The Board of County Commissioners of Brevard County, Florida, met in special session on January 26, 1995, at 5:01 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

Commissioner Scarborough led the assembly in the Pledge of Allegiance.

REPORT, RE: COLLECTIVE BARGAINING UNIT FOR SHERIFF'S DEPUTIES

County Manager Tom Jenkins advised of a fax from the Sheriff's Department on proposed legislation going to the Legislative Delegation this evening to allow deputy sheriffs to form a collective bargaining unit or be represented by a collective bargaining unit. He stated the Department wanted the Board to be aware of it because it could have a fiscal impact on the County with wages, so he sent it to the Commissioners, but do not know if the Board wants to discuss it. He stated deputy sheriffs have not been able to join a police union as municipal police officers can, and this legislation will allow them to do it.

Chairman Higgs advised without both parties present to discuss it and not having time, it would be difficult to act on it tonight. She recommended the County Manager advise the Sheriff if he wants it on the Agenda, the Board will consider it and make input to the Delegation.

DISCUSSION, RE: CANAVERAL PORT AUTHORITY PROPOSED LEGISLATION

Commissioner O'Brien advised of a fax from County Manager Tom Jenkins concerning Port Canaveral and an article in Florida TODAY Newspaper about the Port, saying the Delegation will vote on a final list of issues to make the top priorities at its meeting in Titusville with Port tax on top of the Agenda. He stated it also said Canaveral officials will ask the Delegation and all state representatives and senators whose districts include Brevard County to approve the Port's new designation. Commissioner O'Brien stated his concern is the Board has not done that, did not say it would include it in its legislative package, and has put itself in a severe disadvantage with the Delegation unless it moves tonight to put it in the legislative package.

Chairman Higgs advised the letter to the Delegation outlining the Board's position was hand delivered yesterday; she talked to Representative Futch's office advising that the Board will have discussions with the Port Authority, and if they cannot reach an agreement prior to the Legislative Session they will make their position clear to the Delegation or at the public hearings in Tallahassee. She noted the opening day is March 7, 1995.

DISCUSSION, RE: CANAVERAL PORT AUTHORITY PROPOSED LEGISLATION (CONTINUED)

Commissioner Cook advised February 10, 1995 is the last day to submit bills for this Legislative Session.

Motion by Commissioner O'Brien, to include in the Legislative Delegation package tonight that the Port Canaveral Authority should be changed to a political subdivision of Brevard County, and the package be brought forward tonight in Titusville by Joan Madden on behalf of the Board. Motion died for lack of a second.

Discussion ensued regarding clarifications, alternatives, and more information on the ramifications of the proposed bill, selling the assets and providing tax relief to those in the taxing district and the Port going private, concerns about the County running the Port, the Port being a political subdivision of the County, taxation, free and open debate with public input, decisions without adequate data, and selling the Port could cause competitive disadvantage.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to direct staff to ask Joan Madden to go to the meeting tonight and express serious concerns of the Board that it wants more public input, it is in the process of a dialogue with the Authority at this time, and it will take a position on this at a later date. Motion carried and ordered unanimously.

APPOINTMENTS, RE: DISTRICTS 2 AND 3 REPRESENTATIVES

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to appoint the following members:

Patrick Air Force Base Advisory Committee
Nick Beninati, 1740 Yates Drive, Merritt Island 32951, from January 10, 1995 until further notice.

Economic Development Commission
Joseph Popeck, 205 Cadiz Court, Merritt Island 32953 from January 26, 1995 until further notice.

EEO Task Force
John Anderson Tourist Development Council
Roger Dobson, replacing Rusty Fisher.

South Mainland Library
Ken Black, 5864 Lindsey Road, Micco from January 26, 1995 to December 31, 1995
Jewell Lasprogato, 1208 W. Perinwinkle Circle, Barefoot Bay 32976 from January 1, 1995 through December 31, 1996.

MPO Citizens Advisory Committee
Neal Chancellor, 2067 Algeria Street, N.E. Palm Bay 32905 replacing Linda Harris.

Commissioner Cook inquired if Commissioner O'Brien has an opening on the Tourist Development Council (TDC) for Roger Dobson; with Commissioner O'Brien responding Mr. Fisher is on there, and he is replacing him with Mr. Dobson.

Discussion ensued on representation of certain businesses and municipalities, the at-large member, and the terms of appointments.

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

REPORT, RE: LETTER TO CITY MANAGERS ON VIERA DRI

Commissioner Cook advised he drafted a letter to send to the City Managers of cities in District 4 asking if they have comments on the proposed Viera DRI to see what input he can get; and inquired if there are legal problems with sending the letter; with County Attorney Scott Knox responding no.

PUBLIC HEARING, RE: ORDINANCE AMENDING VESTED RIGHTS PROVISIONS

Chairman Higgs called for the public hearing to consider an ordinance amending the vested rights provisions of the Brevard County Code of Ordinances.

Planning and Zoning Director Peggy Busacca advised changes were made to clean up some language as recommended by the County Attorney and to include language recommended by the Board. She stated page 3 of the ordinance, under Consideration of Vested Rights, is clean up language the County Attorney recommended, i.e. "the following criteria may be considered by the County for consideration of vested rights" was put in so that on page 4 there could be additional language which states, "The request for determination of vested rights shall be submitted to the Growth Management Director;" however, that is a point for discussion. She stated the Board asked staff to put in language asking staff to go forward; and if the Board wants to see the staff do it, they may want to recommend a committee with several members. Ms. Busacca advised the changes on page 6, double underline, was in reference to the Board's request that they put together language talking about ways in which any improvement to engineering could be considered for an amendment to a vested site plan; and the County Attorney added language also.

County Attorney Scott Knox read the change to page 7, paragraph d, second line, adding after "regulation", "and the requirements of specified zoning classifications as identified by the County. . ." He stated the paragraph would read "The requested amendment shall be consistent with all applicable land development regulations and the requirements of specified zoning classifications as identified by the County, and shall bring the project into closer compliance with the Comprehensive Plan and provide for further compatibility with the surrounding land uses and the character of the area." Mr. Knox advised the purpose for that is to identify a particular zoning classification within which a use may fit even though there may not be something that specifically addresses that particular use, and give staff some regulations to work with.

Ms. Busacca advised paragraph (2) on page 7 has additional language dealing with staff making the decision on the request for amendment; the Growth Management Director was the language put in there for discussion purposes; and there was language added in paragraph 4 that an appeal must be filed in a timely manner.

Chairman Higgs advised everything is fine until it gets to the process by which the Growth Management Director makes the final decisions; the site plan has been approved in a public meeting by a public body; the change to the plan is then a staff decision with no opportunity for the public to be involved, no notification process, and no means by which a citizen would know what has gone on and be in a position to appeal. She stated that is unacceptable because it locks the public out of a significant decision. She stated she has concerns about page 7, paragraph (2).

Commissioner O'Brien advised it says "the decisions must be in writing and include findings of fact and the basis for the determination. Said final decision may be appealed to the Board of County Commissioners. . ." and it does not say by whom, so the public can make an appeal. Chairman Higgs stated the public would have no notice that anything was done because it would be totally an administrative process. She stated the Comprehensive Plan and site plans are public processes, and this would allow a significant decision to be made without public input; so she would not support that language. Commissioner O'Brien stated it says, "innovative engineering plans to provide for a safer traffic design, or provide for an increase of more than 10% for storage of stormwater retention and detention, or provide for an increase of more than 10% for preservation of native vegetation. . .", and "in no case shall an amendment be approved which results in an increase of impacts to public facilities and services or protected natural resources." He stated the changes would all be for the better and not possibly for the worse. Chairman Higgs stated if there is a large intense development that is not in compliance with the Comprehensive Plan, people would believe that in order for the site plan to change it would need to come into compliance with the Comp Plan; and they would be locked out of this process which she finds uncomfortable.

Commissioner Ellis stated it is not a way to get around a binding site plan; with Chairman Higgs responding it gets around a binding site plan because staff would be changing the existing plan.

Ms. Busacca stated she cannot answer that specifically but can tell the Board what staff discussed. She stated the language could assign a different zoning classification to the property without public hearing; hypothetically an industrial area could change to a commercial area and the zoning category could change by the language in paragraph D that was added, or it could go from multifamily to single family or hotel/motel to restaurant; and there could be significant changes in use as well as design of the site based on just the zoning category. She noted staff envisions those as nonconforming and subject to administrative rezoning; the administrative rezoning would make the binding site plan go away; at that point the development standards would be those that would be assigned by the requirement of the specified zoning classification; so in some cases there could be significant differences albeit meet the criteria which have been assigned administratively rather than through Board action.

Commissioner Ellis stated the zoning changes would be to a lesser intensity; with Ms. Busacca responding based on the criteria it would, but that would be staff's opinion as to what is less intense and what is appropriate. Commissioner Ellis stated the way it is written prohibits going to a greater intensity; with Ms. Busacca responding that is correct; however, intensity is talked about as an impact to a concurrency service, but everyone does not see that as the same issue. She stated industrial use has lower trip generation, but would it be considered a less intense use than commercial use which has a higher trip generation; and the Board would put that solely in the determination by staff.

Chairman Higgs stated that is not what staff is paid for; but they can evaluate the plan and bring forward recommendations. She reiterated her position on significantly locking out public input.

County Attorney Scott Knox advised the ordinance does provided for lesser intensity development if they are coming in to amend a vested plan; and the initial vesting could be significantly more intense than what would be authorized under the Comprehensive Plan or existing zoning if the person qualifies for vested rights. Commissioner Ellis stated they would come for something less intense than what they had; with Mr. Knox responding not necessarily, for example, if the South Shore project qualifies for vested rights, which right now it has not, they may end up with something more intense than what is authorized under the Comprehensive Plan as it exists right now. Commissioner Ellis inquired if they have a vested site plan for a hotel; with Mr. Knox responding no, but this is a process that would allow them to come in and apply for it. Commissioner Ellis inquired how could something that is not there be vested; with Mr. Knox responding they may meet the criteria where before there were no existing criteria for vested rights; that is what this ordinance is all about; and having looked at the criteria, the South Shores project would not meet those criteria as they have been presented to the Board either; but as the ordinance currently exists, they do not qualify for any kind of development permit and cannot build anything, so it has to sit the way it is until they come in and do something. He noted this ordinance may allow them to proceed with the development they had before. Commissioner Ellis stated he understands they did not have anything before other than zoning; with Mr. Knox responding whatever they had approved, they have taken certain acts and done certain things and put through a plan and other things which may qualify them under the criteria to move forward with something other than what they would be allowed to do under the current Ordinance. Commissioner Ellis inquired if it would be without a site plan; with Mr. Knox responding yes. Commissioner Ellis stated if they have a site plan already, the Board would be better off to have that amended to a lower density than to have them implement the site plan they have now; with Chairman Higgs responding yes it would, but that is not the question, and reiterated her comments on the public process. She stated there is good to be served because there are plans that are not compatible, but this opens possibilities of going behind the scene that is unsettling for a number of people.

Commissioner O'Brien inquired what started this amendment to the ordinance in the first place; with Ms. Busacca responding there is an appeal process in the Code, but there is no criteria by which to evaluate vested rights, so this ordinance establishes the criteria. She stated several people, notably South Shores, came to staff saying they would like to reduce the intensity of development they feel is vested; there is no flexibility in the existing regulations, and people must either build what has been approved or start over again; and in some cases, a great deal of improvement could occur, but there is no flexibility to put them into the system.

Commissioner Cook inquired what drove the decision to have final determination made by the Growth Management Director; with Ms. Busacca responding it was Board direction at the last meeting. Chairman Higgs stated she could not remember that the Board did that; it had discussion then went on to the next issue and came back for clarification; and the clarification was it wanted to see some language of how staff could handle it, but it was not clear. Commissioner Cook stated he did not realize the Board directed that. Chairman Higgs stated she does not remember doing that, but several people recalled it, that was the way they saw it, and that is how it got there. She stated the provision which says, "Failure to act within the time requirements of this chapter may negate a claim that the owner acted in good faith," does give some comfort that someone who abandoned the project may not qualify for vested rights; with Mr. Knox responding yes, that is one of the things the Board would consider.

Ed Fleis, 1090 Highway A1A, Satellite Beach, advised one thing talked about at the last meeting was if they were changing a subdivision that had been vested by reason that it was submitted, application fees were paid in a timely manner, but the subdivision may lack alignment or quality that is not as desirable as it could be, and they want to change the roads or lots with no change in land use, should that come before the Board or could it be reviewed by staff, and could that decision be made by staff under certain criteria or would it come back before a public forum to be reviewed; and that was one item they talked about. He stated the other is a change of land use within the property such as from a hotel to single-family homes; there was a feeling that should come back to the Board to give direction as to what would be the land development criteria that it would be developed under; but some of it could go before staff only and some come to the Board; however, he is not sure where the line would be drawn. Mr. Fleis stated he reviewed the criteria for consideration of vested rights and the criteria for presumed vested status; South Shores is probably a good example to use as to how a project may be reviewed under either one of those two criteria; the presumed vested status comes directly from the Comprehensive Plan, and the criteria for consideration of vested rights was prepared by staff; and South Shores project, where there has been a considerable amount of money spent in construction of structures and infrastructure on the site, is whether or not, by what is written in the ordinance, it would be automatically vested or soon to be vested by the criteria. Mr. Fleis advised page 4, paragraph B.(e)(2)3. states, "Chapter 22, applying to the construction of buildings, where a construction building permit application is complete and has been submitted or approved, and all applicable fees paid, on or before the effective date of the ordinance from which Article III is derived or any amendment thereto, provided that when work or activities are authorized they are pursued in the timely manner required by this Chapter." He stated the last phrase gets to be a question of proof; if they do not go through the criteria and determine it is vested or presumed vested, then the burden of proof would be on the present owner to come before the Board and demonstrate it is vested. He stated in this case it would be the 167 unit hotel; but even among staff there is an opinion that the hotel was vested and another opinion that it was not vested. Mr. Fleis stated they feel very strongly they can demonstrate that it is vested; and the question is whether they have to go through that or if a statement could be added to the criteria to give further clarification as to how a property that is under development could be vested. He stated what happened in this case is the project went into foreclosure or into a situation because of bank failure; the work stopped and will stop until a new owner takes over; and presented a handout on ann addition to the criteria.

Chairman Higgs inquired if South Shores brought in a revised site plan that meets the criteria outlined in the ordinance, does the Board go through the process of determining whether they are vested or does it take the amended plan and go from there; with Mr. Knox responding in order to get into the amendment portion of the ordinance, the Board has to establish that they have been vested one way or the other; they can do that by pursuing it through the criteria and applying to the Growth Management Director or whoever the Board decides and get a determination; and if they are denied they come to the Board and the Board says yes or no based on the same criteria and review of the application. He stated if they go with the presumed provision, staff makes determination whether they qualify or not and that is subject to appeal; but in order to get to the point of actually making amendments to the plan, they have to be vested somehow.

Chairman Higgs asked Mr. Fleis to explain his proposed amendment. Mr. Fleis advised he is requesting the wording be added on page 3 as (5) or (6) under the criteria for consideration of vested rights, as follows "Existing residential or commercial sites where substantial construction of a structure or structures has occurred and utility systems and infrastructure constructed to support the development, but the structure or structures were not completed due to elements beyond the owners control, including financial institution failure. Substantial construction is defined as the expenditure of money or degree of completeness that represents the minimum of 10% of the estimated cost of the structures to be determined by a professional engineer."

Chairman Higgs inquired if something like South Shores is vested, which basically vests a large structure and concedes certain things, is there a method to amend the site plan without language that allows them to assume vesting, or does that have to be determined in order to get into a development agreement with the applicant; with Mr. Knox responding under the ordinance as proposed, if South Shores came into staff and went by the criteria on page 3 and were denied vesting because the staff picked criteria (2) and said they have not timely pursued the building permits and consequently abandoned the project, they could appeal that to the Board; the Board of County Commissioners may feel that was an extenuating circumstance based upon specific facts and say it disagrees with staff, but also do not like the exact configuration of the development proposed; consequently, it will grant vested rights with a condition that they come in for an amendment of changes they want to do that the Board agrees to. Chairman Higgs inquired if without the language there is still an opening for something like South Shore to amend its current development order; with Mr. Knox responding yes.

Mr. Fleis stated the effort is not to vest the hotel; there is no intention of the developers to vest the hotel; but there may be concern with language on the decision of vested rights where it vests the property for a hotel so that they can make a change in the land use. He inquired if there is a better way of doing it. Chairman Higgs advised Mr. Knox indicated there is an avenue to do that. She noted it is a very complicated issue, and when it is applied, it gets even more complicating.

Commissioner Ellis stated 10% of the cost could get into civil engineering fees. Mr. Fleis stated if Commissioner Ellis is referring to South Shores, there has been about 25% of the cost spent on that project; he was trying to look at specific costs of a structure, not including architectural and engineering fees or any other soft or hard costs, but there has been a considerable expenditure in structures. He stated on that site there is a water plant that serves the entire development and a sewer plant that serves it; the streets are in and the drainage system is in; and there are strong arguments that can be made of its vested rights.

Chairman Higgs passed the gavel to Vice Chairman Ellis.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to delete Section 7 which sends it to Growth Management Department Director, and the language of the original proposal where it goes to the Board of County Commissioners be re-inserted.

Mr. Knox advised the Board would not have to deal with the appeal process if the motion passes because the administrative process is subject to appeal to the Board and if it goes directly to the Board, there will be no appeal to the Board, and the next step would be to the Circuit Court if the Board denies it.

Chairman Higgs advised the original language says, "The request for the amendment of the site development plan or subdivision plan shall be considered by the Local Planning Agency and Board of County Commissioners in public hearing after adequate public notice as defined in this Section." Mr. Knox stated that is a separate section of the ordinance; they have to go back and revise that to make it clear it is talking about appeals from the administrative portion of the ordinance which are only going to affect amendments after this if the Board makes this change. He stated if someone wanted to make an amendment to a vested plan, the administrative staff would approve or deny that; and that would be subject to appeal to the Board. Chairman Higgs inquired if they do not agree to vest it that decision could also be appealed to the Board; with Mr. Knox responding no, because the Board is going to make that decision on the outset. Chairman Higgs inquired if the Board will make the vesting decision; with Mr. Knox responding that is what the motion does if it passes. Chairman Higgs stated she is comfortable with the procedure that staff will review the criteria for vesting; if the applicant does not agree with that, he can appeal to the Board; then the actual action of approving or disapproving the site plan or subdivision plan would come to the Board and go through the public notice procedure. Ms. Busacca advised in Section A under Criteria for Consideration of Vested Rights, the Board is suggesting that remain as an administrative decision with an appeal to the Board by the applicant should vested rights not be granted; then under Section C which is the amendment to the vested site plan, that will go directly to the Board; so the status for vesting goes to staff with appeal to the Board and the actual amendment of the vested site plan would come directly to the Board. Chairman Higgs stated she is concerned whether or not the vesting issue should be a Board issue. Mr. Knox advised there is another alternative which has not been considered; if staff makes the determination, it could be required to provide notice to abutting property owners before that is actually done so everyone has notice and can appeal to the Board. Commissioner Scarborough stated that could be inserted in the ordinance.

Commissioner O'Brien stated he has no problem with public notice and the Board may want to expand it to be within 2,000 feet instead of 500 feet to make it more realistic, but the Board keeps bringing back every little stroke of the pen. Chairman Higgs stated those are big deals; with Commissioner O'Brien responding it may be, but the end result generally is the same. Chairman Higgs inquired if it is brought back to the Board as the amendment will do, would there still be an option not to agree they are vested but to look at the site plan; with Mr. Knox responding if the application goes directly to the Board for vesting, then it can make the determination that it feels they are vested but will not grant the vesting unless they do such and such to change the plan. Chairman Higgs inquired if she should leave it as she had it; with Mr. Knox responding it should be put in the amendment provision; and if the Board wants to consider the vesting issue in its original form, it needs to put that back under the provisions dealing with the criteria where it says staff makes that determination. Commissioner O'Brien inquired what has the Board accomplished that it does not do now; with Chairman Higgs responding it would open up a provision for someone who has a project that he does not want to build to make changes to that without losing everything.

Commissioner Scarborough advised zoning does not give vested rights; what the Board is trying to do is take a case law and put it into an ordinance; and there is nothing wrong with doing that and it is probably good. He stated page 3, paragraph 3 says, "owner substantially changed position. . ."; and that is a nice wording, but is that something the Board wants to give staff and does staff want to determine what is substantially changed position. He inquired if it is relevant to give notice to adjoining landowners that staff is making a decision since they cannot express themselves to staff; and is staff supposed to conduct public hearings where the public can be heard. He stated he has a lot of questions of where it is going with this ordinance and feel comfortable with the Board handling it correctly.

County Manager Tom Jenkins inquired if it would not go to the Local Planning Agency and would go directly to the Board; with Commissioner Scarborough responding he would prefer it goes directly to the Board. Mr. Jenkins advised positions come and go, individuals come and go; the Charter says the Board has a county manager; and any reference to staff position in any ordinance should say "county manager or designee". He stated the intent is not that he is going to do it, but to have consistency in the ordinances so they do not have to change them every time there is a change in function.

Chairman Higgs stated that is appropriate and the suggested amendment would insert the language she read before from the original ordinance. Mr. Knox suggested the Board make sure what it is trying to accomplish first then he can tell it what language is appropriate. Chairman Higgs stated she wants all the determination of vested rights and review of potential site plans to come to the Board. Mr. Knox inquired if it includes the original determination and amendments; with Chairman Higgs responding yes. Mr. Knox advised wherever it says "Growth Management Division Director" would change to Board of County Commissioners. Chairman Higgs stated except that the application would be submitted to the county manager or designee; with Mr. Knox responding yes, but it ends up with the Board so it is easier to change everything to the Board of County Commissioners; and Commissioners Higgs and Cook agreed.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to direct staff to amend the ordinance so that everything in the proposed ordinance amending vested rights provisions comes directly to the Board.

Chairman Higgs inquired if the original motion should be withdrawn; with Commissioner Scarborough responding yes, so Commissioner Cook can make his motion. Chairman Higgs withdrew the motion, and Commissioner Scarborough withdrew the second.

Chairman Higgs advised the motion on the floor is to amend the ordinance directing everything to the Board of County Commissioners; and called for a vote on the motion. Motion carried and ordered unanimously.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to adopt Ordinance amending Section 62-507 of Article III of Chapter 62, Code of Ordinances of Brevard County, Florida, titled "Appeal Procedure; Presentation of Claims of Regulatory Takings or Abrogation of Vested Rights;" creating Sections 62-507(d) Criteria for Consideration of Vested Rights, (e) Presumed Vested Status, (f) Criteria for Amendments to Vested Site Development Plans and Subdivision Plans, (g) Termination of Vested Status; providing for conflicting provisions; providing for severability; and providing an effective date, as amended.

Commissioner Ellis advised the ordinance has a lot of double lines, single lines, gray areas, etc. and he assumes the double line will be in there unless stricken by the amendment and the gray areas have been inserted also; and inquired if that is correct. Ms. Busacca responded yes, except page 7 in which there was a gray area that was voted on at the last meeting to be removed. She stated the language says, "or the requested amendment shall provide for further compatibility with the surrounding land uses and the character of the area;" and that was replaced by the double underline on the bottom of page 6 and top of page 7 which talks about the specific engineering plans, safer traffic design, etc. Commissioner Ellis inquired if the leeway is there for a person with a site plan for 60 homes coming in to redraw the site plan and still have 60 homes; with Chairman Higgs responding yes, it provides for innovative engineering plans. Commissioner Ellis stated that provides for safer traffic design, or increased stormwater, or 10% preservation of native vegetation. Ms. Busacca advised there will have to be some improvement such as 30% reduction of public services and facilities within concurrency, reduction in impacts to protect natural resources, innovative engineering plans for safer traffic, increase of more than 10% of storage stormwater, increase of more than 10% of preservation of native vegetation; and if it does not meet one of those criteria, the way she reads it, the staff would not be able to bring that application to the Board. Commissioner Ellis stated his concern is there may be a special case that needs to come to the Board, and there is no language for that. He stated since everything is coming to the Board, his preference is to leave the gray language in, since there is not the possibility of administrative approval and it has to come to the Board.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to amend the motion to insert the gray language in the ordinance. Motion carried and ordered unanimously.

Mr. Knox advised on page 7, subparagraph 2, in the middle of the page, since the Board has taken over the responsibility and they do not have to appeal to the Board, that section is moot and can be taken out.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to delete subparagraph 2 on page 7.

Commissioner Ellis inquired if that means staff will bring all requests for vested rights to the Board; with Mr. Knox responding yes. Commissioner Ellis stated so they cannot be denied at staff level and everything will come to the Board even if it is totally off the wall; with Mr. Knox responding yes, they can fill out applications and the Board will make determinations whether they meet the criteria and no one at staff level will make that determination. He stated the only determination where there is an appeal would be one of the presumptive ones where staff said it does not think it is presumptive and they have a right to appeal to the Board.

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

Ms. Busacca inquired if the language, "and the requirements of specified zoning classifications as identified by the County", is also added to paragraph D on page 7; with Chairman Higgs responding it is included in the motion.

Chairman Higgs called for a vote on the motion to adopt the ordinance as amended. Motion carried and ordered unanimously.

The meeting recessed at 6:14 p.m. and reconvened at 6:28 p.m.

PUBLIC HEARING, RE: ORDINANCE AMENDING BREEZEWAY/VISUAL CORRIDOR PROVISIONS OF THE ZONING CODE

Chairman Higgs called for the public hearing to consider an ordinance amending the breezeway and visual corridor provisions of the Zoning Code.

Tom Mills, 290 Pompano Drive, Melbourne Beach, General Contractor, urged the Board to rescind the breezeway ordinance. He stated the Ordinance was established it seems to be a constant source of problems for owners who want to build on the river. He stated it affects the size of the home a person would otherwise be able to build and provides no offsetting benefit to the public; the prevailing breezes do not come from the west; and there is no restriction on the number and size of trees that can be planted in the breezeway. Mr. Mills stated often the properties are already wooded and they clear where the house is and leave as many trees as they can which often end up in the breezeway; and those lots are hundreds of feet deep so he fails to see any benefit for the public at the street to be able to see the water or feel the breeze by virtue of this law. He stated the only purpose for the law is to limit the size of the home that an owner can build; the existing setback laws adequately restrict the size of the homes; so he would urge the Board to rescind the ordinance for riverfront and single-family homes.

Bob Wille, 809 Riverside, Melbourne Beach, representing Joyal Construction, advised they are single family contractors and have experienced the same problems Mr. Mills related on building in the South Beaches primarily in a cul de sac situation where the property adjacent to the waterfront on the river side created the demand for 30% and required redesign for the property owners. He stated they were aware of the setback requirements and the breezeway Ordinance but thought it was primarily for condos and preventing a Miami Beach/Fort Lauderdale situation in the County; they did not think it had anything to do with single-family homes; and it caused a very expensive redesign to place the home on a lot. Mr. Wille stated there is no achievable public good of what is created by the ordinance; there is still plenty of property between the homes without the breezeway requirements; and requested the Board rescind the ordinance. He stated there are state requirements that prevail with regard to ocean properties.

Tim McWilliams, 8192 E. Eau Gallie Boulevard, Indian Harbour Beach, representing Home Builders Organization, advised they do not agree with the ordinance and do not feel it does any public good; preventing a solid block of condos is best addressed through density and zoning and not through nebulous breezeway requirements; the intent of the ordinance is to provide a breeze from the ocean to the river across the barrier island; but to do that they would have to clear all the vegetation and not only deal with the waterfront properties, which is not reasonable. He stated the homeowner is affected not the home builder; if someone wants a five-bedroom home, he will build it and design it to fit on the lot; and all it does is restrict the ability to have the type of design he wants. He stated it hampers the homeowners but does not mean they are going to have a significant reduction in the size of their homes, and typically they will go to longer and not wider houses; so there is no benefit for the general public or the builder. Mr. McWilliams advised they do not want to see wall to wall commercial or highrise residential on the ocean; the ordinance could stand on those properties; but as a reasonable compromise, it should not be for single-family homes especially on the river. He stated they could compromise if the Board felt it was wise for single-family oceanfront, although they are not real excited about that; but most of the lots on the river are deeper than 250 feet which is the depth required by the ordinance; so with lots of 400 and 500 feet in depth, only the first half would be affected by the breezeway requirement and will not provide any appreciable public good because there would not be a breezeway corridor from the road to the river. He stated on lots in subdivision, they typically fall within the setbacks and does not serve any benefit there either; and requested the Board consider removing the ordinance on single-family homes; and if that is not acceptable, removing it on single-family riverfront homes.

Julie Wise, 3910 Postridge Trail, Melbourne, advised she has been researching this issue over the last month and saw ways they tried to resolve it but did not get anywhere; the December 1, 1994 minutes says, "Commissioner Ellis inquired if the single-family home was exempt when the ordinance was written; with Mr. Ridenour responding no, but the original version was primarily for oceanfront and when it picked up the riverfront, a lot of land was primarily single family. He noted the original intent was for highrises and condominiums." Ms. Wise advised when the Board picked up riverfront, it picked up a lot of single-family and that is the impact they are most concerned with. She stated they build primarily in Merritt Island; one of the lots is almost 500 feet deep; and the ordinance does not make sense for that property because it only extends the breezeway 250 feet back. She stated another parcel is almost 1,000 feet deep and in both of those instances they cannot see the water and cannot feel the breeze because they are so heavily wooded. She stated the ordinance is outdated, and the Board should exempt single-family riverfront homes.

William Dunmire, 309 Woody Circle, Melbourne Beach, President of Woodlands Homeowners Association, objected to any change being made to the existing Ordinance because of aesthetics, and to prohibit people from putting portable sheds in the breezeways that would become flying projectiles in a windstorm. He stated removing the restriction will encourage an infraction of safety; and requested the Board's consideration not to change the existing Ordinance.

Fred Lindahl, 175 Riverwalk Drive, Melbourne Beach, representing Riverwalk Homeowners Association, advised if a law was created to allow for breezeways between buildings and properties, it should remain as written; no homeowner, builder, or contractor should be allowed to change or alter the laws for their own personal gain; and the illustration gives insight on how prevailing wind flow can be altered by building structures and land mass. He stated the information came from an aviation weather book from the Government Printing Office and is a general description of how buildings and land mass can change or alter airflow. He indicated some people want to change the law for their personal gain or well-being.

Commissioner Ellis stated between his house in Eau Gallie and the Atlantic Ocean there are probably 30, 40 or 50 homes, and he is not changing the law to gain anything for his home that is miles from the ocean.

Bernard Monahan, 205 Riverwalk Drive, Melbourne Beach, apologized for Slater Hollis who has been detained out of town, and urged the Board to leave the law the way it is. He stated the law insures proper ventilation, or proper air for the people on the ocean and the river as well as the homes inland; and they strongly feel the law should not be changed for one person's betterment.

George Demarest, 192 Beachwood Boulevard, Melbourne Beach, opposed the change to the breezeway Ordinance as the Ordinance in place serves the purpose. He explained a problem with part of a garage in the breezeway; and suggested relief where justified or required. He indicated passage of this ordinance will degrade as opposed to enhancing areas.

Discussion ensued on the home on Merritt Island that went to the Zoning Board of Adjustment to enclose the garage, Stalnakers' property, and the Board of Adjustment's authority to hear appeals on the breezeway Ordinance.

Mr. Enos advised the Board of Adjustment does not have the authority to change the Code; that is the authority of the Board of County Commissioners; and their authority is to consider whether or not there is a hardship. He stated they found the site was sufficient, and that the house could be redesigned to meet the breezeway requirements, but perhaps the definition of breezeway did not recognize unusually-shaped lots, and suggested it be reconsidered.

Commissioner Ellis advised after reading the Board of Adjustment minutes he contacted the Stalnakers and Mr. Mills because their application was denied, and he initiated the Ordinance change with no personal gain since it is not his house.

Edward Fleis, 1090 A1A, Satellite Beach, advised he does site planning for oceanfront condominiums and numerous single-family homes, and suggested the breezeway Ordinance be repealed. He stated the state requirements of 60% of the width of the lot as measured at the coastal construction control lines gives 40% breezeway, and indicated the County's 30% breezeway requirement is unnecessary and causes unusual designs.

The Board continued discussion on unusual-shaped lots, the state's measurements and restrictions, oceanfront being different from riverfront property and governed by other criteria, zoning setback requirements, and breezeway requirements.

Bob Toppe, 321 Nikomas Way, Melbourne Beach, representing Sunnyland Beach Property Owners Association, supported the current definition of breezeway; stated the corridor across the depth of ocean and riverfront property is reserved to insure unrestricted movement of ocean breezes and visual access which is consistent with the character of their homes; and they recommend Alternate 1 as reasonable, but prefer to maintain the current Ordinance, except perhaps for odd-shaped lots.

Commissioner Scarborough advised it appears that the height of buildings as opposed to the space between them are more relevant to breezes, and driving height by the breezeway requirement could be detrimental.

Commissioner Cook indicated nothing is gained requiring breezeways for single-family residences on the river; and his concern is commercial and condominiums on the ocean that need to be controlled. He stated the state does it with the coastal construction control lines, and he sees no merit in having additional breezeways for single-family homes.

Discussion ensued on height restrictions, the relationship between height and setback in the Code, lack of flexibility of the breezeway Ordinance, and exemption of single-family homes.

Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to approve Alternative 2.

Commissioner Ellis inquired if Alternative 2 exempts single-family residential; with Mr. Enos responding the different alternatives deal only with how the definition of breezeway is applied on unusually-shaped lots and gives the Board four choices; and the question of whether or not to exempt single-family residential is a separate issue that should have an independent motion.

Commissioner Ellis withdrew the motion; and Commissioner O'Brien withdrew the second.

Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to approve Alternative 2 measured at location of principle structure. Motion carried and ordered unanimously.

Motion by Commissioner Ellis, seconded for discussion by Commissioner O'Brien, to exempt single-family residential homes from the breezeway requirements.

Commissioner Ellis advised the combination of the breezeway and state requirements are too restrictive to build a home. Commissioner Cook recommended the motion be split; with Commissioner Ellis agreeing.

Commissioner Ellis withdrew the motion; and Commissioner O'Brien withdrew the second.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to exempt single-family residential riverfront lots from the breezeway requirements. Motion carried and ordered; Commissioner Higgs voted nay.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to exempt single-family residential oceanfront lots from the breezeway requirements.

The Board discussed the coastal construction control lines, County Ordinance and state guidelines, methods of measurements, standard setbacks, no exemption for commercial development on the ocean and river, and the possibility of adopting the state language to put in the ordinance.

Chairman Higgs passed the gavel to Vice Chairman Ellis.

Vice Chairman Ellis called for a vote on the motion to exempt single-family residential lots on the ocean. Motion carried and ordered; Commissioner Higgs voted nay.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to adopt standard of the state for the single-family residential lots on the ocean which uses the guideline of 60% coverage of the shore-parallel width of the property at the line of the major structure in measuring the breezeway.

Mr. Enos stated he thought the previous motion was to exempt single-family residential lots on the ocean; with Vice Chairman Ellis responding it was, but if this motion passes, it will place state guidelines on single-family residential development on the ocean. Assistant County Attorney Lisa Troner advised there will be three definitions--(1) riverfront, (2) oceanfront, except single family, and (3) single family on the ocean using state definition.

Commissioner Scarborough inquired if the state standards are not for getting a breeze but for health and safety in case of storm events; with Growth Management Director Gary Ridenour responding the coastal construction control line is for beach erosion.

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

Commissioner O'Brien inquired if the state could advise the Board in 30 days if it plans to change the guidelines; with Commissioner Higgs responding they would not do that, but the Board is adopting the state language and not the law. Ms. Troner advised the state language is not mandatory rule but a guideline; and the Board will make it a mandatory rule and would be using the 60% coverage of the shore-parallel width of the property at the line of the major structure as its requirement, and they cannot exceed the 60%.

There being no further comments or objections heard, motion was made by Commissioner Cook, seconded by Commissioner Ellis, to adopt Ordinance amending Chapter 62, "Land Development Regulations," Code of Ordinances of Brevard County, Florida; amending Article VI, Section 62-1102, "Definitions and Rules of Construction," specifically amending Article VI, Section 62-2105, "Breezeway/Visual Corridors," providing for measurement of width; providing for conflicting provisions; providing for severability; and providing an effective date, as amended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE REGULATING PRIVATE HELIPORTS

Chairman Higgs called for the public hearing to consider an ordinance regulating private heliports. She advised the Board inserted several items at the last meeting, and one was the accessory structure.

Zoning Official Rick Enos advised the three items were to assure the use of heliports was only as accessory use to single-family residential lots, and could not be on a vacant residential lot; no fueling facilities be permitted; and to add the condition to the CUP that the Board of County Commissioners shall find no adverse impact to the neighborhood. He stated there was discussion about the number of flights per day and the timing or amount of time the flights would be prohibited.

Commissioner Cook recommended reduction in the number of flights per day to three. Chairman Higgs inquired if the Board wants to change the hours to prohibit flights between 10:00 p.m. and 6:00 a.m. Commissioner O'Brien recommended they conform to the noise Ordinance.

Mr. Enos inquired if one trip is take off and landing; with Commissioner Cook responding yes. Commissioner O'Brien stated that would be six trips. Chairman Higgs advised the ordinance says it shall be limited to five trips per day total. Commissioner O'Brien stated those are round trips. Chairman Higgs advised then the Board wants to amend the ordinance to three flights per day, no flights between 10:00 p.m. and 6:00 a.m., no fuel, and only as accessory structure. Commissioner O'Brien inquired if that precludes 55-gallon drums.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to amend the ordinance regulating private heliports to provide for maximum of three flights per day, no flights between 10:00 p.m. and 6:00 a.m., no fuel, and only as accessory structure to single-family residential home.

Commissioner Ellis inquired about private heliports such as hospitals with helipads; with Mr. Enos responding there are no zoning regulations that deal with private heliports for hospitals or other commercial uses just as there were none for single-family residential homes. Chairman Higgs advised this ordinance is only for residential areas. Commissioner Scarborough recommended notices to people within 1,000 feet. The Board discussed noise, FAA and DOT flight patterns and guidelines, glide path standards, and notice to people within the glide path.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to amend the ordinance to include public notice shall be provided to all residents consistent with FDOT notice standards. Motion carried and ordered unanimously.

There being no further comments or objections heard, motion was made by Commissioner Cook, seconded by Commissioner Ellis, to adopt ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Article VI, Division 5, Subdivision III, Conditional Uses, establishing a conditional use permit for private heliports in certain zoning classifications, establishing specific conditions for approval of a conditional use permit for a private heliport; providing for conflicting provisions; providing severability; and providing an effective date, as amended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING SIGN ORDINANCE RELATING TO DOUBLE-FACED SIGNS

Chairman Higgs called for the public hearing to consider an ordinance amending the Sign Ordinance relating to double-faced signs.

There being no objections heard, motion was made by Commissioner Ellis, seconded by Commissioner Cook, to adopt Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida, Article IX, Signs; specifically amending Section 62-3301; the definition of double-faced sign, to amend the separation distance between double-faced signs; providing for conflicting provisions; providing for severability; and providing an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING ZONING CODE RELATING TO METAL BUILDINGS

Chairman Higgs called for the public hearing to consider an ordinance amending the Zoning Code relating to metal buildings.

Philip Nohrr, 1800 W. Hibiscus Boulevard, Melbourne, representing Carpet Fashion, Inc., stated he is in favor of the Local Planning Agency's recommendation; and advised of his client's plans to build a metal building in the County, but the cost for the improved skin is between $15,000 and $25,000. He stated today they come from the factory with architectural design finish; they are more pleasing to the eye; and the Board should assist businesses and not add an additional cost.

Commissioner Scarborough inquired if Mr. Nohrr supports the Local Planning Agency's recommendation; with Mr. Nohrr responding the Local Planning Agency recommends BU-1 which is his client's zoning; when it originally came up it was BU-1-A; and there was some concern. Commissioner Scarborough advised the Local Planning Agency wants to delete the capacity in BU-1-A; and inquired if that is okay with him; with Mr. Nohrr responding yes.

Keith Kelly, 200 Madrid Court, Merritt Island, representing All Steel Homes, advised he has invested in Advanced Framing System to supply him with the necessary steel; he spent over 75 years chasing termites, rot, and miscellaneous problems with wooden homes; and stick homes are not permanent but a steel home is. He stated they can be designed to withstand 140 mph wind; they are strong, fire proof, termite proof, beautiful and cheap because they can be built in three days; and advised of three homes on Merritt Island. He stated he would like to have the ordinance modified to include residential homes in BU-1-11 and to avoid the use of mansard roofs.

Commissioner Ellis inquired what is the problem with mansard roofs; with Mr. Kelly responding they are not pretty and should not be required.

The Board discussed mansard roofs on commercial buildings, the Code not dealing with metal buildings in residential classifications so homes can be built with any material as long as they meet the Southern Standard Building Code, metal buildings as accessory structures, engineering and architectural benefits of metal buildings, the intent of the regulation initially to regulate metal structures in commercial classifications, and not permitting metal buildings in BU-1-A without acceptable exterior skins.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to delete BU-1-A as recommended by the Local Planning Agency. Motion carried and ordered; Commissioner Ellis voted nay.

Motion by Commissioner O'Brien, seconded by Commissioner Ellis, to adopt Ordinance amending Section 62-2115, Article VI of Chapter 62, Code of Ordinances of Brevard County, Florida, relating to metal buildings; to provide for the use of metal buildings within certain specified commercial zoning classifications with limitations addressing exterior and roof line appearance; to provide for the use of metal buildings with no limitations in BU-2 commercial and Industrial zoning classifications; providing for severability; and providing an effective date, as amended. Motion carried and ordered unanimously.

Commissioner Ellis inquired if it will be applied tomorrow; with Assistant County Attorney Lisa Troner responding no, it has to be filed with the State within ten days.

Upon motion and vote, the meeting adjourned at 8:01 p.m.

NANCY N. HIGGS, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

ATTEST:
SANDY CRAWFORD, CLERK
(S E A L)