April 13, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on April 13, 2004, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Father Patrick J. O’Carroll, St. Luke’s Catholic Church, Micco, Florida.

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

APPROVAL OF MINUTES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the Minutes of January 13 and 27, 2004, February 10 and 17, 2004 Regular Meetings, and February 5, 2004 Zoning Meeting. Motion carried and ordered unanimously.

PRESENTATION BY DR. JOHN HITT, UCF PRESIDENT, RE: STATE OF THE UNIVERSITY

Dr. John Hitt, University of Central Florida (UCF) President, introduced Jim Theriac, member of the Foundation Board of Directors, Dr. Jim Drake, Director of Southern Region Campus in Brevard County; and Dr. John Detrick, Associate Director of the Southern Region; stated he appreciated seeing Lynda Weatherman in the lobby as she has been a great partner; and Commissioner Scarborough stood in there with her trying to work with UCF to help economic development in Brevard County. He stated he appreciates the opportunity to report to the Board on the state of the University during its 40th anniversary year; the state of the University is very good; and in Brevard County the future outlook for UCF is equally promising and exciting as they continue to reach their goal of becoming the country’s premiere metropolitan research university. He advised when UCF was founded in 1963, many people wondered why a new university was being built in the middle of nowhere in Central Florida; Orlando was a small town with a population of 88,000; and the 1,415 acres on which the University now stands were covered with pine scrub and wetlands, and its inhabitants were mostly wild turkeys and rattlesnakes, although there were some cattle and a few horses. He stated the need for a university in the Central part of Florida was evident as early as the late 1950’s; forecasts predicted tremendous growth in population; and the emerging space exploration activities at nearby Cape Canaveral helped fuel the demand for engineering and technical education in the region. He stated Florida’s seventh public State university opened its doors on October 7, 1968; 1,948 students arrived on the campus of ten buildings; they were greeted by its first president; and there were 90 faculty members and 150 staff members. Dr. Hitt stated throughout the 1970’s, enrollment grew as fast as the University could build new facilities and add more services; and on December 6, 1978, in order to reflect its growing number of academic programs, Florida Technological University became the University of Central Florida. He stated that same year, the UCF football team played and won its first game; enrollment in 1981 hit 13,000; and a year later they broke ground for the Central Florida Research Park. He stated in 1987, research dollars totaled more than $11 million; the new UCF came of age in the early 1990’s; and dramatic enrollment growth and major construction on campus transformed the University into a major local institution and the sixth largest employer in Central Florida. He stated today UCF plays a major role in the economic growth of the State and southeast through the talents of its 42,000 students, 115,000 alumni, and 8,700 faculty and staff, the new Rosen School of Hospitality Management, and the internationally-known Center of Research and Education in Optics and Laser, the CREOL School of Optics. He stated UCF is significant in size, excellent in academics, and prominent in research; today it is difficult to imagine the State of Florida without this community and without UCF; and the population of the 11-county region they serve, including Brevard County, is about 3.5 million. Dr. Hitt advised UCF is now among the 14th largest universities in the country with enrollment of 42,000; the growth of the university and the community is intertwined and bound by partnerships that result in prosperity for all; and among those, the most valuable of partnerships and shared programs are those between UCF and Brevard County. He stated the 2003-04 year marks the University’s 40th anniversary, but it also marks the 25th anniversary of the founding of Florida’s 2+2 Partnership; the 2+2 model began with a handshake between UCF’s founding president and Brevard Community College’s long-time president Dr. Maxwell King; it eventually led to the building of joint use facilities on the Brevard campus; and the partnership they forged is nationally recognized as an innovative cost effective model for increasing access to higher education opportunities. He stated in 2000 they projected, with the support of the Legislative Delegation and Board of County Commissioners, the University could substantially increase the number of degreed programs available to students living and working in Brevard County; that wish is now a reality; and 16 undergraduate and 8 graduate degreed programs and certificates were offered in Brevard County in 2000. He stated by the fall of 2003, 25 undergraduate and 18 graduate programs and certificates were being offered in Brevard County. Dr. Hitt advised in 2000, Brevard Community College and UCF announced plans to build a joint use facility at the Brevard Community College Palm Bay campus to serve the growing needs of the South County region; by the fall of 2001, the first two floors of the three-story building were completed and classes were being offered to almost 250 students; and with the three-story building completed this spring, enrollment increased to 625 students. He stated as UCF and its partner community colleges continue to refine the joint facility model, the data they gather show why the model works; using data from Brevard County campuses, they find that wherever they build a joint use facility, such as the UCF/Brevard Community College Palm Bay facility, students who live in that area take the vast majority of their courses there rather than travel to Orlando; and that is a nice finding to have. He noted if they build it, they will come; and if they offer what students need, they will stay. He stated on average, 65% of students who take courses at a joint use facility complete their graduation requirements at that site; and the more programs and services they can offer at those sites, the higher the percentage will climb. He stated students served at the regional campuses have needs that are different from the needs of the Orlando students; and at Cocoa and Palm Bay campuses, students are divided between full and part-time, compared to the main campus where 75% of the undergraduates are fulltime students. He stated students at the Cocoa and Palm Bay campuses average about 33 years of age, and the majority work part or fulltime and have families; but at the Orlando campus, the average age of all students is 24 years. Dr. Hitt advised in the area of entrepreneurship technology and commercialization, their UCF high-tech incubator is already at work in Brevard County; they received a $600,000 National Science Foundation grant jointly with F.I.T. and Florida A&M to establish the Center for Entrepreneurship and Technology agencies; and they are helping F.I.T. establish its own incubator. He stated they are offering an entrepreneurship education short course called, “Success Solutions” developed by UCF in conjunction with UCF technology incubator. He noted when UCF was founded in 1963, the new space program in Cape Canaveral needed engineers and scientists to help the country reach for the stars; the first research grant received by UCF, known then as Florida Technological University, was from NASA for $12,500; and in 2003, UCF research awards reach $89 million, including $7.5 million from NASA. He stated university researchers are gaining international prominence in areas ranging from optics and lasers to education and bimolecular sciences; a substantial portion of that research is taking place in Brevard County; the Florida Solar Energy Center is located in Brevard County on the Cocoa campus of Brevard Community College with research funding in 2003 of $12.8 million; and the Solar Energy Center was recognized in 1997 by the U.S. Department of Energy as the national center of excellence for hydrogen research and education. Dr. Hitt advised the hydrogen research and application center was established in 2002 through Florida Solar Energy Center; UCF is the lead university in NASA’s $16 million multi-year hydrogen research project; and about $8 million was appropriated for that effort for 2004. He stated the Florida Solar Energy Center is involved in design and performance testing to improve energy efficiency of buildings; an area of growing concern is energy prices that have soared recently; through their research, the Gossamer wind energy-efficient ceiling fan was developed; more than one million have been sold through Home Depot thus far; and it is becoming a lead license fee generator for the University. He stated UCF also assisted in the formation of murrain crystal, crystal designs and laser classics in Melbourne. Dr. Hitt advised there is no great university without great students; their students come from all 50 states and 146 countries; and about 92% are Floridians. He stated the fall freshman class brought with it an average high school GPA of 3.9 and average SAT score of 1,176; in the Burnett Honors College, the freshman average was 1,329 for 503 freshmen last fall; and their hospital GPA on a weighted bases was 4.25. He stated this fall 34 of the new freshmen were National Merit Scholars ranking UCF second only to University of Florida among Florida universities in the number of National Merit Scholars; the Gators have over 200, and UCF is second with 34; and they are happy to be second because that puts them ahead of the University of Miami with 32, South Florida with 22, and Florida State with 9. He noted they have a lot to shoot for if they are going to catch the Gators in that competition. He stated 34 places UCF 67th in the Nation out of hundreds of universities that have National Merit Scholars, so it is moving up pretty quickly in that competition. Dr. Hitt stated last year they enjoyed the selection of their first Rhodes Scholar Tyler Fisher from Fort Myers who is studying at Oxford; and they get nice journal entries from him occasionally, including one that recounted the tea that he enjoyed with the Queen of England. He stated this is the centennial year for Rhodes Scholars and all Rhodes Scholars around the world were hosted by the Queen for tea at Buckingham Palace; and it was quite an event. He advised last fall they enjoyed the selection of their student Ericka Dunlap as Miss America; so they have had their first Rhodes Scholar and first Miss America in a space of a year, which is pretty nice. He stated Erika will use her $50,000 scholarship for being Miss America to go to law school; she is an outstanding young woman; and since he had a hand in recruiting her to UCF, he takes particular joy in her accomplishments. Dr. Hitt advised UCF graduates about 9,000 students a year now; he thinks they are probably the largest producer of baccalaureate degrees in the State; their neighbors are likely to be their alumni; more than 115,000 men and women graduated from UCF; and nearly half of them live in the Central Florida area. He stated among their graduates are top executives at Disney World, Disneyland, NASA, Darden, Sea World, Eriksson Technologies, Boeing, a county chairman, State Senator, Pulitzer prize winner, and the former chair of the White House Council of Economic Advisors, who was named the Dean of Columbia University School of Business. He stated their students succeed; and today it is impossible to imagine Central Florida without the University of Central Florida. He stated it is also hard to imagine that in just 40 years what was once a small local school in a small town is now nationally and internationally recognized as a leading metropolitan research university located in a world-class community; and much of that success is owed to Brevard County because the genesis of UCF took place here and was created in large part to meet the growing demand for a highly-skilled workforce for the emerging activities at Cape Canaveral. He stated UCF’s motto is “Reach for the Stars”, words that embody the energy, talent, and determination of tens of thousands of students, alumni, faculty, and staff. He stated during this 40th anniversary year, they pay tribute to them and their many friends and partners who continued to move the university and region from promise to promise; and thanked the Board for allowing UCF to be of service to Brevard County and for supporting it in hundreds of ways.

Chair Higgs advised the Board appreciates Dr. Hitt and his staff taking time to be with the Board this morning.

Commissioner Scarborough stated he was told UCF is moving into the top ten universities in size in the nation; with Dr. Hitt responding they expect to. Dr. Hitt stated they were 14th two years ago; and looking at the way they will grow even though they had to curtail growth this year because of funding problems, they expect to grow to about the 8th or 10th in head count enrollment in the nation; and that their average SAT will go up another five or more points this fall. He stated it is a story of continued growth, but year-by-year there is improvement in the quality of students who are coming to them. Commissioner Scarborough stated a lot of people in the community do not appreciate what an institution UCF is because they saw it a few years ago; and when the change is rapid, a lot of people do not have an opportunity to see it, so it is wonderful to have Dr. Hitt take the time to visit Brevard County. Dr. Hitt stated it has been a great pleasure to do it.

Dr. Hitt stated in preparation for a meeting with his colleague presidents and with Governor Bush, he pulled up a report that the Chancellor of the system issued on graduation rates throughout the system compared to national rates; and she said the two largest universities are doing particularly well; it was the first time he had seen recognition that UCF is second in size only to the University of Florida. He stated typically they see Florida, Florida State, or others; but when she talked about the two largest, she said University of Florida and University of Central Florida. He stated not many people understand they are second largest university in the State and are in terms of traditional measures of quality, second or third to Florida State in things like SAT average; so they have come a long way.

Chair Higgs advised she appreciates what UCF has done with the campus in South Brevard; it is a key component to the future of the community; she knows it has been a personal commitment of Dr. Hitt’s to develop it; and the Board appreciates everything UCF has done to bring its presence to a greater level in Brevard County. Dr. Hitt stated it is a great opportunity for UCF; and if the Board has any ideas of future services that they could render to Brevard County, if it is feasible to do, they will do it. He stated they know Brevard County is important to their future.

Commissioner Carlson stated it is a pleasure to have Dr. Hitt here; and she wants to ask him a futuristic question. She stated a lot of folks are going back to higher level degrees and choosing to do it online; and inquired what is his perspective regarding online education and how much does UCF offer. She stated there are a lot of universities online that have bad reputations; and inquired how would he tell young folks who are interested in a higher level degree that they have to work to get it; and what advice would he give them, and what perception or interest does UCF have in that regard.

Dr. Hitt advise UCF is an international leader in distributed education as it is called; it has won international wards in that area; it has a number of degrees that are available entirely online; and at their last board meeting, they approved an innovative masters degree in not-for-profit management. He stated there is a tremendous growth in not-for-profit entities throughout the country; there have not been many good degree programs to prepare professionals who will manage those; and now it is entirely online. He stated they have online programs in education in a number of other fields; and if they are well designed and if there is a teacher equality, the research data show that students learn about as well online as they do with face-to-face traditional instruction. Dr. Hitt stated if the literature is surveyed, what it will provide is a limp endorsement; it says no statistically significant difference; but he does not know why it cannot be better because they know that students do not remember a whole lot in what they communicate to them in lectures; and if they write it on the board or say it, 80% to 90% of it is gone. He stated what students write in their notebooks is a poor facsimile of what is said in the classroom or written on the board; so with a medium such as a computerized interactive online program, they ought to be able to do better because they engage the learner. He stated the classic model of the best education is interaction in a small group between teacher and learner; they can generate something like that with well-designed interactive online programs; so theoretically, they should be able to do better. He stated he would encourage students who are looking at an online program to check out the university and the accreditation of the programs because if they want to transfer, those credits will matter enormously whether they transfer to a regionally-accredited institution or not. He stated in some professional fields it will matter whether there is another professional accreditation for the program as well.

Commissioner Carlson inquired if there is no rating system that rates various universities that provide online services; with Dr. Hitt responding none he would place a great deal of confidence in. He state4d there are a lot of different ratings done, but the best thing is to talk to people who are professionals in the field, ask about whether it has a regional accreditation, and if it is a field like business, it is worth asking does the ASCSB accredit it. He stated in Florida it is the Southern Association of Colleges and Schools; and there are some questions that are straightforward to which people can get generally honest answers if they ask the questions.

Chair Higgs thanked Dr. Hitt for being here and for all they do in the community; and the Board gave them an applause.

REPORT, RE: WITHDRAWAL OF AGENDA ITEM

County Attorney Scott Knox requested Item III.F.1., Authorize Reimbursement to Commissioner Higgs for Attorney’s Fees and Costs in Action for Declaratory Relief, be withdrawn from the agenda.

REPORT, RE: EXPAND COUNTY ATTORNEY’S AUTHORITY ON CODE VIOLATIONS
OF JAMES ROBERT HELLUMS AND RHONDA J. SPENCER

County Attorney Scott Knox requested the Board expand the authority of his office in filing an injunction against James Robert Hellums and Rhonda J. Spencer. He stated apparently the Code violations that were cited in the report that was presented to the Board on March 2, 2004, were not enough to cover the Code violations that popped up since then; and he needs to expand his authority to include all current Code violations.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize the County Attorney to include all Code violations by James Robert Hellums and Rhonda J. Spencer in the injunction. Motion carried and ordered unanimously.

REPORT, RE: PROCEDURES FOR REDEVELOPMENT AREAS

Commissioner Pritchard stated one of the problems the County has with redevelopment areas is that they seem to have too many roadblocks toward redevelopment; the County is requiring variances and other procedures in order to redevelop an area; and to him the purpose of having a redevelopment area is to be able to redevelop it without creating too many problems. He stated for example, the square footage on a property in Merritt Park Place is less than the required amount for commercial property; thus each time they make a change to the building, they have to apply for a variance. He stated he sent a question to Planning asking why variances are required in redevelopment areas, and how could the Board address the issue and find a solution; and the response he received is there are no blanket special exceptions for Merritt Park Place with respect to lot size, and each property is reviewed on its own merits for lot width, lot depth, and lot area. He stated the only option Ryan Rusnak could propose at that time was for the Board to adopt some type of overlay district within the Merritt Park Place permitting commercial development on substandard lots; and he would like to ask the Planning and Zoning staff to review what is being proposed and see what the effect might be on the ability of a redevelopment area to redevelop without being overly restrictive.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize staff to review the proposed overlay concept for Merritt Park Place to allow commercial development on substandard lots, and determine what effect it might have on the ability of a redevelopment area to redevelop without being overly restrictive. Motion carried and ordered unanimously.

REPORT, RE: EMPLOYEES’ PRIVACY

Commissioner Pritchard stated there was a note that came out yesterday from Mr. Jenkins addressed to a man in Melbourne, and a paragraph said, “you can however, if you are interested, purchase at a nominal charge, a listing of most employees’ names and addresses to do a private mailing to them.” He stated he realizes being public employees that there is a certain access to employee records; but he is not sure addresses in particular should be afforded on a per pay basis and find an objection when he applies for a credit card or whatever and all of a sudden is inundated with letters from people that his name had been sold to; and he wonders if there is some way to preserve the integrity and privacy of County employees by at the very least asking whether they would like to have their addresses released. He stated whether that is possible he does not know; but he wanted to bring it to the Board’s attention to see whether that is something Mr. Knox might be able to address and determine if the Board can afford a little more privacy to its employees.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to instruct the County Attorney to address whether the Board can keep employees’ addresses from being disclosed to afford some privacy. Motion carried and ordered unanimously.

REPORT, RE: CHAIR HIGGS COMPLETION OF MORE MARATHON

Commissioner Pritchard advised the esteemed Chair Nancy Higgs ran in the First Annual more Marathon in Central Park in New York; there were more than 2,600 women who participated; the winner came in at three hours, four minutes, and three seconds; and the race was 26 miles long, five laps around Central Park. He stated Chair Higgs completed the race in five hours, thirty-one minutes, and 50 seconds; and presented her with a special hat that said “The Florida Flash”. He read an article that said, “Commissioner figures she’s capable of completing the March marathon in under five and a half hours”; she was a minute off her pace; but he cannot imagine running 26.2 miles; and Chair Higgs did it. He stated to show their appreciation, he has a plaque that says, “Nancy Higgs, the Florida Flash. Completion of the First Annual more Marathon, 5 hours, 31 minutes, 50 seconds, Central Park, New York, March 21, 2004.” He congratulated Chair Higgs, on behalf of the Board and Brevard County, on a job well done.

Chair Higgs thanked Commissioner Pritchard and the Board; stated she will take the opportunity to pitch to anyone to go and do it; it was a blast; and she would encourage everyone, even though they may not be ready to run 26 miles, to get out and exercise because it makes one feel great. She stated it was more fun than she imagined; and encouraged anyone who wants to go next year, to join the group they are forming and go with them. She stated it is for ladies only over 40. She encouraged everyone to get out and move around; stated Brevard County is a wonderful community to exercise in; she appreciates everyone’s support; and she was thinking about Commissioner Pritchard when she got to 5 hours and 23 minutes, but could not quite get there. Commissioner Pritchard stated he is very proud of Chair Higgs and at least thinking about them as she neared the end of her goal spurred her on. Chair Higgs stated it did and there was no way she would come back without finishing because she knew she would hear it from him. She thanked the Board again for its support.

Commissioner Colon stated she appreciates Commissioner Pritchard and his staff who go out of their way to do nice things for each of them.

REPORT, RE: SPRING TEEN FEST

Commissioner Colon advised Spring Teen Fest was sponsored by 22 churches and six not-for-profit organizations, and it was a wonderful event; the focus was on promoting abstinence and keeping young people away from drugs and alcohol; it was a wonderful success; and they had a lot of sponsors from the community. She stated 1,412 people came through the doors with positive reinforcement; there was a lot of hard work put into it; and thanked every church and not-for-profit organization that made it happen.

REPORT, RE: MELBOURNE ART FESTIVAL

Commissioner Colon advised Dave Matte will brief the Board about Melbourne Art Festival that is coming up in the City of Melbourne.

David Matte advised President Lori Enley and Committee Chair Rhonda Thomas have a colorful display in the lobby; and invited everybody to visit the table outside and gather information on this year’s festival. He stated the mission of the Melbourne Art Festival is to organize and present an annual art festival, and promote and encourage artistic endeavors, education, and art appreciation. He stated this year is their 20th annual festival in historic downtown Melbourne; it is the premiere open-air fine arts festival; and it will be held on April 24, 2004 from 9:00 a.m. to 11:00 p.m. and April 25, 2004, from 9:00 a.m. to 5:00 p.m. He stated SCAT is availing free park and ride shuttle service from Florida Marketplace and Melbourne Square Mall from 9:00 a.m. to 11:30 p.m. on Saturday and 9:00 a.m. to 5:30 p.m. on Sunday; and the festival bus stop will be at the corner of Livingston and New Haven Avenue. He stated their commitment in support of the arts continues through a student art scholarship valued at over $3,000, student art workshop for children ages 6 through 13, and the student art competition for grades 7 through 12; and the prize money this year is over $1,250. He stated for all tastes, there will be a Flamingo food court and a variety of street concessions onsite; and kicking off the festival is the largest amateur event, the 17th Annual 5K Flamingo Run, a certified USA/TNF course that takes participants up and back over the Melbourne Causeway, starting at 8 a.m. on April 24, 2004. Mr. Matte advised community assistance continues through many generous patrons and corporate sponsors; and extended sincere thanks to the Board for its support facilitated through the Brevard Cultural Alliance in the form of grants valued at over $19,000 in 2003. He stated they are proud to avail to their attendees and children the Kid’s World where kids from ages 3 to 12 can expect nothing but fun; and on their main stage at the east end of the festival site, attendees will be able to enjoy a wide variety of musical performances, such as rock, blues, jazz fusion, pop, acoustic, bluegrass, and the twilight jazz feature. He stated they continue to seek volunteers to help with the ongoing success of this year’s festival; and requested people visit their website at www.melbournearts.org for more information. Mr. Matte stated it only comes together through volunteers; and to make it happen takes 300 to 400 participants who insure the success of the festival. He stated there are positive economic impacts; they anticipate approximately 70,000 visitors over the two-day event, based on statistical analysis of the 2003 Melbourne Art Festival; and they are approximating impact strictly from out-of-County visitors at $115,000 for lodging and over $245,000 for dining, and over a half a million dollars of economic impact to the County. He stated the art festival offers a fun-filled two-day open air event, family-oriented and open to all festival goers; a variety of painting, photography, graphics, sculpture, jewelry, ceramics, and other media will be offered by over 250 regional and national artists; food, refreshments, concessions, excellent musical performances, kids’ activities, and student art are some of the many highlights of this year’s festival; and as always, admission to the festival and downtown parking are free of charge. He thanked the Board for the opportunity to come before it and Commissioner Colon for putting it under her report. He noted there are materials, including promotional posters of their artwork and directories to the festival in the back of the room.

Chair Higgs stated festivals only happen because of volunteers; and thanked Mr. Matte for the update and for having one of the greatest festivals. Mr. Matte invited all Commissioners, County staff, and members of the audience to the festival.

REPORT, RE: SUPPORT OF MILITARY BASES

Commissioner Pritchard advised he will bring a proposed resolution supporting continued operations of Patrick Air Force Base and Cape Canaveral Air Force Station to the next meeting for the Board’s consideration.

RESOLUTION, RE: PROCLAIMING CHILD ABUSE PREVENTION MONTH

Commissioner Scarborough requested the representatives of organizations that deal with child abuse to introduce themselves.

Rita Elkins, 2003-04 Chair of the Child Abuse Prevention Task Force of Brevard, thanked Commissioner Scarborough for this opportunity, and Judy Pobjecky from Department of Children and Families who has worked closely with Commissioner Scarborough to make this opportunity available.

Judy Pobjecky advised she works for Department of Children and Families as a contract manager; has seven residential facilities, several of which are in Brevard County; provides intervention and prevention services in Brevard, Osceola, Orange, and Seminole Counties; and she loves her work.

Lynn Clark, Director of Guardian Ad Litem Program, advised they supervise 225 volunteers and represent over 1,200 children who are abused, abandoned, or neglected.

Diane McEntee, Director of the Children’s Advocacy Center for Brevard County stated their organization partner agencies intervene, investigate, and counsel the most egregious cases of abuse found in Brevard County.

Sherry Hoover, Development Coordinator with Children’s Advocacy Center of Brevard, advised she works with Ms. McEntee.

Gloria Vines-Wilkinson, Program Operations Administrator for North and Central Brevard, advised she oversees foster care and protected supervision for Department of Children and Families.

Ian Golden, Program Manager of Country Acres Children’s Home, advised Country Acres is the County’s child residential facility.

Commissioner Scarborough read aloud the resolution proclaiming April 2004 as Child Abuse Prevention Month.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution proclaiming April 2004 as Child Abuse Prevention Month in Brevard County, and encouraging all citizens to recognize the tragedy that exists in the community and nationally. Motion carried and ordered unanimously. (See page for Resolution No. 04-061.)

Chair Higgs extended the Board’s appreciation to the organizations; stated the Board is part of the team because of its commitment to community-based care; and it takes a proud position standing with the organizations in their efforts to prevent child abuse. Ms. Pobjecky advised Judges Lisa Davidson and John Griesbaum had court and could not be here, but they request the Board’s support of the proclamation. She noted it would be appropriate for the Task Force to have the Resolution. Chair Higgs stated the Board appreciates what they and the judges do.

Commissioner Colon advised she wants to thank Rita Elkins for her support and encouragement of Spring Teen Fest, which was a blessing and example of how one person can kick an idea around and it be embraced by the community. She stated Ms. Elkins not only helps little children, but those of all age groups; and thanked each of the representatives.

Rita Elkins thanked the Board for the Resolution on behalf of all the members of the Task Force. She stated there are approximately 20 agencies in the Task Force, but only a few were able to be here this morning. She stated she was impressed with Dr. Hitt’s comments about the promises that are available to youth as they achieve success and reach college age, and Commissioner Colon and her efforts to reach the young people in their teen years. She stated the Task Force is working with the whole issue of child abuse prevention; she would be remiss if she did not mention the challenges that dependency court has with keeping up with the number of cases that come in; and it is because of the Board’s commitment to continue funding model dependency court that they have been able to reduce the time it takes to put a child in a permanent living condition from 28 months to the legislative mandate of 12 months. She commended the Board for its commitment that made the reduction in time possible.

RESOLUTION, RE: CONGRATULATING EAGLE SCOUT BRIAN C. LUCAS

Commissioner Pritchard read a news article about Brian Lucas that said, “The benches and flower boxes that Merritt Island Scout Brian Lucas installed behind the Crosswinds Youth Services Shelter in Cocoa will help him earn the Eagle Scout rank. He has already earned the scout thanks from shelter residents who relax and socialize in the landscaped nook. What made it special was youth helping youth. He gave time and effort to make them feel better. They feel good that somebody took time to do that.” Commissioner Pritchard stated that is what scouting is all about; as a former Boy Scout who did not achieve the Eagle rank but got close to it, he can attest to the work and effort that went into what Brian did to attain the rank of Eagle Scout; and for that he is to be commended. He read the resolution congratulating Brian Lucas.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing and congratulating Brian Christopher Lucas for attaining the rank of Eagle Scout. Motion carried and ordered unanimously. (See page for Resolution No. 04-062.)

Commissioner Pritchard presented the Resolution to Mr. Lucas, who thanked Commissioner Pritchard and the Board, and stated as young people, they are often told to give back to the community to make it better for future generations; and serving in the Boy Scouts and working with Crosswinds afforded him that opportunity. He stated at a time of cultural change, when less than 2% of all Scouts make Eagle, he is often asked why he did it and why did he stick with Scouting; and one of the advantages of staying in Scouting is the opportunity to work with people like Misty Campbell and Jane at Crosswinds who dedicate their lives to helping those at the shelter who do without that which most of us take for granted. He stated he thanks the Boy Scouts of America and his Troop 343 for providing him with leadership and service opportunities such as his Eagle project; and those here today for publicly acknowledging it.

Chair Higgs extended the Board’s congratulations to Mr. Lucas, and the Board and audience applauded his efforts.

RESOLUTION, RE: COMMENDING THE ADULT VOLUNTEER DENTAL CLINIC

Chair Higgs advised there are many volunteers who serve the community; she wants to recognize the Dental Association; and requested the representatives introduce themselves.

Curtis Hill advised he is the President of the Dental Association for this year; Jerry Byrd advised he represents the Board of Directors for Project Dentist Care for the State of Florida; and Darlene Charepon advised she is the Coordinator for the Health Department Volunteer Dental Clinic.

Chair Higgs read the resolution commending and recognizing the adult volunteer dental clinic for ten years of outstanding service.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing and commending the Adult Volunteer Dental Clinic for ten years of dedication to providing dental services to low-income adults who are without access to dental care, and helping to increase the quality of life for residents of Brevard County. Motion carried and ordered unanimously. (See page for Resolution No. 04-063.)

Chair Higgs presented the Resolution to the representatives. Dr. Hill thanked the Board for ten years ago assisting two of their visionary leaders in their group, Dr. Larry Nissen and Dr. Larry Williamson, as well as the County Health Department for initiating this effort, which has helped them provide care for the needy of the community and a safety net for an area that needed to be addressed in the community; and thanked the Board for continuing it and for many more years to come. He stated Dr. Byrd and he were among the original group who began with this effort and he wanted to say a few words about Project Dentist Care.

Dr. Byrd advised they started Project Dentist Care ten years ago; about seven years ago they were a small part of 45 other small programs throughout the State; and last year they provided over $5 million in care to patients in the State. He stated the most important part of the program is the sovereign immunity protection that gives them the ability to provide care without risk of financial loss; and that allows the volunteers to come forward. He advised dentistry is a profession that is for the people, and they prove it every day.

RESOLUTION, RE: CONGRATULATING COCOA BEACH JUNIOR/SENIOR HIGH SCHOOL
BOYS’ BASKETBALL TEAM

Commissioner Pritchard advised when he spoke to Coach Mike Gaudy and congratulated him on being named Florida Boys’ Basketball Coach of the Year, an achievement that was awarded by a Statewide panel of high school basketball coaches and prep-media representatives who voted on it and selected him, he was humble and unassuming, as if to say, “it was not me, it was the teams I coached”; and the young men standing next to him said that is how he is. He stated this is a significant achievement; he should be proud of his record and proud of bringing the fine young men to the Class 3A Championship; and on behalf of the Board, he wants to congratulate Coach Gaudy. Commissioner Pritchard stated the team had a little to do with the achievement also; they had a parade in Cocoa Beach; and from what he understands, they had a great time. He read the resolution congratulating the Cocoa Beach Junior/Senior High School Boys’ Basketball Team, the “Minutemen,” for winning the 2004 Florida 3A Basketball Championship.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution congratulating the Cocoa Beach Junior/Senior High School Basketball Team for winning the 2004 Florida 3A Basketball Championship. Motion carried and ordered unanimously. (See page for Resolution No. 04-064.)

Coach Mike Gaudy advised this is the first public high school in Brevard County since 1960 to win a State championship in boys’ basketball; and they are an impressive group of young men who are 3.5 to 4.90 GPA students. He stated some are going to UCF and University of Florida to play football; two have full scholarships for basketball; and they are all going to major colleges. He stated they are outstanding young men and role models; and all of Brevard County can be proud of what they have done. He thanked the Board for the recognition. Chair Higgs extended the Board’s congratulations to the coaches and team members.

RESOLUTION, RE: PROCLAIMING NATIONAL FAIR HOUSING MONTH

Larry Fowler advised they are honored to be here to be recognized; the Space Coast Center for Independent Living has been in the area since the early 1970’s; they work with all persons with disabilities in other areas besides fair housing; and they are proud to be here.

Commissioner Scarborough read the resolution proclaiming April 2004 as National Fair Housing Month in Brevard County.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution proclaiming April 2004 as National Fair Housing Month in Brevard County. Motion carried and ordered unanimously. (See page for Resolution No. 04-065.)

Brian Brestlin advised the Housing and Human Services Department will be hosting a Fair Housing Seminar that is open to the public on April 21, 2004, and anyone interested can call him and he will sign them up.

RESOLUTION, RE: PROCLAIMING PUBLIC SAFETY TELECOMMUNICATIONS WEEK,
AND RECOGNIZING 911 CALL TAKERS

Commissioner Colon read aloud a resolution recognizing 911 call takers during National Public Safety Telecommunications Week, and proclaiming April 11 through 17, 2004 as Public Safety Telecommunications Week.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to adopt Resolution proclaiming April 11 through 17, 2004 as Public Safety Telecommunications Week to further public awareness and recognize 911 call takers who are the first point of contact for emergency services. Motion carried and ordered unanimously. (See page for Resolution No. 04-066.)

Steve O’Connor, Brevard County 911 Coordinator, thanked the Board for recognizing the 911 call takers who are the first point of contact in times of emergency; and stated they do an outstanding job. He stated Fran Selth of Palm Bay Police Department and Mike Switzer from Melbourne Police Department are here representing the Space Coast Public Safety Communications Association.

Mike Switzer thanked the Board for taking the time and effort to recognize the call takers and communication officers throughout the County. He stated they also include in their family Kennedy Space Center communications for security, fire, and emergency medical services; and they truly appreciate the recognition.

Chair Higgs advised the Board appreciates what they all do to help the County every day; for so many people, the call takers are the first contact; and they are very important.

BILL CABRERA, VIETNAM VETERANS OF BREVARD, RE: PRESENTATION OF
PLAQUES AND CERTIFICATES

Bill Cabrera, representing the Vietnam Veterans of Brevard, advised every year the moving wall comes to Brevard County; this weekend will be the 17th annual reunion at Wickham Park; at that time they will pay tribute to the 56,272 names on the wall of veterans who served in Vietnam; and they appreciate the Board’s support and want to give the Commissioners something in return. He presented plaques and certificates to each Commissioner for their support over the years.

Chair Higgs stated Mr. Cabrera is not only a veteran of the service, but also of the Sheriff’s Department where he served for many years in Micco; and she appreciates what he has done. Mr. Cabrera stated Commissioner Higgs is a special lady to him and the Department, who is always there for everybody; and presented Commissioner Higgs with a picture. Chair Higgs thanked Mr. Cabrera for his presentations.

RESOLUTION, RE: RECOGNIZING AUDUBON EAGLE WATCH PROGRAM

Commissioner Carlson advised in the audience are eagle watch volunteers from the Audubon Eagle Watch Volunteers of Brevard County, which is an organization that is part of Audubon Florida Center for Birds of Prey in Maitland; and requested they come forward to be recognized as follows: Ed Slaney, Karen Weichman, Cheryl Schramm, Doreen Friswold, Maureen Parent, Amy Tidd, Carlie Myrick, Emily Bever, Brenda Sides, and Mary Frances Franklin. She stated the Board appreciates them being here; and there is also a special guest of the feathered variety whose name is “Trouble”. She stated it would put a nice end to the Resolution portion of the meeting; everything the Board talks about and does is for its country and community; and a representative that best defines that is “Trouble”, a bald eagle. She stated it is the first for the Brevard County chambers; Linda White is showing Trouble; she is a veteran at it; and she has the utmost confidence in Ms. White’s abilities.

Commissioner Carlson read aloud the resolution recognizing and commending the Eagle Watch Volunteers of Brevard County.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution recognizing and commending the Eagle Watch Volunteers of Brevard County for their outstanding contributions to the community on behalf of the great symbol of our nation, the bald eagle. Motion carried and ordered unanimously. (See page for Resolution No. 04-067.)

Linda White advised the group of concerned citizens in Brevard County is a wonderful example of how ordinary citizens who volunteer their time can improve the environment. She stated they are concerned about the fate of the bald eagles; and the data they collect are valuable and being used by the State and federal agencies to help predict what is going to happen with the bald eagle population in Florida.

Commissioner Carlson presented the Resolution to Linda White. Ed Slaney thanked the Board for honoring the group. Chair Higgs expressed the Board’s appreciation to the volunteers.

ANNOUNCEMENT, RE: CONSENT AGENDA

Chair Higgs advised the Board is behind on the time certain, but she would like to proceed with the Consent Agenda and get that out of the way. She stated she has one card for item III.A.10, and assumes Mr. DiPrima wants to speak if the item is pulled; and requested a motion to approve the Consent Agenda minus item III.F.1., Recommend Reimbursement to Commissioner Higgs for Attorney’s Fees and Costs, which was pulled by the County Attorney.

Glenda Busick stated she filled out a card to speak to item III.F.1. Chair Higgs advised the County Attorney pulled it from the Agenda. Ms. Busick stated she did not know that and drove her from work to talk to it, and wonders why it is at the end of the Agenda, and she has to wait five to six hours from now to talk to it. Chair Higgs advised Commissioner Scarborough pulled it on Friday for discussion.

Commissioner Scarborough stated he pulled it because he thought it needed to be discussed; and that is why it went to the end of the Agenda, but today it is pulled completely.

County Attorney Scott Knox advised it is off the Agenda now. Ms. Busick inquired if she can discuss it; with Commissioner Scarborough responding at the end of the meeting anybody can put cards in to speak to any subject, but it is no longer an item on the Agenda because he moved it for discussion and the County Attorney removed it from the Agenda. Ms. Busick stated she does not understand that; and inquired how does the public know that and can she not put her statement in the record; with Commissioner Carlson responding she can do that under Public Comments. Ms. Busick stated that is six hours from now; it was on the Agenda and the Board was going to approve it without anybody saying anything; and then Carol Hayes wrote a letter. She stated she does not know why Commissioner Scarborough pulled it, but guesses he wanted to discuss it; and she is here to discuss it. She stated it is not right that Nancy Higgs is asking the Board to pay her court costs, her attorney, and costs for a private lawsuit.

Commissioner Pritchard stated the item was pulled from the Agenda, which put it under Public Comment; and the problem is Public Comment is at the end of the meeting; Glenda Busick has taken time off from work; and now it is not an agenda item because Mr. Knox pulled it. He stated Ms. Busick came because she thought it was still part of the Agenda; and inquired about the formality of how the Board should address the issue. Mr. Knox stated typically what the Board does when an item is off the Agenda, if someone wants to talk about it, the person can bring it up under Public Comments. Commissioner Pritchard stated in a situation such as this, when someone has taken the time to come in and did not realize it had been pulled, the Board should give that person the opportunity to at least read her comments into the record, otherwise it is just muddying the issue. Ms. Busick stated the Board is making the public not want to come out. Commissioner Pritchard stated the item was pulled from the Agenda; and that is the part he wants to clarify. Ms. Busick stated she thinks it is a game.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to allow Glenda Busick the opportunity to speak to Item III.F.1, Recommend Reimbursement to Commissioner Higgs for Attorney’s Fees and Costs.

Commissioner Scarborough stated this is unusual; if the item was on the Agenda under Consent, there are two ways to discuss it; a Commissioner can pull it or the public can pull it; if the public pulls it, then it is heard immediately after the Consent Agenda is approved; so rather than having someone sit through the meeting, he seconded the motion.

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

RECOMMENDATION, RE: REIMBURSEMENT TO COMMISSIONER HIGGS FOR
ATTORNEY’S FEES AND COSTS

Chair Higgs requested County Attorney Scott Knox explain what the item was.

County Attorney Scott Knox advised the Board authorized filing a declaratory judgment action involving a public records request made by Chuck Maxwell; and that suit has been filed in behalf of Commissioner Higgs who is the person who is the subject matter of the public records request. He stated the item scheduled for today’s Agenda was an item that requested, should the court rule in Mr. Maxwell’s favor, which he estimates is not likely to happen, that Commissioner Higgs be reimbursed for any attorney’s fees that she may have incurred as a result of the Board’s action in filing the lawsuit. He stated under Florida Statutes, the agency is required to pay the attorney’s fees anyway; and that would be the County Commission, so that is where it is right now.

Chair Higgs stated she is not asking any reimbursement of any private costs that she had; she simply wants the Board to acknowledge that if the Board should not be successful in the lawsuit that the Board initiated on a declaratory judgement, that it recognize there could be a cost from Mr. Maxwell’s attorney. Ms. Busick stated that is very confusing to her; and inquired what exactly is Commissioner Higgs asking the taxpayers to pay for about a private matter. Chair Higgs stated as Ms. Busick knows, it was presented to her as a public matter because it was alleged that is a public document; as a County Commissioner, she was requested to produce a private document; and she asked the Board, because she wanted to be sure that she was lawfully acting as a County Commissioner in not producing a private document, to seek a declaratory judgment that a private document was not a public document. She stated if the court should rule that it is a public document, the defendant, Mr. Maxwell, in this case, could ask the Board to pay his legal costs; and that is the only thing she wanted clarification on, that if the defendant in this action asks for his costs, that the Board acknowledge that, because the Board filed the suit. She stated she is not asking for any of her private costs.

Ms. Busick stated she wants to re-clarify what she said; it is still a private matter to her, but she has a couple of questions. She stated she thinks it was Chair Higgs who brought it to the Board; Chair Higgs and her husband’s private business hired Guy Spearman as a lobbyist to work for them, who is also a lobbyist for Brevard County; and that raises concerns whether her business may have gotten preferential treatment as far as the amount of money they pay to Mr. Spearman because he also works for the County. She stated she understands Chair Higgs asked the County Attorney for an opinion about whether her hiring this lobbyist was a conflict; and by her asking the County Attorney to look into it, any documents that he saw and any comments he made became public record. She stated she has a quote from a meeting where he commented on whether it was a conflict of interest and said he thought it to be a technical conflict, but in the event that the Higgs are receiving what is available to any member of the general public and are paying the same as any member of the general public would pay, there is not a conflict. Ms. Busick stated Mr. Knox had to see the document to be able to see what Chair Higgs is being charged by Guy Spearman and whether she is getting preferential treatment; so she does not see how he can make the statement that she is not getting preferential treatment if he did not see the document. She stated all Mr. Maxwell is looking for is the document; and Chair Higgs refused to give it to him; and Mr. Knox is saying it is not a public record. She stated she does not give a squat about it, but what she does care about is taxpayers’ dollars getting involved in this and paying court costs that Mr. Maxwell may ask to be paid, because it is a private matter. She stated she does not think it is right that Commissioner Higgs got the County taxpayers involved in this; and she would like to see this document made a public record because she got Mr. Knox involved with it and got the Board involved with it. Ms. Busick stated it is not a matter of their public records; they are not private businesses negotiating and working with Guy Spearman, Chair Higgs’ company is; and she does not agree with this one bit. She stated she wants to make a point that she does not see how Mr. Knox can provide an opinion that the private documents Mr. Maxwell sought are not public records if he did not see the document; and inquired if he did not see the document, how can he even make an opinion about it. She stated it is completely bizarre for him to say later that he has told people that he never had the document; and inquired how can he rule that Commissioner Higgs did not have preferential treatment. She stated she is looking forward to getting it discussed at the Board level; and inquired if there were any questions for her.

Mr. Knox stated he has comments if Ms. Busick would like to hear them. He stated to put Ms. Busick’s mind at ease, he never did see the document; the Ethics Commission considered the same matter and did not see the document; and the Ethics Commission’s attorney considered the matter and did not see the document; so it is not necessary to see the specific document in order to render an opinion of whether or not there is a conflict of interest. He stated for her information, the Ethics Commission has jurisdiction over conflicts of interest; and it decided there was no conflict of interest and overruled what he had opined. Mr. Knox stated County Commissioners, by virtue of being County Commissioners, do not make their private records available for public inspection; an example is Commissioner Scarborough who is an attorney; and just because he sits as a County Commissioner does not mean every file in his law office is subject to review by the public. Ms. Busick stated she is not saying that. Mr. Knox stated when somebody makes a demand for a private record which they hold in their capacity as private individuals apart from their public responsibilities, and the only reason that demand is being made is because they are public officials, the Board has concluded that it is time to jump in and try to determine whether or not there is a public wrinkle to that particular request. He stated that is what the Board has done in this case; it has decided that because Commissioner Higgs sits as a County Commissioner and the demand would not have been made of her except for that fact; the Board would step in and let the County Attorney find out from a judge. He stated if Commissioner Higgs was not sitting on the Board and was in a private capacity somewhere, Mr. Maxwell would have no claim whatsoever. Ms. Busick stated she appreciates that, but wants to know how Mr. Knox can make the statement that they are paying the same that any member of the public would pay if he did not see the amount of money. Mr. Knox stated he did not say that. Ms. Busick inquired if he saw the amount of money; with Mr. Knox responding no. Ms. Busick inquired then how can he say that; with Mr. Knox responding what he said in his office is there is a technical conflict of interest; but there is an exception if the Commissioner or the Commissioner’s company is paying the same market value as any others. Ms. Busick stated Mr. Knox does not know what that number is so how can he say that; with Mr. Knox responding he did not have to look at the number; the standard is if a person is paying the fair market value, then it is okay; and he did not have to know if she was or was not because that is up to her to decide. Ms. Busick inquired if Mr. Knox asked Commissioner Higgs if she was paying the market value and believed that without seeing the document; with Mr. Knox responding he did not have to see the document, and told Commissioner Higgs what the standard was. Ms. Busick stated she thinks Mr. Knox answered her question.

Chair Higgs advised there are two additional persons who wish to speak to Item III.F.1., and if the Board wants to hear them, she will proceed.

Bea Polk stated she believes sometimes the Board should not pay attorney’s fees, but she has a million-dollar suit filed against her, a private suit that the County is paying for witnesses and for which Jim Ford’s office is sending his private attorney, paid for by taxpayers; and inquired why are people fussing now when it happens all the time. She stated the last four witnesses they called in the private suit work for the County, but it was not County business; and inquired if it is legal for this to happen in other cases. She stated Attorney Joe Caruso who represents the Property Appraiser’s office, represented Mr. Ford, which was bad enough because it is still a private case; and he represented Mr. Ford’s assistant and four more employees to be sure they did not testify like they wanted to; but the people told the truth, and the County is paying for it. She stated the people coming up and fussing know it is going on, but they are not fussing against a constitutional officer; and inquired if it is political. She stated she does not take it out personally on different officials; what she has to say she says to the Board; some Commissioners know it has been paid but did not do anything about it; and inquired what is it going to do about this item, which is less. She stated she thinks it should be paid if the County is paying for private attorneys to come in and represent other private cases on a million-dollar suit; and inquired if the Board is doing it equally or going back and taking the County money that was already spent on a private case. She stated since the Board does not want to go along with this item, it has a lot of problems on the money situation with private attorneys; and inquired why it does not check that out. She stated she does not believe they have to hire a private attorney to go in on a private case; and inquired if that is what the Board is saying, and is it true; with Chair Higgs responding no. Ms. Polk inquired what is happening in the Property Appraiser’s office regarding the private suit; she knows it is private because it is against her for a million dollars about a book; the book is getting better and better; but the County is paying to fight her, so Commissioners should be fair and honest and not pick on one. She stated she knows where it all started and has been in all of it too; but everyone should be treated fairly; so if the Board is going to take County money and pay for private attorneys on private cases, it should not worry about this case.

Commissioner Scarborough stated some of the statements that were made need to be clarified; and requested the County Attorney clarify the misconceptions. He stated the Board did not employ private counsel; Joe Caruso is not hired by the Board but by the Property Appraiser; and there are distinctions that need to be made.

Mr. Knox advised in the case the Board is discussing, the former Agenda item involves the County Attorney’s office representing Commissioner Higgs in her capacity as a County Commissioner; and the only issue that came up in terms of attorney’s fees is whether or not she as a County Commissioner would be required to pay attorney’s fees for the other side if the other side happened to prevail. He stated that is the real issue and is not quite the same as Mr. Caruso representing Mr. Ford against Ms. Polk.

Chair Higgs advised she came to the Board and sought to get judicial clarification to be sure she was providing what she was legally required to do; she asked the Board to seek a declaratory judgment; in filing of that, it names her as the plaintiff as an individual and as a County Commissioner; and she sought clarification to be sure it is abundantly clear. She stated the Board has filed the declaratory judgment action; and in reading the law, the Board could potentially have to pay the legal fees of the defendant if it were to lose. She stated she sought counsel both private and through the County Attorney’s office; they talked to the Assistant Attorney General in regard to whether or not the documents that someone seeks are public or private; and the Assistant Attorney General’s guidance has been that they are private documents. She stated she simply sought to clarify that, and asked the Board, since she is being asked as a public official, to produce a document.

Thelma Roper stated she is going to read a letter from the Center for Civil Rights Advocacy Executive Director who could not be here, then she will make her personal comments. She read as follows: “Brevard County Commission. We must express our opinion about reimbursing Commissioner Higgs should it be found that Mr. Maxwell was entitled to copies of the requested documents. A decision may make the situation legally different, but in our view, the issue would remain unchanged. The issue is whether Commissioner Higgs was acting in the self-interest of Nancy Higgs or in the public’s best interest. As a Commissioner, Commissioner Higgs could have chosen to err on the side of access to the public and given the documents to Mr. Maxwell. After all, if there’s no wrongdoing, then what harm could it do to release a commercial contract to public view? This is not a document that would contain intimate personal details. Commissioner Higgs chose to deny public access to what arguably is a document that proves or disproves whether a governmental act is right or wrong. The basis of truth and accountability in government is the ability of the public to see the document that tells us what is going on. The question is not as simple as Commissioner Higgs would have people believe or there would be no need for the County to sue for a judicial declaratory judgment. It is clear in our minds that Commissioner Higgs acted in her own self-interest and not the interest of the public. If the court finds that the documents requested by Mr. Maxwell are as Mr. Maxwell alleges, public records, then reimbursing Commissioner Higgs for the payment of Mr. Maxwell’s attorney’s fees would be paying Commissioner Higgs for the violation of Article I, Section 24 of the Florida Constitution, the Public Records Act, and the commission of a crime under Florida Statutes 119.10, subparagraph (3). It is not relevant to this issue how many or which lawyers Commissioner Higgs consulted prior to choosing to withhold the documents in question. The ultimate arbiters of policy in Brevard County are the County Commissioners. When Commissioner Higgs accepted the policy of County Commissioner, the position of County Commissioner, she also chose to accept responsibility for her actions as a Commissioner. It doesn’t matter whom we get to advise us or how many people advise us, we have only ourselves to hold accountable for the decisions we make. In this case, Commissioner Higgs put her personal privacy in this matter before the right of the citizens to properly supervise government and insure to themselves that no wrongdoing has been done. At that moment she was acting in the best interest of Nancy Higgs, not the people of Brevard County. Commissioner Higgs is a public servant. A servant places the right instructions and even the wishes of those they serve above their own. The public is becoming less and less tolerant of the arrogance of public servants who reserve to themselves greater right than the public enjoys. Becoming a public servant does not entitle you to require the residents of Brevard County to pay for self-interest decisions that turn out to be in violation of the public interest and the law. Commissioner Higgs was not acting as Commissioner Higgs, but in a selfish self-interest of Nancy Higgs. If Nancy Higgs made the wrong decision, Nancy Higgs should pay what it cost not the taxpayers of Brevard County.” Ms. Roper stated that is the letter from the Center and now her personal comments are that public servants are the issue; and if it is something that is in their personal interest, it should be paid by them. She stated she does not care if it is the County asking for a declaratory judgment and they are reimbursing the defendant’s attorney’s fees; she does not care if the public servant is filing a private suit against an individual citizen of the County; to her they are one and the same, because if it is in their personal interest, it is in their personal interest, and it should all be treated equally; and they should not be expending any taxpayer dollars on an interest that is a personal interest for any public servant.

Mr. Knox stated if it was a personal interest, then there would not be a public records request; and the Board would not have the problem. Commissioner Higgs stated she hired a private attorney and assumed those responsibilities herself; and she is not asking for anything for that.

Commissioner Pritchard stated when this issue came to the Board on February 5, 2004, it was a request for the County Attorney to seek a declaratory judgment on the issue of private records subject to public records request; and he supported that because it was a request for a public record on a private issue. He inquired how it would affect other public officials, if someone would be able to ask him for anything they wanted because he is a public official, and does the relationship of having a common element, in this case Mr. Spearman working two sides of the issue, make it any different. He stated he did not know, and the Board did not know the answer, and that is why it supported asking for a declaratory judgment. He stated he does not know how the paperwork was prepared to have Commissioner Higgs listed as well as the Board of County Commissioners; he was not supporting where it was Commissioner Higgs or any other Commissioner; and he was supporting a Board action and thought that was the frame it would have been held within. Commissioner Pritchard stated he understands Mr. Maxwell has filed a countersuit; that is separate and apart from this issue; and that is a distinct filing that stands on its own merit. He stated the issue the Board supported was the initial one that goes back to February 5, 2004; anyone who would look at this reasonably would say it makes sense; and that is why he supported it.

The meeting recessed at 10:50 a.m., and reconvened at 11:03 a.m.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: TRAFFORD
DRIVE EXTENSION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final plat approval for Trafford Drive Extension, subject to minor changes if necessary, receipt of documents required for recording, and developer responsible for obtaining jurisdictional permits; and execute Contract with The Viera Company for improvements to the Extension. Motion carried and ordered unanimously. (See page for Contract.)

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVALS, RE: RAVENCLIFFE
SUBDIVISION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final engineering and preliminary plat approvals for Ravencliffe Subdivision, subject to minor engineering changes as applicable, and developer obtaining jurisdictional permits. Motion carried and ordered unanimously.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVALS, RE: GRANT LAKE
SANCTUARY SUBDIVISION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final engineering and preliminary plat approvals for Grant Lake Sanctuary Subdivision, subject to minor engineering changes as applicable, and developer obtaining jurisdictional permits. Motion carried and ordered unanimously.

FINAL ENGINEERING AND PRELIMINARY AND FINAL PLAT APPROVALS,
RE: CENTRAL VIERA GOLF COURSE

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final engineering and preliminary and final plat approvals for Central Viera Golf Course, subject to minor engineering changes as applicable, receipt of all documents required for recording, and developer obtaining jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: WINGATE
ESTATES, PHASE 6

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final plat approval for Wingate Estates, Phase 6, subject to minor changes if necessary, receipt of all documents required for recording, and developer obtaining jurisdictional permits; and execute Contract with The Viera Company guaranteeing improvements in the Subdivision. Motion carried and ordered unanimously. (See page for Contract.)

RESOLUTION, RE: AUTHORIZING CLAIM UNDER CASH MAINTENANCE BOND FROM
JOHN FARRELL FOR KINGS PARK SUBDIVISION, PHASE 5

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution authorizing staff to take action against the cash maintenance bond posted by John Farrell to guarantee maintenance of construction in Kings Park Subdivision, Phase 5. Motion carried and ordered unanimously. (See page for Resolution No. 04-068.)

CONTRACT WITH GUNNSTRUCTION, INC. AND SUNDANCE HILL, LLC, RE: MALABAR
LAKES WEST SUBDIVISION, PHASE 2

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Contract with Gunnstruction, Inc. and Sundance Hill, LLC guaranteeing infrastructure improvements in Malabar Lakes West Subdivision, Phase 2. Motion carried and ordered unanimously. (See page for Contract.)

RESOLUTION, RE: RELEASING CONTRACT FOR OCEAN VIEW TOWNHOMES

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution releasing Contract with Riverview Development and Construction, Inc. dated April 22, 2003 for improvements to Ocean View Townhomes. Motion carried and ordered unanimously. (See page for Resolution No. 04-069.)

REQUEST FOR WAIVER OF SIX-FOOT MASONRY WALL REQUIREMENT, RE:
COCONUT AND HIGHWAY A1A OFFICE BUILDING

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to waive provisions of Section 62-3204(g)(4)g, requiring a minimum six-foot high masonry wall to be constructed between a commercial development and residentially-zoned property, for Coconut and Highway A1A Office Building, subject to the property owner constructing a six-foot high vinyl fence in lieu of the wall. Motion carried and ordered unanimously.

REQUEST FOR WAIVER OF SIX-FOOT MASONRY WALL REQUIREMENT, RE:
REZANKA RETAIL/RV/BOAT STORAGE

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to waive a portion of Section 62-3204(g)(4)g requiring a six-foot high concrete block wall be constructed on commercial development abutting residentially-zoned properties, for Rezanka Retail/RV/Boat Storage, subject to developer installing a six-foot high chain-link fence with slats in lieu of the concrete block wall. Motion carried and ordered unanimously.

REQUEST FROM RICK CURRY, RE: WAIVER OF SECTION 62-102, MAXIMUM LOT
REQUIREMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to waive Section 62-102, as requested by Rick Currey, to allow a third lot to utilize the same easement as two other parcels for an additional building permit on 5.08 acres located off Homestead Avenue. Motion carried and ordered unanimously.

INTERLOCAL AGREEMENT WITH CITY OF SATELLITE BEACH, RE: LOCAL
REGULATION OF REGISTERED CONTRACTORS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Interlocal Agreement with the City of Satellite Beach to establish a system for regulation of registered contractors and unlicensed contractors, pursuant to Parts I and II, Chapter 489, Florida Statutes, and Chapter 22, Article VI of the Brevard County Code, for a period of three years. Motion carried and ordered unanimously. (See page for Agreement.)

RESOLUTION, RE: AUTHORIZING DESIGNATED POSITIONS TO APPROVE
TEMPORARY STATE ROAD CLOSURES FOR SPECIAL EVENTS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution authorizing the County Manager or his designee to approve the use of State Roads and/or temporary State Road closing permits for special events, pursuant to Florida Administrative Code, Chapter 14-65. Motion carried and ordered unanimously. (See page for Resolution No. 04-070.)

PERMISSION TO ACCEPT PERMIT APPLICATIONS FOR REVIEW AND ISSUE MINOR
PERMITS FOR EXISTING STRUCTURES, RE: THE GREAT OUTDOORS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize the Building Code Compliance Department to accept general permit applications for review as long as applicants sign affidavits stating there are no guarantees permits will be issued and they are proceeding with the application process at their own risk; and to issue minor permits for existing structures, which are determined by the Building Official to be health and safety-related and do not place additional demand on the water system in The Great Outdoors. Motion carried and ordered unanimously.

REQUEST FROM STARBUCKS AT VIERA, RE: WAIVER OF RESTAURANT PARKING
CALCULATION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to waive provisions of Section 62-3206(2)bb to allow restaurant parking to be calculated based on the number of seats instead of total square footage of the building for Starbucks at Viera. Motion carried and ordered unanimously.

WAIVER OF SIDE SETBACK, RE: HERITAGE ISLE PUD

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to waive a portion of the side setback requirement for certain lots in Heritage Isle PUD to five feet on lots that are at least 75 feet in width, due to addition of a drainage easement, so that the lots will have the same setback as the standard 70-foot lots in the majority of the Subdivision. Motion carried and ordered unanimously.

TASK ORDER MR-001 WITH REYNOLDS, SMITH & HILLS, INC., RE: MICCO ROAD
IMPROVEMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Task Order No. MR-001 with Reynolds, Smith & Hills, Inc. for design of sidewalk, intersection improvements, and curve alignment analysis on Micco Road, from the railroad tracks to the curve west of Dottie Lane. Motion carried and ordered unanimously. (See page
for Task Order MR-001.)

PERMISSION TO ISSUE WORK ORDER TO DRMP, INC., RE: NORTH BANANA RIVER
DRIVE CURVE ALIGNMENT STUDY

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize issuance of a Work Order to Dyer, Riddle, Mills & Precourt, Inc. (DRMP) for a curve alignment study on North Banana River Drive north of SR 520, at a cost of $48,800. Motion carried and ordered unanimously.

REJECT BID #B-3-04-33, AUTHORIZE PUBLIC HEARING, AND APPROVE USE OF
IMPACT FEES AND BUDGET CHANGE REQUEST, RE: HOLLYWOOD
BOULEVARD AND EBER ROAD INTERSECTION IMPROVEMENTS PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to reject sole bid for Bid #B-3-04-33, Hollywood Boulevard and Eber Road Intersection Improvements Project; authorize a public hearing to consider County construction of improvements pursuant to Florida Statutes, Chapter 255.20, Section 9; allocate impact fees of $120,000; and approve Budget Change Request for the project. Motion carried and ordered unanimously.

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

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Agreement with Florida Department of Education for the Summer Food Service Program. Motion carried and ordered unanimously. (See page for Agreement.)

PERMISSION TO SUBMIT TO MPO, RE: TRAIL CONSTRUCTION PROGRAM
ENHANCEMENT APPLICATION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize the Parks and Recreation Department to prepare and submit an application for $800,000 of transportation enhancement funds to the Brevard MPO to construct approximately eight miles of trails along the East Central Florida Regional Rail Trail, North Merritt Island Trail, Brevard Zoo Trail, and South Brevard Al Tuttle Trail. Motion carried and ordered unanimously.

UTILIZATION OF SCHOOL BOARD CONTINUING CONTRACT FOR CONSTRUCTION
MANAGEMENT, RE: PINEDA POOL

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize utilization of the School Board’s continuing Contract with Construction Management Associate, Co. for repairs to Pineda Pool in Cocoa. Motion carried and ordered unanimously.

CONTRACTS AND AMENDMENTS, RE: PROFESSIONAL SERVICES FOR PARKS
AND RECREATION REFERENDUM PROJECTS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize the Chair to execute negotiated contracts, including amendments required for phasing of professional services for North Area, Central Area-Merritt Island, and South Area Parks and Recreation Referendum Projects; and execute Amendment No. 003 with Coastal Technology Corporation for professional services for South County Boat Launch Facility; Amendment No. 005 with Post, Buckley, Schuh & Jernigan, Inc. for expansion of scope of services for Wickham Park, Parrish Park Scottsmoor, and Rodes Park; Amendment No. 007 with Miller Legg & Associates, Inc. for expansion of the scope of services for Valkaria Community Park, South Mainland Community Center-Micco, and Micco Park; and Amendment No. 010 with Kimley-Horn and Associates, Inc. for revision and expansion of scope of services for South Brevard Senior Center. Motion carried and ordered unanimously. (See pages for Amendments.)

PERMISSION TO PURCHASE SOFTWARE AND EQUIPMENT, RE: UPGRADE OF
MEDTRONIC/PHYSIO CONTROL LIFE PAK CARDIAC MONITORS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve purchase of software and equipment to upgrade 25 Medtronic/Physio Control Life Pak 12 cardiac monitors at a cost of $78,870. Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF PALM BAY, RE: FIRST RESPONDER SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Agreement with City of Palm Bay to provide first responder services for FY 2003-04 at $28,805.42 for ALS engine and squad, $16,708.54 for BLS engine and squad, $4.75 consumable supplies per call, $2.84 medical direction per call for ALS, and $1.68 medical direction per call for BLS. Motion carried and ordered unanimously. (See page for Agreement.)

PERMISSION TO PURSUE ALTERNATE POLLUTION PREVENTION PROJECT UNDER
AGREEMENT WITH FDEP, RE: RESOLUTION OF DISPUTES CONCERNING THE
OPERATION OF LANDFILL GAS COLLECTION SYSTEM AT CENTRAL DISPOSAL
FACILITY

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize the Solid Waste Management Director to pursue approval by Florida Department of Environmental Protection (FDEP) of an alternate pollution prevention or in-kind project under the Agreement with FDEP to resolve disputes regarding the operation of the landfill gas collection system at the Central Disposal Facility, and to sign an amended agreement if necessary to implement the project up to the financial commitment of the original Agreement. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 WITH C. J. LANGENFELDER & SONS, INC., RE: PHASE II
SEQUENTIAL CLOSURE PROJECT AT CENTRAL DISPOSAL FACILITY

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve Change Order No. 1 to Agreement with C. J. Langenfelder & Sons, Inc. for Phase II, Sequential Closure Project at the Central Disposal Facility Class 1 Landfill, increasing contract price by $58,400 and time by 147 days due to unanticipated problems caused by rain. Motion carried and ordered unanimously. (See page for Change Order No. 1.)

TASK ORDER NO. 3 WITH POST, BUCKLEY, SCHUH & JERNIGAN, INC., RE: SERVICES
FOR REPLACEMENT OF WATER MAINS IN NORTH BREVARD

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Task Order No. 3 to Agreement with Post, Buckley, Schuh & Jernigan, Inc., to provide engineering final design, bidding, and construction phase services for replacement of water mains in North Brevard. Motion carried and ordered unanimously. (See page for Task Order No. 3.)

TASK ORDER NO. 2 WITH BOYLE ENGINEERING CORPORATION, RE: LIFT STATION
AND FORCE MAIN IMPROVEMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Task Order No. 2 with Boyle Engineering Corporation, to provide engineering final design, bidding, and construction phase services for North Brevard Lift Station and Force Main improvements. Motion carried and ordered unanimously. (See page for Task Order No. 2.)

TASK ORDER NO. 2 WITH MWH AMERICAS, INC., RE: REHABILITATION OF LIFT
STATION M-20 AND REPLACEMENT OF LIFT STATIONS C-5 AND C-17

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Task Order No. 2 with MWH Americas, Inc. to provide engineering final design, bidding, and construction phase services for rehabilitation of Lift Station M-20 and replacement of Lift Stations C-5 and C-17 at $151,460. Motion carried and ordered unanimously. (See page for Task Order No. 2.)

TASK ORDER NO. 2 WITH BASKERVILLE-DONOVAN, INC., RE: LIFT STATIONS
AND FORCE MAIN IMPROVEMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Task Order No. 2 with Baskerville-Donovan, Inc. to provide engineering final design, bidding, and construction phase services for Lift Stations W-2 and W-5 and force main C-4 improvements at $85,278. Motion carried and ordered unanimously. (See page for Task Order No. 2.)

WAIVER OF TITLE EXCEPTIONS, RE: EXCHANGE OF PROPERTY WITH A. DUDA &
SONS, INC.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to waive objections to title exceptions identified on the title commitment for the proposed exchange of property with
A. Duda & Sons, Inc., specifically waiver of Title Exceptions Schedule II-B Items 6, 7, 8, 9, 10, and 11 as to easement only, and 12, 13, 15, and 16. Motion carried and ordered unanimously.

APPROVE COMPOSITION OF BYRNE GRANT ADVISORY BOARD AND EXECUTE
CERTIFICATE OF PARTICIPATION, RE: BYRNE GRANT FUNDING

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve the composition of the Byrne Grant Advisory Board consisting of the Chief Circuit Judge, State Attorney, Public Defender, Sheriff, Chief of Police designated by the Police Chiefs Association, County Manager, Superintendent of Education, and a representative of a local drug treatment program (Circles of Care); and authorize the Chair to execute Certificate of Participation. Motion carried and ordered unanimously.

APPROVE PUBLIC AUCTION AND REMOVAL FROM INVENTORY, RE: SURPLUS
EQUIPMENT

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve public sale of County-owned equipment declared surplus or uneconomical to repair by the custodians, and authorize utilizing existing contracted auctioneer Renee Bates to sell the equipment using auctioneer’s online auction; and grant permission for staff to accept or reject the high bids received if bids are lower than the perceived value of the equipment, using experience from previous sales. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING TAX EXEMPTION COMMERCIAL PAPER LOAN
FOR MINIMUM SECURITY JAIL AND EQUIPMENT ACQUISITION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution approving a commercial paper loan to finance the minimum security jail addition project and acquire capital equipment for Roadways and Landscaping; authorize the Chair and County Attorney to execute necessary loan documents; and authorize staff to make necessary budget changes. Motion carried and ordered unanimously. (See page for Resolution No. 04-071.)

PERMISSION TO BID, RE: PAINTING OF CENTRAL REFERENCE LIBRARY EXTERIOR

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant permission to bid painting of the Central Reference Library exterior; award the bid to the lowest qualified bidder; and authorize the Chair to execute the associated agreement. Motion carried and ordered unanimously. (See page for Agreement.)

PERMISSION TO BID, AWARD BID, AND EXECUTE CONTRACTS, RE: KITCHEN
EQUIPMENT FOR THE DETENTION CENTER

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant permission to bid kitchen equipment for the Detention Center, award the bid to the lowest qualified bidder, and authorize the Chair to execute the Contracts with the successful bidders. Motion carried and ordered unanimously. (See pages for Contracts.)

BUDGET SUPPLEMENT, RE: CHARTER REVIEW COMMISSION AND LEGAL
REVIEW PANEL

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve additional funding up to $35,500 for the Brevard County Charter Review Commission and Legal Review Panel budget from the Contingency Fund. Motion carried and ordered unanimously.

DEDICATION OF COURTROOM AT MOORE JUSTICE CENTER, RE: HONORABLE
CLARENCE T. JOHNSON, JR. COURTROOM

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve the dedication of Courtroom 4D at Moore Justice Center as the Honorable Clarence T. Johnson, Jr. Courtroom. Motion carried and ordered unanimously.

APPOINTMENT, RE: BREVARD WORKFORCE DEVELOPMENT BOARD

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to appoint Raoul Mosquera to the Workforce Development Board with term expiring June 30, 2007. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to appoint and/or reappoint Joanna Bass to the Commission on the Status of Women, replacing Bettye Murray, with term expiring December 31, 2004; Alan R. Coburn to the Housing Finance Authority, with term expiring April 12, 2008; Robert Rish, Dave Songer, and Michael Stieber to the Outdoor Music Committee; and Ramona Birmingham to the Parks and Recreation South Service Sector Area Advisory Board, replacing Mike Stieber, with term expiring December 31, 2004. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve the bills and budget changes as submitted. Motion carried and ordered unanimously. (See pages
for List of Bills and Budget Change Requests.)

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: SAWGRASS SOUTH
AT SUNTREE, PHASE 2

Lynda White, representing Audubon of Florida advised, the last time she addressed the Board on behalf of protecting the eagle nest territory, she was encouraged by its vote to deny the developer’s request; it cited its responsibility to abide by the County’s Comprehensive Plan, which requires the Board to protect threatened and endangered species; and she has used the Board’s vote as a model when she speaks with citizens and government officials all over the State. She stated there is nothing she can add to the position that she has already stated regarding Audubon of Florida’s position about protecting the bald eagle in Brevard County; but one troubling statistic is, while the eagle has been making a remarkable recovery from near extinction, last year for the first time in over 20 years there was no increase in the number of active nesting territories in the State of Florida. She stated the birds will not nest and reproduce if they have no place left to do it; and encouraged the Board, if this item is approved, to take responsible measures to adequately protect the nesting territory of the bald eagle pair.

Frank Rockwell of Melbourne stated he lives in St. Andrews Isle, 125 feet north of the eagles’ nest BE17b; both eagles are still present in the nest; and if the Commissioners saw their emails, they would know the eagles have names now, Ralph and Alice, named after an old sitcom, The Honeymooners, because they squabble incredibly and are very loud even in the middle of the night. He stated he is here to testify for Ralph and Alice and hopefully they will be able to keep their home; they are both still there; he saw them using the roosting tree on Lot 7 quite a bit lately; and they fly back and forth between the nesting tree and the roosting tree quite a lot. He stated they are active in the habitat; he has not seen anything to indicate there are eggs in the nest, and believes they arrived too late to make that happen. Mr. Rockwell stated they occasionally bring new sticks to the nest and it is getting bigger, but he does not think they are making a concerted effort this year to refurbish the nest any further, and expects they will migrate in the next couple of weeks. He stated he read something that the U.S. Fish and Wildlife Service produced in terms of its biological finding that says, “It is reasonably certain that the following will occur: The project may result in direct take of the eagles through harm and harassment as a result of noise and disturbance generated from the site work construction of the subdivision and loss of buffering vegetation in both the primary and secondary protection zones of the nest tree during the nesting season. In addition, these direct effects could cause the eagles to abandon the nest prior to egg laying; abandon the nest while eggs are in the nest, which would result in embryo mortality; or abandon the nest when chicks are in the nest, which could result in chick mortality.” He stated the U.S. Fish and Wildlife Service says it is reasonably certain to occur; that does not bode well for Ralph and Alice and their potential families; and urged the Board to deny approval of the Millstone Drive section of Sawgrass South, and reject any reconsideration of that event until such time as U.S. Fish and Wildlife Service and the Florida Fish and Wildlife Conservation Commission declare that the nest is abandoned, if ever. He requested the Board close the issue out today as it has been dragging out for a long time; and make the right decision, one that they all will not regret later.

Dick Northrup, President of St. Andrews Isle Homeowners Association (SAI), stated the residents of St. Andrews Isle continue to be very concerned with the Sawgrass South development, particularly its potential negative impact on their environment. He stated the eagles’ nest issue remains of paramount importance to them; he was pleased to see the Board’s thoughtful recognition of the Eagle Watch groups this morning; and hopefully it will strongly support objective 9 of its Comprehensive Plan, which states, “Protect endangered and threatened wildlife and species of special concern from adverse impacts due to loss of crucial habitat.” He stated Mr. Rockwell’s presentation a few moments ago clearly indicates that the eagles are still in the proposed Millstone Drive development area; the nest at BE17b has most assuredly not been abandoned; and he believes the photographic evidence and firsthand witness information previously presented to the Board by SAI residents are very strong indicators, if not proof, of the eagles continued presence. Mr. Northrup stated he fully respects the comments of Natural Resources Management Office and did read its recent report; but out of necessity, their observations were very brief compared to those of the SAI residents who live adjacent to the proposed Sawgrass South development on Millstone Drive. He stated hopefully the Board will agree that the eagles have not abandoned their nest even if they do not lay eggs this year; it must take all the time necessary to reach a conclusion on the eagles’ status; and as Commissioner Colon previously stated, the Board cannot rush nature. He requested the Board not adhere to the incidental take authority, which, in their opinion, would be cruel and insensitive to the welfare of the bald eagle; and strongly recommended the Board continue to protect the nesting bald eagle habitat by denying the final engineering plan and preliminary plat approval to develop 18 lots on Millstone Drive in Sawgrass South.

Amy Tidd advised members of the Partnership for Sustainable Future met with Natural Resources staff to discuss the problem of the eagle in Brevard County; Section 9 of the Comprehensive Plan says the Board needs to designate critical habitat for those endangered species; and they met with staff to find out the procedure for having an eagle ordinance put in place so that it is clearly defined. She stated when those issues come to the Board, it would have guidelines that would meet its Comprehensive Plan requirements; and requested the Board put this item off until the ordinance is in place and it has guidelines to follow that would fall under the Comprehensive Plan requirements. She stated the Board has been careful in preserving endangered species; and requested those people who support a bald eagle ordinance to stand. Approximately 30 people in the audience stood up.

Karen Weichman of Melbourne Village advised she does not have much to add except as a volunteer, and those who know her know she volunteers in various other activities around the County; and the one that she is asked about the most by her neighbors is the eagle watch. She stated there are lots of eagle watchers in Melbourne Village because all her neighbors are reporting to her almost daily about things concerning the eagles and asking her what more can they do. She stated they are lucky to have 44 acres of park land adjoining Irna Nixon County Park; so they are proud of their eagles there and want the Board to know that citizens do care about eagles.

Edward Slaney of Melbourne thanked the Board for its attention and the farsighted Commissioners following the course of protection of the eagles. He stated he hopes the Board will continue to do so to the best of its ability and follow the mandates of its Comprehensive Plan. He stated the eagle is a scavenger and street fighter scrambling to survive encroachment of its space; a uniqueness and diversity being lost; and disturbance and urbanizing of eagles may mask the signals they need to alert them of destruction of natural systems. He stated nature in Florida tends to break rather than bend when progress hurts rather than helps; and they need to send a strong message to developers with a vulturine appetite who have little concern about the implications and those willing to waste Florida’s naturalness.

Maureen Rupe of Port St. John, President of Partnership for Sustainable Future, stated the Partnership asks for a moratorium on the road until an eagle ordinance can be put in place. She stated they are already working on an eagle ordinance with County staff; and the environmental community is growing very frustrated as they see environmental goals in the Comprehensive Plan being weakened. She thanked the Board for its vote in the past on this issue, and stated they will rely on the Board’s judgment this time.

Attorney Jim Fallace, representing the developer of Sawgrass, advised they are asking for final engineering approval and preliminary plat approval; they have been before the Board six or seven times, most significantly on December 16, 2003 and December 2, 2003; and subsequently, the Board vacated the prior denial of the application. He stated County staff, in conjunction with the recent fly-over and analysis done by the Florida Fish and Wildlife Conservation Commission, concluded in its memo to the Board dated April 9, 2004, that the eagles were present at the nest less than 20% of the time when observations were made; if in fact the eagles were going to use the nest and there was egg laying or incubation activity, one eagle would be at the nest 100% of the time; so the final conclusion is that this late in the nesting season, it is very unlikely that the eagle pair would be able to produce a clutch and would likely forego any attempt to do so this season. He stated that is County staff’s conclusion and it is in conformance with the conclusions of the State. Mr. Fallace stated he would incorporate the testimony of the expert Steve Godley at two prior meetings, September 16, 2003 and January 13, 2004, the eagles, no matter what they are named, are not going to use the nest. He stated next year they may start a new nest or go back to BE17a; but what is clear is based on the evidence presented on September 16, 2003, there was lack of competent evidence to deny the application. He stated there are all sorts of remedial measures in place already; and one is the incidental take permit issued by Fish and Wildlife Service. He advised there was a request to have some type of moratorium until there is some type of eagle ordinance in place; he thinks the County Attorney will advised the Board that cannot apply retroactively to his client’s application; so delaying this item further to wait until a possible future eagle ordinance is not appropriate. Mr. Fallace stated he heard a quote from Mr. Rockwell and others that the incidental take permit, in the Department of Interior’s opinion, says that it is going to destroy the eagles if the application is in fact granted; however, Fish and Wildlife Service said, “no critical habitat has been designated for the species. . .the project as proposed is not likely to jeopardize the continued existence of the bald eagle. . .no critical habitat has been designated for the species; therefore, none will be afforded.” He stated it is important to keep in mind that his client has designated a number of lots that will not be developed; Fish and Wildlife Service thinks it is reasonable, and protective measures and additional action by Fish and Wildlife can be taken in the future if eagles return to the nest; so he would submit that there are no viable reasons at this point to deny the application.

Jim Egan, Executive Director of Marine Resources Council (MRC), advised the MRC does not have a specific position about this site, but its concerns apply to the Comprehensive Plan and endangered species as a whole. He stated the Board has a Comprehensive Plan in place; by this time they were supposed to have critical habitat for the endangered species already in place; unfortunately they do not have that; and an eagle ordinance would be concurrent with what was expected according to the Comprehensive Plan. He stated the Board has very specific criteria by which it can make its determination about whether this project would or would not compromise the Comprehensive Plan directives; and inquired if the Board allows, through a gray area, a developer to proceed with the project, and it is determined after the fact that the project was in conflict with its Comprehensive Plan, what would happen. He stated there is legal precedent with a development that occurred in Martin County; the project was required to be torn down, even though the County Commission gave its approval, because it was discovered afterwards that the approval was in contradiction to the Comprehensive Plan and the Comprehensive Plan trumped the decision of the Commission. Mr. Egan stated it is reasonable to seek specific criteria so the Board can support its existing Comprehensive Plan, which was expected to have a critical habitat element in it. He stated some indicated an eagle’s nest does not have eggs in it now so it is not a critical habitat; current understanding is that an eagle’s nest is not something they just make; and it is a very rare and exceptional feature that is not compatible with urban environments. He stated an eagle does not just find another urban environment in which to make its nest; it is a sign that the area has a number of exceptional qualities; so to expect a nest that has not been used in one season to suddenly not be habitat any more is unusual. Mr. Egan stated typically the criteria is a nest would have to go several years without being used; and at that time, the Board would presume incidental development around it had made it not usable, or perhaps the source of food or other elements of the habitat have been lost. He stated because the eagles had not generated eggs in the nest this season would not be criteria for suggesting the nest is no longer critical habitat.

Commissioner Carlson inquired if the Board is interested in going over the details in the Agenda Report; with Commissioner Scarborough responding perhaps staff could make a report. Commissioner Carlson noted Carrie has done the work that the Board needed to help it make a decision; and maybe she can put on the record what she found.

Environmental Specialist Kari Ruder advised she observed the nest through March about four hours each monitoring session once a week as directed; and as she outlined in the memorandum, there was one more eagle there on a couple different occasions, but the majority of the time the eagles were not present while she was there. She stated they may have been present at other times, but the goal of the monitoring was to determine if the eagles were in fact using the nest to produce chicks in or eggs; and there was no nesting behavior observed. She stated the eagles were not present 100% of the time or close to that, which is one of the criteria Fish and Wildlife Service says should happen if the eagles are going to produce eggs and incubate them; so that basically concludes they were not nesting and very likely will not nest this late in the season. She stated they are still using the habitat and are still observed in the habitat flying or perching in the trees, but they are not nesting.

Commissioner Carlson stated as she looked through the item and through all the times it was brought to the Board, trying to come to grips with what should be done and whether the Board should look to the environmental agencies, which are the ones that are supposed to be the authority on this matter, it got to be difficult to make decisions that go against the Comprehensive Plan; and that is where she always falls back to because that is the bible for future development and protection of the natural communities. She stated the community, in 1988 when the Comprehensive Plan came to be, it meant for the Board to be stewards of the natural communities; and with that, the Board needs to consider the issues of protection of the natural habitat of the eagles even though it is a perching tree. Commissioner Carlson stated the agenda information under biological opinion says the eagles distribution is influenced by the availability of suitable nests and perch sites near large open water bodies typically with high amounts of water to land edge, which describes the subject area. She stated the eagles seem to be using the perching trees; whether they are just hanging around or maybe they will come back, or whether the great horned owl will abandon their nest and they will be able to come back to that nest, nobody knows; but the issue of abandonment is a clear issue that she would vote on if they find at some future date that the site has been abandoned and the agency determines that it has been abandoned. She stated she would feel more comfortable as a public servant to follow the word and interest of citizens with the Comprehensive Plan; so with that, she would recommend the Board move to deny the item until there is clear judgment on the abandonment of the nest; and if it is truly abandoned, they do not have to take the risk with incidental take. She stated if the Board loses sight of what it is trying to do in the preservation of the eagle, that would be a sad day for the community.

Chair Higgs inquired if that was a motion to deny.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to deny final engineering and preliminary plat approvals for Sawgrass South at Suntree, Phase 2, until such time as the professional agencies define the perching site and BE17a nest to be abandoned by the bald eagles.

Commissioner Pritchard stated he cannot support the motion; the Fish and Wildlife Service granted an incidental take; staff said the nest is not being utilized; there is no clutch; and there will not be any nesting habitat this year. He stated if the Board were to look at the site as habitat, it would have to close the dump because the eagles are all over the landfill; so every place can be closed. He stated talking about water and availability of water; he wants to know how much water is in Melbourne Village as compared to having a large body of water. Commissioner Pritchard stated what he finds interesting about issues such as this is that folks tend to become very environmentally concerned as soon as it is a way that they can leverage whatever it is they really want; in this case, St. Andrews Isle does not want people in their backyard; they admitted that; they want their lake to remain their own; and they want a fence to be put up on the other side so people do not go into their lake. He stated one man lives 125 feet from the nest, but he does not want any construction to go on because it is in his backyard; and that is the part he objects to. Commissioner Pritchard stated he does not like using surrogates as a reason to deny something from happening because it happens to fit someone’s personal agenda; the eagles are not using the area; staff said that time and time again; and to hang their hat on something that they have already shown is not occurring is wrong. He stated it is doing a disserve to the environmental community, conservation, and the entire area they choose to live in called Brevard County. He stated it makes no sense to him that the Board would deny someone the ability to responsibly construct a subdivision adjacent to a subdivision that was probably built under the same conditions; but because it is now in their backyard, all of a sudden they have created a surrogate, in this case the eagle; and for those reasons he cannot support the denial. He stated the developer has shown responsibility in dealing with the entities that are the professionals in this arena, Fish and Wildlife Service, and made a reasonable standard for which to follow; for the Board to take the position based on assumptions and feel good solutions is wrong; and it would still be complying with the Comprehensive Plan. He stated in many places the Plan says “should”, “could”, “would”, and the Board is doing that; so he does not see where it is affecting the integrity of the Comprehensive Plan. He stated it is enforcing the integrity of the Comprehensive Plan by all the reasonableness that it asked the developer and the Natural Resources community to go through, notwithstanding the issue of St. Andrews Isle and the surrogate created because they do not want something in their back yard.

Chair Higgs inquired if the motion is to deny until what time; with Commissioner Carlson responding until the professional agencies define the nest to be abandoned. Chair Higgs called for a vote on the motion. Motion carried and ordered; Commissioner Pritchard voted nay.

BOARD DIRECTION, RE: RIVEREDGE DRIVE SMALL AREA PLAN

Connie Pontius of Titusville advised she owns property on Riveredge Drive, and wants to read a letter from a neighbor who could not be here today. She read, “Dear Brevard County Board of commissioners. Thank you for considering rezoning of our enclave on Riveredge Drive, Titusville. It is true that many years ago this road was the old U.S. 1. It has been a dead-end street for many years, and it is time for the zoning to be brought up to date protecting this precious neighborhood. Low-density residential use is the best use of the lower end of Riveredge Drive just south of U.S. 1. Respectfully, Ron Caswell, eight-year resident of Riveredge Drive and now Riveredge Townhome Association President.” Ms. Pontius stated her husband and she purchased the old marina at 5435 Riveredge Drive about a year ago and are in the process of converting it to a home; and they are in favor of low-density residential zoning, Option 1. She stated right now they have BU-1 zoning; and about a year ago they made application to change their zoning from BU-1 to residential, but withdrew it when they realized they did not have to do that in order to live there. She stated Riveredge Drive is a dead-end street and it cannot handle commercial traffic; it is very narrow even though it used to be U.S. 1; and the future for the street is residential in nature. She stated there is a new gated community with nine home sites that they are beginning to work on; one home is completed and three townhomes or patios homes are going in on the street also; so they are in favor of low density.

Richard Standon of Cocoa stated he has lived in Brevard County since 1959 and lives just south of the Riveredge Drive community; and he is here to support the community like they did his community. He stated he hopes the Board will support the future land use for Riveredge Drive and implement Policy 1.2 that concerns the neighborhood and his area.

Robert Robinson of Titusville presented documents to the Board, but not the Clerk; stated he lived in Titusville since 1965 for all but five years; and he is building a new residence at 5474 Riveredge Drive in the new Hidden Creek community at the south end of the road. He stated Hidden Creek is the nine-lot single-family RA-1 neighborhood; it is the top left picture on the second part of the handout; and thanked the Board for allowing staff to review the Riveredge Drive small area plan. He stated he agrees with staff’s findings and hopes the Board will approve implementation of Option 1 to insure that continuing development along Riveredge Drive remains in the single-family residential character.

Laura Ward, representing Riveredge Drive Neighborhood Group, thanked the Board for the time certain as it is a working neighborhood and not everyone can come to meetings. She stated they tried to have representatives from the north, middle, and south sections of the neighborhood so the Board would know it has support; and requested people to stand who came to the meeting though it was difficult. She stated the Comprehensive Plan is important; Policy 1.12 is important as well; and they are here to ask the Board to implement that policy, which calls for limitation of encroachment of nonresidential uses into neighborhoods like theirs down the coast of the river. Ms. Ward stated she sent emails about the staff report statement on page 3 regarding the 14 uses on Riveredge Drive; there is really only one current structure being used as other than residential in the County’s jurisdictional area; and that is the Bavarian House Pub. She stated everything else has transitioned; even though the zoning on the properties may be BU-1, they transitioned to residential use; the barber shop across the street from her house is a single-family home; the marina at the end of the road that was a boat repair place with BU-1 zoning is now a single-family home; and that is the way the neighborhood is headed. She stated they feel the zoning classifications on the books discourage development proceeding like it should naturally occur; the road is a local narrow County road that the County must maintain; and that kind of road does not support intense uses such as the leftover uses from U.S. 1 would indicate. Ms. Ward stated there is a provision in the nonconforming lot Ordinance that would allow an establishment that is still operating to apply for a CUP to be determined conforming if it meets certain criteria and is an integral part of the neighborhood; so even a nonconforming status can be mitigated under certain circumstances, including the one business that is left there, if the Board proceeded with administrative rezoning to residential use. She noted they do not think the owner will request a CUP because his property has been on the market for sale for residential development, but if he chose to, he could continue to operate his business. Ms. Ward stated later on the agenda there is an item about storage of commercial vehicles on BU-1 properties; the Board needs to keep in mind that they live in a neighborhood where they have BU-1 zoning that is being used as residential; so they hope the Board will be mindful and they do not end up with storage of commercial vehicles because there would be no screening next to their homes. She requested the Board consider Option 1, and thanked it for implementing its Comprehensive Plan policy.

Commissioner Pritchard thanked Ms. Ward for her emails and insight; and stated he would like to ask her questions because she is probably the spokesperson for the neighborhood; with Ms. Ward commenting sort of. Commissioner Pritchard inquired about the restaurant that was known as Harold’s; with Ms. Ward responding that has been annexed into the City of Titusville so it is not under the County’s jurisdiction; but it is currently operating as a restaurant. She stated it was purchased by a developer of residential property, so they do not know what is going to become of it in the future; however, she understands it has a lease on it to operate as a restaurant and that is what they are doing, and the Board’s decision would not affect it in any way. Commissioner Pritchard inquired even though the Bavarian House Pub is for sale, what if it was sold to someone who wanted to keep it as the Bavarian House Pub and applied for a CUP, would the neighborhood agree to that. Ms. Ward replied they do not know and will have to see what the circumstances are; one of the requirements for applying for a CUP is that it be long established in the neighborhood, which it is, and that it be integral to the neighborhood and have no violations or problems; so at that time, depending on the circumstances, they will see what will happen. Commissioner Pritchard inquired if they are operating under those guidelines now; with Ms. Ward responding she does not live across from it so she cannot say as far as violations and does not know what they might have had or had not because she is not familiar with it; but they are long established and can make the case they should become conforming. Commissioner Pritchard stated his concern is changing their ability to remain by making it Residential 10 and having the neighborhood object to them getting a CUP in order to keep their operation ongoing. Ms. Ward stated there is a reason for making uses nonconforming, and that is the hope that they will transition to something else; but there is the opportunity for mitigation by a long-established business, but she cannot tell Commissioner Pritchard what she might think of the new owner or what his plans are for it until there is one. Commissioner Pritchard stated a lot of the properties are currently zoned BU-1; Ms. Ward stated they are going residential; but the ones that are BU-1 that they would like to keep as BU-1 are his concern; and inquired if Ms. Ward spoke to all of the property owners and were they notified of this plan. Ms. Ward stated some of the residents present have BU-1 on their properties; Ms. Pontius earlier told the Board her property is BU-1 and they were going to change it to residential but there is a provision in the Code for single-family construction on BU-1 property; so they did not have to spend the money, otherwise it would have been changed already. She stated she owns a vacant lot that is zoned BU-1; and she can tell the Board it is much more valuable as residential because the purchaser for it does not have to guess what is going next to him or her; and that is a big problem in their neighborhood. She stated they cannot get good residential development because they are so uncertain about what can be built next to them with all the crazy zonings. Commissioner Pritchard inquired if other property owners who have BU-1 zoning are aware of what is being discussed today; with Ms. Ward responding she does not know who they all are; there is a big industrial parcel out there; but she assumes those people will be given notices of what action the Board may take before it takes action. She noted she is sure they will be at the meeting to let the Board know how they feel and be given the opportunity to have their say, but most of the BU-1 properties have single-family homes on them. Commissioner Pritchard stated it is a unique neighborhood that is going through a transition; he has been down that road and has seen what is going on; and it is a real nice corner of Brevard County. Ms. Ward stated they think it will transition quickly into something really good and much more valuable for everybody if it is consistent; and that is what the Comprehensive Plan suggests.

Commissioner Scarborough advised when he first came on the Board, there was a great deal of discussion about the South Beaches and essentially the Board was taking properties and making them residential; and one of the things that surprised him, which was mentioned by Carol Senne, is that by doing that, the property values went up. He stated the problem, like Ms. Ward said, is the uncertainty of what could go in next door; and if it did not have the waterfront and dead-end street, a person would say why would he buy a piece of property there. He stated in North Brevard there are very few strips of land on the water where there is no through traffic; it is an extremely unique area; and a person in his office yesterday said he bought a condo on the water in Port St. John and in three years the property value tripled. He stated the Board talks about letting people have their property rights; and by failing to take action today, the Board would be denying the residents their property rights to have a defined community. He stated there was a picture of a house on the river for $650,000; this is an opportunity to take the neighborhood and moving it to the top end of the North Brevard market; and there are not that many opportunities presented to the Board to do that. He stated those persons who have concerns because they want to continue something on their property, may continue in the short run, but when they can turn property for half a million dollars, it does not take long to figure out it is better to make half a million dollars on residential property than selling hamburgers. He stated staff will notice them and they will be involved even though they are not here today; so he will move approval of Option 1.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Option 1, to direct staff to prepare and advertise Comprehensive Plan amendments and/or Zoning Code changes for Riveredge Drive Small Area Plan properties. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENT IN CATALINA ISLE ESTATES, UNIT 5 - STEPHEN AND SILVIA BRYAN

Chair Higgs called for the public hearing to consider a resolution vacating a public utility and drainage easement in Catalina Isle Estates, Unit 5, as petitioned by Stephen and Silvia Bryan.

There being no objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution vacating a public utility and drainage easement in Catalina Isle Estates, Unit 5, as petitioned by Stephen and Silvia Bryan. Motion carried and ordered unanimously. (See page for Resolution No. 04-072.)

PUBLIC HEARING, RE: RESOLUTION VACATING ALLEY IN JORGENSEN’S PLAT OF
GRANT - GEORGE PEREZ, ESQUIRE (CARL SCHMIDT)

Chair Higgs called for the public hearing to consider a resolution vacating an alley in Jorgensen’s Plat of Grant, as petitioned by George Perez, Esquire, representing Carl Schmidt.

There being no objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution vacating an alley in Jorgensen’s Plat of Grant, as petitioned by George Perez, Esquire for Carl Schmidt. Motion carried and ordered unanimously. (See page for Resolution No. 04-073.)

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY EAST OF I-95 AND
WEST OF WICKHAM ROAD, DEED, AND EASEMENT - PINEDA PARTNERS, LLC

Chair Higgs called for the public hearing to consider a resolution vacating a right-of-way east of I-95 and west of Wickham Road, as petitioned by Pineda Partners, LLC.

Attorney Jim Fallace, representing Pineda Partners, LLC, presented a handout to the Board, but not the Clerk; and advised they are asking that a Right-of-way Deed that was issued August 23, 1982 by Frank Magnuson, a single person, to Brevard County, be vacated. He stated there are two issues involved; the first issue is that Frank Magnuson did not own the property when he gave the Deed to the County; Tab 7 of the handout is a chain of title showing Mr. Magnuson deeded the property on November 30, 1962 to Florida Shores Property No. 15, then Florida Shores Property deeded the property in 1986; so Mr. Magnuson did not own the property in 1982. He stated the County received an invalid Deed; his client is looking to develop the property and is working closely with County staff; this is not a plat issue; they will be back before the Board to ask to add the property to the plat; but what he is saying is the County does not own the property so they are asking the Board to vacate it. He noted there is a drawing of the property at Tab 4. Mr. Fallace stated all the properties and rights-of-way the Board has vacated are shown in red; the reason is the Board had no intention of using those rights-of-way; the portion being requested for vacating is shown in blue; and it is consistent with what the Board has done in the past, which is to vacate rights-of-way that are no longer applicable. He noted even if the County owned the property, which it does not, it would be appropriate and prudent to vacate the right-of-way. He stated there is a third point that supports their position to vacate the right-of-way; and that is they entered into a Binding Development Plan with the County, which is at Tab 5. He stated at that time the Board asked his client to come back and formally request vacating of the existing 100-foot right-of-way that lies on the southern boundary of Windsor Estates. Mr. Fallace reiterated: (1) the County did not own the property; (2) it is appropriate with all its prior actions of vacating rights-of-way in the area; and (3) when they entered into the Binding Development Plan, everyone understood they would come back and were required to ask the Board to vacate it. He stated Tab 8 is a copy of the Deed from Frank Magnuson to Florida Shores Property; it is clear that the right-of-way Deed was contemplated by the Board and County staff to be vacated; there is a technicality because the County does not own the right-of-way; there is a reverter in the Deed that says if they do not develop it or do anything to use it, it would revert back to the owner of the property; and that is his client. He stated there are four or five legitimate reasons why the Board should vacate the right-of-way Deed and clear the path for his client to come back and ask it to approve a plat that will be consistent with the County’s Comprehensive Plan.

Commissioner Pritchard stated he is confused; and inquired if the County does not own the property, why is it being asked to vacate it, and who owns it; with Mr. Fallace responding the Board is being asked to vacate a cloud on the title of the property; there is a wild deed that is creating a cloud on the property; plus when they entered into the Binding Development Plan, they promised to come back and ask the Board to vacate it, so they are doing that now.

County Attorney Scott Knox advised Mr. Fallace is asking the Board to vacate the right-of-way; if the Board adopts the resolution saying it is vacated, that gets recorded in the Public Records; and it will eliminate the cloud on the property. He stated there is a suit pending on this for quieting of the title; if it is vacated, they would not have to respond to that suit; they have done the research on the title; and it appears Mr. Fallace is correct about the origin of the title and the fact there is a wild deed. He noted it would clear things up if the Board vacated the right-of-way.

Transportation Engineering Director John Denninghoff advised when the discussion took place before the Board at the time of the Binding Development Plan, there were concerns expressed by a couple of Commissioners about the right-of-way and making provisions for the zoo trail; and staff has attempted to negotiate a solution to making provisions for the zoo trail as well as being sensitive to the request for vacating by the petitioner. He stated to accomplish that, they requested a deed back to the County for a parcel of land, which would eventually be available for the zoo trail; and the majority of it would be ten feet wide along the western portion of the parcel that is the subject to the vacating request. Mr. Denninghoff advised staff further realized there was a need for easement rights along the northerly portion of another tract that is in the earlier portion of the plat for the Grand Haven Subdivision; they requested that as well; it is his understanding the petitioner is amenable to both of those requests; so staff recommends the vacating be based on receipt of the deed for the land and the easement, and that the lawsuit be dropped.

Commissioner Carlson stated one thing Mr. Denninghoff did not mention was the fact that her concern was not only for the zoo trail but for the design of the Pineda interchange at I-95; they have since gotten a design that will work with the scenarios; so she has no problem with what Mr. Denninghoff has outlined as conditions of the approval and ensuring the lawsuit is dropped.

Commissioner Colon requested Mr. Fallace put on the record that he concurs and feels comfortable with all the things that have been stated.

Mr. Fallace advised if the vote is to vacate the Right-of-way Deed, he will file a notice of voluntary dismissal of the lawsuit tomorrow; and that will be over with and the County would not have to answer. He stated the private discussions between staff and his client concerning the easement are ongoing; they have been attempting to cooperate for at least a year on it; and it is their position that when they come before the Board for plat approval, the agreements that they reach with respect to the easement will be on that plat, but it has nothing to do with the vacating to remove the cloud on his client’s title to the property. Mr. Fallace stated they hope to be back before the Board within two weeks with a preliminary plat for approval and hope Mr. Denninghoff and Mr. Evans can proceed with their discussions. He stated it is a complex issue; he will be involved in drafting the easement; and they can help the County assuming there are no bald eagles in the easement area. He stated they will give an easement, but it will be on the plat and not in any way tied to the vacating.

Commissioner Carlson stated some of the other discussions they had were waiting for negotiations with the Azan Temple for property as well, and a lot of unknowns have been circulating with the Pineda Extension and the County’s interest in going forward with that at some future date. She inquired if there is specific language that should be provided in the motion, since there are ongoing talks between the applicant and Mr. Denninghoff, which she hopes will come forward, and that it is to be part of the plat; and when the Board okays the plat, will it be able to make sure those things are accounted for; with Mr. Knox responding the Board is in a good position of being able to review the plat when it comes back so it will be able to address the issues, easement, and right-of-way at that time. He stated the only thing of interest right now from the Board’s point of view is to get dismissal of the lawsuit, which will be moot if the Board vacates the right-of-way.

Mr. Denninghoff advised the Azan Temple has objected to the vacating; and that is the only objection they have received on the request. Commissioner Carlson inquired what was the basis of its objection; with Mr. Denninghoff responding he does not know that they really explained all of it, but they have concerns that it would reduce access to their property. He stated staff looked at the property boundaries, and believes the Temple still has legal access to Turtle Mound Road, which is where the access via this road right-of-way would take place as well. Commissioner Carlson stated they took that into account when they were deliberating the Grant Haven parcel; Mr. Fallace gave the Board a nice picture that shows it in green; and inquired if that would be the access to the Azan Temple property; with Mr. Denninghoff responding he believes it is. Commissioner Carlson stated that does not concern her and she will make the motion to vacate the right-of-way conditioned on the lawsuit being dropped.

There being no further comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Scarborough, to adopt a Resolution vacating a right-of-way east of I-95 and west of Wickham Road, as petitioned by Pineda Partners, LLC, conditioned on the lawsuit being dropped; and authorize acceptance of a Warranty Deed and Easement. Motion carried and ordered; Commissioner Colon voted nay. (See pages
for Resolution No. 04-074, Deed, and Easement.)

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENT IN RIVER ROAD ESTATES - MARK AND KRISTINE WILSON

Chair Higgs called for the public hearing to consider a resolution vacating a public utility and drainage easement in River Road Estates, as petitioned by Mark and Kristine Wilson.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution vacating a public utility and drainage easement in River Road Estates, as petitioned by Mark and Kristine Wilson. Motion carried and ordered unanimously. (See page for Resolution No. 04-075.)

PUBLIC HEARING, RE: RESOLUTION VACATING NORTHERLY EXTENSION OF
INTERLACHEN ROAD - MATTHEW HOLDINGS

Chair Higgs called for the public hearing to consider a resolution vacating the northerly extension of Interlachen Road, as petitioned by Matthew Holdings.

Transportation Engineering Director John Denninghoff advised of a request to continue the public hearing until May 18, 2004.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to continue the public hearing to consider a resolution vacating the northerly extension of Interlachen Road, as petitioned by Matthew Holdings until May 18, 2004. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENT IN PLAT OF VIERA, TRACTS SS AND RR - JEFF STALNAKER
(MICHAEL STERN)

Chair Higgs called for the public hearing to consider a resolution vacating a public utility and drainage easement in Plat of Viera, Tracts SS and RR, as petitioned by Jeff Stalnaker representing Michael Stern.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution vacating a public utility and drainage easement in Plat of Viera, Tracts SS and RR, as petitioned by Jeff Stalnaker representing Michael Stern. Motion carried and ordered unanimously. (See page for Resolution No. 04-076.)

PUBLIC HEARING, RE: RESOLUTION VACATING A PLAT RESTRICTION ON PLAT OF
VIERA, TRACTS SS AND RR - MICHAEL STERN

Chair Higgs called for the public hearing to consider a resolution vacating a plat restriction on Plat of Viera, Tracts SS and RR, as petitioned by Michel Stern. She stated she understands the vacation would allow access onto Wickham Road; and currently the plat restricts that access.

Hassan Kamal, representing the petitioner Michael Stern, advised currently there is a restriction on the face of the plat that prohibits that access, but there is history behind that. He stated in 1994 or 1995, the applicant came to the Board and requested clarification of the original Zoning Resolution, which established the restriction; and that clarification was provided by the Board. He stated it allowed initially for Cabot Court to be extended to Wickham Road as long as it was a right in/right out access; the applicant moved forward with preparation of a site plan, which involved construction of a driveway access, not the extension of the roadway; and staff asked them at that time to come back to the Board and obtain additional clarification of their intent. Mr. Kamal advised they came back to the Board and asked for a right in/right out access on Wickham Road as a private driveway in lieu of extension of Cabot Court ; and they received approval of that at that time. He stated the project was approved and the site plan received approval based upon the previous Board’s actions; neither they nor staff considered the potential conflict between the Board’s actions and the note on the plat; and when they came forward with the project, they met with staff and the County Attorney who felt the best way to put the issue to bed was to ask the Board to formally vacate the restriction on the plat.

Chair Higgs inquired if the Board does not approve the vacating, would they still have access on Cabot Court; with Mr. Kamal responding that is correct, but for this particular use, that is probably not going to be a feasible configuration. Chair Higgs inquired if Mr. Kamal wishes to speak as he has the opportunity; with Mr. Kamal responding in his long-winded response to the question, he pretty much said what he would have said in a formal presentation. He stated they met with Commissioner Carlson last week; and the only other things he has are information, such as pictures of the building, which has nothing to do with the request, but Commissioner Carlson asked to see what it looked like.

Commissioner Carlson advised she met with the applicant and he explained the history behind the plat restriction; and her concern was if the Board provided a right in/right out access, they would have a straightaway between Cabot Court and Wickham Road; and she did not want that to be used as a cut-through. She stated even though the Board acknowledges access to Wickham Road, there is no guarantee they would get it because of the level of service problems on that road at this time; but she does not see a problem with the vacating based on the configuration of the Pizzeria Uno restaurant. She stated the parking lot splits the road access so there should not be any issues other than for the use of the restaurant. She stated she did ask for pictures; the building will go through the architectural review board with Viera, so it will be a nice looking development; and hopefully they will not see any problems in terms of traffic. She stated it will be a right in/right out only, so she does not have a problem with it.

Chair Higgs stated she has a problem with allowing removal of the restriction at this time and will vote no on the vacating. Commissioner Carlson inquired if Chair Higgs understands that past Boards approved it so they do have access as it stands; with Chair Higgs responding yes.

There being no further comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution vacating a plat restriction on the plat of Viera, Tracts SS and RR, as petitioned by Michael Stern. Motion carried and ordered; Commissioner Higgs voted nay. (See page for Resolution No. 04-077.)

The meeting recessed for lunch at 12:09 p.m. and reconvened at 1:00 p.m.

PUBLIC HEARING, RE: ORDINANCE REGULATING FIREWORKS SALES IN HEAVY
INDUSTRIAL ZONING CLASSIFICATION EXCLUSIVELY (FIRST HEARING)

Chair Higgs called for the public hearing to consider an ordinance regulating fireworks sales in heavy industrial (IU-1) zoning classification exclusively; and advised this is the first of two required public hearings.

There being no objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Scarborough, to forward an ordinance, amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Section 62-1544(1)a., by adding “fireworks sales, wholesale” as a permitted use in the heavy industrial (IU-1) zoning classification; amending Section 62-1102, by adding the definition of “fireworks”; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances, to the final public hearing on May 6, 2004. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING ARTICLE VII, CHAPTER 62, LAND
DEVELOPMENT REGULATIONS, SUBDIVISIONS, AND PLATS

Chair Higgs called for the public hearing to consider an ordinance amending Article VII, Chapter 62, Land Development Regulations relating to subdivisions and plats.

There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Article VII, Division 1, Division 2, Division 3, Division 4, and Division 5, specifically amending Sections 62-2801 to revise the definitions of a certified survey and add standards to revise the definitions of a certified survey and add standards, to revise definitions of individual onsite sewage treatment and disposal system, individual water supply, topographical map/survey and adding definitions for County Surveyor, engineering revision, and wetland; amending Section 62-2805, Subsection (2) Construction Plans and Preliminary Plat Review, and Subsection (3) Final Plat Review, to add review by the Board; amending Section 62-2806, Subsection (4) Sanitary Sewer System Design, Subsection (5) Water System Design, to change departmental and agency references; amending Section 62-2807 to provide time frames, information and document requirements in Subsections (a) Pre-application Conference, (b) Pre-application Plans, Subsection (c)(1) Required Exhibits and Information, Subsection (c)(2), General Information, Subsection (d) Calendar Day Review Period; amending Section 62-2808 to provide information and document requirements and timeframes in Subsections (b)(2) Design and Required Information, Boundary and Topographic Surveys, Subsection (b)(4), Tree Survey, Subsection (b)(9) Existing Features, (b)(10) Public and Private Open Spaces, (b)(12) Lot Lines and Lot Numbers and Blocks, (b)(15) Utilities, (b)(21) Required Information, (b)(22), Boundaries of Existing Wetlands, Proposed Impacts to Wetlands, (c) Review, (d) Agency Comments, and (g) time limit; amending Section 62-2809, to provide information and document requirements and timeframes in Subsections (a), (b)(1), (b)(2), and (c) Construction Permits; creating Section 62-2810 entitled Engineering Revision; amending Section 62-2841 entitled Application for Final Plat Review, to provide references, fees, survey data, and information requirements, title opinions, security, certification, standards for acceptance and recording requirements; amending Section 62-2846, Subsection (c) Appeals, to provide timeframes; amending Section 62-2883, Subsection (a) General Design Requirements, to delete a requirement for Board approval; creating a new Section 62-2886, Subsection (a)(4) to require identification and location of blocks; amending Section 62-2889 , Subsection (b)(3), Wall or Fence, to address location, Subsection (b)(5) to address sign size, sign height; amending Section 62-3000, to address density bonus and lot yield, clarify language, require permanent open space, address setbacks, area calculations for developable area and open space in Subsections (a)(3), Encouraging Open Space Incentives, (b)(2), Percentages of Open Space, (b)(4) Stormwater Management Facilities, (b)(6) Primary and Secondary Open Space, (b)(7) Calculation of Development Area Acreage, (c) Undivided Secondary Open Space, (d)(13) Evaluation Criteria, (e)(1) Lot Size and Lot Lines and Setbacks; and creating Subsection (g) Open Space Subdivision Formula; providing for conflicting provisions; providing for severability; providing for area encompassed; providing for inclusion in the Code; and providing for an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 04-13.)

PUBLIC HEARING, RE: APPEAL OF ZONING OFFICIAL INTERPRETATION BY
STARBUCKS

Chair Higgs called for the public hearing to consider an appeal of the Zoning Official’s interpretation as requested by Starbucks. She stated staff is not here yet, so the Board will hold it and come back to it later.

PUBLIC HEARING, RE: ORDINANCE ADOPTING 2003B COMPREHENSIVE PLAN
AMENDMENTS FOR SUBMITTAL TO DEPARTMENT OF COMMUNITY AFFAIRS

Chair Higgs called for the public hearing to consider an ordinance adopting the 2003B Comprehensive Plan amendments for submittal to Department of Community Affairs.

Jason Roof of Mims advised 2003B.3 is the item he is interested in; it changes land use from public conservation to residential one unit at 2.5 acres; and apparently it was an oversight in the Comprehensive Plan when it was first implemented. He stated the property is private land owned by his grandfather; he is trying to build one home on it; and he is in favor of the amendment. He stated they do not intend to have a mass housing project on the property; and they do not have eagles out there; and they will not destroy any habitat.

Chair Higgs advised Mary Sphar, representing the Sierra Club Turtle Coast Group, submitted a speaker card, but is not present.

There being no further comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, Florida; entitled the Comprehensive Plan; setting forth Plan Amendment 2003B; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part I, entitled Conservation Element; specifically amending Section 62-501, Part IX, entitled the Transportation Element; specifically amending Section 62-501 Part XI entitled the Future Land Use Element; specifically amending Section 62-501, Part XIV(E) entitled the Future Land Use Appendix, and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 04-14.)

PUBLIC HEARING, RE: DETERMINATION OF VESTED RIGHTS FOR DALE E. POLK

Chair Higgs called for the public hearing to consider a request from Dale E. Polk for determination of vested rights to validate a conditional use permit for a tower for three years from the date of its approval.

Planning and Zoning Director Mel Scott advised 99.9% of all CUP’s are good for three years; a tower CUP is good for two years; when the Board approved this particular CUP for a tower, at the bottom of the Resolution it stated the three-year life of this CUP, so this vested rights would allow this CUP to be recognized for the three years as included on the Resolution.

Tuesday Headrick of Mims stated she is familiar with the process but uncomfortable with the area; they bought tower property after-the-fact; and now that there is an issue, they have been notified of the proposed tower. She stated they live just west of the property; their property actually abuts the property; and as owners of the property to the immediate west they are against validating the CUP and feel that anything that towers above the natural tree line of the flatwoods would be detrimental to their residential property. She stated they knew when they bought the property they were abutting commercial property, but they felt, with trees and shrubs and natural plants, they could buffer any type of commercial operation; but they feel strongly that they cannot buffer a tower; and it would be detrimental to their property value. Ms. Headrick stated if they chose to sell their property, it would be more difficult with a tower in the back of the neighbors’ property even though there may be a certain distance footage. She stated the way the flatwoods are out there, they cannot hide a tower; one could probably see a tower for miles, not just feet; so it is not a matter of saying they can plant buffers to buffer their property from the tower. She stated there are no tall trees out there; it is flatwoods; and she wants the Board to know they are not in favor of the tower.

Bea Polk, representing Dale E. Polk, advised the tower has already been approved; there was a problem with the number of years; she already paid over $800 on the one-fourth of an acre; and since three Commissioners approved it, they should know that. She stated she took pictures this morning to show the Board that it is not going to be so bad where the tower is; there is another tower west of Ms. Headrick’s property that she can see also; and in the last few months they built a big barn and changed their uses also. She stated she does not object to that; they are good neighbors; and she knows they object, but she has already paid taxes on the property for the tower. She stated she has a person in the audience who applied to put in a tower; she would like to talk to them; and she does not know what happened on the three years, but even the Property Appraiser had her on the tax rolls and two days after they approved it, she received a thing saying they canceled it. She stated if they had canceled it before three Commissioners approved it, she did not have a tower at that time; but now they have an applicant who wants to put a tower up, as the CUP has already been approved. She stated there are big oak trees that cover a lot of it; it is in the very back of the five acres by the State’s property; it is not on the west side, it is on the east side; and it is over 500 feet from the Headricks’ house. She stated she would not put a tower on their side; they are good neighbors; she has nothing against them; but they knew it was there when they bought the property, so it is not something new to them. She stated the pictures show that the tower will not be too visible.

Dorothy O’Hara of Indialantic, representing Cingular Wireless, advised they are interested and would like to construct the tower; they have application from Verizon and a request from Nextel to co-locate on the tower; so it looks like they would have two additional co-locators in the next six to eight months from when the tower is constructed. She stated she is here to support Ms. Polk, and hopes the Board will decide on her behalf.

Thelma Roper of Titusville stated most of the time when she gets up it is for an issue of somebody’s rights; and according to this and what she read in the backup package, the rights were granted in 2001. She stated there may have been an error on the front of it, but it was granted; and the benefit of the error should fall to the citizens and their rights. Ms. Roper stated as far as how a tower looks, she has never heard a court uphold a decision that beauty is one of the rights or one has the right to a beautiful view; but people have a right to buy property where they want. She stated she heard about a condominium issue where if they buy for a view and the Association plants a tree that grows up and blocks the view, they do not have a right to the view; so the view and the sight of the tower would not be an issue in this request. She stated the fact that the Board did grant her the right and issued her documentation that gave Mr. Polk the right, through November of this year, would be an issue; and it should be continued until the timeframe that was posted on the documentation she was given.

Chair Higgs stated that concludes the speakers; generally the applicant has an opportunity for rebuttal; and inquired if Ms. Polk needs a rebuttal; with Ms. Polk responding no.

Commissioner Pritchard inquired why is the CUP for towers only valid for two years; with Planning and Zoning Director Mel Scott responding because the Board directed staff to codify it that way. Commissioner Pritchard inquired if there are other CUP’s that are valid for two years; with Mr. Scott responding that is it. Commissioner Pritchard inquired why is it two years and not three; with Mr. Scott responding if he recalls the thought process of the Board at that time, it was something the Board wanted the private sector to capitalize on fairly quickly. He stated if that did not happen, they did not want speculative CUP’s that were approved out there for years; so they made it two years, which is shorter than the traditional three years. Commissioner Pritchard inquired if any CUP could be considered speculative; with Mr. Scott responding in today’s market, it is a function of the kind of request they are seeking; CUP’s go through a public hearing process; there are no guarantees they will get it; and more so than not today, an application is considered by the Board with something planned by the private sector to take advantage of the CUP shortly after it is approved.

Commissioner Carlson stated some of the problems the Board saw was CUP’s left on properties that were not developed and when people wanted to execute the CUP, a lot of property owners came in complaining; so it was always a problem with the communities not knowing there were CUP’s on properties in their areas. She stated the Board started looking at all the CUP’s and tried to get a handle on those not being used so it would not hit a wall every time someone wanted to activate an existing CUP. Commissioner Pritchard stated he was not questioning the three years, but questioning why towers were for two years; and he would like to suggest CUP’s for towers be for three years and not set them in their own category as a two-year validation.

Commissioner Scarborough stated he understands the neighbor’s point of view; however, the Board is not here to make a determination of whether or not the CUP should be there; a vested right is basically was there an act of the County and has that act led the property owner into acts of reliance; and in looking at the particular facets, one thing that is not included is taxes, so the Board cannot take into consideration taxes. He stated since Ms. Polk has a tower person involved, he will move in favor because of the continuing act of reliance.

There being no further comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Carlson, to determine that Dale E. Polk has vested rights for a conditional use permit (CUP) for a tower on his property at 7390 SR 46, Mims, effective for three years from the date it was approved, as he acted in reliance of the County’s approval of the CUP. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: APPEAL OF ZONING OFFICIAL INTERPRETATION BY
STARBUCKS (CONTINUED)

Jake Wise of Construction Engineering Group (CEG), representing Starbucks, advised the project is on a small .67 acre parcel that has Wickham Road to the south; and Shoppes Drive, which is the easternmost entrance to the Super Wal-Mart and other stores, and George T. Edwards Drive to the west, which circles around and services Cracker Barrel, the hotel, Burger King, and the gas station to the north. He stated there are three public access ways around the property and an existing east/west drive that goes throughout the site and connects to Shoppes Drive to the west and the gas station to the east. He advised when developing a site plan that meets the Corporate Starbucks’ requirements and also Brevard County Land Development Code, they were limited because of all the accesses around the property. He stated Starbucks has done so well over the years, and has established a very well-defined scope to make sure it is safe for patrons because of the tremendous amount of drive-through business; so they had a lot of limitations on the way they could develop the site and make it safe for the public using it as well as meet the Code requirements. Mr. Wise stated they were able to successfully meet all the items with respect to the site; and the only one that came up is the relatively new Outdoor Seating Ordinance, which states, “Outdoor seating is restricted to the sidewalk or building frontage of the subject licensed restaurant or the rear yard unless otherwise specified in a Binding Development Plan.” He stated the Brevard County Code does not define building frontage; it says sidewalk or building frontage, so staff interpreted building frontage to be the side that is closest to a public right-of-way. He stated they have vehicular access on three sides of the site; they do not have a driveway access to Wickham Road, would not be permitted to have one, nor do they want one; and they have an existing driveway access off Shoppes Drive. He stated the address is not off Wickham Road, only off Shoppes Drive; so they feel the front of their building, based on the intent of the Code, would most likely be Shoppes Drive because that is their main driveway entrance that is existing today and will be their address. He stated getting back to the safety issue, in order to have stacking room for the drive-through business, the main entrance to the building is actually to the east side, which faces the gas station; they have designed a beautiful building with a big tower out front to have a nice presence because it is a small building and they wanted to beef it up a little; and the main entrance or the front of the building where people are going to park and come in is on the east side, which from an architectural standpoint, would be considered the front of the building. Mr. Wise stated they are requesting the Board clarify to staff and allow Starbucks to have seating on the east side of the building, which, from an architectural standpoint, is the front because it is the main entrance and is where the parking is and the tower; but it could also be considered the rear if it is the west side of the building, which is where their main driveway is. He stated it can get confusing, but what they are looking for is interpretation and new clarification for staff on how to interpret it for this site specific project and also in the future. Mr. Wise stated they understand the intent of the Ordinance and it is a great idea not to have a lot of outside seats that could become a nuisance next to an adjacent property; they have three sides of public access and a gas station to the east; the site is only 125 feet wide; and the seating is 70 feet from the gas station. He stated they are good accessory uses and both should feed off each other for business; so they do not feel that allowing the outdoor seating would be a nuisance and feel they meet the intent of the Code, but staff interpreted it otherwise.

Commissioner Carlson requested staff explain how the Board can deal with the compatibility issue if it were to amend the Code.

Planning and Zoning Director Mel Scott advised the Board took a very conservative first step with outdoor seating; and he was part of crafting the Ordinance and thought it was wise, not knowing the relationship commercial properties might have with residential properties, to codify outdoor restaurant seating with a very conservative approach for starters and let the real world circumstances illustrate how the Board might then move forward and have the provision of the Code mature. He stated closely after they codified the provision, they have just such a circumstance; if the Board is comfortable with not being so concerned about the potential nuisance that a commercial establishment might have on a neighboring commercial establishment, then the Code could be modified to allow outdoor restaurant seating to be on any side of a commercial establishment so long as it abuts (a) commercial, or (b) has a defined distance from the nearest residential property. Mr. Scott stated another circumstance, which staff is seeing, is sides of buildings next to retention areas that have been enhanced with fountains and such, where some establishments are also wanting to put outside seating.

Commissioner Carlson stated the Board should uphold the Zoning Official’s interpretation of the existing Code because it is quite conservative; at first blush, sometimes things can be altered after-the-fact; but the Board went into this very conservatively, which was the best way to do it. She stated it has to deal with commercial and residential parcels, compatibility, and such; but when dealing with commercial on four sides, and it is in Viera in this case, which has a development plan already, in other scenarios, there may be an interest in loosening up the rules when they are in an all-commercial area. She stated with all commercial, there are no negative impacts or nuisances that might occur through a residential side of things; so she does not know if she should make a motion to deny the appeal.

Commissioner Scarborough stated he supports changing the Ordinance; in his conversation with Mr. Scott, there may be more incompatibility to the rear than to the side conceivably; they may want to move into more relaxed residential and strip areas, and along the side they may have commercial; and if the Board is going to change the rule, there is no reason to holding strict interpretation of it because it is like holding a house of cards that they are going to knock down and recreate anyhow. He stated if Commissioner Carlson wants to make a motion to proceed, fully understanding this is one that can go either way, but since they have no love for this particular Ordinance structure, there is no reason to preserve the structure for future integrity and not go ahead and let Mr. Wise go about his business. He noted he concurs with Commissioner Carlson’s thoughts to restructure the Ordinance.

Commissioner Carlson stated based on what the Code says, she would uphold what is there and move to deny the appeal of the Zoning Official’s interpretation as requested by Starbucks, and would like to make a secondary motion.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to deny the appeal by Starbucks of the Zoning Official’s interpretation regarding outdoor restaurant seating.

Commissioner Pritchard stated by denying the appeal, he assumes the Board will move into making significant changes to the Ordinance; and inquired how long would it take for that to occur so the Board can approve it before Starbucks goes about its business; with Mr. Scott responding staff could have the amended Code set up to be approved by the Board in August 2004.

Chair Higgs inquired if Mr. Scott indicated Starbucks could proceed while the amendment to the Ordinance is in process; with Mr. Scott responding there is an alternative site plan in the system currently, which would have outdoor seating depicted along Wickham Road; and if Starbucks wanted to wait for the change to occur, it could shift that outdoor seating to the east. Chair Higgs stated Starbucks can proceed with its project as it has submitted a plan. Mr. Wise stated the plan currently shows it per staff’s interpretation; but they wanted to bring the issue to the Board’s attention and hoped if it is changed, they would have an opportunity in the future to wrap the outdoor seating around to the east side of the building.

Commissioner Carlson stated Starbucks can begin building with the idea that come August, if the amendment to the Ordinance is approved, it would be able to switch the seating around to where it thinks it is appropriate because it has already put slabs there to provide the space anyway, which was part of its original design. Mr. Wise noted that is correct.

Commissioner Colon stated she is in support of what the Board is doing, but has reservations about being consistent and not making changes to an Ordinance when something comes before the Board; and she would prefer to change the Ordinance, put it in place, then do that. She stated she understands that time is of the essence and does not want to stop Starbucks progress, but if the Board is going to start that, then it has to be consistent, because there have been times in the past that it has not, no matter how long it took for folks to wait, changed an Ordinance and then let folks coincide with it. She stated she wants to get clarification on that.

Chair Higgs advised Starbucks has submitted a plan that is consistent with what is on the books right now, so it goes to exactly what Commissioner Colon is saying. Mr. Wise stated they have a plan now that is absolutely consistent with the way the Ordinance is today; and they are requesting the Board work with staff to modify the Ordinance so in the future they can revised their site plan.

Commissioner Scarborough stated if in fact it is clearly black and white, and Commissioner Colon feels the Board is basically violating an Ordinance, he would agree with her; however, if she feels there could be a reasonable interpretation another way, but to take that interpretation would make the Ordinance more difficult for staff to interpret, then the Board could take another option and take the more lenient view, since it is going to come back and recreate the Ordinance. Commissioner Pritchard inquired what is the more lenient view; with Commissioner Scarborough responding the more lenient way is to say it could be interpreted both ways to allow Starbucks to proceed; and having said that, it may also say if it is going to continue to deal with the Ordinance, it is going to be problematic and the Board should not do it; but if it is going to address the Ordinance anyhow, it becomes less of a problem. He stated it is the Board’s decision whether it thinks it is black or white; if it is black or white, he agrees with Commissioner Colon that the Board does not ever violate an Ordinance because that is a bad precedent; but if it is in an interpretation mode, it can take a more lenient approach knowing it is not going to be giving staff an ambiguous Ordinance to interpret. Commissioner Carlson stated the Board would do itself a service by not broadening the interpretation of the Code.

Chair Higgs advised the motion is to deny the appeal; and called for a vote on the motion. Motion carried and ordered unanimously.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to review the Outdoor Seating Ordinance to bring in the neighborhood compatibility issues in regards to having commercial neighbors on all four sides.

Commissioner Carlson inquired if that will cover it; with Mr. Scott responding if there is a commercial neighbor on any side on which they would be proposing to put outdoor seating, and not make it a requirement to have commercial on all sides.

Commissioner Carlson amended the motion to direct staff to amend the Ordinance allowing outdoor seating on any side where there is commercial development on adjacent property, and schedule it for a public hearing in August 2004.

Mr. Wise stated the property has a tract and easement on two sides and commercial zoning; and he would like to ensure that would be considered part of it; with Commissioner Carlson responding yes.

Chair Higgs called for a vote on the motion as amended. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE, RE: ORDINANCE AUTHORIZING APPOINTMENT OF
SPECIAL MASTER FOR VESTED RIGHTS CLAIMS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance authorizing the appointment of a special master to hear vested rights claims. Motion carried and ordered unanimously.

DISCUSSION, RE: REGULATING PORTABLE ON-DEMAND STORAGE UNITS (PODS)

Chair Higgs advised in reviewing the documents, regarding portable on demand storage units (POD’s), her concern is the need to add setbacks from abutting properties as #5 if the Board is going to move forward and allow POD’s on properties for 30 days or whatever.

Commissioner Pritchard noted it could be part of #3. Chair Higgs stated it could be, but it is not clear and should be specifically addressed. Commissioner Pritchard stated if the setback would be the same as the structure’s setback, he could agree with that, but he has a problem with #2, which limits the number of POD’s to one per lot because some people may require two POD’s. He noted he does not know if that would be a critical component; and requested staff’s comments. Planning and Zoning Director Mel Scott advised that is a good point; he is not sure about smaller lots, such as RU-1-7 and RU-1-9, but Commissioner Pritchard is right, as soon as they think they have something covered, along comes a reasonable request and the Code does not accommodate it; so he would defer to the Board’s judgment on that issue.

Chair Higgs stated since this is just developing regulations, she would be willing to look at the various numbers on various lot sizes, but the Board does not want to load up a quarter-acre lot with six POD’s. Commissioner Pritchard stated most of the time one would see only one POD and occasionally two; but if it is governed by an addition of setbacks to #3, that could limit the number of POD’s. He stated people do not move a POD on their property because it is available; they are there because they are necessary; so if people have furniture to remove from the house because they are in the process of doing something, they may put the furniture in a POD for a certain time period; but he does not think the Board needs to provide limitations on the number of POD’s since it would have setbacks, because as soon as it does, it will have a problem with it. He suggested going with Items 1, 3 with setbacks, and 4 to give staff direction to come back with something the Board can review and consider.

Motion by Commissioner Pritchard, to direct staff to prepare a draft ordinance containing at a minimum, limit on the length of time a POD may remain on a property (i.e. 30 days); establish portions of a property that are acceptable for temporary placement of a POD (i.e. driveways, not rights-of-way) and include setback requirements; and provide for administrative extension of time following certain guidelines (i.e. use during residential renovation can be tied to a permit and CO).

Commissioner Scarborough inquired if the Board is getting away from limitation on numbers; with Chair Higgs responding that is what Commissioner Pritchard said. Commissioner Scarborough inquired if there will be no limitation at all; with Commissioner Pritchard responding having a POD storage unit is dependent on what the person is using it for; it is a temporary thing; and 99% of the time he only sees one, and occasionally two. Commissioner Scarborough stated 99% of the time one can be handled; but there are bizarre people out there and the Board never knows what may occur in the world and the havoc it could cause to a neighborhood. He stated he is concerned saying no limitation at all because 99% of the time takes care of 99% of the problems, but if someone has something special, maybe there can be some avenues such as larger lots, larger parcels, etc.

Commissioner Carlson stated if the limit is set to one, she is sure POD’s come in different sizes; so if they need a bigger POD, it would be just one, but a bigger one. Commissioner Scarborough recommended staff come back with further thoughts on the limitation issue; with Commissioner Pritchard responding that would be fine. Chair Higgs noted staff will include the limitation as an issue for discussion.

Commissioner Scarborough seconded the motion. Chair Higgs called for a vote on the motion as amended. Motion carried and ordered unanimously.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE:
ORDINANCE REDUCING REAR SETBACKS FOR SCREENED PORCHES AND
CLARIFYING PERIMETER SETBACK

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to accept the legislative intent and grant permission to advertise a public hearing to consider an ordinance, which reduces the rear setback for screened porches in single-family attached and multifamily classifications, and clarifies a perimeter buffer setback. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE, RE: ORDINANCE CREATING AN INSTITUTIONAL
ZONING CLASSIFICATION

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to grant permission to advertise a public hearing to consider an ordinance creating an institutional zoning classification. Motion carried and ordered unanimously.

RESOLUTION AND COUNTY DEED, RE: DONATION OF PROPERTY NORTH BREVARD
CHARITIES SHARING CENTER

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to adopt Resolution and execute County Deed, donating County-owned surplus residential property located at 419 Lincoln Avenue in Merritt Island to the North Brevard Charities Sharing Center. Motion carried and ordered unanimously. (See pages for Resolution No. 04-078 and Deed.)

DISCUSSION, RE: POLICIES CONCERNING SCHOOL CAPACITY AND REZONING

Commissioner Scarborough stated this started with Ben Jefferies bringing in a project with cost-benefit analysis based upon tax base and demand on the school system; he has a real problem with how this thing proceeded and has not voted for it; and one thought is if it is an impact fee, the Board cannot go there with a cost benefit because essentially when it looks at impact fees, it looks at that study as opposed to an individual unit concept. He stated that concerns him; the Board should get to an actual school impact fee and get away from the individual considerations because what it could amount to is that the Board could find that certain developments, because they are at the higher end, are favored by the County; and that may not be appropriate. Commissioner Scarborough stated everybody is entitled to housing; the Board talked a lot about having affordable housing, housing for others; and what it is creating is a methodology that may be good for the taxing entity, but society may not be where the Board wants to go.

Commissioner Pritchard stated he does not remember what school it was that was not able to build on a piece of property because the cost of mitigation for the scrub habitat would have tripled the cost of that school; and it makes no sense to him that they would have to move a school because of the excess cost going from three to nine million dollars and putting it in a location that now makes transportation an issue and raises a lot of other concerns. He stated he would like to find a way to address the excessive mitigation that is required, especially when dealing with something as important as construction of schools and educational facilities; and that is one thing he wants to look at under the title of consideration of school capacity policies. Commissioner Pritchard stated another issue is the use of portable classrooms; the Board currently does not entertain a portable as being a classroom, which he disagrees with; and he happens to think a portable is a fine classroom. He stated many teachers he has spoken to would prefer being in a portable and somewhat out of the main structure; they say it is less distracting; so he wants the Board to consider the excess cost of mitigation and portables.

Commissioner Carlson stated since Commissioner Pritchard brought those two issues up, she will talk to those first so she does not forget them; abd the mitigation issue is hard to swallow when it is a large bill to deal with a school is needed in that area. She stated planning is a necessity and far be it for the Board to think that the School Board is not capable of purchasing property ahead of the need because it knows for a fact through communications with the School Board and the County that there are residential units that are going to be built in a vicinity, so it should be proactive in looking for land ahead of time so it does not have to be in a position of a mitigation issue and losing out on a location that is the best possible location for the school and is acceptable to the community. She stated that is an unfortunate lack of foresight in her perspective, but there is a lot of that occurring now because growth is happening; and just because there is zoning that says there are going to be residential units does not mean they are necessarily going to grow there either; so it is hard to pinpoint the when and how and all that stuff when it comes to school siting, and it is not an easy issue. Commissioner Carlson stated regarding portables, the School Board was required to harden portables based on State legislation because of the safety issues; so she is not sure there was any sort of policy with the Board that said it could not provide portables in those schools because it does not have a decision to make in that particular area. She stated her issue involves the County Attorney; when the Board started looking at over-capacity, it looked at Orange County and said it has been successful in the courts by not allowing additional density in overcrowded school areas; and inquired if Orange County has since enacted school impact fees; with County Attorney Scott Knox responding he is not sure if the County has or not. She stated she was just wondering if Orange County still deals with the policy on top of impact fees, because impact fees are not bondable, so they have to accrue over time and are not going to fix the problem as it exists today. Commissioner Carlson stated it would be an anticipation from the School Board; and inquired if the Board of County Commissioners says apply school impact fees at $4,500 or whatever the maximum amount was for a residential home site, would the Board be required to lift the density policy it currently has in place. Mr. Knox stated the simple answer to that question is the Board has to be consistent with its Comprehensive Plan; the Comprehensive Plan, as it is currently structured, probably would not let the Board do that until it got the school capacity in place unless it amends the Comprehensive Plan; and that will have to go through the process of Department of Community Affairs review, etc. Commissioner Carlson inquired when the Board gets to the workshop on school impact fees, would part of the discussion include in order to lift the density policy, the Board would have to make a change to the Comprehensive Plan; with Mr. Knox responding that is right. Commissioner Carlson stated the only other issue she had concerns about was some of the conversation the Board had regarding exemptions for over55 communities even though a court ruled they can be exempt. She stated that was brought up by Mr. Knox at a previous workshop; and the other issue is exempting affordable housing of some sort. She stated she agrees with Commissioner Colon when she said no matter who it is if they bring children and they are in a home they need to pay; it needs to be fair and equitable across-the-board; and if the Board does not do it that way, then the home site that is built is going to have an exorbitant amount of impact fees to deal with. She stated the Board is going to find a significant impact to the economy when it comes to building homes; her concern is the Board considering exemptions; the School Board is not supporting those exemptions, at least from her conversations with various School Board members; but hopefully they will get a lot of that out at the workshop. She stated she wants to hear how the Commissioners feel about some of the things that are laid out on the Agenda item; and if it is going to talk about some of those policies, it might as well chew on them for a little while.

Commissioner Colon stated the subject is quite complex; one of the things she had challenged everyone who attended the Summit was to have a meeting with the mayors that are within their Districts and a School Board member; and she had challenged everyone there to be part of it; so she figured she had to lead by example and had such meeting about a week and a half ago or two weeks ago, and one of the things that was quite interesting was that they had a mayor of one of the cities who took the opportunity. She stated it was informal and they were just trying to work as a team and get each others’ ideas. She stated one of the mayors directed his concerns directly to the School Board and was very upset over the fact that the School Board was doing a lot of redistricting within their schools; and the more he spoke, the more he started directing his frustrations to fellow city managers and elected officials who were in the room next to him because he realized that the ones that were causing the problems were the elected officials from nearby cities. She noted he started off being upset with the School Board then he realized by the end of what he was saying that he needed to be upset with his neighbor because he allowed that kind of construction that was going on; so she basically said to him that he had answered his own question; and that is exactly what the Board is talking about today because the fact is that the School Board is not the one that is allowing all this development to go on. She stated it is the elected officials of each municipality and the Board of County Commissioners that are allowing it; therefore, it cannot blame it on one group because they are all to blame. Commissioner Colon stated they talked about the fact that they share in this issue, and that it is quite complex, and she also shared the fact that school impact fees are not going to solve the whole problem. She stated she everyone needs to put their piece in and she is willing to do her fair share; and she also brought to the attention of the municipalities that are in her District that there is a lot of growth going on and they need to step up to the plate. She stated she even challenged the mayors that if they were interested in impact fees, they need to come and let the Board of County Commissioners know that they support it; and the Board is not going to solve the problems of schools by itself. She stated it is a cooperative effort among the School Board, municipalities, and Board of County Commissioners; it is not that easy; the Board was not going to leave out any of the State Representatives or entire Brevard County Delegation that also play a key role in this because of some of the things the School Board feels tie its hands; so it was a very unique meeting. She encouraged each Commissioner to have meetings with each city in their Districts on a very informal basis. She stated the meeting was in her office; it was a School Board member from her district; there are two who serve from her District but only one came because they did not want to violate the Sunshine law; about four mayors and their city managers came; and it was quite enlightening. She noted she does not know if everyone left happy or sad after the meeting because they realized everyone had to be a key player; and she mentioned at the meeting that this issue is so complex that they cannot expect the Board of County Commissioners to do it alone, that the finger-pointing days are over, that they need to step up to the plate, and that out of all the different jurisdictions, while she has been on the Board, it has been the one that has been the most assertive. Commissioner Colon stated they need to go by the chart; if they are going to create an impact in a particular school, the Board would look at what it is about to do; no other jurisdiction in Brevard County has done that; and she feels it is doing its fair share in regards to not causing that kind of impact. She stated the meeting was quite enlightening in regards to that issue; and they also talked about one of the things Commissioner Carlson was kind enough to send a letter to the School Board of what they are doing and some of the things that she is also doing because she really feels impact fees alone are not going to be the answer. She stated she is willing to do her fair share, but there is more that needs to be done; she wanted to share that with the Board; there was a lot that was discussed at that meeting; and basically it came out that it is everyone’s problem and not just one group. Commissioner Carlson stated she knows Commissioner Colon got a copy of the letter she sent and she did have a conversation with the School Board Chair, and he did say that he and Dr. DiPatri will be at the workshop. Chair Higgs stated she thinks they will be at the Tuesday meeting before the workshop. Commissioner Carlson stated she knows they are going to attend and answer some questions live instead of putting them in letter form.

Chair Higgs stated she thinks the Board is on the right track in terms of trying to hold to the Comprehensive Plan; Commissioner Scarborough is right in his concern that it be very careful; and after the workshop on impact fees, the Board may be ready to solidify everything. She
stated Commissioner Colon is right that it is not the solution, but it is part of the solution; and it is the part that the Board can do. Chair Higgs stated the Board should get a synopsis from the County Attorney because if it does not hold very tightly to the Comprehensive Plan, it will lose the whole ball of wax; so at the workshop she would like to see a synopsis from the County Attorney or Planning staff as to where other jurisdictions are and where the Board might be, then make a final decision as to how to go forward.

Commissioner Colon stated what she also heard from Commissioner Scarborough is his concern of going forward and approving certain developments without actually having voted on a school impact fee; and that is true because the Board already somewhat gives support to one and has approved another one; so the Board needs to make that decision whether it says that is it, and not do any more after today.

Commissioner Scarborough stated his concern is the staff’s memo that questioned the advisability of cost benefits with its negative implication to affordable housing. He stated the Board should refuse to take that into consideration; if it wants to proceed forward, that is fine, but that is not appropriate as a part of its consideration. He stated outside of it, he would like to move forward with the impact fee and would like to amend the Comprehensive Plan, but his primary focus is staff’s focus and comments.

Commissioner Pritchard stated the Board needs to look at what the overall cost of housing is going to be because if the cost of a house rises significantly, it takes people out of the ownership market and puts them in the rental market; and generally rentals do not fair as well as private ownership. He stated he is always concerned with what the cost of housing is and who can afford it; one of the things that he focuses on is how much the Board is getting for its investment and what its return is. He stated, going back to the mitigation issue, if there are scrub jays on the property and St. Johns River Water Management District or whomever decides the School Board is going to pay $9 million, $6 million of which is for mitigation because of what is on the property, it does not matter if the School Board is looking that far ahead, the property is what the property is; and there needs to be an exemption for taxpayer-supported projects so they do not pay those excessive mitigation fees. Commissioner Pritchard stated there was a newspaper article where a couple recently came to Brevard County and were questioning why they had the perspective wrong, and why did the School Board take the position of not building the school on the property, yet a developer comes along and builds it. He advised the developer had $9 million and built on that property; he did not care what the mitigation fee was, so he built on it; and it was not a question of where the $6 million went because Brevard County did not get it; it went someplace else to do something, yet the School Board had to move a school across town because it could not afford the mitigation fee. He stated when talking about the cost of things, the Board needs to recognize how much it costs to build because of excessive mitigation fees. Commissioner Pritchard stated there are three levels of impact fees, $4,000 for single-family, $2,700 for multifamily, and $2,600 for manufactured homes; there are 55-and-over communities that do not have children; and the Board talks about new construction because of the impact that new construction has, but new construction does not mean there is a child in the home. He stated it means there is a house and generally cars, and whatever, but it does not say anything about children; and he asked Mel Scott to research it because he came up with some reports that are telling him that 70% of rowth comes from within and 60% of new homes are purchased by childless couples. Commissioner Pritchard stated the Board would be charging a childless couple an impact fee for a child they do not have to attend a school that the child is not going to because they do not have a child; but it is not going to charge a family that moves into an existing home an impact fee for children; so if the impact is going to be children, then he does not know why the Board is not charging the impact fee where it belongs, which would be having a child. He stated he is not advocating that a mother who has a child would pay $4,500 upon leaving the hospital, but his point is if the impact fee is because they have a child, then how can the Board come up with different levels of impact fees, justify them, yet not justify impact fees on existing home sales. He stated there are a lot of issues regarding impact fees; and he is trying to keep them fair and equitable. He noted that needs to come out during the discussions.

Commissioner Carlson inquired what is the status of the legislation that talks about real estate transaction fees; with County Manager Tom Jenkins responding staff can check on that. Commissioner Carlson inquired if the Board could get that information for the impact fee study because that is based on every real estate transaction; and her question at one of the other workshops was how much can one collect and at what time, etc. She stated staff was working on that, and it is a legislative initiative right now; they are looking at transaction fees, which would cover all the bases and would probably be more fair and equitable; and it does apply itself to growth, but it does not cover the family from New Hampshire that has five children moving into an existing home and going into the school system and the impact on the school. She stated there are lots of arguments that the impact has already been paid; but since the County never had a school impact fee, she is not sure how that works; so it is something to think about.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to acknowledge receipt of staff’s report regarding school capacity policies, and direct staff to take into consideration Commissioners’ comments.

Commissioner Scarborough stated he does not think the Board is going to do anything more on the issue. Chair Higgs stated she agrees with that and would like to get the comments from the County Attorney as well in regard to the legal issues if they move in that direction.

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

DISCUSSION, RE: PARKING AND STORAGE REQUIREMENTS FOR RECREATIONAL
AND COMMERCIAL VEHICLES AND EQUIPMENT

Assistant County Manager Peggy Busacca advised staff had to be in court at 1:00 p.m., and requested the Board continue the item until the court hearing is over.

The Board postponed discussion on parking and storage requirements for recreational and commercial vehicles and equipment until later in the meeting.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE PROVIDING
GUIDANCE FOR EVALUATION OF XERISCAPING

Karen Weichman of Melbourne Village advised she was hoping to follow a presentation by Jim Egan so she is not sure if the Board will totally understand some of the things she will speak about. Commissioner Scarborough recommended Mr. Egan be taken out of sequence. Ms. Weichman stated he is not here. Lynna Kavcheck stated she will be speaking for Mr. Egan.

Lynna Kavcheck, biologist with Marine Resources Council, speaking on behalf of eco-neighborhoods and scenic highway programs, advised Brevard County’s current excessive accumulation Ordinance covers weeds and virtually any living plant, including trees that grow in Brevard County; it specifically prohibits any plant life that may become inhabited by wildlife or even squirrels; and it makes no exception for even bird nesting. She stated a reef flowerbed hedge and even the highway beautification plantings can be cited under the current phrasing of the Ordinance; and attorneys have assured them that the vague wording and application of the Ordinance is a clear example of arbitrary and capricious regulation that would not stand up in court under any challenge. She stated it is currently being used by Code Enforcement to demand that xeriscaped yards have their wildflowers mowed; that includes endangered plant species, which is a violation of the State and Federal Endangered Species laws; local governments are required by Sections 125.568 and 166.041, Florida Statutes, to consider adopting ordinances requiring water efficient landscaping, yet this Ordinance is being used in some cases to harass and prohibit xeriscaped yards. Ms. Kavcheck stated the proposed change by staff sets seven hoops that xeriscaped yards would have to pass in order to be exempt from mowing; the criteria include requirements that have little to do with xeriscaping, such as requiring soil testing; they are merely recommendations and were never intended for incorporation into an ordinance; and the criteria have been applied to xeriscaped yards and used to determine that yards that qualify for Florida yards and Neighborhood Certification and National Wildlife Federation Certified Yards are not xeriscaped yards according to the way the criteria were applied. She stated the criteria do nothing to reduce the vagueness of the Ordinance and merely cause one segment of affected homeowners to be required to pass a still higher level of criteria to keep their native yards from being prohibited. She advised the U.S. Environmental Protection Agency’s Green Landscaping with Native Plants website and John Marshall Law Review, Volume 26, No. 4, point out that vagueness in a definition of weed is one of the main causes for ordinances designed to apply lawn maintenance to be declared legally invalid. She stated after consulting with members of two local chapters of the Native Plant Society, they proposed changing the definition of weed in the Ordinance; the current definition is defined as follows: “Weeds include but is not limited to all rank vegetable growth that gives off obnoxious or unpleasant odors or that constitutes a possible source of disease or distress to human beings, or such unattended vegetable growth that may conceal pools of water, trash, or any other deposits, which are detrimental to the health and safety of the public.” She stated it is perhaps the most absurd definition of weed ever written and the proposed definition would strike the definition and simply read: “Weeds are any plant listed on the Florida Exotic Pest Plant Council Invasive Species Category 1 List,” in order to have the ordinance not prohibit every flowerbed, shrub, hedge, and tree in Brevard County. Ms. Kavcheck advised they also propose striking the phrase in the first line of Section 114.28(b), “Undergrowth or other dead or living plant life including trees,” and replacing the phrase with, “or turf grass exceeding a height of six inches,” so that the ordinance can continue to be used to maintain turf-based yards. She stated if those definitions are changed, no further changes are necessary to the Ordinance; and if those are not changed, they propose an explicit exemption for native plants and Florida Yard and Neighborhood Certified yards. She noted an example would be, “For the purpose of this section, the natural growth of any native plant shall not constitute a nuisance. Also, a yard conforming with the University of Florida Extension Services Florida Yards and Neighborhood Principles should not constitute a nuisance.” She stated in no scenario is the suggested language by the County staff considered an improvement in any of those versions; and County Ordinances used to prohibit and order the destruction of native yards and harass their owners is contrary to Florida Statutes and effectively punishes residents conserving the limited groundwater supplies and reducing lawn chemical impacts to the surface waters.

Karen Weichman of Melbourne Village, advised she and many other volunteers, including seniors and Boy Scouts, spend hours each day removing Category 1 and Category 2 pest plants; it seems amazing to her that the Board should have this discussion because it knows Brazilian peppers, potato vines, and kudzu are pests; and inquired if it knows that the queen palm, Mexican petunia, and schefflera have also become just as invasive. She stated every year, when the pest plant list comes out, they see another plant being used by developers that will replace endangered and threatened ones; xeriscape makes so much sense; in 22 years, she has never had to use City water on her sod; and that also means she does not use pesticides, fertilizers, or herbicides. She stated there are a lot of butterflies and other wildlife in her yard; occasionally gopher tortoises cross her yard; and she strongly supports the use of native plants, redefining weed, and xeriscaping.

Betsy Franz of Melbourne, volunteer for the National Wildlife Federation, advised last year a program was started called Project Backyard Brevard to encourage homeowners to do their own part in restoring local habitat by making changes in their own yards; the Project promotes participation in three well-known yard certification programs, the National Wildlife Federation Backyard Wildlife Habitat Program, the University of Florida’s Florida Yards and Neighborhoods Program, and the Florida Wildlife Extension Landscape for Wildlife Program. She stated participation in any of those programs not only benefits local wildlife, but also helps conserve water resources and reduces pollution; however, those programs all encourage replanting of native plants, which may sometimes fall under the vague definition of Section 114.28 declared public nuisance. She stated the residents of Brevard County have shown such an overwhelming response to Project Backyard Brevard that the increase in the number of national wildlife certified habitats in Brevard County has been tremendous. Ms. Franz stated in the first 30 years of the National Wildlife Federation Background Habitat Program, there were only 119 certified habitats in Brevard County; since Project Backyard Brevard was started last year, the number has more than doubled to 255; and at this point Brevard County is almost the #1 wildlife friendly county in the State. She stated to help encourage and not hinder the good intentions of those citizens, she would suggest that Section 114.28 of the County Code be amended to exclude xeriscaped properties and include properties that participate in the three highly-recognized programs. Ms. Franz stated alternatively, since there are documents on the Federal Government’s Environmental Protection Agency’s website that clearly point out that native plants do not attract vermin, cause fires, or threaten or endanger public safety, but in fact benefit a local ecosystem, she believes it would be more beneficial to the County to amend the Code to have an exclusion for the use of all native plants in a landscape with the possible four or five- foot setback included to appease the aesthetic wishes of neighbors who have not yet learned the benefits of native plants.

Commissioner Carlson advised Ms. Franz has been working on this for a while and made some great progress; and inquired what has she found out about situations where a homeowner wants to plant all xeriscape types of plantings in an environment that has manicured lawns. She stated there are rules, regulations, deed restrictions, etc. that might keep that from happening, but in those areas that are older and do not have restrictions or covenants that say they cannot, there is a landscaping piece to that; and inquired how would they make it look appealing or attractive to those who like the manicured look versus the natural look, how do they cross those borders, and what has Ms. Franz found out; with Ms. Franz responding she found that many members in the Florida Native Plant Society and people who practice xeriscaping are concerned with people who plant native plants or say they are practicing xeriscaping, but do not really know what they are doing because it does give what those groups are doing a bad name. She stated if it is done correctly, both xeriscaping and native plantings do not look weedy and unkempt like so many people think. Commissioner Carlson stated education and application of some of the programming Ms. Franz talked about can make a big difference in what is good and what is ugly.

Commissioner Colon stated she sees what Ms. Franz is trying to do, but it comes back to what the Board talked about before as far as beauty is in the eye of the beholder. She stated Mr. Egan was before the Board previously and showed pictures of his yard; there were Code Enforcement violations; and those are things the Board has to be careful about. She stated she is uncomfortable opening up Pandora’s box, because if somebody starts off with wonderful intentions of having that kind of landscaping, then gets too busy and does not put the mulch out and remove the weeds, and claims they are part of the group, that is where it gets tricky. She stated she personally would not like to have a neighbor who had that kind of yard because it looks very messy, but that is just her; however, the Board needs to be careful about how it is going to monitor that and is the person going to be responsible and keep it up where it is beautifully landscaped. Commissioner Colon stated a key issue Ms. Franz hit on is the backyard; it is easier in the backyard where folks will not see it versus the front yard where people who take pride in their neighborhood of manicured lawns can see it. She stated those are things she is concerned about because of people’s fast lives and the possibility of neglecting the landscaping. Ms. Franz stated she agrees with Commissioner Colon; personally she likes living in the woods; therefore, she would have a problem with her neighbor tearing down the woods as much as people would have a problem with a neighbor practicing xeriscaping. She stated they all have their own personal interests; it is an education issue; everybody is concerned about diminishing habitat in the area; this gives people a way they can preserve some habitat; and perhaps it does need to be controlled in some way, and there needs to be some rules, whether it is setbacks or Natural Resources Management coming up with some guidelines. She stated the Environmental Protection Agency website does list different weed control ordinances that different cities and counties enacted that have certain requirements; they have specific ways people can practice those things; and there are still rules about it. She stated some cities require people to get permission to plant natives, which she does not agree with, but that is one way to get around it.

Commissioner Pritchard stated he agrees with what Commissioner Colon said; Jim Egan brought in pictures; most of the Commissioners were aghast at what he had; but he showed the before and after; and things were looking better. He stated one of the problems he has with this in its entirety is if there is a need to create an ordinance to allow this to happen, it tells him that people are not doing it properly; he banged on a lot of doors and many times came across weed infested neighborhood eyesores; and next door to it was the same infested neighborhood eyesore with a sign that said, “A Florida yard”. He stated he does not know where the concept of Florida yard came from; to him a Florida yard is St. Augustine, three crotons, and a hibiscus; but the pictures they have are beautiful wooded areas that would be the envy of any neighborhood. He stated those properties look like they are acre-plus, very well maintained, and attractive; everyone would take pride in that; but the problem is in practice it does not seem to be like that. Commissioner Pritchard stated his concern is who is going to become the yard police and how will they determine what is or is not appropriate; but if they have a yard and have portions of the yard xeriscaped, it is very attractive. He stated when the whole yard is let go and it simply becomes whatever comes up and everybody screams the habitat this or that, that is not attractive; and what he thinks is that it is lazy. He stated a lot of people who have that type of messy yard also have a messy house; one is as bad as the other; and he does not want to call that a Florida house, so he does not think it is going to get Ms. Franz what she would like to have done because it opens too big of an envelope. He stated if it was written more precisely, in that they could have certain areas of the yard that would be xeriscaped, then there probably would not be an objection; but to just boldly go forward with something that would allow people to just let their yards go, under the guise that it is a Florida yard, is the wrong way to go. He inquired what affect would Homeowners Associations have if the covenants require certain things and along comes someone who does not want to maintain his yard so he claims it is a Florida yard, and how do they deal with that within a neighborhood. Ms. Franz stated she believes the Homeowners Association rules always take precedence over the County Ordinance. Commissioner Carlson stated if a community has deed restrictions requiring manicured lawns, they have to uphold that. Ms. Franz stated if that is where a person wants to live with those rules, the Homeowners Association handles that, so she sees no problem with it. She stated she does not know anyone personally who practices xeriscaping or native landscaping that lets them go; most of them are very dedicated to the landscaping; she also has to say that her general issue in all of this is more wildlife related and the restoration of wildlife habitats; and she is not as knowledgeable about native plants or xeriscaping as other people in the audience. Ms. Franz stated she agrees with Commissioner Pritchard that some of the yards she has seen as examples of native plants do look very messy; and she has been trying very hard to find an example of a yard that is nice looking with native plants so that she can try to convince not just Commissioner Pritchard but everyone that it can be done, and that they can plant those things that will help the environment and it will still look nice. Commissioner Pritchard stated one house was located in Melbourne Village, and he went by to see it because there was an article about the home being allowed to go to a Florida yard; and the person took up the driveway and nailed boards across the windows, and it was not a good example. He stated he has seen some beautifully landscaped yards, which he would have to assume would be considered xeriscape because of the types of plantings; but they are always maintained and managed and they accent the lawn. He stated there is always some lawn; and maybe that is where the Board needs to go to be somewhat less radical. Ms. Franz stated she agrees.

Lucille Serody of Melbourne stated she has what is not exactly a xeriscape yard, but introduced a lot of native plants into her plantings; she did it because she does not want to water and fertilize and wants to mow as little as possible; and she does not think it is good for the environment to be watering, because it is taking water out of the aquifer, or to use pesticides or fertilizers. She stated she found a major increase in the number of butterflies, and does not have a problem with vermin, insects, or even snakes. She stated she prefers to live and shop in an area that is more natural; and she likes the Oaks rather than Melbourne Square Mall, and likes Melbourne Eye Associates’ facility because it is planted with natives. Ms. Serody stated she likes seeing butterflies and flowers; most of her neighbors do not complain; but there was one complaint by an irritated neighbor who moved away; and when she explained she had native plants in her yard, it was re-inspected and they agreed she had native plants and not weeds. She stated she has red sage, dune sunflower, gaillardia, and simpson stopper; she can reel off a list of what she has planted and paid for; and she cares for them and loves them. She stated she does not live in an area where she is not allowed to grow them; she would not want to live in a gated community with manicured lawns and sheared hedges; that is not her; and they should be allowed the freedom to live the way they want to live because they are not hurting anyone.

Bob Serody of Melbourne stated he lives with his wife in the same area, which he happens to appreciate very much. He stated in 1980, when he lived in Massachusetts, they were visited at GTE by the Department of Energy and told to remove every other fluorescent light bulb to save energy; and a few months later OSHA came in with its light sensitive meters and decided there was not enough light and ordered every desk have a desk lamp; and compared to the fluorescent lights, they had more energy expenditure, but both bureaucracies were satisfied. He stated the problem he sees is the vague Ordinance that decides nothing; what the Board would have is a lot of anonymous telephone calls from people who decided they do not like what their neighbor has so they are going to complain and someone comes from Code Enforcement saying he has to mow his wildflowers because they do not understand it either. He stated on the other hand, the Board has organizations like St. Johns River Water Management District that are trying to educate Floridians with regard to the benefits of xeriscaping; not everybody has to like xeriscaping and is not required to xeriscape; but neither should they be impeded from raising responsible lawns, which in his opinion actually benefit the Florida environment.

Cameron Donaldson of Melbourne stated she is sorry this has evolved into an ongoing discussion about what one thinks looks good or what one things does not look good because they can discuss that until they drop dead. She stated this is America; she wishes the property rights people were here today so they could stand up and say the Board has no business legislating personal tastes; and if Commissioners want to legislate what their teenagers wear or how long they wear their hair, they can go for it and she wishes them good luck; but it is not appropriate for government to say this looks good or not. She stated the lady referred to homeowners associations and deed covenants; that is where it comes into play; if people want to have giant green lawns that are mowed constantly and fed chemicals and water to keep them beautiful and all the hedges they think are wonderful, they can go for it and have them; Commissioner Pritchard can have ten acres of lawn as that is his right; and her right is to have zero lawn. She stated she has a lot of good data why she does not want it; she feels exactly like the lady whose voice was trembling; the Board is going to the core of what is important to them; they have landscaped intentionally the way they are because every day they see life in their yards; and that makes the day wonderful and beautiful. She stated she is sorry if the Board is not to the point where it sees those things the way she does; beauty is in the eye of the beholder; and it is also in the eye of the educated beholder. Ms. Donaldson stated they have a simple solution for the Board to get away from all the problems; the simple solution is to precisely define what a weed is; and Commissioner Pritchard said he wanted precision. She stated there is a Chicago attorney, Brett Rappaport, who has defended many homeowners on these issues; the weed ordinances across the country are basically the same; they were all written a long time ago before anybody knew how to evaluate what is a weed and what is the value of a native plant; and those things fall apart in court every time because they come down to vague definitions of weed, what one likes and does not like, and perception of what is beautiful and what is not. She stated agricultural leaders in the State, land managers, and scientists have very precisely defined what are weeds; and a great collection of them can be found in the Florida Exotic Pest Plant Council List. She stated the Board should define those as weeds; and if there is excessive accumulation or untended growth of those weeds or turf grass in excess of six inches, it can go for it because that is all it needs. Ms. Donaldson stated she is not in favor of putting all the xeriscape junk from the St. Johns River Water Management District into the ordinance; it adds a lot of verbiage and confusion and does not solve the problem; what the Board needs to go after is the real nuisance, such as tree weeds and turf grass in excess of six inches; and those who do not have turf grass will make the Board even happier by never getting it in excess of six inches. She stated she has three suggestions rewritten for the Board if it is appropriate to give it to the Board; it is pretty simple; and the Board can be done with it. She stated she has material she will forward to Commissioner Pritchard’s office showing him Florida yards that are beautiful; she is sorry he has only seen ugly yards; but she can tell him right now if she had to sell her house today, there is no way she would buy another house with a grass lawn without getting a heck of a discount for the time, effort, and cost she would incur to get rid of it.

Commissioner Pritchard inquired if Ms. Donaldson’s vision of a Florida lawn is the entire area covered with some type of native vegetation; with Ms. Donaldson responding there are many ways to accomplish a Florida lawn; turf is not a necessary element, but some people do have a need for turf. She stated if they need turf, they can go for it; she does not have children or dogs so she does not have a need for turf; she has pathways, sandy areas for birds that like dust space, mulch areas, trees, and shrubs; and she likes it. She stated she lives in downtown Melbourne; her yard has been a progressively wilder looking yard for 15 years; there are people like Commissioner Pritchard and Commissioner Colon who come by and say what is that, they do not know, and do not like it; but they also have other people who come by and stop and ask if they are native plants, they really like it, and take tours of her yard. She stated as a matter of fact, Common Productions and Orange Television are coming next week to film her yard for Positive Productions Television in order to educate people on different ways of doing things. She stated they do not irrigate and never have; they never use anything in the form of fertilizers; her yard may not fit the idea of beauty to Commissioner Pritchard; but at the risk of being offensive, Commissioner Pritchard’s yard probably does not fit hers either. Commissioner Pritchard stated she might be surprised as he has a lot of trees and a lot of landscaped areas that include a variety of plants. Ms. Donaldson stated no way because she has just as much bias as anybody else and as soon as Commissioner Pritchard said croton and hibiscus, the hair went up on the back of her neck. She stated when it comes to issues of taste, they can go round and round; she bets Commissioner Colon’s mother, who may or may not be alive, might not like the fact that her bangs are hanging in her eyes; it might really bug her; if she is in the mall with her daughter, she might wish her daughter would cut her bangs and that her friends would not see her with her daughter with sloppy bangs; but that is her viewpoint and she is entitled to it. She stated Ms. Colon is entitled to her long bangs because this is America, not the Soviet Union. Commissioner Pritchard inquired if Ms. Donaldson’s yard was ever cited as being a nuisance; with Ms. Donaldson responding yes, 12 years ago when she was having a confrontation with Mayor Joe Mullins and he called in her yard. She stated she knew that because the Code Enforcement people came out and said they were sorry but they had to be there and it was anonymous, but they told her it was none of her neighbors. She stated other people in the City said it was the mayor who was really mad that she came to the city meeting and said what she said; and she does not remember what the issue was because it has been so long ago. She stated when the City of Melbourne gets complaints about yards, as soon as they find out it is a native plant yard, they say call Cammie; she gets calls all the time that the City refers to her; and her yard would look messy as heck to the Board. She stated Commissioner Carlson lives down the street from Travis McCLendon who has a yard with no grass and all native vegetation; those are forested yards; there are loads of reasons for having them that way; and for the past four weeks she had cat birds, painted buntings, and other birds in her yard; and three box turtles have taken up residency. She stated she lives in a highly-urbanized area and not next door to a natural area. Commissioner Pritchard inquired if she gets raccoons, armadillos, and possums; with Ms. Donaldson responding yes and they are welcomed. Commissioner Pritchard stated it sounds like his yard. Ms. Donaldson stated the black snakes are welcomed as well as the coral snakes; she does not have children and knows if they go next door, the lady will kill them; that is her right; but she does not like it. Commissioner Pritchard stated he would not encourage poisonous snakes, but everything Ms. Donaldson has, he has. Ms. Donaldson stated there is a simple answer to it, and it is not to dictate aesthetics, which they will never agree on. Commissioner Colon commented she likes her bangs and people like it when she pushes her bangs back.

Spence Guerin of Melbourne commented he likes Commissioner Colon’s bangs also. He stated about Florida yards, crotons, and lawns called beautiful landscape, he would say yuck. He stated he bets Commissioner Pritchard does not have 110 native plants in his yard even though he said he had everything Ms. Donaldson had. Commissioner Pritchard stated he has a lot of plants but does not know which ones are native. Mr. Guerin stated crotons are not native plants and neither are queen palms. He stated Commissioner Pritchard probably puts fertilizer and chemicals on his yard; they do not put any chemicals or fertilizer on their yard; and they are not among those people who take 30 to 50% of the freshwater supply in the neighborhood and put it on their grass yards. He stated it makes common sense to use that definition of weed; change the definition as listed on the Florida Exotic Pest Plant Council’s Invasive Species List; and that would simplify the problem. He stated that is not all there is going to be to it; there has to be education; and that might have something to do with what they should appreciate that looks wild. He stated they cannot even put a tree in some places in Viera; that is ridiculous; and it is a wasteland in his view. He encouraged the Board to use common sense and use that definition.

Mary Sphar of Merritt Island stated she has not thought about the change of the definition, and hopes before it goes forward that staff will come back with some other options that they might want to consider. She stated she looked at the language proposed and agrees that a homeowner who employs xeriscaping practices should be exempt; however, the problem is that the principles of xeriscaping that are described in the Water-wise Florida Landscape document are good, but every principle may not be appropriate for every plant. She stated the suggested revision states to be exempt the property must be maintained in accordance with all the principles in the document, in particular the principle about two to four inches of mulch around shrubs, trees, and on flower beds; and that may not be appropriate for every xeriscaped property. Ms. Sphar stated the book that she has been studying states, “Native plant landscaping in dry areas does not call for the large quantities of mulch used in traditional landscaping.” She stated excess mulch eventually adds moisture to the soil making it less suitable for dry area natives; and one option is to take the word “all” out of the language, but now she sees there might be an even better solution as suggested by other speakers. She stated if the Board goes that route, which may not be the best way, she would like to see any exemption be expanded so that yards that are certified by the Florida Yards and Neighborhoods are exempt. She stated the language could be revised to encourage the public to become more aware of the need for native wildlife habitats and the certification being offered by the National Wildlife Federation. She stated staff could also think of some criteria for the backyard habitats or have some people point out front yard habitats; and she hopes they will come back with more options in terms of definitions and exemptions because she does not think it is ready to go forward yet.

Commissioner Colon stated one of the first speakers admitted that some of her friends who tried this type of landscaping have not maintained it and she said some of them would probably be disappointed with her making that comment; that is where she is coming from; and inquired what would the Board do with those kinds of folks who will not comply. She stated probably they have those kinds of plants that are native; and inquired what does the Board do with the percentage of people who have let it go. Ms. Sphar stated that is an interesting question because when she lived in Cocoa, she had a lot that would have completely been let go for years had it not been for her husband and the guy across the street mowing it. She stated she is not in a position to come back with or to give Commissioner Colon a good answer; staff could probably give her a lot better answer; she is new to the native plant aspect and backyard habitat; but she finds it something that is very important to get into. She stated she would like to see the Board promote such approaches as an alternative for homeowners and have staff come back with alternate recommendations. Commissioner Colon stated that is what this whole discussion is about regarding how the Board found out about this kind of landscaping; it is pretty unique; and it was based on a Code Enforcement issue. She stated that is where she is coming from as an elected official; there are those who take great pride and keep it beautiful; and then there are those as mentioned before who, unless it is brought to the attention of government, do not maintain it. She stated she sympathizes with some of the things being said, but by the same token, the Board cannot go ahead and have someone police yards. She stated the challenge would come before the Board with pictures of how it is supposed to look; and it may not be something the Code Enforcement Officer agrees with; so those are tough decisions.

Chair Higgs stated the same problem with defining other Codes is evolving as the proper code for xeriscaping particulars evolves; it is probably going to be another evolution; it may start with the four groups that certify yards, the National Wildlife Federation, University of Florida Landscaping, Wildlife Service, and Water Management District, but it has to be installed and maintained to the standards; and that is where they get into exemptions. She stated not having seen the definition of weed and how that fits in, she would like to have staff go back and help the Board understand how that definition of weed might fit in as well as at least the four groups that have principles defined. She stated if something is installed and maintained to those standards, it seems they have a xeriscaping or a native plant definition that could work and allow the enforcement to be done on that; and she does not think the Board is ready to say it is just anything.

Commissioner Pritchard stated it does need to come back; it is not just a question of weeds, it is a question of overgrowth; a lot of people are looking at a lawn that is a mess; and it does not matter if it is a weed or a croton, if it is overgrown, it is overgrown. He stated if it does not meet societal standards, it is not acceptable; and something that is brought to the attention of government must have risen to a certain level in order to be brought to that attention; so they do not need to focus so much on whether it is a weed or is not a weed. He stated what they need to focus on is maintaining whatever the standard should be for landscaping; and if the standard is going to be just let it go, then maybe they can follow it up with having junk cars in the yard and everything else thrown in with it, and that way people can have their parts on hand and they would not have to go to the auto store anymore. Commissioner Pritchard stated they can argue both sides of the issue as much as they want to; beauty is in the eye of the beholder, the beholder in this case is society as a whole; and if they are going to develop a standard, then the standard needs to be inclusive of what landscaping requirements are. He stated a weed is a weed; some weeds may be pretty and some may not, but it is not a question of whether it is a weed, it is a question of whether it is overgrown; and anything that is overgrown is a neighborhood eyesore and should be what they are addressing as a society. He stated the pictures show acreage that are beautiful and well done; those are not the things he is concerned about; but he is concerned about the person who lets it go then claims an exemption because he or she has a Florida yard.

Chair Higgs stated she does not have a problem moving along that way; and if it is installed and maintained to what the Board defines as a native yard, she can see going there. She noted she does not think neighborhoods in general are ready to accept anything.

Commissioner Pritchard stated he would like to see examples and photographs from folks who have those yards and see how nice they look; and inquired if Mr. Egan’s yard has improved; with Jim Egan responding he thinks it has. Commissioner Pritchard stated he gave Mr. Egan credit because he saw the before pictures that were awful, but the later pictures show the yard is getting better. Mr. Egan stated he was cited again after that so even though the Board instructed staff to change the Ordinance, the Code Enforcement people cited him. Commissioner Pritchard reiterated that he would like to see photos of examples of what those yards should look like because his personal observations have not been good in the typical subdivision neighborhoods.

Commissioner Carlson stated the Board heard a lot of good testimony regarding xeriscaping, but she knows xeriscaping in and of itself is sort of a specialty for those people who really want to pursue that; and with any specialty it takes education. She suggested staff work with the Native Plant Society and St. Johns River Water Management District experts that deal with education on xeriscaping, and try to devise some sort of mentoring program for those who are interested but do not know how to start them or maintain them. She stated perhaps staff can work that into an evolving ordinance along with making it as simple as possible, because as soon as they start defining things, then that puts an additional load on Code Enforcement when they try to figure out what is a weed. She stated there has to be mentoring on both sides of the equation, both on the person who wants to have the freedom to do his lawn the way he wants to do it, and for the Code Enforcement Officer who wants to be able to not cite the wrong lawn for the wrong reason. She noted perhaps staff can look at it from that regard as well.

Commissioner Scarborough stated this is a complex issue; the Board received suggested language, but even beyond that, one of the things that was stated is, “May reasonably become infected or inhabited by wild animals.” He stated the Board received comments about subjectivity, the appearance in dealing with aesthetics, etc.; he and his wife disagree because he likes more plants and she likes to cut them back; so everyone has his or her own temperaments. He stated what may appeal to one person may not to another; the ordinance can be considered; but the Board needs to put some work and a lot of things in it.

Chair Higgs stated what she is hearing is that they are not ready to move with advertising and need to work on it, and for staff to go back and work on the ordinance. Commissioner Carlson suggested working with the groups that are doing so much work out there. Chair Higgs stated the National Wildlife Federation, University of Florida, St. Johns River Water Management District, and one other landscape and wildlife group and give the Board criteria that could be included as well as some objective things.

Commissioner Colon stated based on the experience of putting ordinances together, she is concerned that when they talk about not defining something, they have had some speakers who prefer government not to define anything that goes in their yards; and inquired where do they draw the line. She stated if nothing is defined, the Board is putting its staff in the position of not being able to follow what is defined; so the Board has to give that kind of direction and work closely with the groups. She stated it is always going to come to that particular person who is going to go out and look at the yard and whether that person feels it is defined or not, and if they are meeting the things; so that is what she is saying when they were talking about opening a can of worms. She stated there are going to be folks who, even if the Board passes the ordinance, will not appreciate the fact that there will be a defined way of how the yard is supposed to look; and they do not want government telling them what to do.

Commissioner Pritchard stated he would like to have Ms. Donaldson and the other couple who spoke to provide photos of Florida yards and what they consider to be xeriscape lawns so he can see them also.

The meeting recessed at 2:50 p.m., and reconvened at 3:03 p.m.

DISCUSSION, RE: AMENDMENTS TO SECTION 62-2117, PARKING AND STORAGE
REQUIREMENTS FOR RECREATIONAL AND COMMERCIAL VEHICLES AND
EQUIPMENT AND OTHER ISSUES

Doug Hambel of Melbourne stated he is here to ask for vested rights for everybody in the County to be able to park a cargo trailer in their front yards due to the fact that is the way the special master ruled on a case. He stated he filed a complaint with Code Enforcement that there was a cargo trailer parked in his front yard or right next to his front yard; and presented pictures to the Board, but not the Clerk.

Chair Higgs inquired if Mr. Hambel is speaking to Item VI.F.1., his request for vested rights regarding the trailer code, or Item VI.A.7., Amendments to the Code for recreational and commercial vehicles and equipment. She noted the items relate to each other, so he can continue his presentation.

Mr. Hambel stated the pictures were taken from his front door; the previous Code stated they were not allowed to park a cargo trailer in Brevard County in open view; the next door neighbor took his case to the special master; and prior to going to the special master’s meeting, Mr. Bowen questioned the officer the whole time before the meeting that he did not think that it was illegal for a cargo trailer to be parked in open view the way that it is. Mr. Hambel stated they went to the special master meeting; the owner of the trailer testified that it was a cargo trailer that they use only to haul a four wheeler, and they had the trailer specially designed to haul a four-wheeler with; however, those people owned the trailer ten years prior to the date of buying four-wheelers. He stated he has pictures showing the garbage, debris, and other things the trailer has been used for; he was told by Mr. Bowen if he was to bring him four pictures showing that it is not a recreational vehicle trailer, he would retry the case; and presented pictures to the Board, but not the Clerk. He stated over the years the trailer has been used for hauling roofing material, brick, landscaping material, etc.; the neighbor does yard work on the side and there are tractors, tree trimming equipment, and miscellaneous equipment in that trailer all the time; so it is a cargo trailer. He stated the Code states that a cargo trailer has to be parked in the backyard with some type of landscaping or something done to keep the cargo trailer out of view; but that has not happened. He presented more pictures to the Board of the trailer, other people, and a truck that does not belong to the people who own the trailer. He stated their testimony was that it was a recreational vehicle, so the County stated they were allowed to park it on the side of their house, which is basically right outside of his front door.

Commissioner Scarborough stated he guesses this is relevant in some ways, but it needs to be tied into Item VI.A.7., which the Board will be taking action on next.

Mr. Hambel stated since it went to the special master and the County said it was okay for them to park their cargo trailer in the front of their house, they purchased a Ted shed and parked it beside the trailer to block the view from their house so that they do not have to look at the trailer, but he still does. He stated if he understands it correctly, Mr. Bowen is asking the County to change the Code so that it states that the trailer would be legal as long as the recreational vehicle is parked on the trailer at all times, which would dedicate that it is a trailer used for recreational purposes; and that would create more of a problem than the County has now. He stated he owns four four-wheelers plus a John Deere Gator that he hauls on a trailer, but does not keep it in a residential area because it is an eyesore; and presented pictures taken from the street in front of the neighbor’s house to show what the neighbor would have to look at if he was allowed to take his trailer and store it with four four-wheelers on it and leave it the way the Code says is permissible. He stated he could decorate it with a bright yellow tarp to keep the rain off the four wheelers, but he does not do it because he thinks it is terrible. He presented a picture of his trailer without the four wheelers on it; stated it is a commercial trailer; it is 22 feet long; and if he wanted to be dishonest like other people are, he could state that it is a four-wheeler trailer because he brought pictures to the Board showing that it has four-wheelers on it; but it is not, it is a cargo trailer. He stated basically by Mr. Bowen’s new Code, he would be allowed to take his trailer, keep his four-wheelers parked on it, and leave it in his front yard.

Earl Sweigart of Merritt Island stated he is involved in a similar situation; he is trying to get the Code interpreted a little bit better so it gets down toward certain problems; and what the Board has tried to do and Mr. Bowen and staff have tried to rewrite, is a way that there is less interpretation to it. He stated it does not bring a lot more to the Code that he can really understand; in his instance, it is a Chevy van that he uses for plumbing; the old Code under commercial vehicle exempts vans and pickups under 24 feet long; but in the new Code under commercial vehicle the definition does not say that. He stated Section 4.d. is where the pickups and vans were excluded from being called commercial vehicles when parked in a residential zoning classification; so he needs to know if his van is still exempt and is it going to be exempt or not. He requested clarity of the Code so he knows what to do. He inquired if he bought a pickup and put a topper on it, would it be a cargo vehicle, and would it be a commercial vehicle, as it is not written in the Code.

Curt Lorenc of Valkaria stated there are some conflicts in the Code; one area says 24 feet in length is a commercial vehicle; in another part of the Code there is a section that describes commercial vehicle; and they conflict with each other. He stated the most important thing to do with the ordinance is to make it simple; it needs simple things that a Code Enforcement officer can verify such as 24 feet in length and a truck larger than that would be commercial; and that is something a Code Enforcement officer can measure. He stated the Board needs to add criteria to cover other vehicles that may not be 24 feet in length, such as bread trucks that are fairly large; and if they have a commercial sign and phone number on them and are listed in the phone book and meet other criteria for business, that might meet the criteria of commercial vehicle. He stated there are other conflicts in areas where the Code may need clarification; and inquired is a boat on a trailer one or two recreational vehicles. Mr. Lorenc stated the Board needs an ordinance that protects the homeowner from someone who has recreational vehicles and commercial vehicles parked all over the yard; it needs simple and clear definitions; and one thing that probably needs to be looked at is a definition for a commercial trailer versus a recreational trailer. He stated if it had something of a certain length, triple wheels, maybe a fifth wheel trailer, those things need to go into the commercial definition. He stated staff’s report also touches on trying to keep recreational vehicles and commercial vehicles on vacant property; he does not think that is something that should be allowed; and if the Board goes forward with this, he would suggest it have staff work with the speakers who came forward on this issue to give them comments and maybe they can clarify it more before it reaches the Board again.

Commissioner Pritchard stated one of the reasons this came about was they found that the Code became very awkward to enforce; and in fact the definition that was being used for commercial vehicle included the manufacturer’s definition, which meant that a Ford F-150 pickup truck was recreational, but an F-250 was commercial, yet they are very similar other than the carrying capacity. He stated they were perplexed as to how to develop a code that would be more reasonable with today’s vehicle purchasers; the same thing applies to vans; they could have the same van on the outside, but if it did not have passenger seats, it was considered a commercial vehicle; and if it did, then it was a passenger van, yet from the outside it looked like the same van. He noted that is how this all came about. Commissioner Pritchard stated the part about storage of trailers and recreational vehicles, etc., came about because of the problem they had with the setbacks for driveways and hardened areas where they could actually park a vehicle; and it seemed that the more they got into it, the more it became obvious that there was no quick fix and it was going to take a review of Section 62-2117 to really delve into how they can make it be more user friendly while not destroying the integrity of the neighborhood. He inquired if Mel Scott or Bobby Bowen wanted to add to his comments.

Code Enforcement Manager Bobby Bowen advised they worked with Mr. Sweigart, had a meeting with him, and also worked with Mr. Hambel; they knew in advance that both gentlemen had issues; Mr. Sweigart came before the Board, which prompted the staff report; and some of the things that were said were not exactly correct, but most of the things they said were; and it would help him to go through them one at a time. He stated staff has some proposed language they think will help clear up some of those areas, especially the areas Mr. Lorenc talked about; they were concerned with some of the language and confusion that was going on with it; and his officers were having a difficult time as well, so they decided to look at it. He stated the Assistant County Attorney and Planning and Zoning Director Mel Scott had input; and they went to other County agencies that might be affected by any changes they made in the Code, such as Road and Bridge with rights-of-way issues, etc.

Chair Higgs inquired if the Board wants to go about it one by one or pick some directions.

Commissioner Colon inquired why are they not all sent to the back inside the fence, and why is the Board determining that. She inquired if that is too simple to tell everybody they do not want to see those kinds of vehicles in the front unless it is a car; and they should be inside the fence in the backyard. She inquired what is wrong with that scenario.

Planning and Zoning Director Mel Scott advised there are hundreds, if not thousands of lots that are very small with five-foot side setbacks, where people would not be able to get some equipment to the backyards; so it would in essence exclude numerous properties that right now are able to house some of that type of equipment in their driveways. He stated it is a Board’s call, but that is the reason why.

Chair Higgs advised #1 is Driveway Expansion, and has Options A, B, and C; and inquired what is the Board’s pleasure.

Motion by Commissioner Pritchard to approve Option C, amend the Code and add a definition for driveway expansions that would allow for additional parking that would accommodate recreational vehicles/equipment. Motion died for lack of a second.

Commissioner Pritchard suggested letting Mr. Bowen state what the item is and then what the options are; with Chair Higgs responding they have already read it so it is redundant; if this does not work, the Board can do that; however, nobody is agreeing with #1.

Chair Higgs advised #2, is Term of Stabilized.

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to approve Option B, to expand the definition for stabilized to assist the public in identifying acceptable material types that may be utilized for stabilized parking areas.

Commissioner Scarborough stated he talked to Mr. Bowen about mulch; Mr. Bowen said mulch will deteriorate and wash away, but it is more environmentally-friendly than some of the other materials; and if it is basically for storing, he would go ahead with it, but does not want to abandon the discussion on mulch. Mr. Bowen stated it may help the Board if they came back with proposed language for the amendment.

Chair Higgs stated she assumes the Board is giving staff direction to develop the proposal and bring it back as legislative intent. She called for a vote on the motion. Motion carried and ordered unanimously.

Chair Higgs advised #3 is Parking, Locating, and Storage on Vacant Residential Property.

Commissioner Pritchard stated he likes Option A, modified to say take action to allow parking on commercial vacant property.

Commissioner Carlson stated she is not sure what the consequence of that is; so maybe the Board can review that from the staff’s perspective because they had so many different Code issues with trailers and things on vacant property that became eyesores for adjacent properties. She recommended staff give the Board an opinion on that. Mr. Bowen stated they cannot do it on residential now, and staff was adding commercial as well.

Assistant County Manager Peggy Busacca advised sometimes commercial property is on a busy road; someone pulling off onto a road where there is no specific curb cut and no apron could pose a safety hazard; the road often gets messed up by large trucks pulling off onto the vacant properties; so that could become a significant problem to the road as well as safety. She stated there would be no identification as to where the vehicle could pull off onto a commercial site; so it probably would not be recommended by the Traffic Engineering staff.

Commissioner Pritchard recommended Traffic Engineering come back with its interpretation of what effect #3 would have with either option; with Commissioner Scarborough agreeing.

Chair Higgs inquired if everyone understood #3 would come back with recommendations from Traffic Engineering.

Chair Higgs advised #4 is Definition of Commercial Vehicles and Equipment.

Commissioner Pritchard advised what this gets to is what he was talking about earlier about vans and how they are indistinguishable unless they are equipped with signage or have ladders hanging on them; and otherwise a van is a van. He stated Option B addresses both provisions in the same section; he believes it would be helpful; and the part in quotes just above Option A says, “However, these pickup trucks and vans shall be primarily passenger type vehicles and when these vehicles are used for any commercial purpose, the open storage of all commercial materials on these vehicles is prohibited in all residential zoning classifications.” He stated that means if someone has a van, everything has to be inside, so all they would see in the neighborhood would be the van; and to him that would be reasonable.

Commissioner Scarborough inquired what if someone has a plumbing business and on the side of the van is a massive sign, “Joe’s Plumbing”. He stated some may not find it offensive, but others may. Commissioner Pritchard inquired if it should be included; with Mr. Scott responding the Code does not address the mouse with the ears. Commissioner Pritchard inquired if it should be addressed; with Commissioner Scarborough responding perhaps it can be. Chair Higgs stated there are so many issues in the item that it would be almost impossible to get anywhere. Commissioner Carlson recommended Option B, to address both provisions in the same section. Commissioner Pritchard suggested staff be asked to come back with additional language regarding ears, tails, signage, etc. that may appear on a vehicle. Chair Higgs stated the Board could take the agenda item and divide it into four and take it in four pieces because it is talking about driveways, stabilized parking, where they can locate in residential, then commercial, and whether recreational vehicles are commercial, etc; and she does not get the sense that all this is going to come together right now. Commissioner Pritchard stated the Board has gone through four of the eight items and what it is doing is providing input so staff can come back with the legislative intent.

Chair Higgs stated the Board will continue with #4. Commissioner Pritchard stated the Board has taken care of Issue #1 and recommended Option B, and now it is considering Issue #2.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Issue 2, Option B, amend the Code to add definitions to Section 62-2117(a) for passenger pickup trucks, passenger vans, and commercial cargo vans. Motion carried and ordered unanimously.

Chair Higgs inquired about Issue 3.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Issue 3, Option B, to add the term “box truck” in the definition for commercial vehicles and heavy equipment. Motion carried and ordered unanimously.

Chair Higgs stated box trucks would not meet the definition and would not be parked in residential zoning, according to how she reads it.

Chair Higgs advised #5 is Recreational Trailers on Residential Property.

Commissioner Carlson stated staff needs to explain that further; and inquired how do they intend to define cargo trailers if they never get the proof to determine it and get a special master to say it is a recreational vehicle. She stated Mr. Hambel made the point that somewhere somehow they need to define that a little better and make their job a little easier; and inquired if it is better to put it all behind the fence as Commissioner Colon talked about. Mr. Bowen stated it is a good question; they do not care, if it is under 24 feet in length, whether it is a cargo trailer or recreational trailer; if it is empty, then it must be stored in the back; and they have proposed language for that. He stated one of the issues is if they have a boat on a trailer, is it one recreational unit or two; the Code should be changed to say one if they are together; and they have proposed language for that.

Chair Higgs stated Issue #1, Option B says it is one if on a trailer; and inquired about Issue #2. Commissioner Pritchard suggested Option C. Commissioner Carlson inquired how does C apply to the general Code Enforcement issues that they have dealt with, and is that something that would create more problems; with Mr. Bowen responding no, it is a part of one big section they were looking at. Mr. Bowen stated staff does not care if they have enclosed trailers; they do not know if they are being used for commercial purposes or not; and they do not care as long as they do not have exterior racks and stuff hanging on it, like they would on commercial vehicles. He stated if it is under 24 feet in length, it has to be in the back yard; an open trailer is somewhat different; they can see what is going on there; so if it is empty, it needs to be in the back; and that is the kind of tightening up they need to create less of a burden of proof on the Code Enforcement officer to prove whether or not it is recreational cargo or commercial cargo trailer, etc. Chair Higgs inquired if that is Option C. Commissioner Carlson inquired if that would be Options B and C because one talks about amending the Code to prevent empty trailers of any kind from being visible, and the other about allowing one noncommercial cargo trailer or recreational trailer to be parked and visible. She stated she is trying to differentiate between the open cargo trailer used for handyman kind of work where they use it for anything and a trailer with a four-wheeler on it that can be identified as used for recreational purposes. Mr. Bowen stated if the trailer is empty, it has to be stored in the rear of the house. Commissioner Carlson stated it has to be out of sight; and if they can work the Code that way, she can agree with it plus the one noncommercial cargo truck and the covered trailer where no one can see what is inside of it. Mr. Bowen stated it does not have to be covered; with Commissioner Carlson stating if it is empty and sitting there, that would be a problem.

Chair Higgs inquired if the Board is okay with Option C. Mr. Bowen responded staff is recommending Option B. Commissioner Carlson agreed with Option B. The Board reached consensus on Option B. Chair Higgs stated it will all come back with the full language underlined.

Chair Higgs advised #6 is Commercial Vehicles/Equipment on BU-1 Zoned Properties.

Commissioner Scarborough inquired if this goes back to the issue addressed by Ms. Busacca that just because something is zoned does not mean they want people jumping curbs and coming out in the middle of traffic with equipment; and perhaps it needs further definition. Commissioners Carlson and Pritchard recommended Option B. Commissioner Scarborough stated the word “conditions” is the issue; and inquired if there will be more information. Mr. Scott stated this is one that has been given partial direction from the Board when Wal-Mart wanted to have some of them stored on site; the conditions they would envision with some of the bigger properties is they could have those kinds of vehicles in the back of the house, which they currently cannot have unless they are being expeditiously loaded or unloaded, which is not in keeping with the private sector’s desires at this point.

Chair Higgs inquired if the Board agrees with Option B; and the Board reached consensus on Option B, to amend the Code to permit commercial vehicles and equipment to be stored on BU-1 zoned properties with conditions.

Chair Higgs advised #7 is Placing Vehicles For Sale on Vacant Property.

Commissioner Carlson recommended getting rid of them; stated she has seen it abused many times on arterial roads where a vehicle is on residential property with a for sale sign on it; and the Board ought to be able to do something about it. Mr. Bowen stated what staff is hoping to accomplish is that no motor vehicles or recreational vehicles at all be placed or stored on undeveloped or vacant property; so staff recommends Option B, to remove the first sentence of the Section that deals with the sale of motor vehicles and recreational vehicles and equipment, and create a separate Code section that addresses specifically the sale or storage of motor vehicles and recreational vehicle/equipment on vacant/unimproved property.

Commissioner Carlson stated she was talking about residential property along U.S. 1 where they have a residence and park two or three vehicles with for sale signs on them because they have the visibility. Mr. Bowen stated staff is talking about vacant residential or commercial property; the problems they are having when property is sitting there is that people take advantage of it and park boats, cars, etc.; and it becomes a big problem for Code Enforcement and law enforcement and creates in some cases sight obstructions and traffic hazards. He stated that is a problem they have because people park the vehicles helter-skelter and they may have to deal with five or ten different owners of those vehicles in trying to get them off the property. Commissioner Carlson inquired how does staff deal with residential property where vehicles for sale are on the lawn; with Mr. Scott responding if there are two or three boats, that would be a Code Enforcement issue; the Code only allows one boat in the driveway; so that would be a Code violation. Commissioner Carlson stated if people park vehicles on their lawns with for sale signs on them, they are using it as a parking lot, which would be a violation; with Mr. Scott responding no, if they have one boat, the Code does not differentiate whether or not there is a for sale sign on it; and the Code says they can have one boat on a trailer in a driveway. Commissioner Carlson inquired about multiple vehicles.

Commissioner Scarborough stated what he is reading is that the current Ordinance addresses unimproved residential property; the Board is now talking about vacant unimproved property, which includes all zoning classifications; and there should be a methodology for someone who has a lot to come in at staff level to have cars on there as long as there is access and they are not a safety hazard or blocking sights. He stated it may be better to provide an orchestrated methodology than to have people wanting to do it and not having a way to do it under the law. He stated if they do not have a methodology to make it work correctly, it would compel people to do it illegally; so if the property owner comes in and gets a permit or something, staff can review it under the criteria that the Board would approve, and can say yes, how far back they have to put the vehicles, how they have to maintain the lot, and any other criteria. He stated he would prefer to say nothing because there are enough people out there who want to sell the cars themselves and they are going to find a place and stick it out there; and the Board would be creating a Code Enforcement problem. Mr. Bowen stated under the current Code they cannot do that on residential property; and no vehicles shall be placed for sale on any unimproved residential property. Commissioner Scarborough stated it would move to all classifications if Option B is approved. Mr. Bowen stated they would need to add not only motor vehicles, but specific recreation and commercial vehicles and requirements they want to add to it. Commissioner Scarborough stated he lives in the middle of a neighborhood; he has very little traffic there; he can put his car out there for sale and would not get much; but if he drives through a busy intersection and sees other cars parked there, he will put his car there and stick a sign on it for sale. He stated he does not know the rules or the laws regarding that; maybe the landowner lives in Canada and does not even know his lot is being used; but the property owner would be cited and say it is not his fault; and it would be better to create a methodology where it does work and the owner has previously obtained permission to allow the use of his property for that purpose. Chair Higgs stated then it would become a car lot. Commissioner Scarborough stated car lots are occurring because people are finding cars out there and adding their cars to them; and Mr. Bowen will try to take care of that problem, but it will pop up somewhere else. He stated he has seen it happening all over. Chair Higgs stated she does not think the way to solve it is to say okay. Commissioner Scarborough stated there may be places that are not that bad if they are maintained and the vehicles properly set back.

Commissioner Carlson stated in the case she pointed out, it is an eyesore, especially with multiple cars along a scenic highway. Commissioner Scarborough stated the Board should not let it happen there; with Commissioner Carlson responding she agrees, but that would be threading the needle finer. Commissioner Scarborough stated it is happening. Commissioner Carlson stated she knows what Commissioner Scarborough is talking about in terms of people taking cars to a vacant place like a pull-off spot; and no one follows through and enforces it. Commissioner Scarborough stated in Titusville they are moving cars from one area to another.

Chair Higgs inquired what is the Board’s recommendation on #7. Commissioner Pritchard suggested Option B, and looking at the part that says “create a separate Code section that addresses specifically the sale or storage of motor vehicles and recreation vehicles/equipment on vacant/unimproved property,” perhaps the Board can get some input from staff that will give it a better comfort level. Chair Higgs stated the Board reached consensus on Option B.

Chair Higgs advised #8 is Storage of Cargo Trailers on Residential Property.

Commissioner Carlson advised the Board touched on that earlier; and inquired if that was sufficient enough; with Mr. Bowen responding staff said if it is under 24 feet in length, they did not care if it was a cargo or utility trailer. He recommended Option B, and stated staff will come back with additional language and conditions as well as the particular uses and where they should be stored.

Chair Higgs inquired if the Commissioners agree with Option B. Commissioner Carlson stated her concern is open cargo trailers in full view. Mr. Bowen stated they will not be in full view. Commissioner Carlson inquired if they are talking about commercial cargo trailers; with Mr. Bowen responding cargo and utility trailers. Chair Higgs inquired if the intent is if it is commercial or otherwise used, if it is a cargo trailer, it gets to stay in a certain location with conditions; with Mr. Bowen responding it will be easier when they bring back the language.

Commissioner Pritchard stated he will go with Option B and when the language comes back, the Board will go from there.

Chair Higgs advised by consensus the Board approves Option B, to amend the Code to allow commercial cargo trailers, with conditions, that will limit their impact on residential zoning.

RECOMMENDATION OF THE PROTEST COMMITTEE AND AWARD PROPOSAL
#P-4-03-25, RE: STRUCTURED CABLING SYSTEM

Central Services Manager Steve Stultz advised the item is being presented to the Board as a result of a request for proposals that was released to provide a term agreement for installation of structured cabling within existing facilities throughout the County; and the service would provide installation on an as-needed basis for Information and Communication Systems Department for up to 15 connections within existing structures. He stated the Board previously approved standardization on Siemons/Commscope cabling system; therefore, the awarded contractor was required to be certified by the manufacturer to insure the manufacturer’s warranty would be binding. He stated they opened the proposals on July 11, 2003 with three firms responding; and the Selection Committee met in October and December 2003 with the final selection of Brevard Business Telephone Systems as the best ranked vendor on December 4, 2003. He stated upon posting of the intended award, Purchasing Services received a notice of protest of the intended award from a legal representative of Morse Communications claiming that the proposal submitted by Brevard Business Telephone Systems (BBTS) should be considered non-responsive for failing to provide proof of the manufacturer’s certification, which was required as a response to the proposal. Mr. Stultz advised review of the certification documents that were provided with its proposal indicated that the expiration date on the certificates was January 26, 2003 for the designer certification. He stated upon notification of the protest, Brevard Business Telephone Systems indicated to Purchasing Services that the manufacturer provided a six months waiver period to renew certifications; and in an attempt to verify that, Purchasing Services contacted Siemons directly. He stated Siemons indicated that initially there was no written policy in effect granting that six-month extension to certifications although they had an informal policy; later during the protest procedures, Brevard Business Telephone Systems came back and provided documentation from Siemons indicating it did have in writing in its contractors’ agreement that there was a six-month extension period for renewals; however, review of the certificate for designer supplied by BBTS indicated that their installers renewal was not effective until October 2003, which was past the submittal date of July when the certification was required. Mr. Stultz stated as a result, there were two Protest Committee meetings; the first meeting addressed the protest submitted by representatives of Morse Communications claiming that BBTS was non-responsive in providing the certifications as required; and the Protest Committee determined at that time to uphold the protest submitted by Morse Communications finding that the certifications provided were not as required by the conditions of the Request For Proposals (RFP). He stated as a result, the decision of the Protest Committee was sent back to the Selection Committee for its review of the remaining two proposers; and the Selection Committee recommended the second ranked proposal submitted by Morse Communications. He stated a second protest was filed by BBTS contesting the evaluation of the pricing proposal; and a second Protest Committee meeting was held to address those issues. He advised the Protest Committee, at that meeting, rejected the proposal submitted by BBTS and sent the recommended award to the Board for Morse Communications as the next best ranked proposal.

Chair Higgs advised there are four speakers representing everyone involved; and she will give each speaker five minutes unless there is some other format that should be provided. She stated she will go in order of when the cards were submitted; and the first speaker is Mr. Fisher, then Mr. Torpy, Mr. Perrl, and Mr. Stagg.

John Fisher, representing Brevard Business Telephone Systems (BBTS) advised the company has been doing business with Brevard County for about eight or nine years; to his knowledge little or no complaints were received; their pricing is always good; and for the last three or four years they have been performing the work under the Siemons/Commscope structuring wiring system and the manufacturer has been providing the warranty. He stated as a matter of fact, they won a contract about two years ago that included the work they are talking about now; and as far as he knows, they are still doing work for Brevard County today, doing Siemons/ Commscope cabling and providing warranty per the manufacturer. He stated Morse Communications, with legal representation, approached the County; they felt it was not fair and did not understand the original bid; so it was re-bid; and as Mr. Stultz said, BBTS was the originally-selected vendor. Mr. Fisher stated then the protest ensued about the certificate; the certificate is issued by the manufacturer, the Siemons Company; and the date that was submitted was out of date on the face value of it, but he has a contract with the company for three to four years. He stated when Morse protested it, he learned the basis for the protest and prepared for the Protest Committee hearing to answer that. He stated Siemons wrote a letter, not an email or phone call, but a signed letter saying the certificate was good at the time of bid opening and has been good since. He stated before the Protest Committee hearing, he asked for the documents pertaining to Morse’s bid and protest, but did not get a copy of the email between the Siemons Company and Purchasing Department and had no idea that conversation had taken place; and the guy they were talking to at Siemons gave the wrong information. Mr. Fisher advised there was a package provided to the Protest Committee; when the Committee heard the protest, that was the first thing he was hit with; and he was totally unprepared for it. He stated he had a letter saying the certificate was good, but they had hours or days previous to absorb the information that was not true, which he does not think was fair. He stated the bottom line on the certificate issue is that he still has a dealer’s agreement with the Siemons Company; the certificate was good then and was good at the time of bid; and there is a signed letter from the manufacturer in the package saying that very thing. He stated the manufacturer is the only one who can tell whether a certificate is good or not; he cannot tell the Board that and neither can County staff; it is the people who issue it that can tell the Board whether or not it is good; and it is good. He stated a paragraph in the RFP says he does not have to be certified and says, “you can become certified before work starts”; he does not have to be certified to win the bid; but they are certified so it is a non-issue. He stated being that they are removed from the competition and the bid was recommended to be awarded to Morse Communications, he began to look into the other bids of Morse and BellSouth; the bid was open on July 11, 2003; it was re-quoted, not re-bid on October 24, 2003; and during that time, if the Board would look through the documentation, their instructions were different than the other companies; and Morse Communications changed it prices and BellSouth did not include prices. He stated if that is going to be allowed, then the issue of their certificate, which to him was kind of minor, should not be a big deal and should be allowed; and inquired how can the Board allow someone to change prices and not take that into consideration.

Attorney Richard Torpy, representing Morse Communications, which is also represented by Mr. Castella who is present, advised he is not going to rehash what has gone through the Protest Committee and selection process; it was a fair process; they had questions and challenges throughout the process; and the Committees heard them, responded, and made their findings. He stated staff has recommended, based upon those findings, that the Board approve Morse Communications as the successful proposer; Morse stands ready to service the County; it is qualified and a responsive bidder; and it would like to serve the County. Mr. Torpy stated he did not understand this hearing to be about rehearing what has been heard before the Committees; that is why the Board has that process in place; and to have a full evidentiary hearing on issues raised in the Protest Committee meetings would take more than five minutes per person. He stated if the Board is concerned that its committees did not do an adequate job and did not listen to the evidence and wants to hear it, he would respect the Board’s ability to do so and would be happy to come back and represent those cases that were raised in the various processes. He requested the Board not do that, as they were fair and equitable processes. Mr. Torpy stated the gentleman said he did not know about the issue of his certifications until the Protest Committee meeting; he knows because he filed those protests, that it was the basis for the protest; it was filed three weeks before the hearings; and they were on notice of the hearing and can get anything to read about it so it was not a secret or hidden issue. He stated the issue was that BBTS was not certified; the committee looked into that issue thoroughly and ultimately concluded that there was not evidence that their certifications were valid; and everything that was said today was said and hashed out before. He requested the Board honor its process, go forward with staff’s recommendation, and award the bid to Morse Communications. Mr. Torpy stated Chair Higgs said Mr. Perrl was one of the speakers, but it is actually Mr. Perry with BellSouth, who has waived his time and wanted him to say they are in support of staff’s recommendation also.

Todd Stagg, representing BellSouth on commercial cabling for the entire State, stated the RFP was put out a second time for clarification; and basically what Morse is saying is correct. He stated it is clear that the certificates had to be shown as being active in the Siemons manufacturer’s program at the time of submittal; that is factual; they went through the process, and did the re-bid; and everybody had apples to apples the first time. He stated BellSouth was the only compliant bidder throughout the process; the second time Morse’s problem was that it lowered its prices; however, it cannot be slighted for that because it benefits the taxpayers; and his main issue is that BellSouth was compliant and the only one that included complete details. He noted in fact the review committee complained about the size of their bid package compared to the others. Mr. Stagg stated for the bid process, BellSouth went through considerable cost with its support team, legal team, and operations team; it does not want to see the item re-bid because it would be unfair for BellSouth to go back and refinance another full bid process; if Morse is No. 2, BellSouth is next in line; and if Morse fails to perform, it would go to BellSouth.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to accept the recommendation of the Protest Committee, accept proposals from Morse Communications, Inc. and BellSouth Communication Systems as responsive; and award Morse Communications, inc. as the best ranked proposal for Proposal #P-4-03-25, Structured Cabling System. Motion carried and ordered unanimously.

AMENDMENT TO CONTRACTS WITH BRAY, BECK & KOETTER, AND HOYMAN, DOBSON
& COMPANY, RE: INTERNAL AUDITING SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Amendments to Contracts and exercise renewal option for a one-year extension with Bray, Beck & Koetter, and Hoyman, Dobson & Company to provide internal auditing services under the same terms and conditions as the existing Contracts. Motion carried and ordered unanimously. (See pages for Amendments.)

CITIZEN REQUEST - DOUG HAMBEL, RE: VESTED RIGHTS REGARDING TRAILER
CODE

Chair Higgs inquired if Mr. Hambel wishes to speak to this issue or did he cover it before; with Mr. Hambel responding he would like to ask a question.

Doug Hambel advised the Board picked Option B for Issue #2, which says to amend the Code to prevent any empty trailers of any kind from being visible from residential property; and inquired if his neighbor can fill his cargo trailer full of garbage and park it in his front yard again; with Chair Higgs responding she will pass that question on to Code Enforcement as they develop the amendments, and ensure that question gets answered when it comes back.

Commissioner Scarborough stated he hopes that is not the intention. Mr. Hambel stated that is what it says, an empty trailer cannot be parked in front. Commissioner Scarborough stated that was not the intention of the Board. Chair Higgs instructed County Manager Tom Jenkins to get that cleared up as staff proceeds with the amendments.

Commissioner Colon inquired if Mr. Bowen heard what the Board said; with Mr. Bowen responding affirmatively.

Commissioner Carlson stated Mr. Hambel requested a vested right; and inquired what he wants the Board to do, as she is not sure it is a vested rights issue. Chair Higgs stated it is not the proper format for a vested rights hearing. Commissioner Carlson stated someone needs to explain that to the applicant. Chair Higgs asked Mr. Knox if that is not the proper format for a vested rights hearing; with County Attorney Scott Knox responding it is not, and he would have to make a formal application. Commissioner Scarborough recommended Mr. Knox write a letter to Mr. Hambel and advise him of the proper procedure for requesting vested rights.

CITIZEN REQUEST - RICHARD AUSTIN, RE: REQUEST FOR GRANT FOR HOMELESS
STAND DOWN 2004 EVENT

Chair Higgs called for Richard Austin and received no response.

Commissioner Scarborough stated there seems to be some historical precedent set that the Board help with stand downs; it is an enormous benefit in having stand downs; and the Board does not have a designated source of funds, but it was provided to them previously. He stated the Board has provided funds to other Veteran Councils; and requested the Board see if there is a means where it can help with this event because there is a great benefit.

Chair Higgs stated in the past the Board has gotten full accounting from groups it funded on stand downs; and inquired if the Board is receiving that; with Assistant County Manager Don Lusk responding yes, it is done on a reimbursement basis; and they submit actual bills to the County of what they spent money on.

Commissioner Scarborough inquired when do they need action by the Board; with Mr. Lusk responding it is scheduled for September 11, 2004. Commissioner Scarborough recommended staff come back to the Board with a report on the amounts and accounting for further discussion.

DISCUSSION, RE: GRANT TO ACTIVE DUTY MILITARY PERSONNEL FOR PORTION
OF AD VALOREM PROPERTY TAXES

Commissioner Pritchard advised he would like to give the active duty military personnel all that the Board can possibly give them, but he has a question as to what the cost might be to the County’s revenue stream if it allows a portion of the property taxes to not be paid by active duty personnel. He stated the reason he is bringing this up is because many people who are on active duty are receiving full compensation by a portion of their salary being paid by the County, for example, to supplement the military pay; he would like to know what the cost would be by doing this, mainly because the County is going to have the court system asking for $250,000 and another part of the system asking for $50,000; so it will have a lot of people coming in asking for money. He stated on the other hand it is going to give something away that it might or might not be able to afford; and he would like to have some numbers on it.

Commissioner Carlson stated the other piece of that is the only other County cited to have done this was Leon County and it was the National Guard Unit; Brevard County has other active military units not just the National Guard; and that might have further implications.

Chair Higgs recommended getting a report from staff that would outline exactly what an ordinance to this effect would look like and an estimate of the financial implications. Commissioner Carlson inquired if the Chair wants to see a legislative intent; with Chair Higgs responding she would like to see the actual language of the ordinance.

Commissioner Scarborough stated he would like to get a report back at this time; the Board knows many times when this occurs it is going to be disruptive to the lives that it impacts, socially as well as economically; and he heard on the news of the possible reinstatement of the draft. He stated they need more troops in Iraq; the problem is not going away; the Board has an environment where it needs to be sensitive to the sacrifice that certain individuals give to the greater community; and suggested staff come back with a report on how to help them.

Chair Higgs stated she understands that fully but wants the public to fully understand the cost that local government might be absorbing for the military; and it may be right that the Board does it; but it needs to fully inform the citizens what is going on. Commissioner Scarborough stated Chair Higgs is also sympathetic to the social aspect of divided families and things like that; with Chair Higgs responding she is sure all the Commissioners are, but they need to fully account for the financial impact.

CITIZEN REQUEST - LISETTE KOLAR, RE: PALM BAY ANNEXATIONS

Lisette Kolar, representing Cypress Creek Homeowners Association, advised she and her husband moved to Grant about eight years ago; and she wants to talk to the Board about a topic it addressed before on March 2 and 4, 2004, regarding Annexations A1-2004 and A5-2004 by the City of Palm Bay. She stated one annexation is for 1,200 acres, and they are requesting single-family residential, three units per acre; and the other did not indicate any plans for the future land use. She stated the March 4, 2004 meeting was not well attended because they misinterpreted the terms “acknowledge receipt” on the Agenda item and thought the Board was going to acknowledge receipt and there would be other meetings where they could address it; however, there was a vote to approve and support those annexations; and when they found out about it, they thought they should get their comments in as quickly as possible. Ms. Kolar advised they looked at Florida Statutes, Chapter 171, which resulted in some questions regarding the requirements that annexations be contiguous and compact and not create enclaves; and they acknowledge that a report was sent to Department of Community Affairs from staff noting numerous issues of concern, such as inadequate roads, four-laning of Babcock Street, and Micco Road and Babcock Street intersection upgrade. She stated schools in the area are close to or over capacity with the current enrollment; the introduction of an urban density into long-established rural density areas is a big concern to a lot of the residents; and the fact that there is no Comprehensive Plan amendment or zoning identified for the second parcel is of concern because they do not know what is going to happen there. She stated staff identified those concerns; they also said the area is 40% potential wetlands and there are protected species such as scrub jays and gopher tortoises; however, they were surprised that the Board voted three/two to approve and support the annexations of large neighborhoods. Ms. Kolar stated the staff’s report states, “In terms of the County’s Vision Statement, these should be considered in the context of creating cooperative partnerships between government, business, community organizations, and our residents”; and they feel it is not cooperative with the residents who live in Valkaria, Grant, and Micco who will be impacted by the large neighborhoods. She stated they feel they are in direct conflict with a lot of the planning the Board and other committees have taken a long time to do; the communities being plopped into their area are not consistent with the planning that a lot of folks have done; and requested the Board reconsider its vote to approve and support the annexations and amend staff’s report to Department of Community Affairs to show that. She requested the Board direct County staff and the County Attorney to generate a report within two weeks advising the Board as to the feasibility of challenging the compliance of A1-2004 and A5-2004 to ensure they comply with Florida Statutes, Chapter 171, and request a hearing to challenge the annexations. She stated the proposed density of A1-2004 of three units per acre is totally inconsistent with long-established surrounding communities of Micco, Grant, Valkaria, and Deer Run, which are one unit per acre or one unit per two and a half acres; and they do not know what the other large area is proposed for, which is very worrisome. She stated I-95 runs through it, so it looks like a good candidate for unconstrained commercial development. Ms. Kolar advised schools are also a big issue; the current schools in the area are near maxed, maxed, or over capacity with the current enrollment; and other parts of Brevard County are running into trouble with schools; and inquired which schools will be funded first, and how is the Board going to deal with a whole new population of students. She stated traffic is congested on north and south roadways of Babcock Street and U.S. 1; the east/west roadways of Micco, Grant, and Valkaria Roads are going to be congested; and they are waiting for urban commercial development of strip malls, fast foods, and gas stations with little or no architectural control, which is sure to follow development of those large urban neighborhoods. She stated they are also concerned about further deterioration of Babcock Street, which is already washboarding; and Palm Bay’s uncontrolled growth to the outside of the City will promote urban sprawl and deterioration of the City’s center, bringing crime, blight, and substandard schools. She stated staff’s report indicates that Palm Bay will provide water and sewer services to the annexed property; Palm Bay does not currently provide sewer service to a large percentage of the City; and inquired if its infrastructure is in place to bring service outside of the City. Ms. Kolar stated staff’s report also indicates that the southern end of the city is characterized by infrastructure deficiencies; and inquired how can it provide services to those neighborhoods. She stated there are four environmentally-sensitive areas in close proximity to the proposed urban areas; there are Micco Scrub Sanctuary, the Grant Flatwoods, Valkaria Scrub Sanctuary, and Ten-Mile Ridge; and they are going to put large urban areas into those environmentally-sensitive areas. She stated they have quality of life issues; Brevard County is a large county and should strive to offer diverse living environments; and despite claims on developer brochures, homes on one-third of an acre are urban environments and attract commercial sprawl. She stated South and North Brevard offer unique country living that should be preserved; and that is what they are here to ask the Board to do. She requested the Board reconsider its vote on what to advise Department of Community Affairs on the annexations; and stated it has an opportunity to be innovative and progressive by managing growth so Brevard County remains the special place that it is. She noted they have close to 11 speakers, but there are more people who feel the same way; and she represents her Homeowners Association. She presented documents to the Board, but not the Clerk; stated the law says the properties need to be contiguous and compact; one annexation could be considered contiguous; but because it creates an outreaching finger, it may not be compact; and they are not the ones to determine that, so perhaps the County Attorney can make that determination. She requested staff and the County Attorney check that out for them. She thanked County staff, primarily Stacy Ranger, for their assistance; and stated they want to let the Board know how concerned they are about the intrusion into their lifestyle, which is rural and quiet. She stated not that those neighborhoods will not be nice, but they are concerned about what they will bring behind them; reiterated her requests; and asked that the County Attorney look into the legalities of the annexations.

Linda Mason advised she lives in Cypress Creek on Grant Road; and requested the Board reconsider its approval of Annexation A5-2004, which is east of Babcock Street, and Annexation A1-2004, which is west of Babcock Street. She requested the citizens’ comments from today’s meeting be sent to the Department of Community Affairs if possible; and objected to the annexations as they do not seem to be consistent with the Florida Statutes, which state that annexations should insure sound urban development. She stated the City is annexing a rural area that the Environmental Endangered Lands (EEL) Section is working hard to preserve as rural; and gave the Board a map of Cypress Creek development that shows all the lands already managed by EEL’s and the direction the area is going in. She stated the lands extend all the way up to Babcock Street and probably beyond the east/west corridor from Valkaria Road to Grant Road and to Micco; so there are two corridors that wildlife lives in. Ms. Mason stated three-quarters of the land has already been purchased, donated or transferred via mitigation, etc.; and that shows that the State and County intend to keep those lands as rural. She stated she spoke to Zack Persack of EEL’s and Rebecca Perry of The Nature Conservancy, which is responsible for acquiring the lands; The Nature Conservancy said that 30 parcels have been obtained on Babcock Street, just north of the area the City is annexing; and they have seven more parcels under contract in the southeast corner. She stated south of the parcel being annexed in A5, the Conservancy is going for a big acquisition; and EEL’s told her its intent is to buy as much of that land as it can, and fence it to provide an uninterrupted corridor as far as it can, going in an easterly direction to contain the endangered species, scrub jays, tortoises, and other wildlife that are being squeezed out of all the other areas around it. She stated there are two arms of government; one arm, the City of Palm Bay, wants to make it urban; the other arm is working to make it rural; and they are not working together. She stated they cannot have it both ways; it is one or the other, so they are faced with a choice; and she will leave it to the Board to think about it. Ms. Mason stated the latest information she has is that there are 12 scrub jay families living in the corridor between Valkaria Road and Grant Road; that is not many; just losing a couple of those families is going to grossly impact the population; and she hopes, for the sake of the scrub jays and other endangered species and wildlife that need the land so desperately that the Board would not turn it into an urban area and would do everything it can to promote a rural environment. She stated they will be very grateful and would thank the Board for that.

Reine LeBohec stated much of her requests have been placed already so she will not repeat them, but she has questions about the item. She inquired if the City of Palm Bay will be well served by annexing the parcels located so far away from the City center when there are still many undeveloped areas and many half abandoned shopping plazas within the City proper; will the families living in the newly annexed areas be well served being so far away from schools, government and medical facilities, convenient stores, and their jobs; and stated a developer offered land for building of a school at the taxpayers’ expense, which would undoubtedly be an elementary school while they are short of middle and high schools. She stated the expansion of Babcock Street and Micco Road, and construction of the new interchange to I-95 will come at monumental cost to the taxpayers, not to the expense of the developers or just the City. She requested the Board reconsider its approval of Annexations A1-2004 and A5-2004; and stated they spoke of the ecology in their area and the quality of life of the inhabitants who are seeking peace and quiet and to get away from crime and big-city living.

John Manning stated he is against the annexation and thinks the County’s management of South Brevard is pretty good. He stated Palm Bay is not a sterling example of city government, and he would not look forward to eventually being in Palm Bay because it seems like it is a move to annex all of South Brevard. He stated it is an effort to circumvent the Land Use Plan, which is not a wise thing to do because the Land Use Plan has been well studied and developed and is quite reasonable. He stated when he rides up U.S. 1 and sees the giant condos on the waterfront of the Indian River, he does not think that Palm Bay is a marvelous place; and when he read in the newspaper how the City approved an extra long dock with a marina out into the Indian River Lagoon, it did not make him smile. He requested the Board reconsider the Annexations A1 and A5 and request an administrative hearing to challenge them.

Diane McCauley of Micco requested an administrative hearing on the annexations; stated each approval reflects on the Board’s fiduciary responsibility; and she will exempt Commissioners Higgs and Scarborough from most of her statements on this as their actions show a consistency and their fiduciary concerns. She stated she was alarmed when she heard of the rapid and rash annexation movement of Palm Bay at the behest of developers, especially after the January 27, 2004 Board of County Commissioners meeting when the Board approved staff’s recommendation as submitted to include the analysis to amend the Comprehensive Plan in the 2004B Plan Amendment cycle and send it to the State. She stated it seems the Board has completely ignored that action and begun on a new course of increased development and urban sprawl with the annexation action of Palm Bay in opposition to the State’s request to contain urban sprawl. Ms. McCauley stated one only has to look at Palm Bay to realize it is not a logical direction; Palm Bay accepted General Development’s plan for growth and was left with more than it could service; and many roads are in utter disrepair and the flooding issues appear each year when residents cannot access their homes or have to paddle their way out of their homes to a higher road. She stated looking at Palm Bay’s history, one will see that it has not done a good job for its local residents, and their existence is only due to the industrial base they have been able to receive. She stated the donation of land for a school should send an alarm through each Commissioner; and inquired if the Board has already forgotten its budget process that it recently negotiated. She inquired if the Board remembers the “One for Brevard” and sales tax surcharge referendum, which showed that it did not have the support of the people it pledged to represent. She requested the Board reconsider its actions and move in a logical and methodical path to not make hasty judgments, but keep faith with its community that is affected by its actions. She stated the citizens live in the immediate area, the developers do not, nor do they intend to live in the development; they intend to make a quick buck and move on; and inquired if that is good criteria for approving growth that could not otherwise have been approved.

Ray Kolar from Grant presented copies of an earlier presentation to the Board, but not the Clerk; stated the Board heard several issues on the annexation; and many of them were addressed in the Carlson report the County submitted. He inquired where is the money coming from to build schools and four-lane Babcock Street, as he does not believe it is in the County’s current budget or even planned in the near future. He stated increased traffic on Micco and Grant Roads, decreased quality of life, water service to the area was left to Palm Bay to provide, but Palm Bay cannot supply water and sewer to the people it currently has; and inquired how is the City going to do it for the new development. He stated it was mentioned that the purpose of the development was to build as many houses as quickly as possible, and he believes that is true. Mr. Kolar stated he is not a lawyer but believes an enclave is being created by the annexation of two parcels; he knows the County is working with the City on annexation issues and had an offsite meeting on March 19, 2003, which was attended by Commissioner Pritchard; he does not believe other Commissioners were there, but representatives were; and many interesting comments were addressed at that meeting, including many issues being addressed here, not specifically to the parcels of land, but generally to annexation, the fact that they should follow a vision, and that urbanization is not always good. He stated one disconcerting comment at that meeting was from an official from Palm Bay, Mr. Feldman; he mentioned concern that public discussion about those issues would result in public resistance; and they appreciate the fact that they are able to discuss those issues with the Board. He stated perhaps Mr. Feldman from Palm Bay feels otherwise, as his comments at the meeting seem to indicate that. He requested the Board reexamine the annexation approval, have an administrative hearing if it is appropriate, consider the citizens’ issues that it heard today , and at the very minimum, provide a revised record to the Department of Community Affairs. He stated if the Board cannot do that, he would request it provide their comments to Department of Community Affairs perhaps as an addendum to the existing report. Mr. Kolar stated planning is a necessity; they have an opportunity in South Brevard to make it what they wish; there is not a lot of development on the Babcock Street Corridor south of Valkaria Road; and they need to really look at it, look in the future, and see what they want it to be. He stated he does not want it to look like Palm Bay.

Jean Hender stated she is totally opposed to the two annexations; it is a wonderful part of Brevard County; and she does not want it to be in Palm Bay. She stated she is dedicated to their rural existence and is very proud of all their compatriots and the nice things they have said, so she does not need to say them again.

Curt Lorenc of Valkaria stated the Board heard several speakers mention the previous agenda item and approval, and he wants to touch on that and tell the Board why they are asking it to re-look at that. He stated the agenda item said to acknowledge; he did not believe there was any action that was going to be taken on that; but the motion was one of approval, so the Board needs to look at that because he does not believe the State has given the Board of County Commissioners any authority to approve annexations. He stated he does not think the Board wants to step on Department of Community Affairs’ authority to look at those issues, so that may be worth looking at. He stated the sentiment in South County is growing against the annexation; it is very large, about three and a half square miles; it protrudes outside the boundaries of Palm Bay like a long tentacle; they have seen some of the work the City has done within its limits; and there are real concerns that the City is going to take what it is doing in Palm Bay all over the County. Mr. Lorenc stated the last time the issue was before the Board, there was concern about some bad maps; he looked at the legal advertisements and believes the maps are incorrect according to the Florida Statutes; and he does not believe the annexations meet the requirement of Chapter 171, Florida Statutes for compactness and no enclaves. He stated 4,500 homes are projected for development; there are only two north/south roads, Babcock Street and U.S. 1; and 4,500 homes are definitely going to overload Babcock Street and cause the County to spend a lot of money on four-laning it in that area. He stated there are many concerns whether the annexations are good for any of the citizens, whether in Palm Bay or the County; it is going to take away resources from existing residents for the City to provide sewers, water, and roads in the City; and it is only going to benefit the developers. He stated he would appreciate it if the Board would re-look at the issue and if there are some legal issues, it can challenge the annexations. He noted maybe staff can come back in a couple of weeks with more information.

Janis Walters of Valkaria, President of Valkaria Neighborhood Association, advised she participated in the South Mainland Long-range Planning effort; Palm Bay first got under her skin back in 1999 and 2000 when there was a voluntary annexation of 20 acres on the northeast corner of Babcock Street and Valkaria Road; and as that situation played out, the Board and City officials who were in attendance from Palm Bay agreed that there would be a joint planning agreement to prevent future conflicts of that nature. She stated it is 2004 and there is still no joint planning agreement; they are faced with pretty much the same thing; the land being annexed into Palm Bay is being proposed for a use that is far too intense for the areas of the County which it abuts; and there are no disclosed plans for the use of the land in Annexation A5. She stated she has to ask herself why would the landowner ask for voluntary annexation into a municipality that has far higher taxes if it is not going to be something that the County would really disapprove of, and why is that not being disclosed. Ms. Walters stated the problem she has with Annexation A5 is that until A1 is annexed, A5 is not contiguous with the City of Palm Bay; it touches at a single point on the southeast corner of Plantation Acres; but she does not think that fits the State’s definition of contiguous. She stated she also has problems with the many omissions from A5; it looks like Swiss cheese; she questions the allegation that those are all borrow pits because they are huge; and inquired if there are that many borrow pits in the area that are that big. She stated she thinks the Board is being asked to acknowledge annexations that include enclaves, which is a violation of State law. She noted others have covered everything else she had to say; and requested the Board rescind its previous motion or resolution that included the word approval because that weakens any comments that it might forward to Department of Community Affairs. She requested the Board reword it as an acknowledgement and send strong comments to Department of Community Affairs on A1 and A5, and ask that A5 be disallowed until the next Comprehensive Plan Amendment cycle since it is not contiguous until A1 is annexed. She requested the Board consider a 120 hearing to defend the County’s long-range plans as opposed to what the City of Palm Bay is proposing.

Mike Cunningham of Micco advised the annexations seem to point out that there are definitely inconsistencies and contradictions; Palm Bay states it needs to annex to increase its tax base; that indicates to most people a strong need for additional revenue; and immediately the word pops up, “why?” He stated if it is to cover additional cost and expenses and services, another word pops up, “problem”; and quoted from one of the flyers, “that sprawling out with new neighborhoods and letting the city centers deteriorate, these deterioration areas affect us all with crime, blight, and substandard schools they put in there.” He stated with that in mind, he wants to hand the Board some photographs taken inside the City of Palm Bay five days ago in an area that is designated by the State and the federal government as a scenic highway. Mr. Cunningham stated the quality of life they now have in unincorporated Brevard will be negatively impacted by large tract annexations; and it brings up the question, why is it that it always seems that when the sprawl starts, the excuses seem to intensify in justification? He stated one of the things they have been told for years and years in South County is the issue of schools and there are no lands for schools; and he is not going to accuse the School Board of putting up a smoke screen, but this thing got to a point after a while where they got sick and tired of hearing it and then they got to the point they could not believe it. He stated they went into the Property Appraiser’s database and found 63 sites from Palm Bay south that the School Board owns; and that says enough. He stated the present schools are overcrowded; those who live in Micco and Grant have no schools and have been told they are not going to get any schools; yet there is a potential for a massive annexation just to the north of them. He stated when General Development abandoned Palm Bay, it supposedly left room for development of schools; he is not sure any of those are in those 63 sites that they found; but they do not think that would even come close to covering what the annexation would be liable to bring, so he would reiterate what his colleagues have said that very strong reconsideration, amendment, and review of the issue in deep depth should be done by the Board before it proceeds any further.

Commissioner Colon inquired if the Board was given a date when it had to give a recommendation and what was that date; with Planner Stacey Ranger responding they were supposed to submit comments to Department of Community Affairs at the beginning of April; since then, they received a letter from Department of Community Affairs stating that appropriate maps were not included; so they actually have more time. Ms. Ranger stated in the meantime, they went ahead and submitted based on the initial timeframe. Chair Higgs inquired how long does the Board have and what is the date; with Ms. Ranger responding they do not have an actual start date for the report as yet; Dave Watkins is here from Palm Bay; and maybe he can explain that a little bit better as to the exact deadline. Commissioner Colon stated there are so many questions regarding inconsistencies, potential commercial, schools and who is going to pay for them, extension of Babcock Street, utilities, enclaves, etc., that the community needs a full explanation; and it was not the County, but the City of Palm Bay that annexed the land. She stated she is curious if acknowledgment is a vote of support and how critical that is; and in the spirit of cooperation with municipalities, the Board does not want to come across as saying nay. She stated she is also concerned about how much time the Board has to respond; Ms. Ranger said the Board can ask the City of Palm Bay; and inquired why County staff does not know how long they have, and why would they depend on the City to give them that answer.

Mel Scott, Planning and Zoning Director, advised the City of Palm Bay submitted an incomplete application in the eyes of Department of Community Affairs, so Department of Community Affairs said to the City that when it gives them the complete package, from that date, they will start the clock as far as the identified timeframe in the Florida Statutes for interested parties and affected persons to comment. Commissioner Colon inquired how does that work in regards to the Comprehensive Plan, as she was under the impression the County could only submit changes every six or nine months. Mr. Scott stated they can submit large-scale plan amendments such as this; one annexation that abuts the City directly to the south does contain a Comprehensive Plan amendment, and the other is just an annexation at this time.

Chair Higgs inquired in the A5 annexation only, what is the clock on any type of action the Board might take if it is not a Comprehensive Plan and is a protest of the annexation. She stated it is her understanding that Department of Community Affairs will not act on that; and inquired if that would take legal action; with County Attorney Scott Knox responding yes, legal action on the annexation would be the only option the Board has. Chair Higgs inquired what is the timeframe on that; with Mr. Knox responding that would be within 30 days after the date of adoption of the annexation ordinance. Chair Higgs inquired if the City of Palm Bay adopted an annexation ordinance on A5; with City Planner Dave Watkins responding he believes the City has adopted an Ordinance, but it may have to be amended, so the Board may have to look at that date. Chair Higgs inquired if the City plans to amend the Ordinance; with Mr. Watkins responding he would assume at that time, but the attorney can address that; and the time would run from that amendment. Chair Higgs inquired if Mr. Watkins knows the date it was adopted; with Mr. Watkins responding no, he does not have that date. Chair Higgs stated it was the same day the Board met and discussed it so that would have been around March 2nd or 4th. Mr. Scott stated it is important to recognize how one needs to occur to support the other; and as far as Florida Statutes, Chapter 171, he believes the Board is looking at a more contiguous scenario with A5 with A1 as part of the picture. Chair Higgs inquired if A1 is not adopted, then is A5 not contiguous; with Mr. Scott responding A5 would be contiguous at one point as shown by the two squares that adjoin at the corners.

Commissioner Colon stated she is still confused in regards to the date because it was submitted and then she heard that Department of Community Affairs said the application was still not good because it needed maps; and inquired if that is true, what happens to the date, and is the Board starting from scratch. She stated she is trying to find out as far as dates, what are the Department of Community Affairs’ deadlines, and if it is too late. She stated those are the kinds of things she is trying to get an idea about; and part of why she feels a little bit uncomfortable. She inquired why would she ask the City of Palm Bay when she wanted an answer from County staff; but if Mr. Watkins has the answers, he could share that with the Board.

Mr. Watkins stated when the City, County, or any local government submits to the State, the State looks through those packages; and if they find things that they would like clarification on, they have the ability to ask the local governments to provide additional information based on what was submitted. He stated Department of Community Affairs asked that some of the City maps be clarified so that its staff could clearly see all of the surrounding land uses; and the City staff prepared those maps and is sending those in. He stated the review dates, which is the time period the County initially received because the City provided that information to the County prior to submittal to the State, were used to try and advise the County at that time of the information; the statutory date will run from the time the City is notified that Department of Community Affairs has a complete application; then they have a certain time period of 25 days or something along that line to get their comments in as do the Florida Department of Transportation and other State agencies. Mr. Watkins stated for cities, the County is one of the agencies that gets a review period; so currently, he would say the County has until May 12 or 15 to get its comments in. He stated that is when the City expects to get an initial ruling from Department of Community Affairs as to the comments, objections, and issues like that. He stated then Department of Community Affairs has an additional time period to prepare, if it chooses to do a review, an objections, recommendations and comments report (ORC); and that can run until roughly mid-June. He stated the City would then have to have additional public hearings prior to any adoptions; so the process takes months; they had a public hearing before their Planning and Zoning Board, Local Planning Agency, and City Council; this is the second hearing at the County Commission or at least discussions; and the City has to have additional public hearings prior to adoption of those if it even goes forward and does adopt it.

Chair Higgs inquired if the annexations are contingent on Comprehensive Plan amendments; with Mr. Watkins responding A5 has an Ordinance that adopted the annexation; but there was no Comprehensive Plan amendment attached to that; and what that means is that the County restrictions for land use and zoning apply to that property just as they did prior to annexation. He stated the City has not adopted an amendment; and it has to go through the same type of process to change the restrictions. He stated A1 is the property west of Babcock Street; there is a little piece that is on the east side; they have not had an annexation hearing yet; and they have those annexation hearings at the same time they consider adoption of the land use, typically when people request land use amendments. Chair Higgs inquired if that means A1 is not annexed; with Mr. Watkins responding it is not in the City. Chair Higgs stated that changes the picture on A5 significantly.

Cole Goatley of Bayside Lakes Development Corporation advised the County is growing and there are going to be differences between the outlook of the City and the outlook of people who live in rural areas, but there is a constant merging of the two; cities expand and rural areas contract; it is the normal growth in any area; Brevard County is no exception; and that difference of interest has been expressed eloquently today. He stated he can appreciate they want to live in a more isolated situation, but the fact is growth does continue and they are going to have to accommodate it. He stated he would like to address some factual data; #1, the density that was mentioned is incorrect; they propose a density of one and a half units per acre, not three; his concern is with A1-2004; and examination of the simple map will show that it definitely is contiguous with the City on the north border. He stated there is a little piece to the east, but not a significant amount; so it meets the contiguous and compact requirement. Mr. Goatley stated he heard a lot said about crime and problems with growth; what is being proposed for the area is a community, which would not be significantly different from Bayside Lakes; and it will provide a quality residential area, which is needed in the community. He stated the school situation is one that has been a concern; they offered a site to the School Board of over 17 acres; the School Board wanted a school in that area; they did not know that before they put the property under contract and found out afterwards; but it does meet a need in the area and is a donation. He stated it would be a benefit to the School Board to accept it; and the School Board does have funding now for the additional school. He stated with respect to environmental concerns, about 3% of the property is wetlands, which is a very small amount; there are no endangered species on the property; and he has the environmental reports, which he will make available to the Board if it wishes. He stated the matter of utilities was brought up; utilities can be extended to the site and are available; and he would like Mr. Feldman to address that matter.

Lee Feldman, City Manager of Palm Bay, advised with regard to water and sewer service, Palm Bay does have the capacity to provide both water and sewer that is typical with normal development; the developer is responsible for putting in the infrastructure for the development itself as well as running the water and sewer lines from where they currently terminate; and in terms of water treatment capacity, the City currently has excess capacity at its plant located on Troutman Street in the northeast section and is currently underway with design and construction of a new southwest regional treatment plant off of DeGroodt Street. He stated the new plant will have initial capacity of 10 million gallons a day with expandable capacity at 30 million gallons per day; and reiterated the City has excess capacity at its current wastewater treatment facility and will be building a new wastewater treatment plan in the southwest Palm Bay area.

Mr. Goatley stated there have been concerns and hopefully they clarified the factual data regarding the development; and he will be glad to answer any other questions. He stated again his concern is specifically A1, the 1,200 acres; there is one thing that is not factual, it is emotional; and he heard remarks made about developers coming in, getting rich, and leaving town; however, Mr. Jefferies and he are firmly and fully involved in this issue; Mr. Jefferies was reared in Brevard County, and went to University Park, Palm Bay High School, and UCF; he has lived in the County for 44 years and has watched it grow; so they do not intend to leave. He requested the Board leave matters as they are.

Commissioner Scarborough stated with annexations by the City of Titusville, the Board did not approve or deny it; it basically had staff make comments and had comments from the public and sent those to Department of Community Affairs; and inquired what is different about this annexation than what happened with the Titusville annexation. Commissioner Carlson stated the substantive difference is A1 is not annexed yet, which makes A5 questionable. Commissioner Scarborough stated it may not be with the maps, but may be procedurally; and it seemed to work quite well for the Board not to take a stand but just be a conduit for information because Department of Community Affairs was very receptive and acknowledged a need for things to work together. He stated when the Board does not have a JPA, it is nice to have Department of Community Affairs assign things like that; and inquired where are the differences and likeness of this annexation compared to the one in Titusville. Mr. Scott stated with the Titusville annexations, one thing that did not change as much was the area of land; it was moving forward with annexation and a Comprehensive Plan at the same time; and that was a stationary fact that did not have the fluid nature that this annexation does. He stated that has been the biggest challenge with Palm Bay’s annexations; and once they start getting into re-hearings, re-advertisements, and the staging that this is proposed to follow, it gets challenging. Commissioner Scarborough stated if the Board, rather than taking an aye or nay vote wanted to say it is a body that is supposed to comment only, it would be a conduit for staff information and Department of Community Affairs to weigh and consider, Department of Community Affairs would go back to Palm Bay and not the Board because it does not have to explain it to the Board since it is just a conduit; and inquired if procedurally there would be anything different if the Board took that stand; with Mr. Scott responding no. Commissioner Scarborough inquired if the Board could do that; with Mr. Scott responding that is correct.

Chair Higgs stated the Board can amend its comments to say those are its concerns as opposed to an approval in regard to the issues the citizens are most concerned about; however, she is more concerned that A5 is not annexed, and there is no longer a contiguous part because it simply touches but is not compacted. She stated if one annexation has not occurred, the status of A5 makes it different; it makes it less compact and less contiguous; and inquired where would the Board stand in regard to that and does it have to take legal action if it wishes to object to A5 annexation. Mr. Knox stated he cannot tell the Board that right now because he does not know what the status of A5 is in terms of adoption; if it was adopted more than 30 days ago, the Board cannot do anything about it even if it is a violation of the law, which it clearly is at this point. He stated if it has been adopted and if A1 has been adopted, he is not sure there is anything the Board can do about it and would have to go back and find out what was adopted and if it was the first reading or second reading and when it happened or will happen. Chair Higgs requested a report from the County Attorney with the help of the Planning staff.

Commissioner Carlson stated the Planning staff said Department of Community Affairs did not have certain maps so the issue was still open; with Mr. Knox responding that is a different issue. Chair Higgs stated Mr. Watkins said the City may have to amend that description. Commissioner Carlson stated she does not remember if Mr. Watkins said the City has already gone through its annexation and had an annexation ordinance. Chair Higgs requested Mr. Watkins explain the status of A5.

Mr. Watkins stated it is his understanding that the City Clerk is going to be re-advertising the ordinance that was adopted for clarification or change to the legal description; there was a border missing; and the County ran it through its GIS system and identified that. He stated the Department of Transportation’s pond only had two sides instead of four on the legal description; so his understanding is that it will go back through the process according to the City Clerk.

Commissioner Carlson inquired if that is an ordinance for annexation; with Mr. Watkins responding that is the ordinance for annexation of what they are calling A5. Commissioner Carlson stated it already occurred and the Council already voted on it; with Mr. Watkins responding the City Council has adopted an ordinance; it will be amending the legal description in that ordinance; so it has to adopt another ordinance to do that. Mr. Knox stated staff needs to check on it and find out what it is.

Commissioner Pritchard inquired if Mr. Watkins said the Council did not adopt an ordinance annexing property in A1; with Mr. Watkins responding that is correct, A1 is not annexed; it is only a Comprehensive Land Use Master Plan amendment, which went through the cycle; and the only annexation that the City has passed is what is being called A5.

Chair Higgs inquired about the others that are in the same package; with Mr. Feldman responding only A5 has been annexed, and the others are Comprehensive Land Use Master Plan changes. He stated they believe A5 has been lawfully annexed; there is the issue about the legal description; but that is more a scrivener’s error rather than substantive; however, he will let the County Attorney opine on that one.

Commissioner Pritchard inquired if Parcels 2, 3, and 4 have not been legally annexed; with Mr. Feldman responding that is correct. Commissioner Pritchard stated regarding the issue of contiguous, it looks like the northwest corner touches Palm Bay; with Mr. Feldman responding it does. Commissioner Pritchard stated his definition of contiguous is if it touches, it is contiguous; with Mr. Feldman responding that is his definition also. Chair Higgs stated it may not meet the compact requirement, which is the two-pronged test. Commissioner Pritchard stated the annexation part is compact, but the contiguous part is another point to discuss. Chair Higgs stated if that one is not annexed, there is only one point at which A5 touches Palm Bay; and whether it meets compactness and contiguous would be a question of some debate. Mr. Feldman stated the bigger question is whether the time has expired to challenge that issue. Mr. Knox stated he does not think it is contiguous, so the issue is whether or not the time has expired. He stated the definition of contiguity does not include contiguity at a point; and it has to be a substantial portion of the border and not just one point.

Commissioner Colon stated she has been on both sides of the issue when she was on the City Council of Palm Bay; and inquired if the County has been successful when it has challenged it before Department of Community Affairs and is there one that stands out in the last five years. Mr. Knox stated he thinks the Board has only challenged one issue at the Department of Community Affairs level and has never challenged annexations since he has been on board, which is in the last ten years. Commissioner Colon stated she thought the City challenged an annexation when she was on the City Council. Chair Higgs stated the Board challenged a Comprehensive Plan not the annexation and went to a 120 hearing as opposed to challenging an annexation.

Mr. Knox inquired if his direction right now is to challenge the Titusville as well as Rockledge Comprehensive Plan amendments if they go forward; with Commissioner Scarborough responding the way the Board proceeds without taking a posture pro or con is sending comments on to Department of Community Affairs; Department of Community Affairs was very receptive to the manner in which the County proceeded; therefore, it becomes a conduit of information as opposed to a challenge. Mr. Knox stated the way it is structured, the first step in the process is to go to Department of Community Affairs and give it the Board’s comments, and it will respond back; and in that case it was favorable toward the County. Commissioner Scarborough stated Department of Community Affairs is the one that is going to challenge it. Mr. Knox stated the question is whether Titusville does something or not, and the same with Rockledge. Commissioner Colon inquired if there was a challenge of Cocoa’s annexation; with Chair Higgs responding the Board questioned it but did not go forward with a challenge. Commissioner Colon stated that is what she said about consistencies; and inquired of Mr. Feldman if there is anything the Board has not been asking about as far as clarification because it looks like it is back on Palm Bay. She inquired if the Board wants to do it or just continue allowing the recommendations of staff without taking a stand. She stated Mr. Feldman heard the discussions in regards to the Cities of Titusville and Rockledge; and inquired if there is anything he would like to add to this discussion.

Mr. Feldman stated the Board has to bifurcate the issue into Comprehensive Plan amendment comments, which it would make to Department of Community Affairs; its staff has furnished those comments to Department of Community Affairs already; he is not sure they would change; but that would be up to the staff to make that decision. He stated the second issue is the annexations, the one that the City has annexed and the four pending annexations; and his only request would be that if the Board does wish to consider it or reconsider its actions, that the City receive ample notice so that it can be at the meeting and not find out about hearings the Board might have by reading the Agenda. He requested if the Board decides to take any action with regard to any annexations or pending annexations, that it do so in accordance with Florida Statutes Chapter 164, which is the governmental conflict resolution Statute.

Commissioner Colon inquired what is the best approach at this point, what is it that the Board should do with the other cities, and should it just acknowledge receipt. She stated the recommendations of staff were still the same in regards to their concerns; and inquired if the Board still has a say as far as the concerns it has, would it be best to follow the same format that it followed in the past. She noted she did not realize the Board was doing something unique when it took the last vote.

Mr. Feldman stated the County’s comments have been submitted to Department of Community Affairs; the City will have to respond to those when Department of Community Affairs resubmits them back to the City; the clock has not started running yet on the comment period because they have asked for clarification on the maps dealing with surrounding land uses; but once the clock does run, Department of Community Affairs already has the County’s comments. He stated the City tried to work with the County staff by giving staff the items in advance; normally they would receive them from Department of Community Affairs; but the City furnished them to the County in anticipation of it making comments so it did not have to receive them in the mail from Department of Community Affairs; and the process is going to move forward on that. Commissioner Colon inquired what happens now, where does the County stand, and can the Board do the same process it has done in the past, which is just acknowledgment and sending the same recommendations. She stated Commissioner Scarborough said the Board followed the same format with other cities; and she was not aware it was doing something unique that day. Chair Higgs stated Commissioner Colon’s motion was to approve them and not to accept and acknowledge. Commissioner Colon stated she did not realize the Board was doing something so unique and that it did not follow the same procedure in regards to some of the concerns it shared in the past with annexations by other municipalities; and inquired if it is too late at this point to do the same thing.

Chair Higgs stated she thinks the Board can do the same thing, but it got a totally different picture today, as A5 is a potential annexation, and it is not contiguous, nor is it compact; and the Board does not have a recommendation on a land use plan. She recommended the Board ask the County Attorney to research the status of A5 and if the Board can challenge it. She stated Mr. Feldman requested the Board go through Chapter 164; and she does not know what the Board needs to do, but if there is an open window, A5 does not meet what she believes to be the definition of compact and contiguous.

Chair Higgs passed the gavel to Vice Chairman Pritchard.

Motion by Commissioner Higgs, to direct the County Attorney to research the status of the annexation of Capanos’ property; and whether or not the County could challenge that based on the dates if those dates still allow the Board the window of opportunity; and if the only thing it can do is file a challenge in court, that it would do that because it does not have any other means by which it can challenge the annexation.

Commissioner Colon inquired if that is premature or is it just to have Mr. Knox do the research. She stated if the Board is going to do it, it needs to make sure it is doing it correctly; and also that it determine today as a Board that it is acknowledging it and that it has those concerns that were shared before, which the City is fully aware of. She stated in addition to the concerns that Commissioner Higgs has raised, the Board has concerns.

Commissioner Scarborough stated if that is a motion, he will second it.

Commissioner Colon inquired if everybody understood her. Commissioner Scarborough stated Commissioner Colon has incorporated Commissioner Higgs’ thoughts with the concept of rather than using “approve” to use “acknowledge receipt” and ask Mr. Knox to proceed, so that incorporates everybody’s thoughts at this moment. He inquired if that is her motion; with Commissioner Colon responding yes.

Mr. Feldman inquired if the Board votes today, is it not to authorize the County Attorney to go to court; with Commissioner Colon responding no. Mr. Knox stated he has to report back to the Board. Commissioner Colon stated the Board is just acknowledging the annexation. Chair Higgs advised if the timeframe is such that the Board has to act before it meets again, she would want to allow staff to do that. Mr. Knox stated he does not read that in the motion, so the Board has to say that. Commissioner Colon inquired if the Board has a month or 30 days to respond; and inquired when does it meet again; with Chair Higgs responding Thursday night. Commissioner Colon stated it is not going to give Mr. Knox enough time to research it. Commissioner Pritchard stated the Board meets Tuesday evening. Mr. Feldman requested to put the dates in context for the Board. He stated if the County Attorney says the clock has not started running yet until the City has a second reading on the ordinance with the amended legal description clarifying the scrivener’s error, that will not occur in the City until April 22, 2004; so the Board has 30 days from that point. He stated if the County Attorney says the scrivener’s errors are errors and do not change the substance of the action, then the time has run. Chair Higgs stated the City’s scrivener’s errors may not be Mr. Knox’s scrivener’s errors. Mr. Feldman stated that is for Mr. Knox to opine to the Board after he gives it some thought. He stated his concern is if the Board takes action, there is a State Statue, Chapter 164, that deals with annexation disputes; it is #1 on the list of items of governmental conflict resolutions; and there is a defined process that the Board should follow and that the City has to follow in response to that. He stated it is incumbent upon the parties to go through that process before it authorizes the County Attorney to go to court on something that may or may not be challengeable at this point. Chair Higgs inquired what is Mr. Knox’s opinion; with Mr. Knox responding his recollection of the Statute is that the Board has to go through that process, but it can file the suit first because it has a 30-day time limit; and the filing of the suit is one way to trigger the process. Commissioner Pritchard inquired if Mr. Knox can review the scrivener’s issue by Thursday or next Tuesday; with Commissioner Colon responding Tuesday evening would be best. Mr. Knox stated he can try by Thursday and if not, he will let the Commissioners know. Mr. Feldman requested, out of courtesy for the City, which has its Council meetings on Thursday nights, if the Board is going to take action, they would like the opportunity to be present to discuss the County Attorney’s findings. Commissioner Pritchard recommended Tuesday night. Commissioner Colon requested the Board go with the acknowledgment portion to follow the same process it has in the past; and suggested taking one item at a time.

Motion by Commissioner Colon, to acknowledge annexation by the City of Palm Bay.

Vice Chair Pritchard advised currently there is a motion on the floor made by Commissioner Higgs. Commissioner Colon stated Chair Higgs cannot make a motion; with Vice Chair Pritchard responding she passed the gavel before making the motion. Commissioner Carlson requested the motion be restated so it is clear.

Commissioner Higgs advised to try and incorporate what has been said and what she intended, the motion would be to acknowledge the annexation, direct staff to comment to Department of Community Affairs, and direct the County Attorney to research the issue of annexation A5 and advise the Board on the status of that and what action it may take.

Commissioner Scarborough seconded the motion as clarified.

Commissioner Colon stated that will be it for now and on Tuesday the Board will see what action it has to take. Commissioner Higgs inquired if Mr. Knox thinks there is such a timeframe crunch that the Board needs to give him some other direction since the City adopted the Ordinance on March 4 and today is April 13. Mr. Knox advised if the Ordinance has been passed already and it is just a scrivener’s error and there is no issue with it, then the Board would probably be beyond the 30 days, which means there is not much it can do about it; so it is not really a crunch from that standpoint. He inquired if the City Council adopted the Ordinance on March 4; with Mr. Feldman responding yes. Mr. Feldman advised the second reading on the revised ordinance will be April 22, 2004, so the City has not taken that action yet; and if Mr. Knox’s opinion is that a scrivener’s error does constitute a new ordinance, the City still has to take action before the County can file a lawsuit. Mr. Knox inquired if March 4 was the final reading of the original ordinance; with Mr. Feldman responding yes.

Commissioner Colon seconded the motion.

Vice Chairman Pritchard stated Commissioner Scarborough seconded the motion that Commissioner Higgs reiterated, so there is a motion and a second; and called for a vote on the motion. Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to include in the package to the Department of Community Affairs the comments of the citizens that have been made at this meeting. Motion carried and ordered unanimously.

Vice Chairman Pritchard returned the gavel to Chair Higgs.

Commissioner Colon inquired if Mr. Feldman is clear on the Board’s action; with Mr. Feldman responding the City Attorney will call the County Attorney and construct a dialogue on that section.

Chair Higgs advised, to let the citizens know the Board’s actions, their comments and the Board’s comments will go forward to Department of Community Affairs without a recommendation; and the Board will get a report from the County Attorney regarding its position to challenge the annexation or what the status is on that. Mr. Feldman requested the report from the County Attorney be scheduled as a time certain if possible. Chair Higgs stated she will work it in on Tuesday night.

Mr. Goatley stated if the comments go forward from the people, he would like to insure his comments are included so there is no question. Chair Higgs advised all citizens’ comments will be included. Mr. Goatley stated the isolation between A1 and A5 is significant to them.

Commissioner Pritchard requested Mr. Knox define the working definition of contiguous; with Mr. Knox responding he will send it to Commissioner Pritchard. Chair Higgs requested the definition of compact also be included; with Mr. Knox responding he will send the entire Statute on those items. Commissioner Pritchard stated he would prefer to have something concise. Mr. Knox stated there are two definitions that are expressly set forth in the Statute, so he will send the Commissioners copies of both of those.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE AMENDING
CHAPTER 8, ARTICLE III, DIVISION 2, SECTION 78-115, FIREARMS, FIREWORKS,
TO INCLUDE OCEAN BEACHES AS DESIGNATED AREAS FOR PROHIBITION OF
USE OF FIREWORKS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant permission to advertise a public hearing to consider an ordinance amending Chapter 8, Article III, Division 2, Section 78-115, Firearms, Fireworks, to include ocean beaches as designated areas for prohibition of the use of fireworks. Motion carried and ordered unanimously.

DISCUSSION, RE: SUPPORT FOR SENATE BILL 2986 RELATING TO FIREWORKS

Commissioner Pritchard stated there is a question whether Senate Bill 2986 will move forward or not; however, it will fall in line with the Board’s improvements regarding the use of fireworks; and requested a letter of support from the Board.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize the Chair to execute a letter of support of Senate Bill 2986 proposed by Senator Al Lawson, amending Chapter 791.002, Florida Statutes, relating to fireworks; and to send copies of the letter to Senator Lawson, the Brevard Legislative Delegation, and lobbyist Guy Spearman. Motion carried and ordered unanimously.

LETTER OF SUPPORT, RE: INTERACTIVE ATLAS OF THE ST. JOHNS RIVER GRANT
APPLICATION

Commissioner Carlson advised, as the Board’s appointee to the St. Johns River Alliance, she received a request to provide support in the form of a letter, which she attached to the Agenda Report, supporting the University of South Florida doing an interactive water atlas for the entire St. Johns River. She stated it is unprecedented; the only other two communities in the State that have the water atlas are Seminole and Lake Counties; and the only requested assistance from County staff would be for public records, data points, and things they may need to construct the atlas. Commissioner Carlson stated she received a question from Steve in her briefing; he wanted to know what the Technical Opportunities Program was, which she distributed copies of; and it is a competitive merit-based grant program that brings the benefits of digital network technologies to communities throughout the United States. She stated they are award matching grants to public and nonprofit organizations to demonstrate practical applications of information technologies, etc.; and this would be an application of one of those things. She stated this is just to try and get the grant dollars to the University and they are willing to do all the work; so she would like to get support from the Board to go forward with that and get the signatures.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to authorize the Chair to execute a letter of support for the grant application by the University of South Florida to develop an interactive water atlas for the St. Johns River, and authorize staff to provide in-kind services to support and maintain the project.

Commissioner Pritchard stated it is a worthy project and he has no problem with it; however, his question is authorizing staff to provide in-kind services to support and maintain the project, and he wonders if staff has the time to do that. Commissioner Carlson stated right now it is a two to four-year project; it is going to take a long time to do it; and any in-kind services would just be the time it takes for staff to collect any data that the University would need to put into the Atlas. She stated she does not foresee having to do a lot of monitoring because the St. Johns River Water Management District will be a major player in this and will be doing a lot of the monitoring; but the County would have to maintain to some point the database. She stated it is a big website; data points might change over time, for instance TMDL’s and all that information; those have not been identified for the County’s portion of the St. Johns River where they have been on other portions of the River; so that kind of thing will be needed. She stated it is all scientific data that can easily be provided; and she does not think there is an issue of any true support that is going to cost the County a lot of money. Commissioner Pritchard stated he was not looking at the money, but was looking at making sure staff has the time to do it so the Board does not hear they are overburdened and something else becomes a problem because of the added work the Board has given them. Commissioner Carlson stated she would like to make a point that if staff does ever come up with problems like that, that they let her know so the Board can deal with the time, but she does not foresee that.

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

PERMISSION TO CONDUCT FORUM ON SCGTV, RE: BREVARD TOMORROW
LAND AND GROWTH WORKING GROUP

Commissioner Carlson advised at one of the workshops, she requested giving Brevard Tomorrow some time on SCGTV; they are currently going out to do several public forums for the Land Use and Growth Working Group; and if the Commissioners read the item, they would know the context of it. She stated they would like to put it out there so the public would be aware of the forum and any issues that may come up; they have created a list of smart growth principles they are now going to get out to the public to find out what other input they can get; and they would like to have at least the first session put on television.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission for Brevard Tomorrow Land Use and Growth Working Group to conduct a forum televised live on SCGTV to achieve consensus on smart growth among developers, environmentalists, builders, planners, conservationists, and other concerned citizens. Motion carried and ordered unanimously.

Commissioner Pritchard stated he would like to bring up a point on community identity, and that is to minimize visual blight through appropriate location and camouflage of telecommunication towers. He stated he and Commissioner Colon drove through Longwood and there was what he thought was a pine tree, but it was a telecommunications tower; he took a picture of it; and when Ms. Polk was speaking earlier, he thought about having a camouflage telecommunications tower.

Commissioner Carlson stated with towers they also attempt to put them on steeples and things of that nature just to camouflage them and make them look like trees; and the Board talked about that a few years ago.

AUTHORIZE SELECTION COMMITTEE TO ACT AS NEGOTIATING COMMITTEE,
RE: CONSULTANT FOR CRIMINAL JUSTICE SYSTEM REVIEW

Chair Higgs advised the Selection Committee has been interviewing firms on the criminal justice system review; however, there was no authorization for the Committee to go beyond that. She stated the Committee selected Carter Goble as its #1 choice and wants to negotiate a contract and return with that contract to the Board, but it was not given that authorization.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to authorize the Selection Committee to act as the Negotiating Committee and negotiate a contract with Carter Goble Associates, Inc. to perform a study of the Criminal Justice System as it relates to the jail population; and return to the Board with a recommendation and the scope of service; and to negotiate with the remaining firms in order of their rankings should negotiations fail to provide a final contract with the best-ranked firm. Motion carried and ordered unanimously.

RESOLUTION, RE: ADOPTING FINDINGS OF FACT FOR SAWGRASS SOUTH AT
SUNTREE, PHASE 2

County Attorney Scott Knox advised the findings of fact and proposed order for Sawgrass South at Suntree, Phase 2 has been pending for about six months; the Board took final action today, and his office revised the order to reflect that action, which was to approve the area south of Brisbane and deny the area north of Brisbane; and with that change, he would like to have the Board adopt the resolution so that final action is formalized.

Commissioner Carlson inquired if that is something the Board can do at this point in terms of being publicized properly; with Mr. Knox responding the resolution has been in the agenda packets repeatedly throughout the whole process; his office just modified it to include the Board’s action; and it is not something that requires a public hearing.

Chair Higgs inquired if it can be done Thursday night so they will have it in hand and can see how it reads; with Mr. Knox responding if that is what the Board wants to do. Commissioner Carlson stated she would feel more comfortable doing that.

PERMISSION TO SEEK INJUNCTION AND APPOINT A RECEIVER, RE: ENFORCEMENT
OF MAINTENANCE OF COMMON AREAS IN OCEAN OAKS SUBDIVISION

Permitting and Enforcement Director Ed Washburn advised the item deals with maintenance of common areas, primarily retention ponds in subdivisions where the homeowners association has been dissolved. He stated staff received a substantial amount of complaints from abutting residents about the common areas in Ocean Oaks Subdivision; and he attached pictures to the Agenda Report so the Board can see how bad it is. He stated there is a lot of overgrowth; he tried in 2002 to get the residents to reenact their homeowners association; but they did not move forward in doing that. He noted about 50% of the people wanted to do something about it; and he worked with the County Attorney’s office to find a solution; but this is the only way they can bring them to the table.

Commissioner Colon stated the reason she pulled the item off the Consent Agenda is because it should be done on a case-by-case basis and not across-the-board, and should not be under Consent. She stated it should come to the Board to decide whether that is a procedure it would like to follow or to change the policy.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to authorize staff to seek an injunction against the Ocean Oaks Homeowners Association for property in Section 25, Township 23S, Range 37E. and petition the Circuit Court to appoint a receiver for the Association, which has been administratively dissolved by the State and is not providing maintenance of common areas, including a retention pond and overgrowth of common area tracts. Motion carried and ordered unanimously.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 5:35 p.m.

ATTEST: _________________________________
NANCY HIGGS, CHAIR
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

_____________________
SCOTT ELLIS, CLERK

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