January 8, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on January 8, 2002, at 9:05 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Susan Carlson, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Reverend Harvey Riley of Mt. Moriah Baptist Church, Palm Bay, Florida.

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

APPROVAL OF MINUTES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the Minutes of October 18, and 31, 2001 Special Meetings. Motion carried and ordered unanimously.

REPORT, RE: BREVARD SYMPHONY ORCHESTRA

Commissioner Carlson advised the Brevard Symphony Orchestra (BSO) has a display in the foyer; it is Brevard's premier professional orchestra; and it provides six classical performances within a subscription concert series, a free concert on July 4th, two free family concerts annually, and a free concert at the King Center for 5th graders. She stated the conductor offers subscription series and pre-concert informational talks, and visits many music departments at the schools during the season; and anyone who wants further information about the BSO can stop at the booth in the foyer.

REPORT, RE: STERLING PROCESS OPEN HOUSE IN JACKSONVILLE

Commissioner Carlson advised Jacksonville will host another open house to study the Sterling process; the City of Jacksonville won the Sterling award for organizational quality and is offering another open house on January 30, 2002 for those who did not have the opportunity to go the last time, including city management, city officials, county officials, etc. She noted the last trip was very successful and a lot of people came back with good information.

REPORT, RE: SEPTEMBER 11, 2001 TRAGEDY REMEMBRANCE

Commissioner Colon stated she went to New Jersey for the holidays, and saw the difference in the landscape of New York with the twin towers gone; and even though September 11 has passed about five months ago, there are people who are still hurting. She stated some people in Brevard County are scared, such as those at Patrick Air Force Base, because their loved ones are protecting our country; no one should take that for granted even though everyone is trying to get back to normal; and everyone needs to keep those families in their prayers. She stated businesses are going to see SR A1A open this week; and it is important to patronize those restaurants and businesses that have been suffering for months because of the closure. Commissioner Colon stated everyone needs to be optimistic and positive in 2002; after seeing what she saw when she went home for the holidays, one cannot come back the same; and she wanted to give that message to the community.

REPORT, RE: OPENING OF SR A1A

Commissioner O'Brien advised tomorrow at 6:00 a.m. two lanes of SR A1A will be opened next to Patrick Air Force Base; SUV's and vans will be allowed, but will be inspected by the Air Force; and the speed limit will be 35 mph and strictly enforced. He stated no large trucks, campers, Ryder or U-haul trucks will be allowed; and there are many rules that will apply for traffic to traverse A1A between Satellite Beach and Cocoa Beach. He stated a person driving a car would probably not be stopped, but those driving SUV's, vans, etc. may be stopped for inspection. Commissioner O'Brien stated he is concerned about the future of those businesses that were devastated by the closure, and hopes they can revive themselves.

REPORT, RE: TOUR OF CARNIVAL PRIDE SHIP

Commissioner O'Brien advised he and his staff were invited to witness the arrival of Carnival Pride, a new cruise ship at Port Canaveral; and he has seen some nice cruise ships, but the Pride is gorgeous. He stated the layout is wonderful, and it is easy to get around compared to other ships he has been on; they have balcony rooms five stories high for the whole length of the ship; and it is sold out for the first six months, through June, 2002.

REPORT, RE: AGENDA ITEMS

County Manager Tom Jenkins requested Item III.C.5., Approval of Nominee for Chairman of Brevard County Historical Commission, be moved to Section VII for discussion as requested by Commissioner Higgs, and Item VI.A.1., Final Engineering Approval and Infrastructure Contract with Vistar Realty for Stuart Avenue Extension, be withdrawn for additional work.

Chairman Scarborough advised he has a card from Ed Fleis for Item VI.A.1. Mr. Jenkins recommended Mr. Fleis meet with Assistant County Manager Peggy Busacca.

REPORT, RE: LETTER OF INTENT FOR PORT ST. JOHN INCORPORATION

Chairman Scarborough advised the Board previously authorized a letter of intent regarding the incorporation of Port St. John; Representative Ball's office received some documents, but one of the items that was missing was the letter of intent; and it has to be in by January 10, 2002.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to direct staff to prepare a letter of intent for the Chairman's signature prior to the end of the meeting. Motion carried and ordered unanimously.

REPORT, RE: BLUE WAVE CAMPAIGN

Chairman Scarborough advised he put an item on the Agenda regarding the Blue Wave Campaign; however, after talking to Larry Weber and finding out it is proceeding nicely, there is no action required at this time.

REPORT, RE: RAILS TO TRAILS PROJECT

Chairman Scarborough advised staff put in a request for Rails to Trails funding, which looked promising, but it is one item outside of the State's appropriations that did not meet funding. He stated on January 17 and 18, 2002, there will be discussions on the projects; and requested permission to contact the Legislative Delegation and Guy Spearman for assistance, because it is possible to get back in if there are advocates for the project.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to authorize the Chairman to contact the Legislative Delegation and request assistance from Guy Spearman to advocate for the Rails to Trails project funding.

Commissioner O'Brien inquired where are rail beds that are not being used; with Chairman Scarborough responding the line is called "Mims to Maytown," which runs on the west side of I-95; and nationally it was rated #1 or #2 as one of the most desirable sites to develop, but the State grants process somehow was lobbied more effectively by others, so the Brevard Delegation needs to lobby for the project. Commissioner O'Brien inquired who owns the land; with Chairman Scarborough responding the Florida East Coast (FEC) Railway Company, which is willing to work with the County. Commissioner O'Brien inquired if FEC is giving the land to the County; with Chairman Scarborough responding no, that is why staff is trying to get money from the State. Commissioner O'Brien inquired if the County has to buy it; with Chairman Scarborough responding the State has a grant that the County is trying to get to acquire the property. Commissioner O'Brien inquired if Maytown is in Volusia County; with Chairman Scarborough responding the trail will run 15 miles at the north end of Brevard County, through Volusia County, and ultimately into Seminole County and even Lake County; the concept of the trail is why it reached the level of popularity with people who support rails to trails nationally; unfortunately, within the State's pecking order, the trail has not received that recognition. Commissioner O'Brien inquired if there are still rails on the ground; with Chairman Scarborough responding in many places, but they are not used; and there are pictures of the beautiful areas along the trail, which he will ask Barbara Meyers to share with Commissioner O'Brien.

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

REPORT, RE: CONSENT AGENDA ITEMS

Chairman Scarborough advised he has cards from people who wish to speak on Items III.A.2., BCC Policy on Fee Waiver, and III.A.4, Ordinance 42-2001 from City of Titusville Annexing Property South of Space Coast Executive Airport; and Items III.C.5, Nomination of Chairman of Historical Commission, and III.F.1., Letter and Resolution from City of Melbourne Supporting Melbourne International Airport, will be discussed at the end of the meeting.

UNPAVED ROAD AGREEMENT WITH ALEXANDER RIVERA, RE: AMANDA'S AVENUE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with Alexander Rivera for a building permit off an existing right-of-way, which has been constructed to the standards of the Unpaved Road Ordinance, Section 62-102. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ANNEXATION BY CITY OF MELBOURNE, RE:
PROPERTY AT PARKWAY DRIVE AND WICKHAM ROAD

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to acknowledge receipt of Annexation #AR-2001-134 by the City of Melbourne of approximately 2.4 acres at Parkway Drive and Wickham Road, which was found to be consistent with Chapter 171, Florida Statutes. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ANNEXATION BY TOWN OF INDIALANTIC, RE:
PROPERTY AT WATSON DRIVE AND SR A1A

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to acknowledge receipt of Annexation #02-03 by the Town of Indialantic of approximately 1.8 acres at the northeast corner of Watson Drive and SR A1A at the Town's northern boundary, which was found to be consistent with Chapter 171, Florida Statutes. Motion carried and ordered unanimously.

APPROVAL, RE: INCREASE OF PURCHASE ORDER TO SOUTH PATRICK RESIDENTS
ASSOCIATION

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve increasing Purchase Order No. 4500013759 to South Patrick Residents Association for roadside maintenance of County rights-of-way. Motion carried and ordered unanimously.

INTERAGENCY AGREEMENT WITH LEADERSHIP ROUNDTABLE MEMBERS, RE:
COUNTYWIDE INTERAGENCY INFORMATION SHARING SYSTEM

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize the County Manager to execute Interagency Agreement with members of the Leadership Roundtable in order to implement the first stages of a Countywide interagency information sharing system. Motion carried and ordered unanimously.

AGREEMENT WITH U.S. SPACE WALK OF FAME FOUNDATION, INC., RE: FUNDING
FOR IMPROVEMENTS TO U.S. SPACE WALK OF FAME AT SPACE VIEW PARK

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with U.S. Space Walk of Fame Foundation, Inc. providing $110,000 from the North Brevard Recreation Special District to be used for improvements to U.S. Space Walk of Fame at Space View Park. Motion carried and ordered unanimously.

AGREEMENT WITH SPACE COAST UNITED SOCCER CLUB, RE: RESTROOM AND
CONCESSION FACILITY AT WICKHAM PARK

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Agreement with Space Coast United Soccer Club for restroom and concession facility at Wickham Park; authorize the Parks and Recreation Director or his designee to sign renewal agreements; and authorize the Department to include in the agreement any future Board-approved contract clauses. Motion carried and ordered unanimously.

SIXTH RENEWAL TO COOPERATIVE AGREEMENT WITH ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT, RE: CONTROLLING ABANDONED ARTESIAN WELLS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Sixth Renewal to Cooperative Agreement with St. Johns River Water Management District to allow a licensed water-well contractor to control abandoned artesian wells, with each party contributing $35,000. Motion carried and ordered unanimously.

TASK ORDER NO. 00-06 WITH S2L, INC., RE: REPAIR OF LANDFILL GAS
COLLECTION SYSTEM AT CENTRAL DISPOSAL FACILITY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Task Order No. 00-06 with S2L, Inc. for repair of landfill gas collection system at the Central Disposal Facility, including designing a new header system and well modifications that will make the gas collection system function consistently in accordance with requirements of the County's Air Quality Permits, and perform at its maximum efficiency. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 WITH CANAVERAL CONSTRUCTION COMPANY, INC., RE:
REPLACEMENT OF LIFT STATION B-3 FORCE MAIN

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Change Order No. 1 to Agreement with Canaveral Construction Company, Inc. to replace the Lift Station B-3 Force Main, increasing price by $32,560 to replace the final section of a failed gravity main. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ADMINISTRATIVE REZONING OF
INDUSTRIAL PROPERTY AT 3330 N. COURTENAY PARKWAY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider administrative rezoning of industrial property at 3330 N. Courtenay Parkway, Merritt Island, to allow the owner to defer cost of sewer connection until a sewer line becomes available within 50 feet of the property. Motion carried and ordered unanimously.

INVESTMENT ADVISORY AGREEMENT WITH PFM ASSET MANAGEMENT LLC,
RE: INVESTMENT ADVISORY SERVICES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Investment Advisory Agreement with PFM Asset Management LLC for investment advisory services for a three-year term with fee rates to remain at the current percentage throughout the term of the Agreement; and approve budget amendment recognizing additional investment interest earnings. Motion carried and ordered unanimously.

PERMISSION TO ESTABLISH JOB ORDER CONTRACTING, RE: SMALL MAINTENANCE
AND REPAIR PROJECTS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to establish a Job Order Contract for small maintenance and repair projects for Brevard County Facilities Department; advertise request for proposals, award all associated contracts, and authorize the Chairman to execute same; establish a Selection Committee consisting of Stockton Whitten, Sam Stanton,
Hugh Muller, and Jack Masson to rank and select the most qualified consultants/contractors to provide the services; and establish a Negotiating Committee consisting of Sam Stanton and Jaime Irizarry to negotiate contracts with selected firms. Motion carried and ordered unanimously.

AUTHORIZE COUNTY MANAGER OR DESIGNEE TO EXECUTE RENEWAL OPTIONS,
RE: CONTINUING CONSULTANT SERVICES FOR FACILITIES CONSTRUCTION

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize the County Manager or his designee to execute renewal options as outlined in Facilities Construction's Continuing Consultant Service Agreements for structural engineering, civil engineering, roofing consulting services, construction management at-risk services, mechanical/electrical/plumbing consultant services, and architectural/engineering consultant services. Motion carried and ordered unanimously.

RESOLUTION, RE: APPOINTING REPRESENTATIVE TO FLORIDA LOCAL GOVERNMENT
FINANCE COMMISSION

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution, amending Resolution No. 91-045, appointing County Manager Tom Jenkins or his designee as a representative to the Florida Local Government Finance Commission. Motion carried and ordered unanimously.

CONFIRMATION OF APPOINTMENT, RE: PERMITTING AND ENFORCEMENT DIRECTOR

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to confirm the appointment of Ed Washburn as the Permitting and Enforcement Department Director. Motion carried and ordered unanimously.

APPOINTMENT OF COUNTY REPRESENTATIVE, RE: MEDIATION OF GEORGE
LUMBERT AND JAMES KAUFMAN v. BREVARD COUNTY, ET AL

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to appoint Assistant County Manager Stephen Peffer or his designee to attend the mediation for the case of George Lumbert and James Kaufman v. Brevard County, et al. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to appoint and/or reappoint Tom McGill and Heie Simonsen to the Marine Advisory Council, with terms expiring December 31, 2002, and Walter Butler to the Community Action Agency Advisory Committee, with term expiring December 31, 2002. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve bills as presented. Motion carried and ordered unanimously.

APPROVAL OF POLICY, RE: FEE WAIVER

Desiree Webber with A New Leash On Life, requested waiver of fees for rezoning for non-profit groups and removal of the criteria that waivers not be granted for BU-2 property.

Planning and Zoning Director Mel Scott advised the proposed policy establishes criteria for the Board to consider when an applicant requests a fee waiver; there are several criteria; and the Board can determine that at least one of them is satisfied when considering waivers. He stated page 2, paragraph e. sets forth criteria that rezoning to BU-2 and industrial classifications not be candidates for fee waivers; staff's philosophy was to identify the types of zoning classifications, which most likely would result in neighborhood controversy; and it has been staff's experience that heavy commercial and industrial zoning classifications are those types. Mr. Scott stated the Board can keep it in the policy, remove it, or establish that it has the latitude to determine one or more of the criteria were met; and if a not-for-profit group satisfies one of the other criteria, which are: (1) not generate over x amount of dollars, (2) performs work determined to be in the public interest, (3) classified as low-income, etc., even if it is a BU-2 request, the Board has the latitude to determine the other criteria that were satisfied outweighs the BU-2 criteria, and can waive the fee if it chooses. He stated paragraph VI, Reservation of Authority, provides that the Board, at its sole discretion, can change the criteria and approve or withdraw waivers for any reason determined by the Board; and the intent is to allow the Board to see all the facts before it makes its determination.

Chairman Scarborough stated to satisfy Ms. Webber's concern, "notwithstanding the foregoing, if other criteria are met, the BU-2 request will not prohibit consideration by the Board," could be added to paragraph e. Mr. Scott stated it is written to give the Board that latitude. Chairman Scarborough stated if that is added to the policy, it would clarify it for Ms. Webber who is concerned that BU-2 would preclude the Board from considering a waiver of the fee.

Commissioner Carlson inquired if that covers what Mr. Knox recommended; with County Attorney Scott Knox responding they will have to work on the language, because if it is added at the end of that section, it would seem to eliminate it as a criteria. Chairman Scarborough stated that is not the same as what Mr. Scott said. Commissioner Carlson stated it could eliminate that criteria; and there could be a question of doubt and an argument that it was waived for another person so why not them.

Commissioner O'Brien recommended the item be tabled and Mr. Scott and Mr. Knox work out the solutions for review by the Board next week.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to table the Fee Waiver Policy, and direct the Planning and Zoning Director and County Attorney to provide language that would clarify the criteria does not prohibit fee waivers for BU-2 zoning classification requests. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ORDINANCE 42-2001 FROM CITY OF TITUSVILLE,
RE: ANNEXATION OF PROPERTY SOUTH OF SPACE COAST EXECUTIVE AIRPORT

Commissioner Higgs stated the item is an approved annexation of 1,700 acres adjacent to Space Coast Regional Airport that are currently in IU, PIP, and PUD categories; and she understands the proposal is for the property to be rezoned for residential once it is approved through land use changes. She stated the Board has 60 days to make comments to Department of Community Affairs on land use changes, but it cannot object to the annexation; and requested staff do a detailed report that would give the Board the opportunity to object to the change of land use if it wants to. She stated her concern is changing about 1,400 acres from Planned Business Park or Planned Industrial Park to residential, which is a significant change; the Board had an area around Valkaria Airport requested to go to residential; and that was denied by Department of Community Affairs with objections from Department of Transportation. She stated her concern is the significant number of acres going from industrial use to residential use, and that Grissom Parkway is not being taken by the City of Titusville and continues to be the responsibility of the County. She stated the County will not receive gas tax nor MSTU funds from that area, so the funds for improving and maintaining Grissom Parkway would be lost to the County. She noted those are significant issues.

Keith Cunningham, Planning Administrator with the City of Titusville, advised the annexation was completed in December, 2001; and the City transmitted the package to Department of Community Affairs and requested it to do a full review, which means they will get an ORC report. He stated not all the acreage is deemed to be residential; the portions west of Grissom Parkway will be residential and conservation; the City's Comprehensive Plan requires that if there are wetlands, they must have a conservation land use; so a significant portion of the site will be given a conservation land use. He stated the portion east of and adjacent to Grissom Parkway is requested to be residential by the petitioner; the remaining portion will be industrial as it is currently; so the residential component is about 1,000 acres. Commissioner Higgs stated Mr. Ward said it was 1,400 acres of the 1,700 acres; with Planner Jim Ward responding he did some calculations, and it is about 1,400 acres west of and adjacent to Grissom Parkway; however, as Mr. Cunningham indicated, about 400 acres are wetlands; and according to the City's regulations, the petitioner would not be able to develop residential uses on those lands.

Chairman Scarborough advised he talked to Titusville City Manager Tom Harmer about this item, and it was his impression that the City does not view how it is being annexed, the zoning being assigned, or how it is actually developed, but there would be additional work coming; and inquired if Mr. Cunningham sees the potential of a DRI for the site. Mr. Cunningham responded if it trips the threshold for a DRI, yes, but the City has not gotten into the land use component other than staff having evaluate what the applicant requested and make a recommendation to the City Council; but whether the petitioner may get the units that would require a DRI. Chairman Scarborough advised there was a split vote of 3 to 2 by the Council for the annexation; with Mr. Cunningham responding that is correct. Chairman Scarborough stated there must have been extensive discussion to result in a 3 to 2 vote; and it may be beneficial to get a copy of the transcript of that meeting to understand the City's reasoning. He inquired if it was the lack of land use designation; with Mr. Cunningham responding no, there was a concern about residential land uses on the east side of Grissom Parkway because of the adjacent Airport uses, and whether there would be a transitional zone.

Commissioner O'Brien stated the Board needs to take a serious look to determine if it wants to participate in rezoning land to residential adjacent to an airport; that has always been incompatible; and that is why the property on the County's land use map says PUD, to stop any residential growth along the perimeter of the airport. He stated Space Coast Executive Airport received millions of dollars to lengthen the runway to accept larger jet planes; and if somebody wants to develop residential in that area, there will be future heartaches for a lot of people, including the Airport Administration. He stated the public has paid taxes to the Airport for over 30 years, so they have an investment in that Airport; now someone wants to put houses there, which may have a detrimental effect on the Airport; so he is concerned about what could happen. Commissioner O'Brien stated the City has not volunteered to accept maintenance of Grissom Parkway; and unless the cities start taking responsibility for maintenance of roads now and in the future, 30 to 40 years from now, as all the cities expand and annex, the County's land will shrink and its tax base along with it, and eventually it would not be able to afford to do road maintenance but will be stuck with it. He stated the Board discussed a Charter amendment or something that would say any entity that annexes beyond 51% will automatically assume responsibility for the roads; and inquired about the status on that issue. He inquired if the Board wants to support the City, or look at it from its investment in the Airport and make a statement to Department of Community Affairs that it does not like it.

Mr. Cunningham advised the debate really is about the transition and distance between the Airport-related uses and residential uses; and that was part of the discussion that took place at the City Council meeting. He stated Grissom Parkway not only serves the City, it serves residents outside the City; it is a north/south connector road and not only the City's road; and the City would be willing to discuss it with the County.

Commissioner O'Brien stated distance from the airport may be ten feet or ten miles; Valkaria is a great example; people who live out in the woods a mile away from Valkaria Airport have been before the Board complaining about touch-and-go landings, noise, and other things; and it would be wrong to go forward and join the City to allow residential in the area, because it would be unfair to people who may buy houses there. He stated eventually they will come forward and complain, especially when the Airport has jets landing there, or Boeing decides to test its aircraft there. He stated there are many things that may be done at the Airport, including landing of 707 aircraft; and inquired who wants to live under the flight path of a four-engine plane.

Mr. Cunningham advised the Airport representatives are here and could address those concerns; the City Council did have those discussions at the meeting; and the Council asked staff to meet with the Airport people and property owner and come up with a solution of what is a transitional area. He stated the Airport representatives wanted additional language in the deed for any person purchasing a site for residential use, such as a waiver of claims or notice of disclosure that there is an airport and aviation easements nearby; and Mr. Edwards may address that later, but those were some of the discussions at the City Council meeting. Chairman Scarborough advised Mr. Cunningham that County staff will contact him to get a better understanding of the issues.

David Edwards, Executive Director for Space Coast Regional Airport, advised he has been on board five months and looks forward to working with the Board as his tenure continues; and stated his issues do not relate to the annexation, but to the land use changes. He stated the Airport Authority is concerned about the development of residential property directly adjacent to the Airport; they are trying to expand the Airport and airfield capacity to further develop the Airport and hopefully make it self-sustaining; and that means drawing aviation-related businesses to the Airport, which would increase flight operations. He stated it is not only fixed-wing operations; there is a major helicopter flight training school on the Airport, so there are air space issues around the Airport that they are concerned about; and they need to protect those corridors, not only from height restrictions, but also from noise-related issues. He stated airports that are rural in nature and all of a sudden urban sprawl encroaches around them will have major noise issues; and they will be put in a position of having to expend tax dollars to soundproof houses or deal with inverse condemnation where the Airport Authority has to buy the property at the fair market value. Mr. Edwards stated here is an opportunity to deal with the issue up front; it is not a situation that already exists, but something the property owner is seeking; and the Airport Authority is seeking a land use plan that is compatible with the Airport and future development of the Airport. He stated they will work with the City and property owner on potential solutions; and there may be some Florida Statute-related issues as to land use zoning and noise-related zoning that Department of Transportation may take a position on.

Attorney Leonard Spielvogel, representing the property owner, Flagler Development, stated he wants to make sure he does not say anything that will interfere with the negotiations they are having with the Airport Authority under the auspices of the City of Titusville; they are sensitive to and familiar with Valkaria Airport's situation; his office is not far from Merritt Island Airport and he remembers objections made by residents in close proximity to the Airport; and his client introduced a buffer so that development would not be contiguous to the Airport. He stated what is a sufficient buffer is always an issue; and that is why they are having continued discussions. He stated there is a noise factor and concern about noise; one thing that is a problem is the helicopters that take off from the Airport and whether they are causing more noise than is generated by airplanes; and they are going to chat with the Airport Authority about whether the helicopters can take off in a different direction rather than over their property or Port St. John. Mr. Spielvogel advised for the last two and a half years, they have been negotiating with the Airport Authority to sell the property and postponed any effort to come in for annexation or change of zoning during that time even to the extent of offering 75% financing; and no deal has been able to be made and no conclusions reached, so it is not as though they have not made an effort. He stated the Airport Authority could not find the financing even to cover 25%. He stated there is a super abundance of industrially-zoned land in Brevard County, more than the last evaluation under the Growth Management Act said is needed through 2020; his client has property that he would like to utilize; and the highest and best use for those lands is residential, at least on the west side of the Airport. He stated the lands east of the Airport, which are zoned industrial, are intended to remain industrial; and what they are trying to do is come up with a sufficient buffer on the west side of the Airport that would give assurances to the Airport Authority that they are not going to be looking at lawsuits. Mr. Spielvogel stated in their request for annexation and land use change, they enclosed an attachment for a recorded document that would place all property owners on notice that if they did not have the ability to look at the property they are buying, it is in close proximity to the Airport, and they could anticipate noise coming from the Airport; and that would be recorded so everyone will be on specific notice. He stated the Airport is asking for additional documentation; and it would like to encompass a large part, if not all, of Port St. John with notice because it is concerned there is going to be noise all over the place. He stated the Department of Community Affairs will look at their request as it did the Valkaria request; and the only difference in Valkaria is the residential zoning was in the flight path, and his client's property is not. He stated there were some statements in the comments from Department of Transportation about where the planes were going to be flying over; and he can assure the Board they will do their best to work with the Airport Authority, City, and the County if necessary.

Commissioner O'Brien stated although Mr. Spielvogel's client offered the land for sale, it is taxpayers' money that pays for the Airport; and the only way to buy the land would be to increase that tax for 20 years. He stated one of the reasons they have not been able to buy the property is because the pilots and owners have had a revolt on raising rents on the hangars and commercial property; the Airport had to pay $186,000 to the City of Titusville for drainage problems that occurred about ten yeas ago; they do not have the money to purchase the property at this time even if it is financed at 75%. He stated they had to pay the City of Titusville for a water line or something that happened five years ago; and they have been deep in debt for a long time and struggling to get out of it; their budget has been extremely strained; and maybe in ten years they would have enough money to buy it and commercialize it to have more renters. He noted commercial entities around airports are not working as well as around Port Canaveral; and his concerns are the dollars that came from the public and the extended runway intentions that are on the books. He stated they are trying to make the Airport available for larger planes; and if it is a residential area, people who buy a house there may not read the fine print that says there is an airport half a mile from the property; and described a scenario of planes that could be using the Airport in the future. He stated his deep concern is for the people who would buy the property and build a home there.

Commissioner Higgs stated the Board does not need to get into a full debate of all the issues today; and it would probably be better to get a report and some guidance from Chairman Scarborough on what he wants, since it is in his District. Commissioner O'Brien stated the attorney should have the opportunity to rebut any comments he made.

Mr. Spielvogel advised it is not a rebuttal because he does not disagree with Commissioner O'Brien, but the fact is where do they draw the line. He stated his client, as the property owner, has certain rights also, not unlimited, but certain rights to utilize his property; and inquired if the Board is going to set the property aside for an indefinite period of time until the Airport Authority can afford to buy it, or is it simply going to sit vacant forever in order to form a buffer against the possibility that noise may occur. He stated the Board needs to look at it from both sides; the question is how much buffer does his client have to allow; and inquired if all the property his client has needs to be maintained in an unusable state. He stated Commissioner O'Brien talked about the different kinds of planes that may be coming in; the other side of the argument is with advancing technology, maybe planes will become less noisy; and inquired who knows what the future holds. He stated it is like the parade of horribles of what terrible things may happen there, therefore the property should be set aside; and if that is so, the Property Appraiser should be told that because the difference between his client and the Airport is his client pays taxes on the property and would like to utilize it in some marketable fashion.

Commissioner O'Brien stated the story cuts two ways; the owner knew when he purchased the land it was zoned for industrial use; therefore, he knew what he was buying; if the Airport does grow commercially, there will be a demand for that property to build warehouses, transfer stations, etc.; and FedEx and UPS may want to fly from there. He stated there are concerns it could become that because the Airport Authority is working towards that; so the opportunity for use of commercial property, which is how it is presently zoned, is tremendous; and that is why it is zoned that way. He stated properties surrounding airports are generally there to service the airports; the owner wants to build houses, but the Airport is going to expand and services that have multiple planes per day may want to land there; so there are serious concerns about putting houses out there. He stated Mr. Spielvogel is from New York; and when they built JFK Airport, all the houses that were built later almost invaded the airport because of the noise; but the houses were built after the airport was built in Long Island. Mr. Spielvogel stated he lived in the flight path of LaGuardia Airport and survived; and since Commissioner O'Brien convinced him his client has such a valuable piece of property, he may have an interest in buying it.

Chairman Scarborough advised when he talked to Tom Harmer and different people in the planning process, he got the impression that the annexation was one element and there are going to be other elements; the City anticipates receiving something that is more comprehensive and detailed regarding the overall utilization of the property; and inquired if it is going to be a DRI; with Mr. Spielvogel responding he does not think so. Chairman Scarborough inquired when would products of that nature be available for the Board's review; with Mr. Spielvogel responding they want to wait for comments from Department of Community Affairs because his client will be bound by that. Chairman Scarborough stated the Department of Community Affairs cannot comment on something that has not been put on the table; and the City Manager's comments to him were that it is just an annexation at this point, do not look at it as more than that, and do not try to read too much into the land use designation; but he would feel more comfortable understanding from the property owner what is the next step. Mr. Spielvogel advised the next step is dealing with the Airport Authority and its concerns. Chairman Scarborough stated his comments go beyond the Airport and are about the City and its concerns of a higher level of planning; with Mr. Spielvogel responding the Department of Community Affairs is going to look at the land use. Chairman Scarborough stated he is not talking about the Department of Community Affairs, and is talking about the City of Titusville anticipating receiving new and different land uses other than what is shown in the annexation application; and inquired if there is something like that forthcoming; with Mr. Spielvogel responding Chairman Scarborough may have to address that with Mr. Cunningham. Chairman Scarborough stated he is addressing the property owner and would appreciate it if Mr. Spielvogel would contact his client because he heard from the City Manager yesterday that the City was anticipating something more thoughtful than what is occurring today. He noted he would leave that for Mr. Spielvogel and his client to respond if they wished.

Commissioner Higgs inquired if Chairman Scarborough would be comfortable requesting a full staff report on what is being proposed to the City, what the City has transmitted to Department of Community Affairs, and what objections the Board may have if it chose to send them to Department of Community Affairs. She stated while the Board cannot affect the annexation, it can comment to Department of Community Affairs on the land use changes that are significant.

Chairman Scarborough stated the Board has a responsibility to become involved with something this large; and whether or not it will object will be considered after it receives a full report and Mr. Spielvogel has a chance to comment on it, as well as Mr. Edwards, Mr. Cunningham, and all the other players, so there is full input. He stated apparently the City Council felt uncomfortable with some things that were occurring, otherwise it would not have had a 3 to 2 vote, and the City Manager would not be saying he is looking for something more; there is a lot more to the issue; and he would like to get the full story before deciding where to go next. He stated a report would be nice, and should include the City, Airport, and Mr. Spielvogel's client's comments to get a complete picture. Commissioner Higgs inquired if Chairman Scarborough would be comfortable with a motion to request a staff report on the proposed land use changes in 30 days; with Chairman Scarborough responding that is fine if the Board wants to limit it to land use, but it may go beyond land use, such as transportation.

Motion by Commissioner Higgs, to direct staff to provide a report within 30 days on what land uses are being proposed to the City of Titusville, what the City transmitted to Department of Community Affairs, and proposed impacts to the area by the changes.

Commissioner O'Brien recommended staff bring back proposed actions the Board may want to consider, such as this is what is going to happen, this is what we think the Board should do, and if it writes a letter, this is what should be inserted. Chairman Scarborough stated that is the next step after the Board gets the report back to ensure it has all the comments from all the parties before proceeding.

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

Commissioner Higgs advised the annexation and associated land use changes come to the Board after they have already been done; and requested staff closely monitor land use changes being proposed on abutting property or on County property being annexed so the Board will get a lead on those things.

Commissioner Carlson inquired if staff is negotiating with the City of Titusville for a joint participation agreement; with Mr. Ward responding yes, they are moving along nicely, and the Board should see something on it in February 2002.

Commissioner O'Brien inquired if the Board should go to the Legislature and ask if it would consider annexations be brought to the counties first for approval or joint workings so cities just cannot annex and throw it at the counties after the fact. He stated the counties should be part of the process. Commissioner Higgs stated that is a statewide issue that is being debated everywhere; and Commissioner Carlson is on the Florida Association of Counties Board and could check with it to see if there is anything pending that the Board could piggyback on relating to that issue. Commissioner Carlson stated it has been an issue for the last few years; and the League of Cities is adamantly opposed to it. Commissioner O'Brien stated other counties could join Brevard County. Commissioner Higgs stated FAC is interested; and Chairman Scarborough stated the cities are not interested in a change.

Commissioner Higgs stated some time ago the EEL's Program looked at some of the scrub area in the vicinity of the property because there are significant scrub jay populations, but that did not move forward; and requested the County Manager give the Board a report on the status of any acquisition activity and proposed acquisition in the area by EEL's.

Commissioner O'Brien requested staff come back with a report next week on the status of a proposed Charter amendment that if annexations of 51% or more take place, transportation is in that. He stated he would like to move quickly because annexations are going to continue from Melbourne and other cities; and the Board needs to set up a proper system now rather than after the fact.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct staff to provide a report on the status of any acquisition activity or proposed acquisition of property in the area by EEL's. Motion carried and ordered unanimously.

Commissioner Carlson inquired if the Board wants to acknowledge receipt of the Ordinance; with Chairman Scarborough responding a motion to acknowledge is fine because it says nothing other than the Board received it. Commissioner Carlson stated she is not sure the Board actually acknowledged the previous annexation; with Commissioner O'Brien responding the Board should not acknowledge it.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to direct the County Attorney to work with the Planning and Zoning Director and provide a report on how to handle a Charter amendment for annexations. Motion carried and ordered unanimously.

The meeting recessed at 10:09 a.m., and reconvened at 10:20 a.m.

DISCUSSION, RE: CURRENT PERMITTING PROCESS, SITE PLAN REVIEW, INSPECTION,
AND FOLLOW-UP

Maureen Rupe of Port St. John, stated there is a problem with implementation of the permitting/site plan approval policies and procedures; and it was brought to a head with the incident in Port St. John, but it is a Countywide problem. She stated there are gray areas in the Code that are open to interpretation and are used by contractors to their advantage; and the Board needs to evaluate the policies and procedures, and effectiveness of compliance, and monitor on an ongoing basis. She stated the problem is consistent and becoming even more consistent Countywide; and one option would be to use the Audit Committee, which is utilized in other counties, and performs on a scheduled basis like a financial audit of books at the end of the year. Ms. Rupe stated the Audit Committee is made up of County staff; and she wanted the investigation, if the Board approves it, to be perceived as unbiased and fair. She suggested adding members of the public who have no personal agendas, or retired contractors with no affiliation to look at the problematic Codes; and noted other speakers and the Board may have other ideas. She stated many companies have hired full-time people to deal with monitoring; and there are some practices that should end today. She stated Fay Boulevard is not the original site plan she saw; it has been altered; and practices like that will end up on the State Attorney's desk if not addressed. She stated she does not want to witch hunt or have factions use this for their personal agendas; and she wants to be able to come to the Board, bring the community's concerns, come to agreement with developer/contractors, and have that contractor abide by a binding site agreement that is reasonable.

Mary Tees of Port St. John stated there are some contractors in Brevard County who skirt the law; and there must be some County employees who interpret the Ordinances in the broadest possible terms. She stated those contractors habitually hire subcontractors who work either very early in the morning or late at night and all day on Sundays blaring radios and disturbing the nearby neighbors; and there is not one name on their trucks, nor a license number or phone number. She stated she does not know where the subcontractors are coming from, if they are licensed, or if they are doing a proper job; and that is part of the issues. She stated they go in and clear-cut a site and not even leave the hardwood trees on the perimeter; people have come to her and cried because they wanted certain trees left on their sites, but they were gone; the developer said the County says they have to remove every tree; but she knows that is not so. She stated it is a lot easier to clear-cut a site than to work around trees; and it is always in their area and always the same people; and she can guarantee who the developer/builder is just by the stories. Ms. Tees stated the same contractors find the smallest wrinkle in the Ordinance and manage to drive a Mack truck through it, undoubtedly with the assistance of some County staffers; almost every Commission meeting there is a vested rights issue on the Agenda; and those actions do not reflect positively on Brevard County as a whole, but against those reputable contractors who work within the system and try to develop a quality site. She stated as a member of the Contractors Licensing Board, she knows there are many good contractors in Brevard County, but also knows there are some who are less than reputable; the County has taken some substandard roads because a County employee said they were okay to take; and the County has issued certificates of occupancy (CO's) on properties that made her wonder how it happened. She stated the Board cannot allow those contractors to operate in the manner in which they are operating currently; and it has to go after legal means because there is something radically wrong within Brevard County and with subcontractors. Ms. Tees stated it is not a blanket statement that every contractor and every County employee are doing something wrong; but there are some apples that need to be weeded out; and if it is not done, then it is going to reflect in a manner that is less than desirous on the Board of County Commissioners. She stated this is the Board's County; it runs the County, not staff; and it is the Board's decision to see that things are done properly. She stated it hires the people to do it; and it needs to get the job done right at least while it has the opportunity.

Commissioner Carlson inquired if the Contractors Licensing Board has taken the issues and brought forth a recommendation to the Board of County Commissioners; with Ms. Tees responding not to the Board of County Commissioners, but there have been contractors who had their licenses suspended for a period of 80 days to a year. Ms. Tees stated those may be swimming pool contractors, or some other type of contractor, but licensing all the trades in the County is an ongoing process. She stated the Contractors Licensing Board is looking to license other trades, which is to the advantage of the general public although not necessarily liked by the people who are involved because certain requirements are necessary for them, including education, insurance, etc. Commissioner Carlson inquired if it was a subject of conversation on the Licensing Board, and are other members concerned about it; with Ms. Tees responding they are concerned about it and it is a matter of conversation. Commissioner Carlson inquired if there is suspicion that the allegations have a factual basis; with Ms. Tees responding there is a lot of talk about what is going on at a certain site, but nobody wants to say anything; everyone is afraid of a lawsuit because if they go after someone or say something about them, it is damaging their reputation; and it is a very thin line, but there are problems out there. Ms. Tees noted she knows what Commissioner Carlson is trying to get her to say; with Commissioner Carlson responding she is not trying to get Ms. Tees to say anything, and is just questioning her because she sits on the Licensing Board; and she would like to have a recommendation from the Licensing Board saying these are real concerns, an investigation should be done, or whatever is necessary, instead of piecemealing the issue. Ms. Tees stated she would bring that up under new business at the next meeting of the Licensing Board to see if it can have something more definitive sent to the Board of County Commissioners.

Helen Dezendorf, Vice President of Port St. John Homeowners Association, stated the adage that says it is easier to beg forgiveness than to ask permission needs to be removed from the vocabulary; she has been at meetings where it has been discussed that people did things because they knew that after it happened they would get away with it; and part of that is true. She stated they cut all the trees down, erect a sign that is too tall, or put too many lights in, and when it is already done, they may be fined or be given 30 days to fix it; and the Board needs to send a clear message to people who have an attitude that they will get away with it because no one will know until after it is done and it is impossible to fix, that it cannot happen any more. She stated she has owned several rental properties; and when a person came out to give her a C.O., she had to tap dance and jump through hoops to get it; but some of the contractors seem to get one by inviting a person to lunch and saying everything is okay. Ms. Dezendorf stated there are things that happen that anyone who is doing this for a living cannot possibly miss; but there are also things that are not cut and dry in the Code. She stated she asked a simple question of what is the definition of a monument sign at a meeting in Chairman Scarborough's office; and the answer from someone in the County was everyone knows what it is, but she said no, and asked how tall can it be, how wide can it be, and what does it have to be made of. She stated because they said everyone knew what it was, she called sign companies, and found out it is a sign on a pedestal and not a pole; it could be 80 feet tall and still be a monument sign; so the Board needs to establish better, clear-cut, and black and white rules, and have people know they cannot break those rules and continue to stay in business in Brevard County.

Bea Polk of Titusville stated the Board is beginning to hear the public come forward; most people are scared because the County and politicians have more money than them, and they could get sued if they tell what is going on; but this morning people have come forward to tell the Board what is going on in the County. She stated there are five Commissioners who need to do something about what is going on in the County; it is not what is right or wrong, it is who they are and how much power and money they have; and some people get it and some cannot get it. She stated a woman mentioned what happens when they are taken to lunch; she worked for the Clerk's Office for eight years and knows what she means; she has seen it happen; and as years go by, it gets worse. Ms. Polk stated there is no right or wrong in government; government teaches the children, yet it has proved to them what people can get away with they should go ahead with it; but somewhere along the line the leaders have to take a stand. She stated what is right is right and what is wrong is wrong; it is not who they are or how much money and power they have; if something goes wrong, they are shifted from one job to the other; and if someone says something is going wrong, that person is called in, told to shut up, or is fired. She stated they are telling employees if they want to make big money and keep their jobs, they are to do what they are told whether it is right or wrong; and that is not what America was built on. She requested the County go back to saying if it is right it is right and if it is wrong it is wrong and get rid of those who do not enforce it.

Travis MacClendon of Melbourne read a letter from Julielynn Ulrich, former Code Enforcement Officer, to Billy Osborne, Jr., Permitting and Enforcement Director, dated May 14, 2001, as follows: "Dear Mr. Osborne: Per our conversation on 10 May 2001, I hereby submit my resignation as Code Enforcement Officer effective immediately. I gave this decision much thought, but find it impossible to continue working under the management of Bobby Bowen. I learned a great deal during my employment with Brevard County Code Enforcement. I am leaving with mixed emotions. I enjoyed working with my fellow Code Enforcement Officers who provided great support. I enjoyed working with the citizens of Brevard County by providing or attempting to provide the needed assistance and services. But, I cannot continue to work under hostile conditions. On May 8, 2001, I was ordered by Mr. Bowen to report to his office where I was verbally accosted, threatened and assaulted. When I attempted to get a witness into the office, Mr. Bowen slammed the door and physically forced me to stay. Mr. Bowen was not only hostile and intimidating, he verbally threatened me with my employment status. Mr. Bowen accused me of conspiring with three other officers to 'ruin his livelihood.' Mr. Bowen blocked the exit door, stood within 12 inches of me, and screamed while pointing his finger in my chest and in my face. During this abusive behavior, Mr. Bowen struck me in the chest with his finger. Mr. Bowen acted in such a manner I was forced into a position of choosing my personal safety over the possibility of being charged with insubordination. I feared Mr. Bowen would strike me again. I have been asked and/or instructed by management to falsify documents. Cases assigned to me have been altered without my knowledge and/or approval, to include dates and pertinent material, making them a false document. This type of management is allowed according to Mr. Bowen, as by his actions, he is convinced that verbally accosting, assaulting, and false imprisonment of any employee is good management. I hereby request a full investigation be conducted regarding the above actions by Mr. Bowen, and his practices and behavior towards employees of Code Enforcement. Sincerely, Julielynn Ulrich." Mr. MacClendon noted copies were sent to Tom Jenkins, County Manager, Thomas Pilaseck, Attorney, and Brian Breslin, EEO.

Melissa Hoagland of Suntree, representing Citizens for Responsible Growth (CFRG), stated CFRG is happy to see the Board looking more closely at the procedures involved in the permitting process and the broader development process in Brevard County. She stated she knows the impetus for this review came from incidents that occurred across the County; and she cannot speak for other geographical areas, but will share four instances in their area where the process broke down along the way. She stated first is Sawgrass South, Phases I and II; the project was scheduled for final engineering approval at the May 22, 2001 meeting; it was pulled from the Agenda only after some of the area residents pointed out that final approval by St. Johns River Water Management District had not yet been granted; and significant concerns were expressed to the St. Johns River Water Management District by citizens and environmental groups eventually resulting in modification of the request, deleting Phase I. She stated during the process of permitting with St. Johns River Water Management District, the developer attempted to obtain permission to begin clearing the land prior to the permit being granted; he ended up not getting the permit approval for Phase I; and if he had been allowed to clear that land, it would have been another one of those incidents of seeking forgiveness instead of knowing what they are doing. Ms. Hoagland stated second is the lengthy deliberation of the rezoning requested for Phase III of the Sawgrass project; despite denial of the rezoning request for development of the property and stated desires of residents and the Board to delay consideration of the connection of St. Andrews Boulevard to the Pineda Extension until an interchange is built, the applicant has proceeded with the process of obtaining permitting from the Army Corps of Engineers to construct the extension. She stated area residents, the Sierra Club, Suntree Master Homeowners Association, and Citizens for Responsible Growth have been actively objecting to the Corps about the attempted end run around the County's zoning ruling. Ms. Hoagland advised the third issue goes back to August 2000; she addressed the Board, on behalf of Suntree Estates Homeowners Association Board of Directors, regarding problems with enforcement of the site plan submitted by the Sawgrass developer for portions of Sawgrass at Suntree that abutted Suntree Estates property; Phase I, which abuts the southwestern edge of Suntree Estates, was approved with a site plan and binding development plan that provided a 15-foot wide landscaped buffer at the back of the property with a three-foot high earthen berm and obscuring vegetation; and with the ten-foot rear setback in Suntree Estates, that would have provided a 45-foot distance between the houses and the existing houses in Suntree Estates. She stated as Commissioner Higgs said at the August 3, 2001 meeting, the Board thought it was approving a common land between properties; as the development was laid out in final form, the buffer area was not set up as a separate tract, but was included in the Sawgrass properties as a landscaping easement; and the net result was construction of a house within 15 feet of the rear property line of the pre-existing 5,000 square-foot home and 25 feet from the existing house. Ms. Hoagland stated the Sawgrass drainage system was set up to have the lots drain to the streets; it required significant fill of the lots, raising the level to essentially the height of the berm; so what they ended up having was not a three-foot berm between houses, but a three-foot cliff or drop off from the property into Suntree Estates property with drainage from the property into Suntree Estates. She stated lots in Sawgrass, Phases II and III subsequently approved also had elevations raised to provide drainage to streets in Sawgrass, so they were elevated several feet above Suntree Estates; and that situation underlines: (1) that there needs to be Code that requires elevation equality between subdivisions as well as between lots within subdivisions, which has been recently passed; and (2) there needs to be a clear Code definition of berm height. She stated County staff, who came out to inspect the site, were not clear where they should be measuring the berm height from; to be meaningful, the berm height needs to be measured from the higher of the two lots and not the lower of the lots; and there needs to be clear wording of the intent on buffer tracts as separate from individual lots. She stated at the northwestern edge of Suntree Estates, a builder in Waterford Point, in violation of the relevant zoning, constructed a home with a zero lot line directly abutting a Suntree Estates home; the homeowner in Suntree Estates was in repeated contact with County staff; and County staff did acknowledge after-the-fact that the house was constructed in a location that was inappropriate and was in violation of the permit; however, no action was taken to have the developer take corrective action. She stated Citizens for Responsible Growth supports the suggestion for an audit of the process, and suggests it be an independent external audit rather than one undertaken by County staff. She suggested that sources for possible auditors include public administration faculty members of the University of Central Florida, University of Florida, Florida Atlantic College, faculty members of the University of Florida law school who have an interest in public administration, and 1000 Friends of Florida; and stated the CFRG feels strongly that it is an effort that needs to be undertaken.

Barbara Ray of Valkaria stated she supports the idea of having an external audit, and suggested extending it to more of the procedures. She stated having worked for a number of years as a volunteer on various boards, she found it frustrating some times that the Board would give a directive and somewhere in the process, the directive was either misunderstood or did not come out the way the Board asked for it to be; and that is also frustrating for citizens, and perhaps the Board as well. She stated people need to feel confident that when the Board goes through a painful process to make a decision, it will be carried out exactly as it was supposed to, and will be enforced; and indicated sometimes it is not. She stated now might be the right time to look at the process to see why it is not always enforced the way it is supposed to be, and if there are any changes that can be made to make the enforcement process more efficient.

Curt Lorenc of Valkaria stated Brevard County's policies and procedures need to be looked at; this is the technology age; and the procedures have lagged behind. He stated he has seen many times where people have taken time off from work, come before the Board, gotten a decision from their elected officials, only to have County staff misunderstand and do the wrong thing time and time again. He stated when those misunderstandings are brought to the attention of the appropriate people, he has seen nothing done; and it seems to be the normal procedure, which undermines the democratic way of government. Mr. Lorenc stated the County needs an independent investigation into the policies and procedures for County staff; and he has some letters to show the Board examples of some things. He stated Code Enforcement Officer Julie Ulrich indicated that documents were falsified and made many other allegations; and he thinks she is very credible. He stated he has a letter from Mr. Bowen regarding digital photographs that were taken on a particular case; and they no longer exist, as they were destroyed. He stated he could not believe what he was hearing from Mr. Bowen and sent him another letter; and Mr. Bowen confirmed that the files were destroyed and no longer exist. He stated the last document is about a person taken before the Code Enforcement hearing officer. He stated he was before the Board a couple of weeks ago and mentioned it would be important to have rules and regulations for hearing officers; they implement Supreme Court brief rules for closing arguments; citizens are asked to act as very competent attorneys and submit briefs; and at the very bottom of the document, it indicates if a person fails to comply, has a wrong font, or anything wrong, they take the closing arguments and throw them out. He stated he does not think that is the way the Board intended to have the hearing officers hear cases of its constituents. He stated the County needs an independent audit; if it was done inside, he does not think staff would be able to investigate staff; it needs to be unbiased; and the Board needs to take a good look at it. He stated it is healthy for government to routinely take a look at its policies and procedures.

Mary Sphar, representing the Sierra Club Turtle Coast Group, stated the group has discussed the application of County policies at its meetings and voted twice in the last year and a half to take appropriate steps to see remedial action. She stated today the Board may wish to consider an independent investigation of various practices; in order to correct problems, the causes of improper actions and flawed decisions must be determined; and it must find out why the County does not implement policies properly at times. She stated the Sierra Club feels three of its specific areas of concern could yield important information--(1) the Oleander Power Plant project decision, (2) the retracted consideration of final engineering approval for Sawgrass South, Phases I and II, and (3) the questionable methods of applying new Comprehensive Plan wetlands policies. She stated with regard to the Oleander Power Project decisions, she calls the Board's attention to: (1) petition to appeal the site plan approval granted to the Oleander Power Project on August 21, 2000, filed by the Sierra Club Turtle Coast Group on September 19, 2000; and (2) petition to appeal the administrative decision applying Comprehensive Plan Policy 5.2.F.2 as of December 14, 1988 to the Oleander Power project, filed by the Sierra Club Turtle Coast Group on September 9, 2000, and the attached documentation. She suggested an investigator pay special attention to the section in the appeals entitled, "Conclusions and Supporting Rationale", and in particular, Case 1, the County decided to apply the new wetlands language to the Oleander site plan, which states, "This case is relevant in terms of documenting the County's illogical rationalization, which favorably accommodates the Oleander Power project. The flawed logic touted as reasonable explanation by the County reveals a dark side of County decision-making." Ms. Sphar advised another issue is Final Engineering Approval for Sawgrass South at Suntree, Phases I and II, which was pulled from the May 22, 2001 Agenda; and it brought to the Board's attention the following documents: (1) comments on Site Plan SP 001-0001 submitted by Natural Resources to Land Development on April 4, 2001, in which Natural Resources staff recommended disapproval and cited problems with wetland issues; (2) subsequent comments submitted on or before May 15 by Natural Resources to Land Development indicating approval even though two of the problems identified on April 4 remained unresolved; and (3) letter to Bruce Moia from the Sierra Club dated May 16, 2001. She stated although the item was pulled, it would be informative to investigate the reason why it was recommended for approval; and in all fairness to Mr. Moia, he seemed surprised on May 15, 2001 when she pointed out to him that Natural Resources had recommended approval even though the St. Johns River Water Management District permit had not been granted. Ms. Sphar stated they have serious questions regarding the application of the new Comprehensive Plan wetlands policies effective January 14, 2000; and documentation that could prove helpful to an investigator includes: (1) memo to Commissioners from Deborah Coles dated April 18, 2001, of a requested report to the Board on how the wetland regulations are applied to residential subdivisions; (2) letter to Steve Peffer dated May 7, 2001 from Mary Sphar, Sierra Club; (3) letter to Mary Sphar, Sierra Club, dated June 25, 2001, signed by Deborah Coles for Steve Peffer; and (4) letter from David Theriaque to Scott Knox dated October 24, 2001 Re: Sawgrass South at Suntree. She stated the Sierra Club has retained David Theriaque, an attorney from Tallahassee, because the Club is extremely dissatisfied with some of the explanations given by the County in the June 25th letter. She stated Scott Knox sent a letter to David Theriaque indicating that a County response to his questions would be forthcoming; but even if the County changes its stance in response to Mr. Theriaque, it does not diminish the need for an investigation. Ms. Sphar stated the question should be asked why did the County ever decide that the wetlands policies were to be implemented as described in the April 18th memo and June 25th letter. She stated they hope the Board will recognize the seriousness of the item, end questionable practices, and state legal requirements in County policies that must be adhered to.

Commissioner O'Brien inquired if Ms. Sphar differs with staff about wetland issues; with Ms. Sphar responding yes, and most of the documentation has been supplied to Commissioners but she can get a copy of the entire package for Commissioner O'Brien. Commissioner O'Brien stated he does not need documentation and is trying to get a summary of what Ms. Sphar is trying to say; with Ms. Sphar responding she is trying to provide good starting points in case an investigation is authorized by the Board. Commissioner O'Brien inquired what type of investigation is Ms. Sphar referring to; with Ms. Sphar responding a broad investigation of the application of County policies, not what the policies are.

Janis Walters of Valkaria stated there has been a lot of County staff bashing this morning; she has lived in four counties in Florida; and in Brevard County most personnel in most Departments are terrific, kind, thorough, gracious, and of a higher caliber than she had the misfortune to deal with before; however, even a few rotten apples can cause big problems for the County. She stated follow-through has often been a problem and not just in permitting; and there is a long history with Valkaria Airport managers because staff did not follow the Board's direction or did not adhere to the work plan. She inquired how many times did shortcuts in proper procedures cause friction between the County and communities. Ms. Walters stated Public Safety caused problems by making arbitrary decisions about the Valkaria fire station location without performing due diligence or considering the impact on the community and the County's funds; and she had recent experiences with other County Departments. She stated the last time she was before the Board was on the proposed annexation of 20 acres by the City of Palm Bay; it was accompanied by a staff report indicating what a ducky thing it would be; and inquired where was that guy when the Board said it was going to do a 120 hearing if the property was annexed and the land use changed to commercial, and did he not do research before writing his report. Ms. Walters advised her recent experiences with Code Enforcement give her great cause for concern; they are just her personal experiences, but suggested the Board imagine that multiplied by many people throughout the County with Code Enforcement and other issues. She stated she found out that Code Enforcement personnel do not follow their own policies and procedures for investigating cases and record-keeping; in her case, the notice of violation did not detail the specifics of the offense, it just issued an order to the alleged violator; and when the case was contested, they set about to build their case, which does not seem right. She stated she also saw documents that were altered by Code Enforcement personnel; and Mr. Lorenc told the Board about the original documents that were destroyed. She stated there were a couple of instances where documents in the files were concealed in spite of their Article 119 request; and she has seen instances of Solid Waste and Code Enforcement personnel rewriting Codes to suit themselves, adding conditions and provisions that did not appear in the Code, or striking inconvenient phrases in order to give the Code the meaning that they wanted. Ms. Walters stated the Code Enforcement special master is allowed to adopt rules for the conduct of his hearings, but she does not think the Board's intent was for him to have different rules for each case; there are no published rules, so a person going before the special master does not know what to expect; and in the case that is being contested, the rules have become draconian and unreasonable. She stated there is something wrong when self-justification and self-aggrandizement supersede the service to the citizens who pay the bills with their taxes. She stated there needs to be a general mechanism for performance review of County staff, and oversight procedures to assure adherence to County Code and policies in all Departments; and requested an independent review of County policies and procedures with recommendations for improvement throughout all County Departments.

Kim Zarillo of Melbourne Village requested the Board consider a study of the implementation of policies, not necessarily the policies themselves. She stated the citizens, Commissioners, and staff have worked hard to fine-tune Ordinances; and it may be a good time to do a self-evaluation and study to look at how policies are implemented and if they are implemented correctly. She stated maybe there is a problem in the system, or those issues heard today may be single events and the system is not dysfunctional but is functioning well, or the Board may find there are problems in the system that can be corrected. She requested an independent audit or study be done so it does not put staff in the position of evaluating their peers, and to bring outside expertise that would be unbiased and independent to look at the system. Ms. Zarillo stated land use and land development are her primary concerns; other Departments were discussed today, which is a much larger study; but there are several institutions that could do a study. She noted the National Association of Counties has references and does similar studies in different parts of the country; and the Board would need someone familiar with Florida law, the Florida Comprehensive Plan Act, the Water Management District policies and permitting process, as well as local policies and the Brevard County Comprehensive Plan. She stated Brevard County has a good Comprehensive Plan and good Ordinances; perhaps in some instances they are not enforced; but it may be a question of interpretation; and a study would be a good way to put the house in order and see if there are any problems or not. She stated before making new policy, it is a good idea to do an evaluation; and it will help to formulate policies in the future. Ms. Zarillo stated there are several universities that have public administration programs and faculty with expertise in those areas that are competent in doing those kinds of evaluation and studies; and there are associated institutes of government , which would be an excellent way to bring in an outside person, association, or organization to do a study. She stated University of Florida, the Florida International University, Florida Institute of Government, University of Central Florida, and Rollins College have public administration curricula; there are some options from the inventory of those available in the State; and requested the Board consider an outside study of how policies are implemented and if the County is meeting the enforcement of its policies.

Chairman Scarborough stated what he heard is that it should be done by an outside independent person or firm, there should be a degree of confidence, a university or person rather than recommendations from staff of changes to the system of how things operate, and how the Board needs to implement improvements.

Commissioner Carlson stated she heard the same thing; and recommended establishing a committee of concerned citizens, and maybe one or two Commissioners, that could find an external entity with qualifications, some of which were laid out by various speakers, to give the Board an unbiased perspective of its policies and procedures and application of its Ordinances. She stated the Board has changed many things over the last few years; and it would be nice to determine if they are being carried out appropriately and effectively. She noted she does not know what the rest of the Board thinks, but she feels the Board needs to move on this issue in a positive manner.

Commissioner O'Brien stated he shares the concerns expressed today; someone said citizens are finally coming forward to say something; but there is no finality to it because there was never any reason not to say it before. He recommended the Board contemplate directing the County Manager to clarify County policies and procedures, and give directions to staff to prevent future misinterpretations, mistakes in permitting, mistakes in site plan reviews, Code Enforcement, etc.; and return to the Board with his recommendations for actions the Board can take to help him and staff know where the boundaries and rules are by defining policies. He stated the Board should be advised which Ordinances are problematic; someone mentioned loopholes in various Ordinances; and the Board can start plugging those loopholes if they are there and ensure policies and Ordinances are fair. He stated the Board should be advised what corrective actions should be considered by the Board, but those recommendations should be specific, with specific being the key word. He stated in the past he brought up that commercial vehicles should be required to have an identification, but the Ordinances do not demand it; they should have, at a minimum, three-inch letters on the doors identifying the company; and perhaps the County Manager could bring that back in his recommendations whether or not to go forward with an ordinance concerning identification of commercial vehicles. Commissioner O'Brien advised Code Enforcement should be available on weekends; perhaps an officer could be rotated on a six-day schedule, so if there are loud radios or construction late at night or violation of Ordinances, a Code Enforcement Officer can be called out to talk to the alleged violators the first time; on the second or third occasion, the witness could be used as a source of repeated violation; Code Enforcement would know if it is repeated; and the time goes back to the first violation. He recommended asking the Contractors Licensing Board to come forward in 60 days with specific recommendations of which Codes and Ordinances should be amended, what those amendments should be, and what action the Board can take to strengthen the licensing board, or if that review should be placed in the hands of an independent board of citizens. He noted he has always objected to a board of doctors reviewing a doctor whose license is under question because they have a tendency to favor the doctor and the public is not well served; but the Board needs specific recommendations on what actions it may want to take. Commissioner O'Brien stated the staff of Brevard County is probably one of the best in the State; they are high-caliber, highly educated, and intelligent; they are very sincere, dedicated, and extremely honest; they receive no personal gain financially or otherwise for their professional actions; and they are not on the take and are not corrupt. He stated County employees are good people; everyone made errors in their lives and professions as well; the dedicated employees are human and also make errors; and sometimes they are misguided or lack guidance. He stated the County Manager can turn that around, correct the problems, and bring to the Board what staff specifically recommends the Board do; and the Licensing Board can come back and say where the problems it faces are and what it recommends as a course of action the Board can take to resolve those problems. He stated the Board can look to its staff and Manager for what actions it should take within 60 to 90 days and not delay this issue six months; and it needs to ask the County Manager and staff to come back with specific actions.

Commissioner Higgs stated Chairman Scarborough put the item on the Agenda for discussion; there were many things brought up; she agrees staff is professional in almost every instance and does a good job; but there are instances where she disagreed with their interpretations. She stated the Board has set in place an auditing mechanism through the Audit Committee that can and should be used; that is what it is there for; the Audit Committee has five members--two citizens, one Clerk, one Commissioner, and one staff person; and audits are done by an outside firm that is independent. She stated if the Board wants to proceed with a particular performance audit, it has the mechanism in place; and it does not have to be a financial audit. Commissioner Higgs stated the process started initially as a concern about how land development regulations were being applied; and the Board should start with the use of the existing auditing firm, request the Audit Committee to put that as a priority for the external auditors, and ask for a description of the type of audit that the auditors would suggest to look at the application of land development regulations. She stated the Board could start with that and see what kind of description it would get that equals its concerns. She stated there have been many issues raised; and it would be difficult to deal with all of them right now; but if the Board wants to begin a professional independent look at the implementation of the Ordinances, that seems to be the logical way to do it.

Chairman Scarborough stated in establishing the Audit Committee, his concern was making sure the members had a capacity of portfolio management; when establishing a committee, the Board would want people with expertise in a particular field; so a committee to deal with performance would have to be a different format. He stated he heard the people want a level of confidence of being outside the system, but he does not know if that necessarily meets the criteria. He noted Commissioner Carlson was on the Audit Committee; and perhaps she could comment on it. Commissioner Higgs stated the Board would not use the Committee itself, but the professionals who are the auditors.

Commissioner Carlson advised the Audit Committee, through the process, identified the outside agency to do the internal audits chosen by the Committee; those have all been financially-oriented; but that does not mean they cannot be requested to do an application audit, quality control, or whatever. She stated she does not know if the auditors are the ones who would do it or if they have the expertise to do it; and she is not sure if they have the expertise of the St. Johns River Water Management District, other areas of concern, and how all those things interrelate because she does not know how auditing firms work as far as performance audits. Commissioner Higgs stated that would be the place to start; and depending on which area the Board wants to see assessed, it would be a different mechanism. Chairman Scarborough inquired if they have any knowledge of how the systems the Board wants audited work; with Commissioner Carlson responding it can be brought to the Audit Committee and discussed to see what the Committee feels, since the Board basically ordained that Committee. She stated the Audit Committee could determine if it is feasible and bring back a suggestion to the Board. Chairman Scarborough stated he has concerns about the competency; with Commissioner Carlson responding that may be brought out through discussions with the Committee.

Commissioner Colon stated a lot of good points were brought up today, but the key points are an independent audit and the implementation of policies and procedures, not whether they are good or bad, but whether they are being followed correctly. She stated Commissioner Carlson suggested putting a committee together; it is a totally different task than the Audit Committee referred to by Commissioner Higgs, which is already in place; the Board wants to focus on the implementation of the policies and procedures; and there has to be communication between the staff and the auditing firm to make sure they are carried out. She stated it may feel awkward for employees, but it is a healthy exercise; the County has 2,800 employees who are very good; they have great respect for the County; but this is 2002, a new year, and even in her office they evaluated 2001 to determine how her office is working and what can be improved. She noted this issue is similar to that; it is not saying they are not good employees or that the Board does not appreciate them; and employees should not feel uncomfortable or unappreciated. She stated this is about policies and procedures being carried out to their fullest extent; and a positive way of going about it is to establish a new committee to focus on what the Board is discussing today. She stated the Audit Committee is more for financial matters; and this is a totally different issue and should be looked at independently.

Commissioner Higgs stated a government audit is not only finance, but also performance; and if the scope of work for the current external auditors includes good government audits, then they have those skills. She stated the first step should be a clarification as to the capacity of the Audit Committee and existing auditors to perform those things being discussed; so the Board should get clarification from the auditing firm and Committee of what the capacity is of the existing agency to provide audits of implementation of Ordinances and policies. She stated that question can be answered quickly by the Audit Committee and external auditors; then the Board can see if that meshes with the task it wants performed.

Commissioner O'Brien expressed concern about going outside to audit performance or policies and procedures or management techniques being utilized in the County solely because it has a manager who runs it well and used his methodology to set up how it would run. He stated the County Manager has done a great job; the schools of business administration and people from colleges teach methodologies; and they will come in and say this is being done wrong, and that is being run wrong, because they are tasked to find everything that is wrong. He stated they are not the ones who had to design how the County business is to be run; it would simply be looking over someone's shoulder and saying, they do not like how it was done because it is not how they would do it; and it would boil down to being a difference of opinion. Commissioner O'Brien stated the professionals on board right now could tell the Board what is wrong with the policies, procedures, and Ordinances they work with; they have been hung out to dry sometimes because of it; and if the County Manager is directed today to review the policies and procedures and give staff direction as to what he feels they should be and bring it back to the Board, they can do that because they have been there and done that.

Motion by Commissioner O'Brien, to direct the County Manager to meet with Department heads and clarify County policies with them; give staff direction to prevent future misinterpretations and mistakes in permitting, site plan reviews, Code Enforcement, etc.; and return to the Board with recommendations on what actions the Board should take to plug some of the loopholes to make the job easier for staff.

Commissioner O'Brien stated if everything has to be more defined, then the Board needs to define them; what the Board should do is help the situation and prevent further deterioration of its policies and procedures; and if staff is making its own policies, he is sure others know who they are and they can be told to follow the Board's policies and bring it back to the Board if it needs further clarification. He stated he does not want to see an outside firm do an audit; and the County Manager and staff can audit themselves as to their performances within the policies and procedures, and identify what policies and procedures should be changed, tightened up, or loosened, because they are professionals and know what has to be done. Commissioner O'Brien stated going outside is a waste of time and extreme waste of taxpayers' money; the County has a good staff and he trusts them; some of the things that happened were mistakes that everyone commits in their lifetime; and it is time to say turn the policies around, fix them, do the repair job, and come back with a good job.

Chairman Scarborough called for a second to the motion; and hearing none, declared the motion died for lack of a second.

Commissioner Colon stated this is not a reflection on the County Manager; the Board is discussing reviewing policies and procedures and the implementation of those policies and procedures; and the Board is not disappointed with County staff. She stated she has the utmost respect for staff and wants to keep that in perspective; she has told them how grateful she is for their professionalism and how well they treat the constituents; and this issue is not about them. She stated the Board needs to stay focused; it has nothing to do with the County Manager who is very flexible and will go with an outside firm or do it in-house; and he knows he is doing a good job. She stated if the Board is going to form a new committee or go with the Audit Committee to hire an independent firm or whatever, it is something that has to be done; this is the beginning of a new year; it is something very positive; everyone makes mistakes, but they can learn from those mistakes and make sure they do not do it again; and that is how the taxpayers are best served. Commissioner O'Brien inquired what action Commissioner Colon wants to take, let the County Manager do the review, go outside, or go to the Audit Committee; with Commissioner Colon responding the actions she mentioned previously.

Commissioner Carlson stated the first step is to bring it to the Audit Committee and ask its suggestions, based on the information provided, to see if there is adequate understanding of what the Board is looking for and if there is experience behind that. Commissioner Higgs inquired if Commissioner Carlson feels comfortable taking it to the Committee and getting that clarification, then bringing it back to the Board to see if that is what it wants to do; with Commissioner Carlson responding sure, if the Committee can meet in a few weeks. County Manager Tom Jenkins advised the Committee has a meeting scheduled on January 17, 2002.

Chairman Scarborough stated his concern is if that auditing group is capable of doing the type of audit that has been discussed today. Commissioner Carlson stated if not, the Committee or the firm should be able to tell the Board who would be able to do it and what kind of firm to look for. Commissioner Higgs requested the Board get some clarification so Commissioner Carlson can come back to the Board with meaningful questions answered. She stated the Board wants to discern, through an external person or firm, that the policies and Ordinances the Board has in place are being implemented; and it could be broken down into various Ordinances, Departments, or policies, so they could do it.

Chairman Scarborough stated if there is a problem with a structure of a building, the Board would want to get a structural engineer to look at it; and inquired where is the level of competency defined in what Commissioner Higgs is trying to ask the question of, and is the auditor geared to do that type of audit. He stated there are things about how things function as an organization, how to move paper from point A to point B better, etc.; and he wants to look at it further and consider the comments that were made. He inquired, beyond the function of how to move something through a process faster, cheaper, and with less employees, how will the Board get the concept of having a functioning system to accomplish what the Board is trying to accomplish, and if someone from a university can do it. He stated he does not know if the auditors can do it; and he has a concern with where this is going, because he would not hire an architect if he had a structural problem.

Commissioner Carlson advised she was informed she would not be sitting on the Audit Committee because the Chairman sits on that Committee, and she is no longer the Chairman. She requested Mr. Knox clarify that; and Mr. Jenkins responded that is true.

Chairman Scarborough stated that is not the issue; the issue is whether the auditor can do the audit that the Board wants; and that gets to be a fundamental problem. Commissioner Higgs stated that is the place to start and determine the expertise that is available in the current auditing firm to look at implementation of policies and Ordinances, then report back to the Board. Chairman Scarborough stated the Audit Committee does not need to meet to answer that question, because the Board can send the question to the auditor and ask for a response. Commissioner Carlson stated there are individuals from the private sector who sit on that Committee who probably faced the very same thing because they have very large organizations they deal with, so they may have input on that. Chairman Scarborough inquired if the Board is asking the Committee to find somebody to do the audit; with Commissioner Carlson responding it is just throwing the question at it to see what it thinks would be the best approach. Chairman Scarborough inquired if the Board is not asking the auditor, but is asking the Committee; with Commissioner Carlson responding yes, but the auditors may be there and could add or subtract from the response. Commissioner Higgs stated the Board would send it through the Audit Committee because it determined that the Committee might have some recommendations. She stated the Board established that Committee and got an independent auditor because it believed the outside expertise gave the Board the best chance of getting an independent look at the issues; that is what the Board established the Committee to do; and if the Committee and the auditors cannot do it, then they can tell the Board that after they meet because that is what an audit committee is for; and if it is not going to do that, then the Board needs to reevaluate.

Chairman Scarborough stated he does not have a desire to proceed that way, so he would like for the Vice-Chairman to sit in his place on the Audit Committee. Commissioner Higgs inquired how does Chairman Scarborough want to proceed; with Chairman Scarborough responding he does not feel comfortable that it is the way to proceed. He stated the Board needs to look at what it wants to ask and who has the expertise to find the answers; if it comes up to be the Audit Committee, that is fine; or if it is the auditor, that is fine; but he does not think the Audit Committee is going to be able to add a whole lot to this discussion today; and it could lead to greater consternation as opposed to solutions. Commissioner Higgs requested Chairman Scarborough tell her how he would like to see the Board proceed. She stated she gave her suggestion; and maybe she would like his idea better. Chairman Scarborough stated there are suggestions from different places in the State; and perhaps the Board could get comments back from those places as to how best to proceed.

Commissioner Carlson stated the Florida Association of Counties has many resources; that could be a possible avenue to find out who has the expertise, given the situation has been duplicated many times with 67 counties in the State having similar questions; so the Board could pursue that avenue. Chairman Scarborough stated that is another way. Commissioner Higgs suggested asking the Audit Committee and external auditor to respond to its questions, then ask the Association and simultaneously pursue how best to get the audit the Board wants. Chairman Scarborough stated if Commissioner Higgs wants to ask the Audit Committee, he would ask that Commissioner Colon sit on the Committee because he wants to independently pursue other options and present them to the Board, as there may be a better way. Commissioner Higgs stated she does not have a problem looking at other methods. Chairman Scarborough stated he wants to be free to look at other methods.

Commissioner Colon advised she would like to meet with the residents who came to the meeting sometime next week and try to figure out this complex issue and bring other suggestions back to the Board. Commissioner Higgs inquired if a motion is needed to appoint Commissioner Colon to the Audit Committee; with Chairman Scarborough responding yes.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to appoint Vice Chairman Jackie Colon to represent the Chairman of the Board of County Commissioners on the Audit Committee. Motion carried and ordered unanimously.

Commissioner O'Brien stated he has deep concerns about going outside of Brevard County or the management office for any kind of performance audit; someone will be second guessing different management styles; and what he heard from the public is a need to redefine the policies and procedures and tighten up Ordinances. He stated the people who are here today could help the County do that; and the County Manager can make a list of them and what the problems are after interviewing staff, and provide recommendations of how to correct the problems. He recommended the Board start doing that because he cannot see spending $30,000 to $40,000 for an outside independent auditor who would be second guessing whatever management style is presently in place. Commissioner O'Brien stated someone talked about Mr. Bowen; he was found to be in compliance with his job by the Employment Commission of the State of Florida, so he did not do anything wrong; and it is important to put

that on the record because of what was said earlier. He stated if the Board wants all the policies and procedures reevaluated, they could be sent to the County Manager and let him reevaluate them for staff and come back to the Board to advise of changes; they are professional people who can tell the Board where the good and bad parts of the policies are; then the Board can fix the bad parts; and that is all that is being asked by the citizens who came forth today. He stated they want the Board to fix the policies and procedures; and the County Manager and staff can do that.

Commissioner Higgs stated the Board can move on asking the County Manager and staff where the particular ambiguous points in various Ordinances are that cause the difficulties, but she does not think that will solve some of the issues. She stated the Board can do that as well as proceed on the two fronts talked about in terms of research by Chairman Scarborough and Commissioner Colon requesting suggestions from the Audit Committee; and she has no problem asking staff to give the Board a list of Ordinances and provisions that repeatedly cause difficulties that need to be clarified. She stated she would make that motion or second it if Commissioner O'Brien wants to make a motion to ask staff to do that.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to direct the County Manager and staff to review Ordinances and policies, and list those that have caused difficulties or have ambiguities that need to be clarified.

Commissioner Carlson recommended making clear to staff exactly what they are asked to provide. Commissioner Higgs stated that is one of the problems, the Board does not make it clear; it is asking staff to review Ordinances they are responsible for and advise the Board where there are ambiguities and where they feel they need to be cleared up. Commissioner O'Brien stated they should also look at the policies that have loopholes or are bad policies. Commissioner Higgs stated she is not asking about bad policies, but where the ambiguities are. Commissioner Carlson stated honesty is very important because the Board may not like what it will hear; and staff needs to understand that is important.

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

Commissioner O'Brien stated he wants to make another motion that the Contractors Licensing Board provide recommendations; and inquired if Mary Tees thinks it is a good idea to ask the Licensing Board to come forward with recommendations of what it should review, changes it should make, or what kind of licensing procedures should be in place. Ms. Tees stated it is not every contractor and not every employee, but it would seem that those few contractors and few employees have a magnet to one another and always do the same things. She stated a 15-foot buffer is 15 feet and not four scrawny trees and a bush; everybody is thinking in different shades in the County; and that is where the problem is. She stated when there is a binding site agreement for a property and that is not followed, then something is radically wrong within the County; it is not the laws that the Board made, nor the way Mr. Jenkins operates the County, it is how the people on the street react to different contractors. She stated she does not know if the Licensing Board should take a look at it, but she would ask them; it is for the Board to decide; however, it is the few contractors and few County employees who manage to get together and cause havoc. She noted having the fox watch the hen house is not the way to go. Commissioner O'Brien stated Ms. Tees said some licensed contractors perhaps were doing illegal or shoddy work or something that their licenses may come into question, or the procedures of giving those licenses may have to be clarified. Ms. Tees stated that might be something they would have to look at. Commissioner O'Brien stated there is a contractor in District 2 who is building a house and giving staff fits in his behavior, language, and attitude; and they are trying to work on that now. He inquired if the Licensing Board would like to bring back recommendations to the Board; with Ms. Tees responding she could ask it the next time it meets in January, 2002. Commissioner O'Brien stated he would like to see what that answer is.

Commissioner Carlson inquired if there was some follow-up on the letter from Julielynn Ulrich that was read into the record and given to the Board dated May 14, 2001. She inquired what process was followed; and stated since it is in the public record, there are certain allegations that need to be clarified.

Assistant County Manager Peggy Busacca advised several staff members investigated that, including Brian Breslin, the EEO Officer; and a complete report can be provided as a follow-up. Commissioner Carlson stated she does not know if the report can be given to the public; it is public record so it should; so anyone who has curiosity about that item should be able to get a copy of the report.

Chairman Scarborough inquired when will the item come back to the Board; with Commissioner Carlson responding the meeting after January 17, 2002, which would be January 29, 2002. Commissioner Higgs stated if other Commissioners have an opportunity to investigate other things, they could bring those back at that time. Commissioner O'Brien inquired if the Audit Committee would have met by then; with Mr. Jenkins responding they meet on January 23, 2002. Commissioner O'Brien noted the Board would get the Committee report and other reports Commissioners may want to add.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENT IN STUART TERRACE, FIRST ADDITION (CORAL WAY) - ANDREW
AND ELLEN PAVLAKOS

Chairman Scarborough called for the public hearing to consider a resolution vacating public utility and drainage easement in Stuart Terrace, First Addition (Coral Way), as petitioned by Andrew and Ellen Pavlakos.

There being no objections heard, motion was made by Commissioner Colon, seconded by Commissioner Higgs, to adopt Resolution vacating a public utility and drainage easement in
Stuart Terrace, First Addition (Coral Way), as petitioned by Andrew and Ellen Pavlakos. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENT IN PLAT OF RIVERSIDE LANDING OF SOUTH BREVARD (ISLAND
DRIVE) - WALLACE EVEREST III

Chairman Scarborough called for the public hearing to consider a resolution vacating a public utility and drainage easement in Plat of Riverside Landing of South Brevard (Island Drive), as petitioned by Wallace Everest III.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner O'Brien, to continue the public hearing on a resolution vacating public utility and drainage easement in Plat of Riverside Landing of South Brevard (Island Drive) as petitioned by Wallace Everest III until January 15, 2002. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHTS-OF-WAY (DEARBORN,
FOURTH, AND FREEMAN) IN PLAN OF TOWN OF PINEDA - HEALTH FIRST,
INC., ET AL

Chairman Scarborough called for the public hearing to consider a resolution vacating rights-of-way (Dearborn, Fourth, and Freeman) in Plan of Town of Pineda, as petitioned by Health First, Inc., et al.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner O'Brien, to adopt Resolution vacating rights-of-way (Dearborn, Fourth, and Freeman) in Plan of Town of Pineda, as petitioned by Health First, Inc., et al. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING ZONING CODE PER UPDATED
FUTURE LAND USE ELEMENT (FINAL READING)

Chairman Scarborough called for the public hearing to consider an ordinance amending the Zoning Code to include the updated Future Land Use Element.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Sections 62-502(b)(2) and 62-1922 by deleting outdated nomenclature; amending Section 62-509 by replacing expansion of Mixed Use District with Community Commercial and Neighborhood Commercial boundary extension and replacing and deleting outdated nomenclature; amending Sections 62-1154(a), 62-1255(a)(4), 62-1255(b), 62-1835.4.5, 62-1841.5(4), 62-2115.5(c)(3), and 62-2115.5(c)(5)(d) by deleting references to outdated Future Land Use Element nomenclature and replacing and adding nomenclature consistent with the adopted Future Land Use Element; amending Sections 62-1511(4), 62-1541 (Preamble) and 62-1844.5(a) by replacing Mixed Use with Community Commercial; amending Section 62-1935.8(2) by replacing Mixed Use with Community Commercial District and Neighborhood Commercial District, replacing reference to the residential density map with the closest residential designated area on the Future Land Use Map which is on the same side of the street, and deleting outdated nomenclature; and amending Section 62-1406(6) by inserting locational criteria and clarifying density allowances; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE RE-ESTABLISHING LAND USE COMPATIBILITY
GUIDELINES MATRIX

Chairman Scarborough called for the public hearing to consider an ordinance re-establishing the land use compatibility guidelines matrix. He noted the County Attorney had some concerns.

County Attorney Scott Knox advised his concern with this item is some judges tend to look at staff's report as gospel notwithstanding any disagreement with staff by the Board; and that particularly comes up in the area of compatibility. He stated staff typically will give the Board some kind of compatibility analysis on a rezoning or conditional use permit request; and they basically use the matrix in preparing that analysis. He stated the Board went through a lot of trouble preparing guidelines and criteria for compatibility and character of a neighborhood issues so it would have some flexibility; and if it goes to the matrix, it may eliminate some of that flexibility inadvertently, because what the courts tend to do is look at what the staff might have looked at and say because staff decided GML was compatible with AU that is automatically compatible and the Board cannot consider anything else even though it may, on a case-by-case basis, look at that application and applying the criteria in the Comprehensive Plan, say it does not think it is compatible. He stated the courts would go with staff over the Board every time. Chairman Scarborough inquired what is Mr. Knox's suggestion; with Mr. Knox responding to rely upon the criteria in the Comprehensive Plan and eliminate the matrix all together.

Commissioner Higgs stated the County Attorney told the Board over the last few years that it needs to use the Comprehensive Plan; there are guidelines in the Comprehensive Plan; and if it is used in terms of compatibility, the Board will find it is in better stead in supporting its analyses. She stated it has to have competent substantial evidence; and basically, the analyses have been used against the Board more than for it. She stated whether she agrees that GU is incompatible with PBP and the analysis is 1 or 4, it is a matter of the particulars of a case and her own subjective evaluation; and there is some value in it, but the Board should have a six months window without a matrix and see what happens.

Commissioner Carlson inquired if the matrix in the Comprehensive Plan was used for the last ten years; with Mr. Knox responding that may be true. Commissioner Carlson inquired why has it not been an issue before now; with Mr. Knox responding it has become an issue; and they lost four cases because things like this came up. Commissioner Carlson stated it is extracting the matrix from the Comprehensive Plan and putting it in the Zoning Code; that is the whole idea; and inquired why would the Board want to do that if what Mr. Knox said is true. She read part of Mr. Knox's comments as follows: "Based on experience, the conflicting staff determination of a 1 or 4 status predicated upon a matrix could render any such Commission analysis ineffectual in the eyes of the reviewing court. A 2 or 3 matrix determination would still require Commission analysis under the Administrative Policies, but since that is the case, we question the need for the matrix in the first place." Mr. Knox stated his suggestion is to get the matrix out of the Comprehensive Plan and the Zoning Code and not use it. Commissioner Carlson stated her question to staff had to do with complexities of compatibility; the matrix provided an easy way of looking at compatibility or non-compatibility based on the Zoning Code, etc., so it seemed like a good tool; but if Mr. Knox is saying, based on the cases they lost, it is based on the determination of staff using that matrix. Mr. Knox stated if there is a hardcore 1 or 4 on a matrix, the judge is going to look at that and nothing else.

Chairman Scarborough stated sometimes it is a good tool and sometimes it is not; there are other elements the Board can be precluded from using to do a correct analysis; and if it was right all the time, it would not have a problem, but when it is not, it hurts the Board. Commissioner Carlson stated it is better to focus on the whole picture rather than try to focus the court on a single thing.

Commissioner O'Brien stated he agrees with Mr. Knox questioning the matrix in the Zoning Code or elsewhere; the matrix could create substantial problems in any lawsuit; and it has already created problems in the past. He stated it would not go away and could be used as a reference by the Zoning Board and staff or anyone else; but as a material part of the Ordinance, it is not required; so, he will make a motion to remove it. Commissioner Higgs stated it is already removed. Commissioner Carlson stated it is removed, but it is going to be placed in the Zoning Code. Commissioner Higgs stated only if the ordinance passes; and the Board does not have to make a motion at all. Chairman Scarborough stated a motion to deny would not hurt.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to deny adoption of an ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Article VI, Division 3, specifically creating Section 62-1256, Land Use Compatibility Guidelines Matrix, relating to compatibility of zoning classifications and land use relationships; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida. Motion carried and ordered unanimously.

Commissioners Higgs and Carlson suggested a staff report in six months.

PUBLIC HEARING, RE: ORDINANCE AMENDING ORDINANCE NO. 01-25, RAVE
CLUB REGULATIONS

Chairman Scarborough called for the public hearing to consider an ordinance amending Ordinance No. 01-25, regulating rave clubs.

A staff person advised the amendment provides for Countywide application and ability for cities to opt out if they do not want it to apply within their jurisdictions.

There being no further comments or objections heard, motion was made by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt an Ordinance of Brevard County, Florida, amending Ordinance 2001-25 relating to rave club regulations; specifically amending the following Sections: Section 5 Definitions; Section 6 Acknowledgment of Exemption; Section 8 Requirement for Issuance of License; Posting; Section 14 Inspections; Section 17 Violations, Penalties and Remedies; Section 18 Suspension of License; Section 23 Area Encompassed; and providing for ratification of all other provisions of Ordinance 2001-25; and providing for an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE ESTABLISHING LISTING OF PERMITTED
INVESTMENTS FOR THE COUNTY'S INVESTMENT PROGRAMS

Chairman Scarborough called for the public hearing to consider an ordinance establishing a listing of permitted investments for the County's Investment Programs.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to adopt an Ordinance of Brevard County, Florida, adopting the list of permitted investments pursuant to the requirements of Section 218.415, Florida Statutes; providing for severability; providing for repeal; providing for inclusion in Code; and providing an effective date. Motion carried and ordered unanimously.

REQUEST FOR VARIANCE TO BREVARD COUNTY COASTAL SETBACK LINE,
RE: KEVIN AND GAIL KENNEY

Chairman Scarborough called for the public hearing to consider a request from Kevin and Gail Kenney for a variance to the Brevard County Coastal Setback Line .

Ed Fleis, representing the property owners Kevin and Gail Kenney, presented a handout to the Board, but not the Clerk; stated the application is to allow construction of a cantilevered living area, which is part of a deck, within a maximum of six feet seaward of the building footprint; and the footprint is located landward of the Brevard coastal setback line. He stated the structure permitted to extend beyond the setback line is a cantilevered deck that is attached to a building; it can be extended six, eight, or ten feet, depending on the structural design; and a structure allowed without a variance is a wood deck supported on posts. He stated approval of the variance does not extend the footprint of the building toward the ocean; and although the footprint is not beyond the setback line, the request is being approached as a variance to Ordinance No. 85-17, which allows for variances typically on the basis of extending a building footprint. Mr. Fleis advised from the data reviewed in Ordinance No. 85-17, the site is eligible for up to a seven-foot variance; and if the variance is granted, the applicants agree to a deed restriction that would prohibit hardening of the shoreline. He stated the variance is not injurious to adjacent properties and would have no affect on those properties; the handout presented shows the applicants' lot, the six-foot extension where part of the deck would be the enclosed living space, and the property to the south owned by the State of Florida. He stated the property to the north is vacant and heavily vegetated with trees, native vegetation, and exotics; and granting of the variance is not contrary to public interest and does not decrease the vegetated area seaward of the building or bring the footprint of the building closer to the ocean. He requested approval of the variance for part of the deck to be enclosed as living space.

Commissioner Higgs stated she has a question whether or not the Board wants to proceed in this way; it has granted several variances similar to this in the last year or two; and it does not affect environmental issues, but she had discussions with people about whether or not it affects or might adversely impact abutting property owners, depending on the actual view they have. She stated in granting the variance, the Board is changing the law; so the public hearing should be continued until the next meeting to look at the paragraph in the Code regarding the Coastal Construction Setback Line variance and determine if it wants to have a six-foot cantilevered enclosed space as a part of the Code because that is what it will be doing if it approves this request. She stated the Board would be changing the Code on a permanent basis; and if it wants to do that, it should proceed with officially changing the Code.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to continue the public hearing on a request from Kevin and Gail Kenney for variance to the Brevard County Coastal Setback Line until January 15, 2002, and direct staff to bring back language at that time for the Board to consider whether to amend the Code to allow a six-foot cantilevered enclosure without requiring a variance or continue the way it is by granting variances to the Setback Line provision that says cantilevered decks are okay, but not cantilevered enclosed space. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FROM BRIAN TINDALL FOR DETERMINATION
OF VESTED RIGHTS

Chairman Scarborough called for the public hearing to consider a request from Brian Tindall for determination of vested rights.

Attorney Patrick Healy, representing Brian Tindall, President of Precision Door Service, advised the proposal relates to development of a 4,000 square-foot office/warehouse complex on SR 520 west of I-95; his client appeared before the Board on two previous occasions; so the Board is generally familiar with the project. He stated the factual basis for the vested rights request is described in the affidavits he filed with the application from Mr. Brian Tindall and Mr. Bo Strickland, the contractor hired for the job; and the affidavits establish that the applicant detrimentally relied upon statements of staff and the Board to purchase the property in question, and more relevant, to incur substantial development costs. Mr. Healy advised in response to the staff report, Ms. Fox's statement denies certain statements in Mr. Tindall's affidavit and speculates that he may have confused her with someone else on the staff; that is entirely possible, as the conversations occurred over the telephone; but Mr. Tindall is adamant that he had the conversations with some member of the staff. He stated in response to Ms. Fox's comment that she did not have a floodplain assessment letter from his client, he would note that those conversations occurred prior to acquisition of the property and adoption of the Ordinance for the moratorium; so he does not know if that is relevant to anything. He stated he would cede the balance of the applicant's time, with the Board's permission, to Mr. Ben Martin, who is the chief operating officer of the company.

Ben Martin, Chief Operating Officer of Precision Door Service, advised he wants to tell the Board about Mr. Tindall, the Company, and how they got in this situation. He stated Brian Tindall started Precision Door Service 18 years ago, when he was a garage door repairman; prior to that, in the ninth grade, he was required by his family to drop out of school and help support the family; and his brother was asked to do the same thing in the sixth grade. He stated the reason he is here today is because perhaps Mr. Tindall's articulation may not gain the confidence of the Board as a business person; however, Mr. Tindall built a franchise in a garage door industry that is nationwide with 52 franchises coast-to-coast, and his company is the leader in that industry. He stated it is an Arizona Corporation because that is how it was formed years ago; they have their administrative offices in Arizona; last year Mr. Tindall said he wanted his offices in Florida where he was from; so they moved from Arizona to Rockledge and located next to the Economic Development Council. He stated they are proud of who Mr. Tindall is and what he stands for as an American success; they hope to build a training facility, which would have about four to six hundred people a year who would come through for training; but they wanted it to have the flavor of Florida and the flavor of Brian Tindall who stands for the scrub of Florida and is a fifth generation Floridian. Mr. Martin stated they found the property on SR 520 and said it is beautiful; there is no other single commercial property between there and the St. Johns River; and they wanted to build something that looks like old Florida and represents the founder of the Company, so they purchased the property. He stated nobody wants to make a mistake or admit making mistakes; everybody wants to think they are as good at their job as they possibly can be; and everybody needs security in their lives. He stated they are not about to challenge anybody's integrity and just want to ask a favor that if it walks like a duck and quacks like a duck, maybe it is a duck. He stated Mr. Tindall is not big on the written word; and presented his notes to the Board so it could see that he is not an attorney. He stated they are lay people who found property they wanted to develop; and they asked around and called around and thought they could go ahead. Mr. Martin advised they are not the kind of business people who would spend over $100,000 on this project; they had stockholders walking on the property and patting Mr. Tindall on the back saying it is beautiful and they love it; they are willing to build a great project there and not neon lights and glass and brass; and they would be happy to work with whatever offices are required. He requested the Board give them permission to work; stated if the Board wants it built on stilts, they would build it on stilts; and pleaded with the Board, for the Company and Mr. Tindall, to give them vested rights. He stated they are not a huge land developer; they are not trying to slip something through; they are caught in the middle of a difficult situation they do not feel they created; and requested the opportunity to have the vested rights. He presented copies of their monthly publications to the Board, and requested it take the time to read through them to see how proud they are of the facility. He presented a contract list of every franchisee to the Board; and noted the Board can call them and ask them about Mr. Tindall's integrity and doing business with him. He presented a copy of their audited financial statement to the Board depicting their ability to build a nice facility on the property.

Attorney Healy advised they are prepared to answer any questions the Board may have, and the contractor is here if anybody has any technical questions about the project.

Chairman Scarborough requested staff's report; with Planning and Zoning Director Mel Scott responding in looking at the record submitted on behalf of the applicant, he was unable to find anything that is written documenting any conversations he had with staff prior to the purchase of the property, which could have been a basis of misleading the potential buyer in purchasing the property. He stated one of the things that is typically done, if an applicant for vested rights has purchased a property that does not pan out for him and is not able to bear the type of building he wishes to construct, is investigation of the due diligence the property owner executed; but in the affidavits submitted to staff on behalf of Messrs. Tindall and Strickland, there is no mention of conversations that occurred with the Office of Natural Resources, which is the entity of the County that reviews floodplain maps and gives applicants that kind of information. He stated as a matter of fact, the affidavits confirm that the two staff members who were spoken to advised the applicant that he needed to pursue further investigations; and staff cannot find that those further investigations took place. Mr. Scott stated he takes exception to the claim that someone from his office, prior to the purchase of the property, told the applicant, "there were some 25 and 10-year floodplains on the property, but they see no problem with this proposal." He stated the Planning and Zoning Office does not contain floodplain maps; so, it would be highly unusual that his staff would say that. He stated he interviewed the staff person whose name was used in the allegation; and it is clearly not their practice to comment on environmental attributes which are on the maps not contained in their office. Mr. Scott stated knowing the environmental constraints that come with such an attribute, such as a floodplain, they would not proceed to inform the applicant that there is no problem; the applicant unfortunately is left to speculate that those conversations took place; and as far as written documentation goes, staff was able to find that after the property was purchased on September 1, 2001, a formal application was made, went through the proper avenues, and was denied based on the floodplains.

Commissioner Carlson stated she does not see a basis for vested rights, but the property is in District 1.

Chairman Scarborough passed the gavel to Vice Chairman Colon.

Commissioner Scarborough stated many times staff has come before the Board; it could have been, might have been, or even sometimes they did make a mistake; but from his conversation with Mr. Scott, the statement from Cindy that is in the file, and Mr. Scott's statements today, it is conclusive that this type of conversation did not occur; so he will move for denial.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to deny the request from Brian Tindall for determination of vested rights.

Commissioner O'Brien recommended the motion be amended to direct the County Attorney to prepare a written order of denial and bring it back to the Board.

Commissioner Scarborough amended the motion to include direction to staff to bring to the Board a written order of denial in two weeks. Commissioner Carlson seconded the amendment to the motion.

Vice Chairman Colon called for a vote on the motion as amended. Motion carried and ordered unanimously.

Vice Chairman Colon passed the gavel to Chairman Scarborough.

APPROVAL OF LIST AND AUTHORIZATION FOR COUNTY MANAGER TO EXECUTE
CONTRACTS, RE: SPECIAL MASTERS AND SPECIAL MASTER ALTERNATES
FOR CODE ENFORCEMENT AND CONTRACTOR LICENSING ENFORCEMENT

Curt Lorenc of Valkaria advised he came before the Board a few weeks ago and made it aware that Billy Osborne, who was the head of the Building Department at that time and received services from the special master, was renewing the special master contract. He stated he felt it was a conflict of interest and that the Board should be made aware of it. He stated another conflict of interest is, by contract, the clerk or special master secretary would be a supervisor from Code Enforcement; Code Enforcement derives services from the special master and it should be someone independent; and he suggested the County Manager's Office secretary could do that. He stated he worked with Pat Doyle, who is the current clerk or secretary, and felt in many instances she was non-responsive; and some improvements could be made there. He stated there are some judges the Board is being asked to approve; selecting judges or special masters should be taken very seriously; and the current process is not working as the Board would like it to work. Mr. Lorenc stated pre-screening of candidates by staff is a good idea, but the final selection should come before the Board; the Board should be able to ask them questions; he would ask them if they are making $250 and $300 an hour, why would they want to come to work for the County for $60 or $100 an hour; and the fee being offered by the County may be on the low side to get good people. He stated they should be asked what sort of law they practice to make sure there is not a conflict of interest; and many times people in the public know those candidates and may be able to add some information to the list of things to make a selection of the special master. Mr. Lorenc suggested the Board revise the contract, which currently says the clerk or secretary will be from Code Enforcement, and remove that provision. He stated there is an issue about the rules; the special masters have been in force for about six years; by Florida Statutes they have the right to create rules; and there have not been any rules yet. He stated he does not think the Board wants rules of the Supreme Court or Appellate Court applied to the cases before the special master since it is not even a trial court; it is a quasi-judicial hearing; and to be fair and uniform to all parties coming before the hearing officer, the Board needs rules. He requested the County Attorney be asked to come up with a set of rules for the special masters. He stated the current process has some problems; and he would like to see it a separate part of government, the Board give it its personal attention, and the candidates be brought before the Board in open session.

Janis Walters of Valkaria advised in reading the information that came in the Agenda package, the contract with the special master that is proposed for the next appointment cycle says the contract may require that specific rules be adopted; and urged the Board to change that to "shall" instead of "may." She stated in the introductory statement the special master makes general and broad statements of what the rules are going to be, but he changes them during the proceedings, depending on who he is talking to; and it seems particularly true if the case is contested. She stated it is not fair to people coming before the special master because even if they go to a hearing in advance to try and prepare to see what the procedures are, they do not know if those procedures are going to be applied to them when it is their turn; and that is not right. She stated she takes issue with the statement in the Agenda package that says, "Because there is no apparent conflict between prosecuting and clerk duties, those responsibilities would remain with the Special Projects Coordinator in Code Enforcement." She stated she has personal knowledge of Code Enforcement personnel altering the records before they were presented to the prosecuting attorney; so it is not the proper person to be preparing files for the County Attorney, especially if they are not acquainted with their own internal procedures and the inviolability of public records. She stated it is a heck of a thing for a prosecuting attorney to find out that the material facts of the case were altered between the original reporting of the case and the time it goes to the attorney for prosecution; and that does not seem to be a very ethical thing. Ms. Walters requested the duties assigned to the clerk, "records orders of special master and records proceedings and produces the minutes," be removed from Code Enforcement because no matter how good their intentions are, their loyalties and affiliations will color the written results of information given verbally. She stated those duties should be assigned to someone who is not affiliated in any way with any Department that derives services or presents cases in front of the special master. She stated the selection committee is made up of people for whom she has great respect; and if the contract is properly written and the duties properly assigned and carried out, the system should work a lot better. She stated it ties in with the issue discussed earlier about policies and procedures and whether they are being followed, and in this case, whether or not the personnel are aware of the policies and what is expected of them. She stated people need to know what they are getting into before they get in the door and become embroiled in the procedure.

Commissioner Higgs inquired if Ms. Walters suggested the clerk's duties go somewhere other than with Code Enforcement; with Ms. Walters responding "records orders of special master and records proceedings and produces the minutes" should go to a person under Management

Services; and maybe there should be a two-man rule in Code Enforcement for preparing files so the records are not altered before they are sent forward.

Bea Polk of Titusville stated the clerk should be under a different department; there are many complaints about what is going on; people say things happened they knew nothing about; and there are a lot of problems to be solved, which the Board needs to solve.

Assistant County Manager Peggy Busacca advised there were comments about the contract; she has a draft that has not been provided to the Board yet that would require the special master adopt rules of conduct; it would require that the County provide a Management Services staff person to act as secretary; and the special master would be required to attend a procedural workshop to be held at a future time and date agreeable to the parties at the Government Center. She stated that contract would be administered through Management Services so that may answer some of the issues that were brought up.

Commissioner Higgs inquired if there would be a problem with the rules being drafted by the County Attorney; with Ms. Busacca responding the County Attorney may want to address that. A person stated Chapter 162 says the Code Enforcement Board or Code Enforcement special master is the one to prepare the rules. County Attorney Scott Knox advised the Florida Statutes say that, but there is nothing that stops the Board from adopting the rules and requiring by contract that the special master adopt those rules. He stated if the Board wants to go that route, his office can prepare the rules.

Commissioner O'Brien stated there are some policies and procedures in Code Enforcement that perhaps should be reviewed to keep the high ethics that the Department needs; the County is the prosecutor; and if it has to tighten some rules to protect the public from crushing government, it can do that. He stated the Board is not talking about a real trial; it is talking about the ability of the County to fine someone; and this is much to-do about nothing because internal corrections can be made to protect the public from government if government is being outrageous or overstepping its boundaries. He stated the Board's job is also to make sure that does not occur and that fairness is always in the policy for the public; having the clerk come from another office will separate the information, so he understands that; and recommended Mr. Bowen work with Mr. Knox and come back with recommendations on what policies and procedures should be in place to protect the public from government.

Commissioner Higgs stated the Board is required to provide due process and would be in a better situation if the County Attorney drafted the rules and had the various special masters adopt those as procedures; and she will make a motion to that effect later. She stated under the current Code the candidates are selected from a list approved by the Board of County Commissioners; the County Manager does that, and chose to do it through a committee; and if the Board is not going to amend the Code, it needs to follow the Code as it is. She stated at this point the Board should adopt the list of candidates and allow the committee to proceed, then determine if it wants to interview the individuals.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to accept the attached list of candidates for special masters and special master alternates for Code Enforcement and Contract Licensing Enforcement for consideration by the committee designated by the County Manager. Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct the County Attorney to prepare appropriate rules for use by the special masters and incorporate them in the contract that will be offered to the special masters. Motion carried and ordered unanimously.

Commissioner Higgs stated there was some question about the clerk's function; an assistant is being set up under Management Services; and it seems acceptable to move those two duties of recording the orders and proceedings to that Group.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct that the assistant to the special master be under the supervision of the Management Services Group. Motion carried and ordered unanimously.

Commissioner Colon advised Mr. Lorenc if he had any questions he felt needed to be asked, he could submit them to her office so she can make sure it is on the record and can track how the interviews go if they are being taped or if someone is taking notes, etc.

Commissioner Higgs advised in the Agenda item, it says "special master compensation since 1996 has been $60 an hour, but it projects $100 an hour; and inquired if the Board needs to approve that; with Code Enforcement Director Bobby Bowen responding yes, he would like to get approval on that to increase the amount since it has been so long. County Manager Tom Jenkins inquired if the contracts will come back to the Board; with Mr. Bowen responding yes.

Mr. Jenkins stated staff will negotiate the higher rate and bring it back to the Board. Commissioner Higgs stated she is not ready to go to $100 an hour; and if it went to $75, that would be 3% over six years. Mr. Bowen stated the $100 is very low in comparison with other jurisdictions they checked with that have special masters; and most of them are at $120 to $150 an hour and up. He stated they advertised the $100 fee and got a number of candidates. Commissioner Higgs inquired if the $100 an hour fee was advertised; with Mr. Bowen responding yes, as a proposed fee.

Commissioner O'Brien recommended Mr. Bowen prepare a report for the Board showing what neighboring counties are charging so the Commissioners can review it.

Commissioner Colon inquired if it was $60 all along, is there something that says staff is at liberty to raise it by $40 on its own; with Chairman Scarborough responding no. Commissioner Colon inquired if staff has to get it approved; with Chairman Scarborough responding yes, the Board would have to do that. Commissioner Colon inquired why was it advertised at $100 without the consent of the Board; with Mr. Bowen responding it was advertised as proposed. Commissioner Colon inquired if the Board can still pay $60 an hour.

Commissioner Carlson inquired if the Board wants to ask for a report on the jurisdictions around the County; with Commissioner Higgs responding she will second that.

Chairman Scarborough directed Mr. Bowen to bring a report to the Board on what the other counties that have special masters are charging. He stated he sat on one of the committees for conflict attorneys; a conflict attorney came to him and said he had to resign because of what he was being compensated and the demands; the Board needs to get good competent people; and it can save a few dollars and destroy the whole system if it is not careful. He stated part of it is having somebody come in that the Board wants to have; it does not want to pay an outrageous fee, but it needs competent people; and if it falls below having somebody who can do the job, it will have problems.

Commissioner O'Brien inquired if Mr. Bowen is directed to come back with a report; with Chairman Scarborough responding yes.

FINAL ENGINEERING APPROVAL AND INFRASTRUCTURE CONTRACT WITH VISTAR
REALTY, RE: STUART AVENUE EXTENSION

Assistant County Manager Peggy Busacca advised there is a land clearing violation that needs to be cleared up before the Board considers the item for approval, so it was withdrawn.

STAFF REPORT, RE: ROADSIDE STANDS IN RR-1 ZONING CLASSIFICATION

Chairman Scarborough advised when he was briefed, he was told someone raised the issue; and inquired if that person is at the meeting; with Planning and Zoning Director Mel Scott responding no, but he had conversations with staff and stated he would not attend, was okay with the option presented to the Board in the report, and would proceed following whatever option the Board selected. Chairman Scarborough stated when the Board discussed roadside stands in the past; it was more than compatibility; it was capability of people to pull off and on the road safely; so the Board needs to proceed with a great deal of caution because what may work at one location may not work elsewhere.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve Option 2 and take no action on roadside stands in RR-1 zoning classification. Motion carried and ordered unanimously.

Commissioner O'Brien advised a man came before the Board several years ago; he lived on a boat in a marina and talked about selling roses on the roadside; at that time the Board said he should be on a level playing field with a convenience store with the same setbacks, bathroom facilities, etc.; yet there are still roadside vendors in parking lots of gas stations. Commissioner Higgs stated the Board established a new code for roadside vendors in the unincorporated area at that time and certain restrictions; they had to be located in certain zoning classifications; and if not, they would be in violation of the Code.

Planning and Zoning Director Mel Scott advised the man was Mr. Beckett and the Board responded to many of his concerns when it revised the Code to regulate roadside vendors. He stated there was concern with shrimp being sold within the rights-of-way, or roses, or lunches; the Board amended the Code and made them only accessory uses because of traffic and site constraints; so now they are accessory uses on commercial establishments because those sites are designed to accommodate the traffic flow, and they have restroom facilities. He stated they are not permitted in any residential classification or along the right-of-way; but if someone is selling roses in a Texaco Station as an accessory use, the Code allows that.

Commissioner O'Brien inquired if the Code allows them to be up against the sidewalk within ten feet of the right-of-way; with Mr. Scott responding no, there are setbacks that have to be adhered to, but they can be interior to a parking lot. Commissioner O'Brien stated he recalls that the Code said the setback for a vendor was the same as the building or structure, but some vendors are literally seven feet from the curb on a corner and block some of the view for drivers. Assistant County Manager Peggy Busacca advised staff will write a report and send it to the Commissioners; and if a Commissioner sees something that is not what he/she thinks should happen, the item could come back to the Board. Commissioner O'Brien recommended the report indicate a layout of what the Ordinance says, the setback, etc. so he will have a better idea of the requirements, and if there are loopholes in the Ordinance.

AGREEMENT WITH REYNOLDS, SMITH & HILLS, INC., RE: PROFESSIONAL SERVICES
FOR A. MAX BREWER MEMORIAL CAUSEWAY BRIDGE REPLACEMENT PROJECT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute the Agreement with Reynolds, Smith & Hills, Inc., to provide professional services for A. Max Brewer Memorial Causeway Bridge Replacement Project development and environmental study at a cost of $498,092.88, not including the charrette meeting at $22,000.

Chairman Scarborough advised the State has indicated a willingness to provide funding for the project; and requested Mr. Minneboo advise the Board on the status of the bridge.

Public Works Director Henry Minneboo advised the President signed a $3 million appropriation for design of the bridge replacement project, but there are time constraints so staff will be moving rapidly and will come back to the Board to hire an engineer for the design. He stated the State expressed that it will take over the bridge, and staff is trying to get that in writing.

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

DISCUSSION, RE: COCOA BEACH AREA CHAMBER OF COMMERCE RESOLUTION
ON BREVARD COMMUNITY COLLEGE ATHLETIC PROGRAM

Clarence Rowe stated he requested the Board review the issue and give some consideration of supporting the Brevard Community College (BCC) athletic program. He stated some people are abusing the statement "September 11th," by raising havoc and cutting budgets; his concern is education and sports, especially those things young people like to do; and it is important for the Board to give consideration and support to the athletic program. He stated there will be a meeting on January 28, 2002 in reference to community participation and an attempt to come up with alternative means to keep the programs alive; he gave the Board a copy of the Chamber's Resolution in hopes that the Board would consider adopting a similar resolution of support; and he also requested the League of Cities to get involved. Mr. Rowe advised an article in Florida TODAY said BCC would probably have an abundance of students; that might be because of September 11; but when people are out of work and making minimum wage, education takes a backseat for those who are less fortunate. He stated he attended the Board of Trustees meeting and saw a picture of BCC in 1960 with a lot of woodlands; he thought about the progress that has been made, the facilities built, and positive things that came from that facility; and to say because of budget cuts they have to end the athletic programs is like September 11. He stated imagine seeing the flag falling from someone's hand and as it begins to drift down to the ground, someone comes by and scoops it up and holds it high with pride and dignity; and that is what Brevard County can do for those programs. He stated if the children in schools contribute pennies, if the League of Cities, County Commission, and businesses put in a penny or two here and there, they can do those programs or alternative programs. Mr. Rowe stated he is emotionally upset with everything falling under September 11; the programs that are proven to be successful, measurable, and positive should be maintained through a partnership; and Brevard County cannot afford to let September 11 crucify the country and its programs, especially those that benefit the less fortunate. He noted 53% of the attendees at BCC are local citizens; the Board needs to give serious consideration to do whatever it can to keep the programs afloat; they may have to cut time and charge admission, but if everyone puts a penny or two into the programs, it can be done; however, there must be a positive attitude and stop the utilization of September 11 to do away with programs.

Commissioner Carlson requested Rob Varley provide his perspective as Rusty Buchanan, the Sports Commissioner, is not here to speak on the issue, but had real concerns if athletics were cut at BCC and how it would impact some conferences he is able to get. She stated she would like to see what the community impacts will be, not just deleting 113 students that are provided athletic opportunities, but also community-based activities, because a lot of things are based on accessibility to the College facilities. Tourism Development Executive Director Rob Varley advised he will not speak for Mr. Buchanan, but knows his business well enough because he oversees the contract; there are numerous repeat basketball tournaments that come to BCC; and the reason is the athletic program and what they have accomplished. He stated without the athletic program, TDC will lose two or three basketball tournaments; and that would result in several thousand-room nights being lost. He stated the swimming pool attracts swim teams; this time of the year they come down to practice and get ready for competitions during the year; they can be seen in hotels; and that is another effect and a great loss to Brevard County. Commissioner Carlson inquired if the loss is due to employees it would have to keep while the conferences are going on or because the facilities would be closed; with Mr. Varley responding there was discussion on the pool closing, so that would be a direct loss; and the other would be some loss of staff. County Manager Tom Jenkins inquired if BCC does not have a basketball team, would it still have tournaments; with Mr. Varley responding no, it would not be able to draw those events. Commissioner Carlson inquired if it would do away with BCC's youth league; with Mr. Varley responding he does not think so, and had discussions about ways to enhance doing fraternal league championships to augment the athletic program; but it will be a difficult job and new challenge for TDC. Commissioner Carlson stated she understands there will be significant implications to the community if the athletic programs at BCC are lost; and she would like to get a community impact report from staff to understand what those impacts may be because she has gotten a lot of emails and letters regarding the pool specifically as well as other areas. She stated she does not know if there are citizen groups that are trying to get people interested in supporting the athletic programs and protecting the existence of the planetarium because that is a superb asset to the community; it would not be responsible to look the other way in terms of supporting that facility; and she would like to know exactly what the cost to support the planetarium and keep it maintained would be, because if the Board assists in any way, it needs to know what the numbers are. Chairman Scarborough inquired who would do the report; with Commissioner Carlson responding the County Manager.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to direct staff to report to the Board on the community impact of the loss of Brevard Community College's athletic program, swimming pool, and planetarium, and cost to maintain the planetarium.

Chairman Scarborough inquired if the Board is deferring action on the resolution until the report comes back; with Commissioner Carlson responding the resolution asks the BCC Board to provide funding for the programs.

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

ACKNOWLEDGE RECEIPT OF LETTER AND RESOLUTION FROM CITY OF MELBOURNE
RE: SUPPORTING MELBOURNE INTERNATIONAL AIRPORT

Chairman Scarborough recommended Mr. Varley advise the Board of what occurred at the TDC meeting regarding Melbourne International Airport.

Tourism Development Executive Director Rob Varley advised those Resolutions were sent to the Tourist Development Council along with a letter encouraging support of the Airport; and the Resolutions included support of a convention center at the Airport. He stated the TDC did participate with the City of Melbourne and Airport a year and a half ago in a feasibility study for a convention center in the County; and when the report came back, it showed the convention center would be only 54% utilized and would lose money; so that was a concern with the TDC. He stated the TDC also received concerns from individual businesses about the use of tax dollars to help build a hotel that would compete with them; so there was some indecisiveness among the industry on what type of facility, where, etc. He stated the TDC has not taken a stand on the issue; it has continued to have discussions; he and Roger Dobson serve on the committee regarding the convention center because they think there is a need for some type of conference facility in the County; and it is their hope that a private entity will come forward and do that. He stated he spoke with Michael Richmond about his basketball program and they do not know where that is going; so they felt it was not the time to push for construction of a convention center in one segment of the County.

Chairman Scarborough stated the TDC did pass a Resolution; with Mr. Varley responding it passed a Resolution supporting the Airport, which it thought was important, and encouraging staff and other members of the travel industry to use that Airport when possible; and they are continuing their cooperative advertising that they do with the Airport.

Commissioner Colon stated there is great support by South Brevard elected officials for a convention center; and it became more of a territorial issue with the hotel owners from Cocoa Beach and people from Palm Bay area, so it is pretty controversial. She stated it has to do with the site also; and that needs to be noted.

Chairman Scarborough suggested a motion to approve the TDC Resolution and ask that the Board be provided additional information on the convention center.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve the TDC Resolution supporting Melbourne International Airport, and instruct staff to provide additional information on the convention center. Motion carried and ordered unanimously.

APPROVAL OF REQUEST FROM TOURIST DEVELOPMENT COUNCIL, RE: TRANSFER
OF FUNDS FROM CAPITAL FACILITIES TO EMERGENCY/DISASTER FUND

Commissioner Colon requested feedback from Mr. Varley to put things in perspective because there is a coincidence regarding the $250,000 that was discussed before.

Tourism Development Executive Director Rob Varley advised the TDC removed $250,000 from its disaster fund to try and shore up business after the September 11 tragedy, which did affect Brevard County; hotel occupancy dropped 28% and 3,000 to 4,000 people were out of work as a result of the loss of business; so the TDC felt it was important to tap into the disaster fund, which the Board unanimously approved. He stated they took $250,000 from about $400,000; they think they will come out of the woods; it was 13% down in November, 2001, but Central Florida is almost 26% down and Kissimmee almost 37% down; so the TDC feels Brevard County is coming back mainly because it is a drive market and that is where they are putting the emergency funds. He stated he would like to make a presentation to the Board on their ad plan once it is solidified; however, it is still a hurricane state, and there is still potential terrorism out there; and there is concern of depleting the disaster funds. He requested the Board consider replacing those funds now and letting them sit there and grow for the next time it rains.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to approve budget transfer of $250,000 from the TDC Capital Facilities Fund to the TDC Emergency Disaster Fund to replenish recently utilized funds for emergency advertising resulting from the September 11, 2001 tragedy. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - ROLAND CARLSON, RE: WAIVER OF PERMIT FEES

Roland Carlson requested a waiver of the permit fees; stated he got permission to finish the structure, but has a problem with money because of the permit fee; consequently, he cannot get temporary power hooked up. He stated he does not work, is on a fixed income, and has to pay $240, which will take him a couple of months to make up that money to be able to do anything on the property. He stated he got the property for retirement because he is disabled; he was homeless before getting the property; and now he will have to go back into homelessness because he cannot pay the County the permit fee. He stated it would be appropriate if the County could put a lien on his property for those fees because it is not reasonable to charge what he cannot afford for necessities.

Commissioner Higgs inquired if Mr. Carlson talked to County staff about programs that could assist him with some of those payments; with Mr. Carlson responding the assistance has nothing to do with any programs, but has to do with the Board. Assistant County Manager Peggy Busacca advised Mr. Carlson was referred to Housing and Human Services, but she does not believe he contacted them. Mr. Carlson stated as long as he owns property and it is not finished, they are not going to help him; and he is not living in the house, but is living in a mobile unit. Commissioner Higgs stated there is emergency assistance available that may help Mr. Carlson; so she cannot support what he is asking for until he has explored those other options. Mr. Carlson inquired if this is a waste of time; with Commissioner Higgs responding no, he may get four votes from the other Commissioners.

Mr. Carlson stated he went to court the other day and got a check for $7.80 for staying in the courtroom all day to be a witness for the State; but he knows everybody else who was in that courtroom working made a heck of a lot more than that for the day. Commissioner Higgs stated there are mechanisms available that could be of assistance to Mr. Carlson. Mr. Carlson stated he is talking to the mechanism now; and if there is a charge that is inappropriate that comes into the County, the assistance should come from the County; and that is what he is doing right now. He stated he is disappointed that the County does not have a form to fill out for indigent persons so they do not have to go through these sitting down periods. Commissioner Higgs stated if Mr. Carlson went where staff advised him to go, he would not have to be here today. Mr. Carlson stated he called some services and they told him there was no way to help him because the house is not finished; he may have to go to those services later, but his taxes have been going to the County for a long time; and he is asking for something that would be appropriate to get temporary power. He stated the cost of the permit is a coercion on his liberty and is putting a penalty on him since he cannot get electricity until he pays the permit fee; and that is a deterrent to make him pay first. He inquired if he has to call those people and go through the procedures suggested, then come back to the Board; with Commissioner Higgs responding no. Mr. Carlson inquired if Commissioner Higgs thinks those people will help him; and if so, whom can he get the names of those people from. Chairman Scarborough stated staff would help Mr. Carlson.

Commissioner Carlson inquired if there is electricity in the mobile unit Mr. Carlson lives in right now; with Mr. Carlson responding he owns a power plant. Commissioner Carlson inquired if it is an RV or mobile home; with Mr. Carlson responding it is a school bus he converted. County Manager Tom Jenkins advised Mr. Carlson that staff would assist him.

Mr. Carlson stated he does not have much influence when he comes to the County because one time he had a bad toothache and the County could not help him; and it took a whole month to get the tooth fixed, which in his estimation, is a health, safety, and welfare issue. He stated the electrical power is also a health, safety, and welfare issue; but he has to go through numerous telephone calls in order to get it. He stated he call Commissioners O'Brien, Higgs, and Scarborough, but not Commissioners Carlson and Colon; Mr. Jenkins finally came to the rescue; but a whole month is a long time to go with a bad toothache. He stated if he knew he would have a deterrent on him because he was a commercial fisherman, he would have gone to work for the government so he would have had security.

PERSONAL APPEARANCE - LINDA FRAZIER, RE: NEIGHBOR'S OVERGROWN LOT

Linda Frazier of Merritt Island advised she is a business owner and has lived in Brevard County for 20 years; she requested action be taken concerning the unlawful violation of Section 114.28b of the Brevard County Code at 225 S. Banana River Drive owned by Susan Paxton; her first complaint was made in July, 2001; and as of today, the property remains in noncompliance. She inquired why, with the County Attorney's Office and numerous Code Enforcement personnel, and her tax dollars at the Board's disposal, a violation of public nuisance cannot be enforced or corrected. She stated she has a copy of the action that was
filed; Mr. John Houser has been to the property 12 times, and nothing has been done; Mr. Jenkins has been patient with her as she became more aggravated and irritated by this issue; and during the summer she cannot step out her front door because of the bugs from the overgrowth. She stated there is a dwelling on the property; it is not vacant; someone lives there; and she has the misfortune of living next door.

County Manager Tom Jenkins advised the complaint has gone through the special master; the owner of the property has been found in violation; there is a lien on the property and the fine is accruing; but unfortunately it does not solve Ms. Frazier's problem because staff is not able to get the problem corrected under the current system. He stated Mr. Bowen got a group of volunteers to go in and clean the property, but the property owner refused to talk to Mr. Bowen or allow them on the property to correct the violation; and there have been other situations that occurred from time to time. He stated this is still a first offense; and the only recourse is to continue to put a fine on the property; but that does not get rid of the problem; so the question is what can they do about changing the system so when people refuse to cooperate, there is something that can be done to motivate them to make the correction. Mr. Jenkins advised in this situation, one of the immediate options for the Board is to authorize staff to seek an injunction and go to court to force it to be taken care of; only the Board can authorize that; and the other option is to look at alternatives in terms of what Code Enforcement might be authorized to do in the future in similar situations so this problem does not recur.

Chairman Scarborough stated in some areas if they do not cut the grass, people go in and cut it and lien the property. Code Enforcement Director Bobby Bowen advised that is true, and they do that now with a mowing program and post the property; however, the problem with this property is it is occupied by a human being who denied access; so it becomes a trespassing situation unless staff has something from the court. He stated they could get on the property two ways, with permission from the owner or something from the court that allows them to go on the property and abate the problem. Chairman Scarborough inquired if there is a way to restructure the Code, as staff spends an enormous amount of hours trying to resolve these situations. He stated it has been to the special master and the fine is not doing anything; and there is a need to allow staff to clean it up and lien the property for the cost of the clean-up or go to an outside contractor to do it. County Attorney Scott Knox advised the trespass issue is a concern. Chairman Scarborough inquired if the County Attorney could look at that and see if there is a way around the trespass.

Commissioner O'Brien advised sometimes the Board is forced to do things that are distasteful, but a situation like this has properties on both sides cleared with nice houses, and properties across the street and on the rest of the street that are nice. He stated about five years ago the Board had to approve taking of a house by Angel Boulevard, almost in the same neighborhood; and unfortunately, there are people who have mental problems.

Motion by Commissioner O'Brien, to instruct the County Attorney to investigate appropriate venues to resolve the problem brought forth by Linda Frazier concerning an overgrown lot on South Banana River Drive, which is the subject of a Code Violation, and return to the Board with options.

Commissioner Higgs inquired if that would be an injunction; with Mr. Knox responding the public nuisance laws allow the Board to file suit to prevent public nuisances or abate them; and that may be one way to do it. Commissioner Higgs inquired if the County had a citation program under Code Enforcement, could it issue a citation and get to court faster; with Mr. Knox responding the citation would get to court, but the judge would not be able to tell them to remove the nuisance unless the County has an injunction.

Commissioner O'Brien stated if the County goes in with the mowing program and clears the lot, it will have the same situation a year later; the person is not going to do anything about it and does not care about liening her property; so the Board has to go to court and try to use the legal system to make the property into the residential area that it is supposed to be.

Commissioner Higgs seconded the motion.

Commissioner Carlson inquired if the motion is to ask for an injunction; with Chairman Scarborough responding no, it is asking Mr. Knox to come back with options that are available to resolve the problem. Commissioner O'Brien recommended Mr. Knox work with Code Enforcement and Ms. Frazier to see what can be done and to keep Ms. Frazier informed of what the County is doing.

Commissioner Colon advised in the City of Palm Bay they are able to go and mow the property but are not allowed to cut trees; and inquired if it is the same in the County; with Mr. Bowen responding they attend to the overgrowth. Commissioner Colon stated sometimes constituents are under the impression the County is going in and completely cleaning the property including trees; with Mr. Bowen responding not at all, and if the property has never been cut, the current Code excludes those properties. Mr. Jenkins commented this lot is in a developed neighborhood so it is a different scenario. Ms. Frazier stated the things on the property appear to be trees, but they are weeds that have trunks with bark and are 14 feet tall. Commissioner Colon inquired how does the Code apply to pepper trees; with Mr. Bowen responding they address all the overgrowth that is causing the problem. Commissioner Colon inquired if that includes pepper trees; with Mr. Bowen responding yes.

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

PERSONAL APPEARANCES - THOMAS AMAULT AND RICHARD ROMANS,
INTERCOASTAL POOLS, R E: WAIVER OF 25-YEAR RIVERINE FLOODPLAIN
MORATORIUM FOR POOL ENCLOSURE

Thomas Amault advised he signed a contract with a client to construct a pool enclosure before the moratorium went into effect; they pulled the swimming pool permit with the plans that included the screen enclosure, but failed to pull a permit for the enclosure; and requested permission to build the pool enclosure. He stated the exemptions in Ordinance No. 01-54 mention swimming pools, fences, etc. but do not have pool enclosures.

Chairman Scarborough stated the Board has recognized it as an oversight.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to grant a waiver of the 25-year riverine floodplain moratorium as requested by Thomas Amault and Richard Romans for a screened pool enclosure. Motion carried and ordered unanimously.

Chairman Scarborough inquired if the oversight has been taken care of so people do not have to sit for five hours and wait to take care of something that would be approved; with Assistant County Manager Peggy Busacca responding the Board directed that certain construction would be excluded; and if the Board wants to include pool enclosures from now on, staff will do that.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to include pool enclosures in exemptions from the 25-year riverine floodplain moratorium. Motion carried and ordered unanimously.

APPROVAL OF NOMINEE, RE: CHAIRMAN OF BREVARD COUNTY HISTORICAL
COMMISSION

Commissioner Higgs advised the Historical Commission is the only commission that the Board names the chairman; and recommended the County Manager change the appropriate documents so the Board does not appoint the chairman.

Assistant County Manager Stephen Peffer advised it is part of the County Code, so they will have to amend the Code to do that.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to appoint Bob Gross as Chairman of the Brevard County Historical Commission, with term from February 1, 2002 through January 31, 2004; and direct staff to amend the Code to eliminate the Board appointing future chairmen to the Historical Commission. Motion carried and ordered unanimously.

PUBLIC COMMENT - PATRICK COYNE, RE: FUEL SYSTEM AT COYNE'S MARINA

Patrick Coyne of Micco advised he operates a marina in Micco and applied for a permit for fuel seven months ago so it could be a full-service marina; he has been trying to get on the agenda for approval; there is a lot of shoreline work to do; and he needs the revenue from the fuel to take care of that work. He stated it is also a demand from his customers; the revenue will be used to clean up a nightmare shoreline that he inherited from the previous owner; right now they have to send customers to Indian River County; so the fuel system will also provide additional revenue to Brevard County from fuel sales.

Commissioner Higgs advised the item was on the Agenda regarding public interest determination; and staff pulled it off; and inquired why the item was withdrawn; with Assistant County Manager Stephen Peffer responding as staff looked through the Ordinances that apply, which had to do with shoreline protection buffer, it appeared that the fuel system is not allowed under the current Code; so staff withdrew it because it cannot bring something to the Board that is not legal. Mr. Peffer stated it is staff's recommendation to make changes to the Code to allow that to occur, because there have been changes in regulations at the State level, which they enforce in Brevard County, and which make it more environmentally acceptable to put in the fuel system facilities in a location such as Mr. Coyne is proposing. He stated the Code does not allow it at this time; and that is the reason they deleted it from the Agenda and will bring a change back to the Board so Mr. Coyne could construct it.

Commissioner O'Brien inquired how long would it take to bring an amendment to the Ordinance back to the Board and advertise it; with Mr. Peffer responding if staff gets permission today to advertise those changes, it can bring the ordinance back in written form with the narrow change to address fueling facilities in the 50-foot shoreline protection buffer; and that will bring it back at the earliest possible date.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance amending the Surface Water Protection Ordinance to allow marinas to construct fueling facilities within the 50-foot shoreline protection buffer. Motion carried and ordered unanimously.

PUBLIC COMMENTS - NELLY STRICKLAND, RE: VARIOUS ISSUES

Nelly Strickland of Titusville thanked the Board for appointing Maureen Rupe to the North Brevard Hospital District Board. She inquired how Code Enforcement can advertise something the Board did not approve; who is running the County; is it Code Enforcement; and are they supposed to falsify records. She stated if staff alters records, there is no Code Enforcement; and it does not exist if they can change it every time.

Ms. Strickland state the City of Titusville is doing a lot of annexation; she is not proud of Tom Harmer; she is beginning to think they are dealing with a Sam Ackley glorified; and he will have half of District 1 by the time he is done. She stated in 1968 or 1970, there was an extensive thing done for the City; it cost $2,800 per unit of 3.1 persons; and she has never figured out how they get 3.1 people in one house. She stated it cost that much then to annex and add services for police, fire and water, etc.; she does not want to be responsible for all the County's District; and that is one reason she had a falling out with Tom Harmer. She stated the people cannot afford that and cannot afford Tom Harmer if he keeps doing that kind of stuff, like a take-home police car for every officer. She stated she is not pleased; when she does not feel good she is even less pleased; and inquired if the City votes to annex, does the Board have to cede. She inquired if Chairman Scarborough knows what plans the City has for water because she cannot find out anything.

Chairman Scarborough advised the Board does not have the ability to say yes or no to annexations; it does have the ability to comment on land uses; and there were a lot of questions raised, so the Board asked for a full report on what is going to evolve with that annexation. Ms. Strickland stated the man is a grabber; he will pursue what he has in mind and does not exactly mind how he does it.

Ms. Strickland stated a friend of hers is not well financially; she was asked to give $60 for emails; and inquired if that is the right thing to do just to burn a disk. She stated she has a zip drive and can put the Britannica on it if she desires; and inquired if it is fair and just, another bunch of garbage, or another way of evading the Sunshine law. She stated the clerk said there could be hundreds of emails; and all her friend asked to do was see them.

Chairman Scarborough inquired if this has to do with the City of Titusville; with Ms. Strickland responding yes. Chairman Scarborough stated the City has the capacity to set its own requirements; and the Board lowered the cost of copies much less than the State law allows making it more user friendly. Ms. Strickland requested Chairman Scarborough talk to Mr. Harmer; with Chairman Scarborough responding the City Council sets those policies.

Ms. Strickland inquired if the Board is in favor of Vectorworks being on the river on what is currently public land, because it is supposed to happen. Chairman Scarborough stated there are very few people who would want industry on the river. Ms. Strickland stated that is passe; and requested the Board look into those things. She stated she wants to know where the water is going to come from because the City is buying and selling and annexing more land, which will need more water, police and fire people.

PUBLIC COMMENTS - BEA POLK, RE: AUDIT OF CHARTER OFFICES AND EMAIL

Bea Polk of Titusville advised it is a new year and time to change things; and requested again that the Board put on the ballot the charter offices so people can vote whether they want them or not because they could save a lot of money for things that are done by the County. She stated there could be one place to hire personnel instead of four or five; she sees more cars, which makes her realize the County is not poor and should not increase taxes; she was told by the Board that it could audit Jim Ford's office; and inquired if it is going to do it and how can it be done. She stated the salaries and taxes keep going up; there should be some way the public has some say about his budget because the Board does not and does not know what is going on; and inquired how can the public have control of those budgets.

Commissioner Higgs stated Commissioner Colon is on the Audit Review Committee and perhaps could investigate if the Board can audit all constitutional offices, not only Mr. Ford's office. County Manager Tom Jenkins advised it is on the Agenda for the next meeting.

Ms. Polk advised she asked for email and never got an answer about how they can look at emails; they are public records; and she was told the County was over the email from constitutional offices and he would have to ask the County how she would go about looking at a person's email. She stated she does not want to pay for everything and would like to know what copies she wants; email should be nothing but work related; so if anything is on there that is personal, the taxpayer is paying for personal stuff. She requested the County Attorney bring back information on how the public can have access to the public records on email. She noted they have been going in and asking and were told it would cost $160, and some were $200.

Commissioner Carlson stated that is a good question; and inquired if the County Attorney can respond. County Attorney Scott Knox inquired if Ms. Polk wants to know how to access email; with Commissioner Carlson responding no, as a public document in digitized form, if they do not have to copy it and can send it free. Mr. Knox indicated it probably could be done, but there may be thousands of emails stored up by somebody. Commissioner Carlson stated the County has websites where individuals can dump anything they want off those websites; and inquired when it comes to information in a public office, is the Article 119 request sufficient to ask for that; with Mr. Knox responding the public can get access to email, but the question is physically how do they get it; however, it is public record, and they can get access to it. Commissioner Carlson inquired what is the procedure; with Mr. Knox responding that will vary from office to office. He noted if they wanted his email, he would have to download it and give it to them on a disk. Chairman Scarborough inquired how much would Mr. Knox charge to do that; with Commissioner Carlson responding the cost of the disk.

Commissioner O'Brien inquired why the email cannot be forwarded to the individual requesting it; with Commissioner Carlson responding there may be so much that it may be more efficient to dump it on disks versus trying to send it. Commissioner O'Brien stated if someone wants to see all the email on scrub jays, Mr. Peffer could identify those, put them in a file, and forward the file.

Ms. Polk stated she wants to know how she can go in and look at the email because if it is run off, they can eliminate what they do not want the public to know. She inquired if email goes around the Sunshine law. She stated the question has been asked many times of how they look at the email of public records. Chairman Scarborough stated that is a good question and the Board should have an answer to it.

Ms. Strickland stated she can buy a program that would allow her to break into any computer; and inquired how legal is that. She stated she has it on her computer and can research anybody; and it has another program that mixes numbers and letters in all fashions like the speed of lightning; and that is how to get passwords. She inquired if that is legal or will she be thrown in jail. Chairman Scarborough instructed the County Attorney to get an answer to that as part of the report on public access to email. Ms. Strickland requested an answer because those programs are for sale and offered to her by email.

Commissioner Carlson advised those are decryption programs; and suggested Ms. Strickland not use them because she could be found guilty of anything she might somehow get into that is not public record. Ms. Strickland inquired if she gets into the City's email, is that okay. Chairman Scarborough stated those are issues that are evolving and questions that would be beneficial to have answers to; and the Board has asked the County Attorney to answer those. Ms. Strickland stated she looks forward to that particular answer because she will buy that program and speed password breaker.

PUBLIC COMMENTS - CURT LORENC, RE: CODE ENFORCEMENT AND CONTRACTS

Curt Lorenc of Valkaria advised the Board passed a rule that a department head can renew contracts without bringing them to the Board if they are for $15,000 or less; and it would be wise to exempt the contracts with judges or hearing officers and have the Board renew those contracts. He stated the hearing officer is paid by the County; the Building and Code Enforcement Departments bring cases to him all the time; the special master knows those Departments are going to renew his contract; and that could sway his decisions. He stated it would be better if the Board renewed those contracts.

Mr. Lorenc stated the $100 an hour for a hearing officer was advertised; but he does not believe it was approved by the Board or made clear in the ad; and inquired if that is a legal ad. He stated to the best of his recollection, it was Terri Jones who was the prosecuting attorney who approved the ad; and inquired if that is the person who should be doing that approval. He requested Mr. Knox check into it to see if the ad was a legal ad.

PUBLIC COMMENTS - JANIS WALTERS, RE: SPECIAL MASTER CONTRACTS

Janis Walters of Valkaria advised staff has discretionary approval of contracts that are $15,000 or less; and requested contracts with special masters be exempt from that rule and always come to the Board. She stated since Ms. Busacca is reviewing the contract, perhaps she could add a performance review mechanism so the Board can get an idea how the special master is doing before it is asked to renew the contract.

Commissioner Higgs suggested Mr. Jenkins provide a report on the issue of renewal of that contract and how it might be done.

Chairman Scarborough stated when dealing with a special master or judge, there is always a winner and a loser; if a person loses, he or she does not like that special master or judge; therefore, the question is who does the Board judge and what is the measure of judging somebody. He stated there are certain measures that judges are judged by; and if the Board gets into a judgment, it would use similar criteria.

Commissioner Carlson stated the only thing she can glean from the suggestion on performance measures is that over time, there could be trends of potential bias; and if the Board is looking for objectivity, it might look for a trend.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 1:51 p.m.

ATTEST: _________________________________
TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

___________________
SCOTT ELLIS, CLERK

(S E A L)