU development in order to have any kind of development activities occur in those wetlands; so since the properties are not substantially surrounded, the wetlands will be protected. Commissioner Carlson stated the wetlands cannot be impacted on commercial or industrial property.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Amendment 2003A.2 to change the future land use map series designation from heavy/light industrial to planned industrial on approximately 112.5 acres located in Sections 35 and 36, Township 25, Range 36. Motion carried and ordered unanimously.

Amendment 2003A.3

Bob Peltz advised this amendment relates to the land north of Viera Boulevard; and there was a big mob from Indian River Colony Club, Springs of Suntree, Herons Landing, and Viera at the meeting lobbying the Board to maintain Viera Boulevard as a boulevard. He stated at the current time north of Viera Boulevard is zoned IU; the developers on the south side have a piece of property they would like to see as IU, but they are also agreeable of having the land just adjacent to Viera Boulevard changed to PIP; and suggested drawing a line down the middle between Pain Street and Viera Boulevard with the north side as IU and maintaining the south portion directly adjacent to Viera Boulevard as PIP. He stated that would give them a transition zone and reasonable buffer and would maintain Viera Boulevard as a boulevard. He suggested that as a compromise plan rather than having the whole area IU as presently zoned.

Mike Selig presented a drawing to the Board, but not the Clerk; and stated the LPA, in its infinite wisdom, went farther than they requested of them. He stated it is not an issue of anyone fighting anyone else; it is an issue of consistent land planning; Brevard County has performance based zoning that controls odors, noise, etc.; and the property they are requesting to be changed is only 2.47 acres that fronts only Paint Street. He explained a 1996 aerial of the area, noting it is the only one they could get from Cartography, but there has been a lot of development since then; and identified the truss plant, storage yard, a warehouse with outside storage of vehicles, and their property. He stated those are not PIP uses any more than the paint manufacturing plan that is cattycorner to their property nor the asphalt plant; and those are their neighbors and what they have to develop around, including a concrete crushing plant and water pipe company with pipes sitting in the yard. He stated they are asking to retain heavy/light industrial classification on the properties that front Paint Street and the separation be mid-block instead of jogging up into Paint Street so that all the frontage will be PIP. Mr. Selig advised no one came to the LPA meeting to argue against it; when it was presented, the LPA looked at it and said to draw the line at Viera Boulevard; that was not what they asked for, but that is what the LPA did; and what they are asking for is the line be mid-block where the two properties are instead of on Paint Street. He stated there is a veterinarian clinic going in there and the owners of the properties did not protest, so he assumed they had no problem with the PIP classification.

Commissioner Carlson stated that is what the community is interested in and supportive of; the issue is they had some real concerns with the industrial area further north; they need a buffer along Viera Boulevard to any communities that are coming in there; and PIP is the appropriate land use, so she will move for approval.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Amendment 2003A.3, to change the Future Land Use Map series designation from heavy/light industrial to planned industrial park on property located in Sections 35 and 36, Township 25, Range 36 along Viera Boulevard.

Mr. Selig requested clarification; and stated the property is 14.4 acres and they are asking to be exempt from that, which would cut it down to 10 acres. Commissioner Carlson stated it is going from IU to PIP. Mr. Scott stated they approved the LPA recommendation; with Commissioner Carlson responding no, the item is to accept PIP and not to deny it as recommended. Mr. Corwin stated the LPA recommended to leave the entire area heavy/light industrial; the recommendation of the Small Area Study was for the area to go PIP; and what Mr. Selig proposed was that the areas fronting Paint Street stay heavy/light industrial and the properties along Viera Boulevard be changed to PIP. Mr. Selig identified the separation line on the aerial map. Commissioner Carlson inquired if she made the motion right. Mr. Selig inquired if the motion is to be eliminated from the change; with Commissioner Carlson requesting Mr. Selig not confuse her. Chairperson Colon stated the Board supports Mr. Selig’s request and it is on the record.

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

Amendment 2003A.4

Mr. Corwin advised this item is another change from the Small Area Study to create a transition zone from heavier industrial uses to planned industrial over to the PUD that is currently part of the Suntree area. He stated what the CRG recommended and what he thinks Mr. Waelti is going to suggest is that the bottom two properties, which have residential zoning, be given residential designation as a better transition use between the current residentially-developed properties and the planned industrial park.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Amendment 2003A.4, to change the Future Land Use Map series designation from heavy/light industrial to planned industrial on 28.54 acres located in Section 12, Township 26, Range 36.

Rick Waelti advised there are actually three parcels, Parcels 259, 253, and 255; Parcels 259 and 253 are GU right now; and recommended all three be residential. He inquired if the Board supports his request; with Chairperson Colon and Commissioner Carlson responding yes.

Chairperson Colon called for a vote on the motion, as amended to designate Parcels 259, 253 and 255 as residential. Motion carried and ordered unanimously.

Amendment 2003A.5

Mr. Corwin advised the amendment proposes a buffer area of planned industrial; however, the Florida Inland Navigation District (FIND) has written a letter indicating it would prefer public facilities designation in the Comprehensive Plan, and at the time of administrative rezoning, an appropriate GML designation. He stated FIND felt that land use designation and zoning classification would better fit its intentions for the property, which is for a spoil site.

Commissioner Higgs inquired if the Board can do GML at this point, and individual rezoning or conditional use permit would come back to the Board; with Mr. Scott responding it would be public facilities.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Amendment 2003A.5, to change the Future Land Use Map series designation from heavy/light industrial to public facilities on 9.1 acres located in Section 26, Township 25, Range 36. Motion carried and ordered unanimously.

Amendment 2003A.6

Mr. Corwin advised the amendment proposes to right size the Sunrise Subdivision; it is a continuance of an action the Board started during the update; the amendment proposes to change a property that is already developed at six units per acre and currently designated as 15 units per acre; and the change is from residential 15 to residential 6.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Amendment 2003A.6, to change the Future Land Use Map series designation from residential 15 to residential 6 on approximately 55 acres located in Section 1, Township 26, Range 36.

Tim Cash, representing Sunrise homeowners, stated his concern is the area to be developed and whether it is classified as a wetland, prairie, or some other term; he has seen gators, the Florida panther, scrub jays and all manner of animals in there and would like it to be looked at as an environmental area by the County and studied in terms of whether it should be developed or not.

Commissioner Carlson stated there is an EELS Selection Committee that goes out and looks at viable habitats that have creatures as mentioned by Mr. Cash; and if it identified that property, it did not make the Board aware of it. She stated because of the amount of development that is occurring in Brevard County, a lot of the areas are becoming more concentrated with critters because they are being pushed into the smaller areas; but one fact is true, they will not be developing in wetlands on a commercial or industrial tract. Mr. Cash stated his request is to study that and look at the lack of areas for animals because they keep coming into their swimming pools, and they might not be able to swim if there is a gator in the pool. Commissioner Carlson stated the Selection Committee meetings are open to the public; the public can make comments or bring issues to the Committee that reviews those things; and Mr. Cash may be able to provide input to the Committee based on his sightings. She noted that might be an avenue to be heard; and staff can get that information to him so if he has concerns about a piece of property he can bring it to the EELS Selection Committee.

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

Amendments 2003A.7 and 8

Sandra Clinger advised she is here to support the Board moving forward with the two amendments to come into compliance with Florida Statutes 371.2.

Commissioner Pritchard advised this is the marina siting element of the Manatee Protection Plan that when the plan was passed he voted against, particularly because of this element; and he cannot support including it in the Comprehensive Plan because it was nonsense then and it is nonsense now. He stated using 10%, 5%, 5 miles, 1 to 100 ratios are all figures that are arbitrary and the use of them is capricious; they are not based on any science whatsoever and is simply someone’s idea of how to feel good by installing numbers that are irrelevant; and the scientific basis does not exist. He stated it has been proven many times it has nothing other than a feel good solution to a problem the County continues to have; the idea of adding validity by including it in the Comprehensive Plan goes against all that he has spoken of for many years; and he cannot support including it in the Comprehensive Plan as written.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve Amendment 2003A.7, to amend the Conservation and Coastal Management Elements to add language referencing the boating facility siting element of the Brevard County Manatee Protection Plan. Motion carried and ordered; Commissioner Pritchard voted nay.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Amendment 2003A.8 to amend the Glossary of the Comprehensive Plan. Motion carried and ordered; Commissioner Pritchard voted nay.

Amendment 2003A.9

Mr. Corwin advised the amendment dealt with water facilities and was withdrawn earlier in the meeting to be resubmitted at the adoption cycle.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
MARCH 10, 2003, ITEM 1

Chairperson Colon called for the public hearing to consider the recommendation of the Planning and Zoning (P&Z) Board, made at its public hearing on March 10, 2003 as follows:

Item 1. (Z0303401) Robert G. Weber and Mary Elizabeth Pluckebaum Weber’s request for change from AU to EU-2 with BDP limiting development to five single-family residential home sites on 4.851 acres located on both sides of Rockledge Drive, north of Coquina Road, which was recommended for approval by the P&Z Board, and tabled by the Board of County Commissioners on April 10, 2003 and May 1, 2003.

Dr. Robert Weber advised the property is zoned AU and the request is for EU-2; it has been in the Pluckebaum-Weber family for about 75 years; because of multiplicity of reasons, it is mandatory to divest themselves of much of the property; and even though the Comprehensive Plan would allow them to have 19 units, they decided not to attempt to have a subdivision, but to have a marked decrease in density to five lots. He explained the configuration of the lots on a miniature survey, noting the front line as 485 feet along the road and the depth at 440 feet located on the Indian River; and stated they would like to have five lots instead of two AU lots. He stated they know the decision would be compatible with the Board’s thinking and enhance the beauty of the area; the BDP demands each residence be at least 2,000 square feet of living area; and each lot would basically be an acre. He noted the lot to the north has a width of approximately 62 feet along the west side of Rockledge Drive; it is the lot to the north in juxtaposition to their most northerly lot; and the proposed northerly lot to be developed will be 94.34 feet instead of 62 feet that the neighborhood has. He stated the width of the lot to the south of the area on the west side of Rockledge Drive is about 95 feet, but it might be 100; their southernmost proposed lot will be 100.09 feet; staff agrees with the request; they feel it is the highest and best use of the property and would increase the tax base; and the P&Z Board passed it unanimously. Dr. Weber stated he talked to Mr. Curry with the School Board four months ago and he implied with the few lots that would be involved there would be very little school impact. He stated Mr. Strickland with the School Board said, at the P&Z meeting, the permanent capacity of Williams Elementary is over capacity right now based on current enrollment; however, the total capacity including portables does not make the school over capacity. He stated Mr. Strickland said there is room at the school based upon the portables in place; School R, which does not have a name yet, will come online and will take approximately 450 students from Ralph Williams Elementary; he does not believe there is a school capacity issue here; and two of the people they relied on were school officials, and neither one saw any particular capacity problem. Dr. Weber advised, according to Carl Brown, Principal of School R, their property is in that jurisdiction; Mr. Brown said anything on Rockledge Drive east of U.S. 1 was in his district, from Park to McIver; they already have 650 permanent capacity at the school; and it is supposed to be finished in July and open on august 7, 2003. He noted he has pictures of the school and the significant construction; they even have blinds on the windows; they will not be selling any lots for some time after August 2003; so it could not affect school capacity. He stated they have to demolish two buildings and build a garage; they have three agreements and would appreciate the Board considering that; and presented copies of the agreements to the Board, but not the Clerk.

Commissioner Carlson inquired if it is a rewrite of the BDP; with Dr. Weber responding if the zoning request is granted, they agree that two of the five lots would not be sold until the existing school design capacity is met in August 2003. He stated the other agreement says they have three lots theoretically; they would not have anything to do with school capacity; the two they already have and then one that does not affect school capacity, so that would be three of the five lots; and if they did not put those online, which they do not plan on by any means, there would be a gain in school capacity because they would not take the three they could sell; so in reality there would be a gain. He stated children from their property would be matriculating to School R, which is not quite completed, but is extremely impressive.

Commissioner Carlson stated the item was tabled twice because of school capacity issues; and she would recommend to the Board, given the handout from Dr. Weber regarding his willingness to postpone any land development of any sort on the three lots, she will make a motion to include the BDP with the words he provided that he would not go further in terms of land development until School R is open. She stated the Board will address the school capacity policy on an ongoing basis; it is already exploring what other things it can do with that policy, such as when there is a school that is going to open or is under construction; but it has not answered those questions yet, nor has it gone before the School Board because the timing was not there for this item. She requested the Board separate this item and put that detail into the BDP, which would be brought back to the Board at the next meeting.

There being no further comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to approve the rezoning request of Dr. Robert Weber and Mary Pluckebaum-Weber from AU to EU-2 with a Binding Development Plan (BDP) limiting density to five single-family lots and minimum of 2,000 square feet of living area, include that they will not go further with land development until the school is open, and bring the BDP back to the Board at the next meeting. Motion carried and ordered unanimously.

ADDENDUM NO. 5 TO AGREEMENTS WITH WASTE MANAGEMENT, INC.
AND HARRIS SANITATION, INC., RE: SOLID WASTE COLLECTION

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Addenda No. 5 to Agreements with Waste Management, Inc. and Harris Sanitation, Inc. to provide solid waste collection, including revised compensation collection rates. Motion carried and ordered unanimously.

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

Attorney Richard Torpy, representing Dr. Timothy and Karen Nielsen, advised the Nielsens applied for a house on south Melbourne Beach based on the Code regarding height and communications with staff; they planned and sought permits for a four-story home, including a first floor garage; he was instructed to discuss with Mr. Knox compensation to the Nielsens; and that is why they are here today. He stated the Board received a series of reports from Mr. Knox on the application; Mr. Knox said there is undocumented request for reimbursement; he submitted the document to Mr. Knox’s office; and his office asked for additional information, which he provided. He stated as far as he is aware, every nickel of the $107,000 requested for reimbursement has been documented in either canceled checks, statements from individuals money is owed to, copies of detailed billings, and everything he knows of; the only real question was the $935 paid for a sewer connection that was provided and is in the packet; and the reason it was paid was because the County does not provide sewer there. He stated there is a letter dated November 18, 2002 addressed to Mr. and Mrs. Nielsen referencing Lot 5 in Sunnyland Beach from Bill Tollman stating Vistar Realty, Inc. built the sanitary sewer line to the lot and paid the required connection fee in the amount of $935, and enclosing a self-addressed stamped envelope to return the payment of $935 to Vistar Realty as the payee; and a check was mailed to Vistar Realty for $935 on November 25, 2002. He stated if Vistar Realty did not have authority to collect that money, his clients would have an issue with the company; but the money was paid by the Nielsens because the company represented it had control and built the sewer line that services that property. Mr. Torpy stated Mr. Knox reported he conferred with a contractor about the validity of their request; he requested that Mr. Knox give him the name of the contractor; they had several conversations about that; and Mr. Knox supplemented his report to the Board to say that the contractor said $107,000 could be a reasonable amount considering the scope of the project. He stated the initial staff report challenged the issue based on that representation; he did not ask to have the contractor here or even talk to the contractor, but understands, in talking to Mr. Knox, that he is a friend of Mr. Knox’s and he ran it by him rather informally. He stated there was a question in the staff report about the timing of monies spent, whether they were before conversations with staff or after conversations with staff; that is not an issue; their issue is the Ordinance says the first story non-habitable floor of a structure does not count in the height calculation; staff agreed with that; and their engineers have designed multifamily structures in the past using the Ordinance. He stated they designed it, met with staff, and confirmed it; it was not until the permit was about to be issued that there was an issue of the interpretation of the Code; and all of the time was reasonably spent to design a house based on the interpretation of the Code. Mr. Torpy stated he asked Mr. Knox where he came up with his recommendation to the Board about attorney’s fees, and he said he passed it around the office; a 21-page detailed billing analysis was provided to the County; the project was quite lengthy; and one of the issues that came up, which Commissioner Higgs raised at an earlier meeting, was that the Ordinance was never intended to be applied to single-family residences. He stated on behalf of the Nielsens, they went all the way back to 1985 and researched the records of when the Ordinance was created; they looked at the Minutes of the Planning and Zoning Board, subcommittees, and the Board of County Commissioners; that was only one of the items they had to do to determine if that was the case or not; and he agrees to disagree on what the intent of the Ordinance was. He stated the question Mr. Knox asked repeatedly through the process was if they were going to build the house; if the Nielsens are going to build the house, they will recover some of the cost and be able to use some of the engineering plans and permits; so he told Mr. Knox they would build the house if they can get a variance from the Coastal Construction Setback Line, which the Board has to grant. Mr. Torpy stated to rework the plan would take almost a 20-foot variance from the 25-foot setback line; he advised his clients that it was highly unlikely and probably something the Board would not want to grant; and he said he could probably live with ten feet of variance. He stated if the Board is interested in granting his clients a ten-foot variance so they can construct the house, then the number they are looking at for compensation goes down to $75,000 because they would be able to recover and make use of some of the plans they had done. He stated that is the proposal he is here for today, and to request the Board approve a variance for the Nielsens. He stated he understands it has to go to a public hearing; he does not want to go to a public hearing and wait two or three months only to have it denied; so he is looking for some comments from the Board if it is interested in doing that; and if not, then they will build on the remaining envelope, redesign the house entirely as it would be much smaller and less able to sustain the amount of money they paid for the lot, and request full compensation as documented to staff pursuant to the Board’s request. He stated his clients would like to resolve this issue.

County Attorney Scott Knox advised some time ago the Board asked him to see if he could work out a settlement agreement with the Nielsens, which is what he attempted to do; that came out of a vested rights determination hearing that the Board held; and the Board asked him to prepare an order denying the vested rights application, which the Board has before it today. He stated Mr. Torpy came in with documentation of $107,000 in expenses, including attorney’s fees and construction plan costs; he recommended the Board adopt a sum of $46,942; a counter proposal was made of $75,000 contingent upon a variance being granted; it was originally a 20-foot variance that dropped to ten feet; and that is where the issue is right now. He noted the Board has settled some of those things before to avoid litigation, but he does not think it has gone over $40,000 in the past.

Chairperson Colon inquired if staff is saying $46,000 and Mr. Torpy is saying $75,000; with Mr. Knox responding $75,000 with a variance, and $107,000 otherwise.

Commissioner Higgs stated the Coastal Construction Setback Line Ordinance was recently amended that unless they can show accretion in the area, it would not permit a variance from the setback line; and that can only be done at a public hearing, so it would be difficult to say, to the best of her recollection, whether there has or has not been accretion in that area. Mr. Torpy stated they checked it out and there does not appear to be any accretion in the area; there may be some erosion; and unless the Board has the discretion to vary from the Ordinance, they do not have an opportunity to seek a variance, so they will move forward to settle on a monetary basis without the variance.

Chairperson Colon advised $33,000 keeps coming up; and inquired if that was the original amount that the Board discussed; with Mr. Torpy stated it came to the Board in two areas, $33,000 was the original amount he presented paid by his clients for various things out of their pockets at that time; that did not include monies spent by the developer/builder, his process of the design and permitting, and various obligations he wrote checks for or there was a bill and invoice still outstanding, plus the outstanding attorneys fees; and that is the difference.

Commissioner Pritchard advised the Agenda Report uses the word “documented”; it is a total of $46,942; Mr. Torpy provided documentation for $107,000; and inquired how did staff come up with the difference; with Mr. Knox responding what he called documented are out of pocket expenses of $33,942 Mr. Torpy presented to him when they first heard the application; and that is actual checks written as opposed to invoices that were submitted and not paid yet. Mr. Torpy stated that was actual checks written by his client; but they had a contract with a builder, and part of the checks that were written were deposits to the builder; the builder, because he had a contract was moving forward with the project; and the balance of the monies that were not in the original $33,000 are checks written by the builder to various subcontractors, engineers, etc. Mr. Torpy stated the third category is the bills that were unpaid by the builder, which gives them some ability for discussion because if they can move forward with the house, they will be able to recover some of the money and will not ask for that money to be paid, such as the landscape plan, which was a big ticket item. He noted they can incorporate that landscaping into any house; and if they do not go forward with the project, that bill has to be paid; and those are the kinds of things that are in the application. Commissioner Pritchard stated Mr. Torpy said they would go forward with some project scaled down; and inquired how much of those costs would they be able to accrue if they go forward with a smaller house; with Mr. Torpy responding the issue is the building envelope; and it has shrunk from the original plan. Commissioner Higgs stated the building envelope does not change and is the same. Mr. Torpy stated the only item that can definitely be reused is the landscaping plan; that was about $20,000; there is going to be some redesign, but the brunt has been done; and outside of that, they have not begun to design the house. He stated the only thing they looked at was recapturing the square footage that they would lose by losing a story; having paid a lot for an oceanfront lot, they want to build a reasonable amount of square footage consistent with real estate standards; they do not want to under-build or overbuild on that lot; and their legitimate concern is losing the square footage of the third living floor if they cannot recoup it. He noted the big concern of the Nielsens is the house will be too small for the value they paid for the lot; that is not a rational cost anybody can guess, so he is not going to talk about that; but the real out-of-pocket design expenses are what he presented to the County for the Nielsons and the builder; and they can probably live with a $20,000 reduction for one of the items they can reincorporate. Commissioner Pritchard inquired if they would have a cause of action against the builder to recoup some of the costs; with Mr. Torpy responding he does not believe that at all; the builder acted in good faith based on the understanding of the Code; he was moving forward with the contract; the project had been through site planning and was about to have a building permit issued at the time it was stopped and this issue was raised; so it is not like it was in the beginning phases. He stated there was a lot of preliminary work done; and he does not see any issues that they have where the builder did something wrong. Commissioner Pritchard inquired if Mr. Torpy said he could deduct $20,000 from the $107,000; with Mr. Torpy responding yes. Mr. Torpy stated it appears a variance is not even an option if he understands the Board; they could accept $87,000 and recoup their losses by reincorporating the $20,000 item into a new project.

Commissioner Higgs inquired if Mr. Knox’s recommendation is $46,942, which includes the $13,500, as the figure the Board agreed to settle with; with Mr. Knox responding that was his original recommendation; of course this is a settlement and it takes two to settle; and the other alternative is to pass the resolution denying the vested rights determination, which he assumes Mr. Torpy would want to contest.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution setting forth the findings of fact and conclusions of the Board pertaining to the denial of application of Timothy and Karen Nielsen for vested rights; and execute Settlement Agreement with the Nielsens in the amount of $46,942, constituting full settlement of all existing or future claims.

Commissioner Pritchard stated he is opposed to the motion and feels as if he is trying to juggle a lot of unknowns; he is looking at $107,000; Mr. Torpy said he can take off $20,000; but he is not sure it is $20,000 because he does not know what the value of the loss of living space is. He stated the Nielsens were relying on something that was not tested before, which was a first floor unoccupied area not calculated in the height of the structure; that had always applied to multifamily, and it became an issue before the Board; and the Board took appropriate action, but the Nielsens were well underway with the construction in terms of planning, permitting, and other factors that fit in that time line. He stated had it been stopped earlier, they would not have had the large expenditure; and that is why he feels they are entitled to more than the recommended $46,942, but he does not know how much more. He stated he cannot take the $107,000 and subtract $20,000 because Mr. Torpy is not sure about the $20,000; so it could be between $47,000 and $80,000; and he is not comfortable accepting what Mr. Knox said because he is not sure they have a meeting of the minds.

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

APPROVE DONATION OF PROPERTY, WAIVE SURVEY, AND ACCEPT QUIT-CLAIM
DEED FROM KENNETH AND BETTY GOLDMAN, RE: PROPERTY FOR FUTURE
MITIGATION

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve donation of land in Section 31, Township 23S., Range 34E. by Kenneth and Betty Goldman, waive survey of the land, and accept the QuitClaim Deed transferring the property to the County for future mitigation purposes. Motion carried and ordered unanimously.

WAIVER OF SECTION 62-2883, RE: PERIMETER BUFFER IN AURORA OAKS
SUBDIVISION

Commissioner Carlson stated the Board has waived certain buffers; on the southern portion of this property is a 50-foot dedicated street occupied by a ditch; and she agrees with removal of the buffer on the south side, as well as the side of Aurora Road, which is similar to action the Board took at the last meeting. She requested Mr. Washburn describe what is on the east and west sides of the property; with Permitting and Enforcement Director Ed Washburn responding on the west side is John Rodes Boulevard or Aurora Road, and on the east side is a mobile home park. Commissioner Carlson inquired, since they are residential developments, would they be considered compatible. She stated the whole idea is to give 15 feet between subdivisions for compatibility purposes. Mr. Washburn stated the mobile home park is developed at a higher density than the proposed subdivision.

Commissioner Higgs suggested on the side abutting the mobile home park, the 15 feet be left in the lot size and as natural vegetation. Commissioner Carlson stated that would be fine; and the Board can waive the buffer on the north, south, and west sides and keep the buffer on the east side as part of the site development and it should be left in its natural state. Mr. Washburn stated it should be on the lot as suggested, but it should say a 15-foot landscaped buffer because it is not spelled out in the request.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to waive perimeter buffer requirements on the north, south, and west sides of Aurora Oaks Subdivision, and allow a 15-foot landscaped buffer to be placed in an easement on the lots instead of in a separate tract on the east side. Motion carried and ordered unanimously.

The meeting recessed at 5:30 p.m., and reconvened at 5:37 p.m.

APPEAL OF SITE PLAN APPROVAL, RE: MICHELINA CONDOS/RAY’S CONDOS

Attorney Richard Torpy, representing Mr. DiChristopher and Mr. and Mrs. Pope, stated his clients do not oppose the project that has been proposed by Mr. Ray; what they are concerned about is the process; and that is what the appeal is all about and what he is going to ask the Board to look at. He stated he has given the Commissioners books because it is important to follow the Code; they think there was an error in approving the site plan that has been proposed by the Rays; that site plan was approved this past December, but it was submitted to the Board on April 4, 2001; so it was in the permitting phase for quite some time, and the standards that existed on April 4, 2001 are the standards that were applied to the permitting process and site planning process. He stated page 19 is the staff’s report; he agrees with the issues raised by the staff’s comments although not the conclusions; as a matter of right, RU-2-30 has a maximum height of 60 feet; and the structure as designed from the ground to the top is slightly over 80 feet, because the first floor non-habitable parking is not considered in calculating the height and the County does not count from the top of the roof. He stated all the architectural structuring up top is not load bearing, so it is an 80-foot tall building even though it has come in under the 60-foot criteria. Mr. Torpy advised the requirements in 2001 were very specific; anything above 35 feet up to 60 feet, required the conditional use permit (CUP) criteria standards be applied; so people cannot come in and say they want a 55-foot building; and staff says that in their report, and say they attempted to adhere to those standards by the example they gave the Board as breezeway. He stated they required the applicant to meet the Code’s requirements under the conditional use permit requirements for additional height and meet the additional breezeway requirements. Mr. Torpy stated the conditional use permit requirements also say they have to meet the requirements for amending the land use map; and this project was approved without a single public hearing and also approved without the staff reviewing the requirements of the CUP in total. He stated one of the requirements of reviewing the standards of the CUP is diminished value of surrounding properties; the Board denied a CUP for one of his clients because the adjacent landowner, in a public hearing, demonstrated that the proposed project reduced his property value by 15% or more and determined that was irrefutable presumption; however, there is nothing in staff’s report where that issue was addressed. He stated the Code requires the Board to review, under the CUP standards, impacts on the surrounding community and properties; and on page 19, staff says, “while issues of compatibility are also raised in the CUP section, such principles are difficult to apply at an administrative level. These provisions are best suited for public hearing discussions when an applicant for a CUP is being considered by the Board, not during administrative review of the site plan.” He stated it goes on to say staff attempted to do that by its 19 units per acre as opposed to the 30 units that would be approved under the zoning; there is nothing in the Code that says the Board does not have to have a public hearing on this issue; page 25 talks about amending the official zoning maps and the requirements and burdens on the applicant; and Subsection (b) talks about hearings before the Planning and Zoning Board. He stated page 26, Subsection (c) amends the land use and talks about hearings and reviewing the character of the surrounding properties; page 27 talks more about public hearings in front of the Board of County Commissioners; and page 28, Section 62-1901, talks about approval procedure and actually puts the burden on the applicant to meet requirements first and provide evidence that they meet all the criteria for a CUP. He stated none of that was done for this project; and inquired if an applicant is seeking additional height and staff is supposed to review impacts on surrounding properties, one of them being value, how can staff conduct that review if the surrounding property owners are never invited to the table. Mr. Torpy stated none of the adjacent landowners were sent a notice of the application; they were never told about it; as far as he can tell, there was no public hearing, no public notice, nothing; and his clients found out about it when the sign went up advertising the project. He explained Tab 2, noting the lot to the south of the proposed project has an eight-story condominium; Mr. and Mrs. Pope have two single-story duplexes on their property immediately to the north; and by the applicant’s permit application and site plan, the wall of their structure is 14 feet to the north of the wall of the eight-story building. He stated the first picture was taken standing 15 feet away from the eight-story building; and that is what his clients have to look at from their rear windows or rear property line of their duplex. He stated the second picture is a similar photo; the third gives some perspective; Exhibit “C” shows the paved concrete area; and that happens to be 15 feet wide, so there is 15 feet from the north of that building. He stated that gives the Board an idea of how close the proposed project is to the Popes’ duplex. He stated the next two pictures show the site from the south of the Rays’ property looking north; there is a two-story structure further north and the little white building is actually one of the duplexes that belong to the Popes; and in the next picture, the same kind of picture looking from the north pointing south, gives the Board an idea of the fairly undeveloped pristine area. He noted there are a lot of houses, but there are not a lot of tall structures; and clearly a tall structure of this nature is going to negatively impact the Popes’ property. Mr. Torpy advised Exhibit 3 shows a specific example of their concern; one of them is the shading; it is an aerial photo taken on January 26, 1999 of the complex to the south; they have done the math from the scales; and the area of shading that is clearly to the north is approximately 80 feet in the winter. He stated in essence, the Popes’ duplexes during the winter months, when the sun is at its furthest south, will not be in the sunshine as the lot is only 50 feet wide; so it will be in the shade. He stated the next page is a larger aerial of the area showing some of the other units; the shading from the condominium goes off to the northeast; that happens to be where Mr. DiChristopher’s property would be configured; and this building so close to those properties is going to create tremendous shading effect. Mr. Torpy stated the third exhibit is the Rays’ site plan, which they mapped out; and based on those aerials, the shading effect will impact the properties during most of the time in the winter months and completely shade the Popes’ duplexes. He stated Exhibit 4 is the surrounding community; the numbers are the heights of the surrounding buildings; to the north there are one and two-story structures with a couple of three-story structures; and to the south there is the eight-story structure, but the surrounding community is very low. He stated this is not one of the areas of the beach where there is a substantial amount of tall structures; Exhibit 4, which is the site plan, places the building east and west; the back of the entire structure is against the Popes’ property and the northwest corner is adjacent to Mr. DiChristopher’s property; and what the Board is seeing is deceiving because it appears to be parking spaces, but that is all building showing the footprint of the covered parking. He stated the parking lot and pavers is a section itself; he talked to the attorneys for the Rays to try and work the site around to give his clients some breathing room; and the answer was it cannot be done. He stated the engineer and Mr. Ray’s basic answers were each of the setbacks is the minimum, so there is no room to move the site; it has to be that way; they cannot flip it because to flip it would irritate the neighbors on the south side; and they would run into the same issues. Mr. Torpy stated one of the issues Mr. Scott raised was why they did not at least solicit the opinion of the neighbors so they could make the evaluation of the conditional use criteria; and he said they just went through a rezoning. Mr. Torpy requested an additional three minutes to summarize his presentation. Chairperson Colon stated the time will be taken off the five minutes for rebuttal; with Mr. Torpy responding he will just take two or three minutes and reserve the remainder for rebuttal. Mr. Torpy stated Mr. Scott said the reason they do not go to public hearing is there was a rezoning of the area; and the issues of impact on the surrounding community were considered as part of the rezoning. He stated he looked at that rezoning, and what happened was in 2001 the Board went through an administrative rezoning of the area seeking to rezone those properties from RU-2-30 to RU-2-15; and how that worked was, if the owner did not object, the property became RU-2-15. He stated the Popes did not object to the downzoning of their property; the Rays did object and came to the meeting; and he wants to read the excerpts from those minutes because one of the questions was why were the neighbors not objecting to the property. He stated the site plan for the property was submitted on April 4, 2001; the Board meeting seeking to administratively downzone the property was held on April 3, 2001, one day before the site plan was submitted; and Mr. Ray’s comments, to avoid a downzoning are: “Clifford Ray advised he owns property in Avon-By-The-Sea, which he has been in the process of selling to the Trust Republic Lands. The Trust has presented the package to the City of Cocoa Beach for a park. The Trust only pays for property based on highest and best use, and downzoning his property would decrease the appraised value, which would drastically affect him financially and emotionally. He stated they put 85% of their life savings into the property and if it is devalued, he does not know how long it would take to get back the value it is now. He stated the downzoning would cut off any possibility of selling the property for a park, and he would probably have to sell it to a developer who has more flexibility to pay 40% more, which is not an option the Trust Republic Lands has. He stated this is the best chance to sell the property for a park. Surrounding properties have been developed at 30, 28, 26, and 10 units per acre. Immediately to the south is a property developed on 40 units per acre site, which has 66 units in an eight-story high-rise, so his property is currently consistent with the surrounding property. Mr. Ray advised they have been before the P&Z Board twice and both times it voted to accommodate them. Nobody has spoken in opposition giving them the latitude to retain the current density; and nobody seems to oppose the property being developed as zoned if the park deal falls through. Maria Ray advised her priorities are to preserve the land for a park and to get a return of their 25-year investment in their business. She stated she does not want to sell the property to a developer, and the City of Cocoa Beach passed a Resolution that it wants the land for a park. She stated reducing the density from 30 to 15 would cut their investment in half; and requested the Board consider leaving it out of the package so they can sell it for a park.” Mr. Torpy stated the representations were made to the Board the day before the site plan for the eight-story condo was submitted; and the reason the Rays were able to make those comments to the Board is it had an advertised public hearing so they knew what was going on and were able to come and talk to the Board. He stated the Board has consistently, with height on the beach, been adamant about protecting adjacent landowners’ rights to view that beach, to have the sunshine, and to have the breezeway; and it developed a Code surrounding that exact issue. He requested the Board not deny the permit that has been issued, but require this item to go for a public hearing to consider the conditional use permit requirements.

Chairperson Colon advised Mr. Torpy he had one minute left for rebuttal. She stated because it has happened to the Board before of attorneys claiming they did not have an opportunity to see the other side, she asked Mr. Knox and Mr. Amari to look at the items.

Clifford Ray advised the Trust for Republic Land was a real contract; he was legally obligated and did not think that was the point the attorney was making; the point he was making was that the criteria for retaining their density was that it might be a park; and when he made that presentation, part of the Board pointed out surrounding properties such as Discovery Beach to the north, the south being developed at 40 units per acre, and the property to his immediate north being developed as all multifamily rental property. He stated the property to the southwest was developed as beautiful single-family homes; the property Mike DiChristopher owns to their northwest is vacant and he is one of the other petitioners who was able to retain his 30 units per acre; so in presenting the case with the park, which the Board has documentation verifying that, he was legally obligated, but unfortunately the funding from the Trust Republic Lands fell through and that is why the purchase did not go through. He stated they proceeded to sell the land on the open market, and that did not work; consequently, they ended at this development point. Mr. Ray stated they went over all the surrounding properties when he designed the site; he tried to take into consideration that the five single-family houses were developed to capitalize on the view down Harding Avenue; he was sensitive to that and shifted the building; unfortunately, they were constricted by the parking requirements, retainage, and so forth, so they shifted the building to the furthest northern boundary. He stated as far as the shading and breezeway, obviously they met all the breezeway requirements or they would not have gotten an approved site plan; and there could be a better approach to the site for Mrs. Pope’s rental property or Mr. DiChristopher’s undeveloped 30 units per acre site, but it would adversely affect the property owners to the northwest who built beautiful homes using the view down Harding Avenue. He stated they took the position that it was the best they could do with what they had to deal with to meet all the requirements of the County. Mr. Ray stated if the building is going to cast an 80-foot shadow to the immediate north, it is not going to make any difference as far as shading the rental property that Mrs. Pope owns because if they move the building all the way to the southern boundary, which would completely obstruct the views of the five single-family residences, the 80-foot shadow would still fall over the top of the back windows of Mrs. Pope’s property because the entire site is only 200 feet wide; and if they have an 86-foot building sitting 25 feet north of the required setback off Harding Avenue, that is going to place it approximately 50 feet from the edge of his building; to the beginning of her building will be 60 feet; so their four rental properties will still sit in the shade; consequently there is no perfect scenario. He stated they followed all the criteria and did the best job they could, and urged the Board to keep their site plan in place as they did everything that was asked of them.

Attorney Richard Amari, representing Clifford and Maria Ray and Charles Boyd, presented a handout to the Board, but not the Clerk, and stated the Popes’ property is a nonconforming lot of record; the duplex only sits four feet from the lot line; and maybe part of the reason they only have 14 feet setback is because their property is nonconforming use. He stated if they had the required setbacks, there would be at least 20 feet between building walls; but the real dilemma is there is no other representation or layout of the building and they cannot go to the far south side of the building; and as Mr. Ray pointed out, if they did, it would still have a shading problem. He stated the reason they cannot go to the far south side is because it would require access off an alleyway that does not meet the Land Development Regulations; and their engineer of record was advised that the property could not access from the south side. He stated they looked at that as a layout, but it is not possible to go to the south end nor to move away from the north property line because of the required minimum setbacks; and if they even moved one foot, they would lose at least eight units, according to their engineer. He stated that is not what they are here to talk about tonight; there are some very particular legal issues they need to talk about; and that is there are two reasons why the Board should deny this appeal. He stated the first reason is that it is not timely; he understands there is a legal construction to deal with, but he needs to raise it for purpose of the record; and the appeal should have been filed within 30 days from the approval of the site plan, which is the way the Code reads. He stated Section 62-3204, which deals with site development plan submittal and approval procedure, paragraph (f), formal submittal and review procedure, subparagraph (5), talks about approval of the site plan by the Land Development Section, and says, “the Land Development Section shall then review the recommendations of the aforementioned County agencies and after all required changes have been met, either administratively approve the site development plan or present it to the Board for approval or disapproval.” Mr. Amari stated in this case, the Land Development Section approved the site plan. He stated the last section reads, “appeal from any decision of such officials may be made within 30 days from the decision of such officials to the Board and shall be initiated by the applicant”; he understands there is a separate section of the Code which the appellants have attempted to come within, which is 62-3207 that talks about appeals of administrative decisions or implementations of Section 8 of the site plan; and he does not know how the Board can reconcile those two sections of the Code, but he will offer a reconciliation. He stated that specific provision deals with an appeal from an approval or denial of a site plan; it is very specific; therefore, the other one must be appeals of any other matters dealing with Section 8 of the Code. He stated for example, if he provides an application to Mr. Scott for site plan approval and Mr. Scott comes back and says they cannot accept it, and they need certain things, he can say Mr. Scott is wrong, and Mr. Scott can say that is his decision; and at that point, he can appeal the decision to the Board under Section 62-3207 and there is no time requirement. He stated the other provision says there is a 30-day time requirement, which only makes sense because the property owner needs to know at some point that he has a final decision that he can build on; so it makes no sense not to have a time frame for appealing decisions. He stated if they build a condominium, people can appeal it even after the condominium is constructed; and it does not make sense to have a provision for appeal of a site plan upon which building permits are dependent and to take the position that there is no contract.

Mr. Amari advised Joyce Gumpher has put in a card and requested he take the time to make her approach for her; and requested the Chair recognize that time; with Chairperson Colon responding she would not allow it, but inquired what would the Board want to do. Commissioner Higgs stated it would seem that the respondent should have 15 minutes; Mr. Ray already took five minutes; and if the Board lets Mr. Amari have an additional five minutes, then that would be consistent with what the applicant received. Chairperson Colon inquired if that would mean his wife is not speaking; with Commissioner Higgs responding that would be their decision. Chairperson Colon advised Mr. Amari to proceed with his presentation.

Mr. Amari stated the second matter is Mr. Torpy’s argument is based upon a presupposition that is not true and not accurate; as soon as the Board realizes that he is reading the Code incorrectly, his entire argument fails; and to make that point, he needs to ask the Board to look at the handout he gave it. He stated the handout is a reproduction from Article VI of the Zoning Code, the Table of Contents, because it helps to focus on the issues, which are kind of confusing. He stated Article VI, Division IV, Subsection 3, deals with multifamily residential; Section 62-1373 is where they were; they had an RU-2-30 project that gave them height as a matter of right; and that Section says, “all conditions enumerated in Division V, Subdivision 3, of this article shall be fully satisfied.” He stated that does not mean, as Mr. Torpy would have the Board believe, that it has to go through the criteria of obtaining a conditional use permit; that is what he wants the Board to believe; it does not say that; and he will show the Board what it means. He stated if that is what it meant, the Code would have said if they are going to exceed 35 feet, they have to get a CUP and then make them go through the CUP process; there the CUP criteria of review would apply; it does not say that they have to go through a CUP process, it says meet the conditions in Division V; and he will show the Board what conditions are being referred to. He stated Division V, Subdivision 3 says, “the conditions in Subdivision 3”; that did not mean every condition in Subdivision 3 because they do not have to deal with adult congregate living facilities, agricultural pursuits, airplane runways, athletic complexes, etc.; and inquired what could it mean. Mr. Amari stated Section 62-1902 says, “reserve”; at the time the site plan was applied for, that reserve read, “additional building height”; that was the section dealing with additional building height; it is in the staff’s report; and that sets forth what the conditions for additional building height are. He stated those are the conditions his client has to meet; staff told the Board it considered those conditions; and Section 62-1902 sets out those conditions which are additional breezeway, wet pipe sprinkler and alarm systems, adequate firefighting equipment, and spatial relationships between proposed buildings or structures and existing buildings. He stated the only way the Board can accept Mr. Torpy’s argument is to say what the Code intended was that they had to comply with every condition in Subdivision 3; that is a ludicrous position; and inquired how would they apply conditions dealing with automobile sales and storage to their multifamily site when it deals with height. He stated what the Code says is if they want additional height, they have to go over to those conditions in the CUP and satisfy them, but Mr. Torpy would have them attempt to meet the criteria for getting a CUP; and if the Code expected them to meet that criteria, it simply would have required them to get the CUP, but it does not require it. Mr. Amari stated they have the additional height as a matter of right; they must simply meet the conditions; and that is why Mr. Torpy’s argument fails. He stated they do not have to meet the criteria; they should not even be looking at the provisions in 62-1901 because they are not the conditions for additional height; therefore, his argument completely falls flat because the Code does not require it. He inquired in how many situations that staff provided site plan review was there a public hearing to consider the impact on surrounding property. He stated there is a process where that can be set up; staff has the ability to refer the matter to the Board and let the Board approve or disapprove the site plan; the Code provides for that; but that was not the situation here. He inquired what is the procedure where the staff has been able to approve a site plan without the type of input that Mr. Torpy is calling for.

Robert Kramer advised he owns one of the homes on Harding Avenue, which is the closest to the southwest portion of Mr. Ray’s property; they are the easternmost property on Harding Avenue; and they support the placement of the building and the site plan as it is right now. He stated they are permanent residents; the Popes have rental property and Mr. DiChristopher has undeveloped property; and they purchased their lot from Mike DiChristopher 11 years ago. He stated Mr. DiChristopher was going to develop the property then and several times during the last 11 years; there is one duplex on the property and the site is overgrown and a total mess, which detracts from the property values of the neighborhood; and requested the Board be sensitive to the established homeowners. He stated Mr. Ray spoke about five families on Harding Avenue; but actually they have six families, including one on a block between Highway A1A and Ridgewood, who has a two-story residence and a vested interest in what is going on here. Mr. Kramer stated the Popes say the property will cause a substantial reduction in their property value; the Popes have rental property, but they have single-family homes; and doing something with the site plan other than what has been approved, will cause substantial reduction in the value of their permanent residences. Mr. Kramer stated Mr. DiChristopher said the property owners on Harding Avenue will retain their view down Harding as it is today, but that is incorrect; and if the building is moved where Mr. DiChristopher would like to see it moved, they will lose a great deal of their view down Harding Avenue. He quoted a television personality as saying, “the needs of the many outweigh the needs of a few.”

Judith Kramer advised when they purchased their property from Mr. DiChristopher 11 years ago, part of the purchase package was deed restrictions; they were to be no basketball goals in the front yard, no large palm trees, and homes had to be set back 25 feet from the road because the road angles so that each house that was built additionally had a view down Harding Avenue to the water; and they all complied with those restrictions. She stated 1,700 square feet was the minimum house size; and they were happy because it was going to maintain the value of their property. She stated almost all the residents are professional people; they have worked hard all their lives to have those lovely homes; and although it was to maintain the view, if the building in the site plan is changed, it will directly affect what they have worked for and were promised by Mr. DiChristopher. She stated they are residents and have no seasonal homes; and they look at their properties as investments as well as a place to live. Ms. Kramer advised Ms. Pope called her one night and asked her whether or not she had been sent a letter to know of a variance and she said no; during that conversation, Ms. Pope said to her that her main concern was not having the property built on at all; she did not care where the building was, she did not want the property to be built on; and that was her choice, but not theirs, because unlike most residents who are always against condominiums, they feel the way this project is situated, it will be good for everyone. She stated Mr. DiChristopher wants to develop his property at some point; he has never done it yet, but if and when he does, he could turn his units sideways facing Wilson the same as their homes are sideways facing Harding; and they would all still have a lovely view. She stated the building’s position will not change that; as a result of that, he will not get as much out of his property when he develops it because his idea was to face the ocean and have the building moved so he could have ocean view over Turtle Beach Lane; but she is not willing to sacrifice her investment where she lives for someone to develop property and make a higher dollar by turning it around the way he would like to have it. She stated she knows the board’s decision will be the best for all of them; and that is all they are looking for, for the future residents who may buy property as well as for themselves.

Rachelle Raphael, representing herself and her husband William Dearing, had pictures distributed to the Board, but not the Clerk, and advised the pictures show the view down Harding Avenue from their residences; the drawing indicates the current location of the building and what they would be seeing from their homes; and the sheet behind it is the proposed location for moving the building to the south end of the property. She stated she and her husband have lived on Harding Avenue four years; it is their primary residence; they are opposed to the request to move the location of the building; and if it happens, it will have a very negative effect on their property values and greatly diminish the quality and appeal of the beautiful neighborhood that has grown along their segment of Harding Avenue. She stated their street has gained a place in the community; it is nicknamed Rainbow Street by a number of local realtors for its colorful houses; and they all take pride in their homes, which shows in the overall beauty of the street. She stated that is often attested to by the many people who stop when they see the residents outside their homes to tell them how beautiful it is and how much they like the colorful street. Ms. Raphael stated what makes their homes part of the quality of their lives is the fact that they have an ocean view; of the five main homes on Harding Avenue, discounting the Rays’ residence, three of them have an upside-down layout; that means the majority of the living area of the home is either on the second or third floor to take advantage of the view; and all their views are down Harding Avenue. She stated some of them have balconies on the back or the north side of their homes; those are small and just look down on their property, but do not give an ocean view; so the placement of the building where the current site plan has it will not impact their ocean view. She stated with an eight-story building, Discovery Beach on the south side of Harding Avenue, adding an eight-story building immediately to the north would create a narrow tunnel at the end of the street and would further limit their view to a small slice down the center of the street; and not only will it diminish the life they have enjoyed for many years, but it will greatly affect property value and the feel of the neighborhood. She stated the values of their homes have risen significantly over the last few years and they pay taxes accordingly; it is a major investment and commitment for her and her husband; and after four years of living there, they plan on remaining for at least ten more years, at which time her husband will be eligible for retirement, but they are not committed to leaving even then because they love their ocean-side living. Ms. Raphael stated they appreciate the fact that Mr. and Mrs. Ray have taken into account the current quality of their street when planning the location and orientation of the condo development; growth is inevitable in their neighborhood; and she and her husband expect and accept the fact that development comes with ocean-side living and with living in Florida. She stated the current site plan for the Michelina Condo is designed to blend in as much as possible with their neighborhood and their street; they are grateful for that; and they respectfully ask the Board to let the approved site plan remain.

Kim Hitchins stated she and her husband have had their primary residence on Harding Avenue for five years; and in the time they have lived in Avon-By-The-Sea, they have seen numerous changes on their street, all of which have been to enhance the appearance and quality of living in their neighborhood. She stated in early March they saw the signs for the future development of Michelina condominium complex; they knew that the growth was inevitable and were thrilled to see it coming into their neighborhood; and they were also thrilled that the Rays took into consideration the current residents and the placement of their homes and existing ocean view. She stated all the neighbors who live on Harding Avenue east of Ridgewood have an ocean view; the current site plan does not obstruct their view; she has minimal ocean view; and she would hate to have her little porthole window obstructed. Ms. Hitchins stated the two structures relative to Discovery Beach and the Rays’ property so close together would cause a tunnel effect and the aesthetic beauty would not be there at the end of the street as it would with the proposed plan. She stated there was a dead body found at the end of Wilson Street about three weeks ago; and development of the property will help rid them of the vagrant problems they have been dealing with because the lots that sit undeveloped have vagrants and illegal activities. She stated two days ago they had to call the Sheriff because there was a person sleeping in the lot across the street from their house; so they definitely welcome this growth in their neighborhood and are thankful they took into consideration the homeowners who live there and the existing overall appearance of Harding Avenue.

Alice Featherly stated she would hate to look out of the little view that she has to two eight-story condominiums; the wind that would whip around them would be terrible; and the site plan should be left the way it is unless they can figure out how to make everyone happy and leave a little view towards the middle. She stated she does not want to see it blocking her view because that is why she bought her house there.

A resident paraphrased a letter from Lin and Tom Hacker, stating they purchased their property 11 years ago; they built their three-story home four years ago, and have been living there ever since; and there have been many positive changes happening in their area and on their street over the last several years. She was here today to support the approved site plan for Michelina Condos slated to be built on the oceanfront property of Harding Avenue. The placement of the building takes into account not only the existing homes and their ocean views on Harding Avenue, but also minimizes the impact of future development on Wilson Avenue. By placing the proposed condominium perpendicular to the ocean and to the north side of the property, Cliff and Maria Ray have developed, and the County Land Development Section has approved, a fair and equitable site plan for their community. She closes asking that the Board uphold the approved site plan and thanks it for its time and consideration.

Mr. Torpy stated all the comments made were great; they should be in a public hearing about a site plan; but this is not a public hearing about a site plan, this is a discussion about the process and what process had to be used. He stated Mr. Amari has misled the Board inadvertently; and read part of the staff report, which said, “for any structure or building that exceeds 35 feet in height, all conditions enumerated in Division V, Subdivision 3 of this Article shall be satisfied”; and it does not say a section of the Code. He stated Mr. Amari was just reading to the Board Section 62-1902 of Article V, Subdivision 3; that talks about additional building height and says, “buildings and structures in residential. . .may be permitted to exceed the maximum structural height threshold enumerated in such zoning classification as a conditional use.” Mr. Torpy stated Section 62-1901 talks about going above 60 feet, which the Board can approve as a conditional use; it is part of Subdivision 3 and sets out that the Board has to, from 35 feet up to 60 feet, consider all the conditional use criteria; and it specifically talks about the same procedure as amendment to the official map. He stated it specifically says the Board must reduce the impact of proposed uses on adjacent and nearby properties; and what he said to the Board already and is going to say one more time is the problem with the process used by staff is, although they are going to tell the Board they considered the conditional use issues, how could they if all the people were not invited to the process. He stated the Board needs to seek their input to consider impact; the condominium, 80 feet tall, was approved on a site plan 14 feet from the Popes’ property and adjacent to all the properties without the first letter going to surrounding neighbors; so staff did not follow the process because it requires some input on those issues from the surrounding community. He requested the Board not approve the site plan or at least the process and get a conditional use going to review the process again.

Planning and Zoning Director Mel Scott advised he has to respectfully disagree with the representation of the Code and how it is set up as presented by Mr. Torpy; he believes when they go to 1373, they can clearly see that buildings in the RU-2-30 zoning classification have 60 feet in building height as a matter of right; and in this particular instance, neighboring properties on all three sides also possess RU-2-30 zoning classification. He stated the cross reference to the conditional use permit section of the Code must be applied to all buildings that are 35 feet in height or over; in his opinion, it clearly brings the reader, at the time, to 1902, which was in fact the conditions; however, the Code has since changed. He stated staff applied those additional provisions; it also does allow for somebody to ask for something 80 or 90 feet, but that would be before the Board of County Commissioners requesting a conditional use permit. He stated if the reader were to go to the approval procedure in the conditional use section of the Code, which is clearly there, it reads as if they were applying for a CUP and a rezoning; and the approval procedures, which talk about diminution of values and neighborhood compatibility are clearly there for the Board of County Commissioners when it is entertaining whether or not to grant a CUP, to start to weigh those subjective criteria in that public hearing process. Mr. Scott stated this property already passed that test; now it goes to site plan review and approval, which is an administrative procedure; and staff would never apply approval procedure for a CUP in this instance to a site plan that has as a matter of right in its own class the ability to go up to 60 feet, if mathematical-based specific criteria are met; and in this instance, staff’s final conclusion was that they were. He stated that is his brief overview of how they applied the Code and how they viewed the construction of the Code.

Chairperson Colon stated she does not support the appeal of the site plan.

Commissioner Pritchard advised a question was raised that the appeal was not timely; and requested staff to address that. County Attorney Scott Knox advised he and Commissioner Pritchard have discussed this; before he was a Commissioner, the Board had the Oleander site plan review, which was very contentious; at that time the Board looked at all the different provisions governing different kinds of appeals; and at that time, the Board decided that the provision under 3207, which is the general appeal provision, does not have a time frame and it applied to somebody who came in from the outside, a third party to the application, and that they would be able to invoke that provision to seek a site plan review appeal to the Board. He stated the provision Mr. Amari talked about deals with a site plan appeal that is initiated by the applicant; that is not the case here; it is a third party involved with this particular one; so 3207 would govern this particular appeal. Commissioner Pritchard stated there are a lot of issues to consider, primarily the houses that are on Harding Avenue and the view they have with the current location of the building as well as the site plan having been approved; so he will move to deny the appeal.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to deny appeal to the Site Plan approval for Michelina Condos/Rays’ Condos, located east of Ridgewood Avenue between Harding Avenue and Wilson Avenue in unincorporated Brevard County.

Commissioner Higgs stated she is interested in the arguments that have been presented; the only issue today is whether or not staff approved the item consistent with the Code; and it is not the houses, the view, or the shade, but if it was done right. She stated since she is here in a quasi-judicial role, she would like to play it out in a quasi-judicial manner; the arguments both attorneys made are very interesting; staff’s argument is very good as well; but she would like to have the opportunity to review in writing what has been presented. She requested three pages of legal arguments, not fluff, and succinct arguments about why the staff erred; she would like the same thing from staff on the procedures; and requested the item be tabled until the next meeting so she has the opportunity to read the reasoned approach and make a decision.

Chairperson Colon stated she is not willing to support that; and she heard enough evidence to go forward unless other Commissioners wish to do that. Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioners Pritchard, Carlson, and Colon voted aye; and Commissioner Higgs voted nay.

Commissioner Higgs stated she voted nay because she wants the opportunity to look at the arguments and is still interested in looking at that.

Mr. Knox inquired if the Board wants him to prepare an order on the item; with Chairperson Colon responding affirmatively.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to direct the County Attorney to prepare an order of finding of fact regarding denial of the appeal of the site plan approval of Michelina Condo/Rays’ Condo. Motion carried and ordered; Commissioners Pritchard, Carlson, and Colon voted aye; and Commissioner Higgs voted nay.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, AND WAIVER OF ASPHALT
WIDTH FOR ENTRANCE ROAD, RE: VIERA BOULEVARD COMMERCE PARK

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to grant final engineering and preliminary plat approval for Viera Boulevard Commerce Park, subject to minor engineering changes as necessary and developer responsible for obtaining all applicable jurisdictional permits; and waive asphalt width requirement for entrance road into the park. Motion carried and ordered unanimously.

CONTRACT WITH THE VIERA COMPANY, RE: SONOMA AT VIERA SUBDIVISION,
PHASE 5

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to execute Contract with The Viera Company guaranteeing infrastructure improvements in Sonoma at Viera Subdivision, Phase 5. Motion carried and ordered unanimously.

*Commissioner Carlson’s absence was noted for the remainder of the meeting.

RESOLUTION, RE: QUALIFYING WASHINGTON MUTUAL , INC. AS A TARGET
INDUSTRY

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution recommending State Economic Development Project, Washington Mutual, Inc. be approved as a qualified target industry business and local financial support be waived and matched through the Brevard County Ad Valorem Tax Abatement Program. Motion carried and ordered; Commissioner Higgs voted nay.

RESOLUTION, RE: CONSIDERING TAX ABATEMENT FOR WASHINGTON MUTUAL, INC.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution qualifying Washington Mutual, Inc. as an eligible business under the County’s Tax Abatement Program; and authorizing a public hearing to consider an exemption ordinance. Motion carried and ordered; Commissioner Higgs voted nay.

DOUG BAKER, ESQUIRE, RE: EXTENDING EXPIRATION DATE ON EXISTING
BUILDING PERMIT TO ALLOW BARRY BROCKHURST TO COMPLETE HIS
RESIDENCE

Attorney Doug Baker, representing Barry Brockhurst, advised Mr. Brockhurst filled out a card; and requested the Board’s indulgence to continue into his time as he is not going to speak unless there are questions. Commissioner Higgs stated this is a citizen request, so Mr. Baker has five minutes and Mr. Brockhurst can speak for five minutes. Mr. Baker stated he is requesting Mr. Brockhurst’s time; with Chairperson Colon responding Mr. Baker will have five minutes.

Mr. Baker advised Mr. Brockhurst bought his property in June or July 2000; he contacted the County to find out the process by which to build his residence as owner/builder; he received a building permit on February 26, 2002; and as part of the building permit, he received a two-year allowance to have a mobile home placed on the site while commencing construction. He stated shortly after February 26, 2002, Mr. Brockhurst, through no fault of his own, experienced severe financial circumstances, and his funding fell through; in July or August 2002, he did get his financial situation in order and received a construction loan; and in late January or early February 2003, he was notified by a Code Enforcement officer that as his construction had not commenced timely, he was in violation of his permit and CUP, which expired February 26, 2003. Mr. Baker stated at this time Mr. Brockhurst is ready and able to commence construction; prior to the expiration of his permits, he went to the County to get an extension; and Mr. Brown advised him that unfortunately there are no provisions in the Code whereby he could take administrative action to extend the permits and suggested Mr. Brockhurst come to the Board and request an extension. Mr. Baker stated he understands there are property owners in the surrounding area objecting to the extension; Mr. Brockhurst is not seeking to have the mobile home remain indefinitely, and is requesting a year to commence construction. He stated it is not a permanent fixture, but an extension based on extenuating financial circumstances; after September 11, there were adverse situations; but Mr. Brockhurst has recovered from that and that is why they are here today. He presented photos to the Board and described an aerial map and the photos, depicting Mr. Brockhurst’s lot, the mobile home, his driveway from the road, vacant lots, a small residence, and other homes in the area. Mr. Baker stated he understands there are aesthetic concerns of adjoining neighbors; Mr. Brockhurst is making progress and has laid the foundation; there are several manufactured homes in the area; and requested an extension for a year, noting six months would be sufficient to get him started. He stated Mr. Brockhurst has paid the impact fees and permit fees; he has maintained the property and continues to pay taxes on it; and his taxes have increased because he is considered to have a manufactured home even though it is a mobile home by definition of the Code. He expressed appreciation for the Board’s indulgence and requested approval of the extensions. He stated he has a petition signed by 21 neighbors who have no objections to the request to allow Mr. Brockhurst to construct his home.

Carlos Springfield stated he is opposed to the extension of the CUP for the temporary mobile home but has no objection to the building permit; Section 62-1842.6, which allows temporary living quarters during construction of a residence, grants permission for someone to move a mobile home on the site, but does not state anything about the condition of the mobile home; and he could put a camping or hunting trailer out there and it would be no problem as far as the Code is concerned. He stated it is a problem for the neighbors; one factor in the Code requires removal of the mobile home after two years; the Code does not provide for an extension of the CUP for the mobile home; and Mr. Brockhurst moved a nice looking mobile home on the property; and he proceeded to clear the property, and built a fence for his horses, which is no problem. He stated he built a tack room and barn and jumping facilities for the horses, and improved his yard; he has a nice looking yard, all of which are great and he commends him for that; but the problem is he has done nothing on the house for two years. Mr. Springfield stated according to the Code, his two years are up and there is no provision for extension; the reason he objects to the extension is when he first moved there, Mr. Brockhurst and he had discussions because he is the adjoining property owner; he assured him that he was going to build a home because a number of people were concerned and upset about it; but it has not happened, and he questions whether it will happen in the next two years. He stated the fact that there is a mobile home on the property does affect adjoining property owners; if he chose to sell his property, and someone came to purchase it, he would have to convince that person the mobile home next door is temporary, but there is no evidence that a home is being built, so he would have a tough time convincing that person and it will affect him as an adjoining property owner. He stated if Mr. Brockhurst is granted additional time, it would set a precedent, and the Board will be facing this situation on numerous occasions; Mr. Brockhurst has an alternative; within a two-mile radius, there are at least two trailer parks where his mobile home could be placed and it would still be convenient to where he is constructing his home; and it is not like they are turning him out in the woods without concern for him. He requested the Board deny the request.

Richard Brantley stated last fall a property owner about a quarter of a mile west of Mr. Brockhurst's property requested rezoning for a mobile home, and the Board approved it; and there are two other mobile homes that no one lives in

Commissioner Higgs stated she does not like the provision of a mobile home on a building site; the applicant can apply for RRMH-1 or some other zoning classification; so her motion would be to deny the request. Chairperson Colon inquired if denial would not allow Mr. Brockhurst to live there but would allow him to build his home; with Commissioner Higgs responding absolutely. Commissioner Pritchard stated he agrees with the denial as two years is enough time to move the mobile home.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to deny the request of Doug Baker representing Barry Brockhurst for extension of the CUP for a mobile home to complete construction of his residence.

Commissioner Higgs inquired if the Code allows him to keep the mobile home, and is it attached to the building permit; with Assistant County Manager Peggy Busacca responding that is a separate issue, but he is asking for extension of the building permit also. Commissioner Higgs stated the motion is to deny giving the extensions and Mr. Brockhurst can apply for another building permit.

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

Mr. Baker inquired how does he go about getting additional time, as in the past he had 15 minutes and today he had 5 minutes; with Chairperson Colon responding if it is a public hearing, the applicant is given 15 minutes, but if it is under new business as a citizen request, the citizen is given 5 minutes. Mr. Baker inquired how does he go about making sure it is a public hearing. Chairperson Colon request Ms. Busacca explain the process to Mr. Baker.

JOHN CHARMAN, RE: WAIVER OF PAYBACK PROVISION OF RENTAL REHABILITATION
AGREEMENT WITH CAN-AM HOLDINGS, INC. FOR NORTH TITUSVILLE GARDENS
APARTMENTS

John Charman advised in 1993, Brevard County issued a HOME fund rental rehabilitation request for proposals with a five-year term; Can-Am Holdings applied to rehabilitate 48 apartments located at Titusville North, a 120-unit apartment complex; and Can-Am’s proposal was accepted and the term made seven years with repayment of $32,000. He stated the Agreement was approved by the County on July 1, 1994 and signed by Can-Am; various factors, including a fire, delayed construction; in June, Can-Am defaulted on the mortgage; and he assumed Howard Hebert, who was the original owner, foreclosed on the property. He stated County staff filed for a completion report on January 31, 1997; the County approved his purchase of the complex on April 8, 1997; since then, for over six years, it has been a successful rental project; the rehabilitated apartments are occupied by low and very low income persons and families; and at this moment although they are supposed to have only ten units with 50% and under medium income, they actually have between 30 and 40 units and eight Section 8 units. He stated the project has been a success for the targeted tenants, the County, the HOME Investment Partnership Program, but not the owner; and for the owner it has been a disaster. Mr. Charman stated the original Can-Am five-year budget dated March 3, 1993 showed a positive cash flow for the period 1994 to 1998; applying their assumptions, which were prepared by their CPA, there was an increase in the costs but not an increase in the rents; and the net result was for years 2002 and 2003, on their original proposal, had they continued to hold the property, they would have had losses in those two years. He stated the Can-am budget should be revised with a rent cap of $410 because, for whatever reason, he assumes it was in the RFP, they originally applied for rents of something in the $420 range; and in his view, the $32,000 repayment and higher costs in debt service they required in later years would result in a loss of $170,353 over the seven years of affordability housing. He stated the actual results which he experienced, backed up by his tax returns, have an excluded appreciation as a cash flow loss of $265,000 so far; that was through March 2003; and that will increase by $93,000 if he holds the property until February 2004. He stated the problem is the CPI increased 27.5% from 1993 when the original $410 lid was put on through to 2003; in addition, real estate taxes and water charges have doubled; and the reserve for replacement where capital expenditures come out of was way understated. Mr. Charman stated the fixed rent cap was aggravated by the fact that since 1993 Section 8 fair market rents for two bedroom apartments were $506.00; they have risen to $611; so the Board can see the expectation of Section 8 that there would have been some increase in rents. He stated County staff denied the owner and management's requests to address the rent cap; they said there is nothing in the files; he has letters that are most recent, in 2002, that were his original notes with Elizabeth Swanke in 1997; and they specifically note that he asked at that time whether he could increase those rents over a period of time; and she said no. He stated in June he asked again and she said no; his onsite manager asked staff several times if it is possible and they said no; and if they had $8.00 more per apartment, they could cover the $32,000 repayment. Mr. Charman stated staff told him he had to include $83 allowance for each of the tenants per month for utilities; the actual number should have been $26.00; so he lost $57.00 on the utilities. He stated it is a complicated formula, but basically they had $57.00 less per month; that totaled more than $40,000 that staff’s error caused; and rather than get into anything associated with trying to recoup that money, he is simply asking to have the repayment waived and move forward. He stated he would take the loss if the Board would waive the $32,000 repayment.

Commissioner Pritchard inquired what was the individual monthly number for tenant utility allowance; with Mr. Charman responding $83.00 was included in the original submission to HUD in Washington; the actual amount should have been $26.00; they were paying the water and gas; so staff allowed them to go to $70.00, but they did not get with a staff member until 2001/2002, so the loss he accumulated from that restriction was $40,000 plus.

Housing and Human Services Director Gay Williams advised in 1994, $500,000 was provided for rental rehabilitation; based on the agreement, there was a seven-year portability period, which they agreed upon with a request of $32,000 payback; the complex renovation was completed in January 1997; and Mr. Charman purchased the property in April 1997 and received the benefit of the renovated property. She stated the Board has pending an agenda item for May 20, 2003 meeting to approve the sale of North Titusville Apartments; Mr. Charman expects to sell the property; and the staff’s analysis of this request does not reveal any reason to recommend the waiver of the payback stipulations. She stated the funds recaptured from this project or any HOME activities are used to support other eligible affordable housing activities approved by HUD; so like Mr. Charman received the benefit of $500,000, the other people in the program would have the use of the $32,000.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to uphold staff’s recommendation and deny the request to waive the payback provision of the rental rehabilitation Agreement with Can-Am Holdings, Inc. for North Titusville Gardens Apartments.

Commissioner Pritchard stated the point that wears on him is the tenant utility allowance; the owner was charged $83 that came out of his profit for a cost that should have been $26; it seems he had a $40,000 loss, which would negate the $32,000 repayment; and inquired if that is correct; with Gay Williams responding Mr. Charman says there was a staff error with the $83.00 tenant utility allowance; he might be basing it on the projected proposals Can-Am produced for the purposes of receiving the funds; but the Performa that was presented, specifically says it was just a projection and not to be used for anything other than applying for the HOME funds. She stated that was subject to change based on actuality of what was happening; and the agreement said it was to be minus the utility portion; and she is unaware of any other information. Commissioner Pritchard stated the Agreement said it was minus the utility portion, yet the applicant is saying he was overcharged by $57.00 per month per unit; with Ms. Williams responding the County did not do the charging and he sets the rent. Mr. Charman stated page 13 of the book shows the submission that came from staff to Washington that said this is now an implemented project; in that it shows Unit No. 102 the tenant is contributing $83; there is an assumption the tenant has to pay $83 in utilities; therefore, although the tenant could afford a higher rent, the rent was reduced by $83.00 and the net result was, in many cases, a rent of $317 instead of $400. Commissioner Pritchard inquired if Mr. Charman had to absorb a lower rent based upon an incorrect calculation; with Mr. Charman responding yes, the calculation is made based on the income of the tenant multiplied by a percentage; and they said he could not exceed that amount and had to deduct $83.00. Mr. Charman stated in June 1997, Elizabeth Swanke insisted it was $83.00; they finally backed off to $77, when they realized the gas was included; and they finally convinced them in the last Section 8 recommendation out of Titusville the allowance that should have been charged to the tenant was only the electricity because that was the only utility they picked up. He stated he picked up the entire water cost.

Chairperson Colon inquired why Mr. Charman is not mentioning the other units that pay $488 and made it seem like they were all paying $83.00 less, when in fact the tenants in Unit 101 are paying $488 and so are those in Unit 105. Mr. Charman stated they are paying what their allowance is; the original submission was what was achievable with the monthly gross income of $1,511 at the time; and in fact, he has today about 40 units that are under 50% and they are all having $26.00 deducted from their rent.

Assistant County Manager Don Lusk advised some of the information Mr. Charman has provided today, staff did not completely understand when he made his presentation to them; so it would be better to look at the issue of tenant utility allowance and report back to the Board.

Commissioner Higgs stated now, when Mr. Charman inquired if at no point since 1997, when Mr. Charman owned the complex, that he could not raise that issue and now when he is going to sell it, he wants to make more money and could not come to staff or the Board in the past six years; with Ms. Williams responding he could have raised that issue; but it was never an issue that was raised. Ms. Williams stated in the correspondence received from Mr. Charman is only part of what he has provided; staff responded to him because he asked about increase in rent and never at any time mentioned there might have been a discrepancy about the $83.00. She stated he could have raised that issue, but staff never received any correspondence on that; they have all the records from the previous person, Elizabeth Swanke; and there have been no notations or any type of request for adjustments. Commissioner Higgs stated Mr. Charman found his way to the Board with his request; he could have found his way to the Board over the past six years or so that he has owned the property; the deal from the very beginning was that the County would loan the money and would get $32,000 at the end of the period; that is the way it worked; and she sees no reason to go back now.

Commissioner Pritchard inquired who benefited from the difference between the $83 and $26 and who suffered regarding the tenant utility allowance, and would the owner have suffered by not being able to make the $488 another $57 higher, which would have been the more appropriate amount the tenant could have paid if $83 was not used as the amount due on utilities. Ms. Williams stated she does not know if she can answer that specific question; however, the benefit would have to be weighed with the fact that $500,000 was provided to renovate 48 units, so Mr. Charman got the benefit of not having to do the renovation that was necessary. She stated the property transferred ownership less than three months after the renovation was completed, so there was a balancing of benefits; there was $500,000 of which Mr. Charman did not have to put into the property and derived the benefit of that; and he is not asked to pay back the $500,000, but to pay back a minimal sum of $32,000. Commissioner Pritchard inquired if the sale of the property could bring in more from the $500,000 the County invested; with Ms. Williams responding she would say so.

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

ANNOUNCEMENT, RE: AGENDA ITEMS

Chairperson Colon advised the Consent Agenda items III.A.1. and III.A.10., will go under new business for the next meeting, and will not be discussed this evening.

JAMES ZUHLKE, RE: APPEAL OF IMPACT FEE ASSESSMENT FOR MINOR
CHANGE OF USE FOR COMMERCIAL WAREHOUSE FACILITY

James Zuhlke advised he and his wife own a couple of warehouses in a complex off Cox Road; they were built in the late 1970’s or early 1980’s, he is not sure which; they are zoned IU; and the County has enjoyed collecting taxes for IU zoning for 20 plus years. He stated they recently got a new tenant in one of the warehouses; J & D. Automotive, owned by Joe Westerfield; Mr. Westerfield went to the County Licensing Board to get his occupational license moved to the warehouse facility he is now renting from them; and County staff said wait a minute, they have to send it to the Planning and Zoning Department, which said they had to pay $4,800 in impact fees. He stated he asked Mr. Swanke to explain the fees, and he was sent a copy of the Ordinances the fees were based on; the Ordinance says, “the intent and purpose of this Division is to regulate the use and development of land to insure that new developments bear proportionate share of the costs of capital expenditures necessary to accommodate impacts and development”; and the next seven pages refer to 25 new developments, etc. He stated the only thing that could possibly not be new development is, “in case of change of use, redevelopment, or manufacturing of an existing use, which requires issuance of a building permit, the impact fee shall be based upon the net increase of the impact fee for the new use as compared to the previous use. The County Manager shall give the guides of this development by the report entitled Trip Generation, 6th Edition.” He stated he has not requested a building permit; Mr. Westerfield requested issuance of an occupational license; he did not request it; there is no need for a building permit; there is no building going on; and there is no change to the building.

Chairperson Colon inquired what is being done to the building; with Mr. Zuhlke responding they are moving in a new tenant. Chairperson Colon stated that is a change of use.

Mr. Zuhlke stated it is not a change of zoning, but it is a change of use; the previous tenant was Thermal Engineering, which built and rented air conditioning and heating units; at the height of its business, they had 30 employees; and the business that is going in there is a two-man auto shop. He stated their primary job is the contract with the Housing Authority to maintain its fleets; and he does not care how little there is to be done to a vehicle, if they can average 15 vehicles per man, which would be equivalent to 30 employees, they would be doing pretty darn good; and he does not see them knocking out 15 vehicles per person per day. He stated the biggest concern they have is increased road use going in and out of the property; this would not increase the road use; and according to the Ordinances, he is being charged but is not the applicant and should not be charged. He stated what he wants is for the fees to go away and the occupational license be issued.

Planning and Zoning Director Mel Scott advised Mr. Zuhlke identified the appropriate provision of the Ordinance; and the sentence he highlighted states, “in the case of change of use, redevelopment, or modification of an existing use, which requires the issuance of a building permit. . .” He stated the construction of that sentence is as such, and the Board has talked about it when it discussed at length the change of use provision. He stated modification of an existing use, which requires the issuance of a building permit is one circumstance; this is a change of use where they have taken a warehouse that was housing a welding operation and have gone through the change of use process; and when the change of use processes catches a new proposal, they then look at the old use as compared to the new use; and if there is a net increase per the Ordinance in impact, they apply the difference. He stated they have given the Board a letter that outlines the rationale employed here that is employed dozens of times a day when someone comes in that is listed in the impact fee table as general industrial; there is an impact fee assessed to that; it is an auto repair facility, which has a contract to do fleet maintenance; and there is no assurance of when or how much the business will grow. Mr. Scott stated that is not the issue; the issue is the impact fee table lists automotive service and repair as an item; the net difference, when they subtract out the current use is $4,000 plus; the transportation impact fee is already discounted by the Board by 70% of the maximum justifiable fee that can be assessed; and there are fire rescue at $118, correction facilities at $1578, emergency medical services, library services, and solid waste at zero, for a total fee of $4,800 the business owner is being assigned. He stated that is the process they follow virtually dozens of times a day.

Commissioner Pritchard stated it is a huge amount of money to charge for what is going to happen with the change of use; he realizes the fees have been in existence for some time, and does not disagree with impact fees; but fees like this tend to discourage business rather than encourage development of business. He stated a large business on Merritt Island was charged $250,000 to build next door to where it existed for a long time; he does not see how it equates to the actual amount of impact; to him it is more of a revenue stream than trying to encourage business development that is going to be here, pay taxes, and have employees; and it seems to be an exorbitant amount of money. He noted he can accept $118 or $157, but questions the transportation impact fee of $4,538.

Chairperson Colon advised she has a problem with that, but she supports impact fees; the only problem she has is if the Board waives this, that means other folks who have paid their fair share will get the short end of the stick; and that is where she has a problem, so she cannot support the appeal.

Commissioner Higgs stated staff applied the Ordinance correctly, so she will move to deny the request.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to deny the appeal of James Zuhlke to waive the impact fee assessment for change of use of a commercial warehouse facility.

Mr. Zuhlke stated the intent and purpose of the Ordinance specifically states new development. Chairperson Colon stated it goes under change of use. Mr. Zuhlke stated page 8 of the statement of their interpretation goes 100% against page 1, the intent and purpose of the Ordinance; the reason it was put in effect was to insure new development carries its share of the burden; this development is 20 years old and there is no change in it; it is not a new development; and by applying the impact fees to him goes against the intent and purpose of the Ordinance. Commissioner Pritchard commented he agrees. Ms. Zuhlke stated they had to borrow money to pay the taxes and now they will lose a tenant because of this fee. Mr. Zuhlke stated they should not be allowed to do that.

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

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 7:23 p.m.

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

___________________
SCOTT ELLIS, CLERK

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