March 2, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on March 2, 2004, at 9:01 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Ken Babington, First Baptist Church of Cocoa Beach.

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

COMMENT, RE: BEACH BOYS

Pastor Babington stated Commissioner Pritchard looked good on stage Friday night with the Beach Boys.

Chair Higgs stated he has already shown his picture to each Commissioner.

PRESENTATION BY MS. SYDNEY GREEN, RE: DEMOGRAPHIC DATA

Commissioner Scarborough stated in the MyRegion.org meetings, he met Sydney Green; she made a report on how to handle demographic data; and this will be most helpful to the Board in its planning process.

Sydney Green, with the Healthy Community Initiative of Orlando, stated the group in many ways reflects Brevard Tomorrow in the Orlando area; and they have been working with the MyRegion.org group on indicators. She stated her work on a day-to-day basis is to do sustainability reports; and Ray Larsen, Executive Director of Healthy Community Initiative will make a presentation this morning.

Ray Larsen stated they appreciate the invitation to share their work with Brevard County and the other counties of MyRegion; Healthy Community Initiative is a non-profit organization located in Orange County working throughout the region; they work in several different areas promoting youth development, community building, and health and wellbeing; and the work they are doing for MyRegion comes out of their Center for Sustainability. He stated every other year they publish a report known as the Legacy Report, which is a collection of key indicators in the community; and they have found that using indicators has helped the community make better decisions on how to go forward. He stated it has shown how things link together, which as they
look at MyRegion, will be a key aspect; and they will be looking at those key focus areas they can work on as a region. He stated they are looking for those leverage points and places where they can press down and get the greatest impact to create the most good. Mr. Larsen stated they have a couple of biases when it comes to collecting data and information; they try to identify the fewest number of data points they can to really tell the story because their experience is that often in data collection, the temptation is to collect as much data and data points as possible, creating an impressive amount of data that becomes shelf art and is not used by the community as it tries to make decisions. He stated they call the indicators vital signs; if someone were to fall ill, the EMT’s would come and take measurements from the person, but they would not care about hat or shoe size, but would care about respiration and heartbeat because those are vital signs that give some sense of wellbeing of the organism; and they try to do that with the indicators they use. He stated they try to be comprehensive in looking at key measures in the environment, economy, social wellbeing, and the things that impact individual wellbeing; over the last couple of years MyRegion has come to this stage; and they are ready to enter phase 2. He stated he is sure the Board is familiar from the source book where are a number of key areas that were identified, such as quality of life, economic leadership, the environment, education, smart quality growth, and the issue of a fragmented region; and the question is how they work more closely together and within each of those areas. He stated key issues were identified that would need to be tackled in order to go forward; and those are listed in the handout the Board has before it. He stated the formation of multi-county task forces have been brought together to start dealing with the different issues and the focus areas; those groups are coming together using the information that is reflected over the last couple of years; and they are determining what actions can be taken to move forward. He stated there will be specific outcomes that are identified for each of those actions; and what they have brought to the table and tried to do is identify the regional indicators or impact measures. He advised Brevard Tomorrow, Osceola Vision, and many others collect data and use the terms in different ways; when they talk about outcomes, they are talking about measures of activity; they want to measure change or action that has been happening; and if one thinks of a business budget line, it is the top line that measures the activity. He stated they want to understand whether they are accomplishing what they set out to accomplish and not just that they are busy; and they will use the indicators to measure that. He stated by indicators they mean durable measures of impact; so indicators will not be changing every year or every few years; but they will be Iike respiration or heartbeat, measurable over the long-term so they can see how they are trending in the right direction. He advised they will be from publicly available data sources; they will be understood and accepted regionally; and in terms of the financial, this is the bottom line. He stated the question is whether they have changed the bottom line as they have gone forward. He stated for them to be successful as a region, the work of the Commission is not only important in terms of doing the actions, accomplishing the actions, and measuring the actions, but it is necessary to be able to communicate what has been happening and the impact of what has been happening is the thing that indicates whether it will help the region understand the impact of the work that is being done. He stated, for example, water is an important issue for everyone regionally; hypothetically the task force may come up with a series of activities to try and impact water consumption, such as a marketing campaign and building infrastructure for reclaimed water; it would be a strategy that could be used comprehensively regionally; and that strategy could be put into place. He stated the outcomes that go along with that might be the
reduction of household use of water, reduction of business use, and the increased use of reclaim water; and those are the outcomes that will be measured in a short amount of time as a result of the actions. Mr. Larsen stated ultimately what they want to know is whether they really changed the bottom line or rate of water consumption being used in the region by citizens and businesses; and that is an example of how they might use an indicator to see if they are getting to the bottom line. He stated the measurement process will also create a feedback loop that they are constantly learning from what they have accomplished; they have gotten to the point where they are creating those activities and have their outcomes; they will impact those indicators and start to move the numbers; and they will be able to go back and see what is working and what is not working, and what might need to be added or deleted as they go forward. He stated economic diversity is a key issue; the group coming together in economic leadership can come up with a campaign to attract biotechnology to the region and the ancillary activities that go along with that; they will come up with a strategy to build a regional coalition of resources; and ultimately the indicator process forces them to ask the question why. He stated what they want to ultimately measure is the bottom line; so there will be a series of outcomes; activity will come from the different actions taken by the task force; but ultimately they want key indicators that tell that they have moved the bottom line. He stated in the real world two things are true; one is when they try to do things, they often stay within the individual sectors, work hard within those individual sectors, and a certain amount of accomplishment occurs there; and the second is that real change occurs when this happens across sectors as they go forward. He stated the truth is in the example of economic diversity; if they really want to diversify the economy, it is not going to be because of activities taken by an economic leadership task force; it is going to involve education, quality of life issues, and fragmentation of the region; and the question is whether the region can work more closely together to improve the situation. He stated the process they will be using will be similar to where they are now, beginning to talk about how the measures will be created, and then creating by any consensus what those measures will be and how they will be used in the community. He stated there are three phases to the project; the first is along the vertical lines, creating the indicators and benchmarking them as they go forward; then they need to start crossing over the sectors; and as they cross over the sectors, either by indexing or perhaps by a separate datapoint, they will create what they are calling a super-indicator, which will connect several different indicators that tell if they are making progress across sectors. He stated finally they will be able to measure whether they are really making change; their goal as they work with MyRegion is to make sure that people who are working on the effort of MyRegion are not just working hard but are really creating the change that needs to happen and ultimately are able to communicate that the change has occurred. He stated the team that is working on this is their organization to help create community initiative and a group called Real Estate Consultant, which does analysis of economic and real estate development issues.

Commissioner Scarborough stated he appreciates Mr. Larsen condensing the presentation. He stated Commissioner Carlson and Mr. Jenkins got into an exchange about the words output and outcome; and this is a response to that dialogue.

Commissioner Carlson stated she appreciates the phrase shelf art, when someone does all the work that goes into the strategic planning and then sticks it on a shelf, expecting it to grow by
itself or just vanish. She inquired at what point does Mr. Larsen expect to get data that is really meaningful. Commissioner Carlson stated Mr. Larsen talked about super-indicators; not all communities within the MyRegion organization or region have done the same thing as the County has done with Brevard Tomorrow; and inquired how will that detract or how will that be dealt with in terms of outcome measurements and getting the super-indicators. Mr. Larsen responded in regard to trend data, they will attempt, as they create the indicators, to be able to collect historical data to indicate whether they are turning upward or downward; as far as analyzing trends in terms of activities of MyRegion, it is going to take a certain amount of time; that is why the outcomes are important, especially in the short-term, so that they show things that are actually happening; but the indicators are meant to be numbers that are not necessarily easy to move in six months or a year, but that really measure the kind of systemic and foundational type of issues in the community. He stated hopefully they will have some trend data from the indicators that are chosen; their experience is that even within one county and certainly within a region, data is often collected about the same thing but in different ways; and one of the things they are going to have to tackle, which goes to the fragmentation part, is whether they can come to some agreement on how to collect this so that they can get a regional picture as they go forward. He stated Brevard Tomorrow has done great work; they are anxious to be meeting with them as well as Community Vision in Osceola County and Seminole Vision in Seminole County; they are like organizations so the goal would be first to learn and work with each of the groups; and their expectation would be twofold, one that the work and measures of MyRegion would not supplant what is happening in Brevard County, but would hopefully be an enhancement to say this is what is being done, these are the efforts that are being taken, this is how they are measured, and how that complements what they are trying to do as a region. He stated they expect to continue to publish a report, specifically about Orange County; and he is sure Community Vision feels that way about Osceola County. Commissioner Carlson stated the movement of the bottom line was a good statement because all of the folks who worked on strategic planning in the community understood that it does not stay in one place, but is very flexible and very much a living breathing document. She stated regionally they are going to see the same thing happen; the bottom line can shift; and they need to be aware enough to make sure they shift it when the time is appropriate. She stated the understanding realization of that is critical to the whole process; and expressed appreciation to Mr. Larsen, and stated she looks forward to the whole result.

Commissioner Colon stated she was looking at the profile with economic diversification and was trying to see a key element of the community in regard to law enforcement and public safety and in regard to youth. She stated she was looking under quality of life to see if it would go under that, but obviously, it is not. She inquired where would they put something that is very critical in regard to the youth, criminal activities, and things that are happening in the community that will bring down the quality of life. Mr. Larsen stated he agrees that those are key issues; there may be opportunities within the quality of life to have a measure of that; they certainly measure it on a County basis; and they actually do indicators for much smaller areas like neighborhoods that would include specific real numbers that are attached to that. He stated he does not remember if there is a specific place where youth are addressed in the source book; the issues that were placed there are the result of the first phase of MyRegion; but he agrees those are key issues. Ms. Green advised she was involved in Phase 1; and it was her understanding that safety is anticipated to come in at a later date; and regionally it is not one that would be tackled initially.

Commissioner Scarborough stated there were points with MyRegion where Brevard County was ahead in the discussion; since Commissioner Colon came on the Board, she has become the champion; that is the idea that is different; and they cannot just look to the educational system, but also the judicial system and a whole core of things that function with youth. He inquired if they cannot communicate, who creates the dialogue; and stated that is one of the things Commissioner Colon has championed in having joint meetings with the School Board and other groups, so that is where she is coming from. He stated they have not gone there with MyRegion yet.

Mr. Larsen stated they agree with Commissioner Colon; they will be publishing a children and youth indicator report for Orange County; and it is in the final draft now. He stated they will make sure to send a copy of it to the County because it is different than a child status report; there are many of those they are aware of in all communities; but what they have tried to do with that report is to identify what the key dynamics are within the community that impact the wellbeing of children. He stated most people would think of education and those sorts of things; they recognize in Orange County, and it may also be true in Brevard County, that affordable housing available for a workforce is in great scarcity; and it is impacting many different areas.

Commissioner Colon stated the part she is concerned about is that folks are thinking of children as far as just the education part and not realizing with government, they can pay now or pay later. She stated that is why she is concerned that in such a huge economic diversification this is not so key; these young people will eventually grow and end up in the jail system; and commented on private industry, the faith-based community, and everyone pulling together. She stated people like Mr. Larsen need to see what a priority that is or they will have to pay later. Mr. Larsen stated he agrees; and this gives the opportunity to go back and give that feedback to MyRegion.

PRESENTATION BY ROZ FOSTER, RE: CLIFTON SCHOOL

Chair Higgs stated there is a 9:15 a.m. time certain and there are more than 30 people present for it. Commissioner Scarborough inquired if Ms. Foster can come back to another meeting; with Chair Higgs advising if the Board wants to proceed through reports, that is fine. She apologized to those who are present; and advised if the Board can get through the resolutions and reports in about ten to fifteen minutes, the time certain will be the next item.

Roz Foster, representing the Brevard County Historic Commission, stated they have found a wonderful piece of history in Brevard County; it is the old Clifton schoolhouse, which is located in the wilderness in North Merritt Island; and it was one of the first schools for black children in our community. She stated Andrew Jackson, who married Douglas Dummit’s daughter, and Butler Campbell built this school in 1890 or 1891; and she has given the Board a lengthy documentation of the school. She stated it has a great deal of significance in the black history of the County; and they were quite surprised that the school is almost still standing. She stated when NASA took over North Merritt Island in the 1960’s and 1970’s, it demolished most of the properties there; but they missed the old schoolhouse, probably because they thought it would
fall to the elements of weather and time. She stated talking to John Stiner of the Canaveral Seashore about what they were doing led to talking about some people; Kathryn Kimball Bouie, who is a descendant of the Campbells who settled on North Merritt, wanted to go over to the old cemetery; during her talks with Mr. Stiner she mentioned about the old schoolhouse being over there; and he mentioned he had seen a building that was just south of the cemetery. She stated in her research she found an old map and writings from Weona Cleveland who did personal interviews in the 1980’s with Arthur Campbell; that is right where the schoolhouse was supposed to be; and she could not believe it was still standing. She stated on January 29, a group went out to the site with John Stiner; and she took a video of the whole thing She stated Kathryn Bouie’s daughter, Brenda Gray, who is the great granddaughter of Butler Campell went along because she wanted to experience part of her heritage. She stated they would like to enter into an agreement with the Canaveral Seashore, NASA, and the Wildlife Refuge because all three of those entities are custodians of the property; it is not an insurmountable problem; and they have already written a letter to the Brevard County Historic Commission asking if they could enter into some type of agreement. She stated some archival type items were found in an old trunk in the 1970’s; they are in the hands of private individuals; they document a lot of the history of the Campbell family by letters, postcards, and receipts; and they would like to request that those be returned to the Campbell family because it is part of their heritage. She presented a video showing the trip to the schoolhouse site.

Chair Higgs stated the Board gets the essence of what is out there.

Commissioner Scarborough stated the Board has the whole package; there is a lot of information from the trunk that tells the story; and it is not just a building, but a story with the building. He stated going back that far and talking about black education in Florida is a very interesting story in itself; and this will help substantiate some of the things. He stated he was told the students excelled in Latin. Ms. Foster stated they excelled in mathematics, psychology, and Latin; the package contains documentation in an 1892 or 1893 newspaper that it was a very proficient, profound school; Mr. Mahaffey was the teacher; and he made sure all of his students were very well taught. She stated it has a great history to the County and to the black community; and they hope they can make this a workable thing.

REPORT, RE: CITRUS TREES

Commissioner Pritchard stated at the last meeting he brought up the issue of citrus trees being part of the tree canopy Ordinance, and that sometimes because groves are now falling into disrepair and are purchased for residential use, citrus trees need to be removed to create a space for parking of materials, etc. He stated it does not always entail having a building permit; but he is only talking about six to ten trees on an area that might have a hundred or more trees. He stated Sherry Williams from Natural Resources is working on a report; and she will be bringing it back at the next meeting as an agenda item.

PRESENTATION BY LARRY WEBER, KEEP BREVARD BEAUTIFUL, RE: TRASH BASH
DAY

Commissioner Pritchard stated Larry Weber, Executive Director of Keep Brevard Beautiful and George Geletko, Florida Government Affairs Director for Waste Management, are present to discuss the kick-off for the 2004 Trash Bash event.

Larry Weber stated this is the 20th year of Trash Bash; the Board is familiar with it; it concerns the value and quality of life in Brevard County; the Great America Cleanup with be held in March, April, and May; and their website www.keepbrevardbeautiful.com talks about the details of all the events coming up. He stated the Great American Cleanup is kicking off on Saturday at Kelly Park West; Waste Management is going to cook hotdogs, etc; and volunteers will be cleaning SR 528 on that day. He stated last year in March, April, and May there were 32,059 volunteers who collected 242,950 pounds of litter, planted 3,346 plants, and recycled 26,702 pounds of plastic bottles and aluminum cans. He stated Trash Bash is on April 17; and Mr. Geletko is this year’s Chairman of the Great American Cleanup as well as being Government Affairs representative at Waste Management.

George Geletko stated the competition is countywide; it is based on two categories, the city awards and the County Commission awards; and there are four subcategories within the cities based on city size. He stated there are awards for overall improvement and also the greatest amount of trash collected; last year District 5 was the winner for the most trash collected; and District 1 had the overall best performance. He advised on overall improvement Commissioner Colon’s District had 194 volunteers who picked up 277 bags of trash; Commissioner Scarborough’s District had 199 volunteers who picked up 2,732 bags of trash; and the Pelly Can Award last year went to District 1.

REPORT, RE: SAMPLE OF THE ARTS

Commissioner Carlson requested Marie Loeffler come forward; and stated the Brevard Symphony Youth Orchestra exhibit is in the foyer.

Marie Loeffler, representing Brevard Symphony Youth Orchestra, thanked the Board for approving their grant request this year; and stated they are celebrating their anniversary. She stated the students range in age from 8 to 18; there are three orchestras that have been playing their hearts out this year; there are two concerts coming up on March 7 and March 14, 2004; and the grand finale is April 30, 2004 at the King Center for the Performing Arts.

RESOLUTION, RE: COMMENDING LEROY WRIGHT

Commissioner Carlson stated she asked Leroy Wright, who is the president and founder of Save the St. Johns River, to come to the Board to talk about the Lake Hell’n Blazes and Sawgrass Lake issue; that was the only way to get him to come to do something of a surprise nature; and he was really invited for another purpose. She stated the Board wants to present Mr. Wright with a resolution for his time and service to the community. She stated from the time
she started working on the American Heritage River Steering Committee until the newly founded St. Johns River Alliance, Mr. Wright has been an inspiration to her and others with his stewardship, concern, and dedication to the protection and preservation of the St. Johns River and its surrounding community; it was this strong belief of Mr. Wright’s that caused him to found his own organization, Save the St. Johns; and Mr. Wright has a seat at the table representing the Upper St. Johns River community. She stated he is one of nine citizens who have been appointed to the St. Johns River Alliance, along with representatives of communities and counties; they expect to do some great things; and she is happy Mr. Wright is there to inspire everyone to do the right thing for the river. She stated when they had the sustainability commentary by Mr. Larsen earlier, he talked about the example of water; it is quite appropriate to talk about this now because water is important to the future; and if there is no clean water source, it is going to be a big problem. She stated the St. Johns River Alliance is going to hopefully get to the point where it can restore the St. Johns River to its original beauty. She read aloud a resolution commending Leroy Wright.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to commend Leroy Wright for his tireless efforts, contributions and preservation of the St. Johns River. Motion carried and ordered unanimously.

Commissioner Carlson stated the Board appreciates what Mr. Wright has done for the community; and Councilwoman Pat Poole, who is also a great advocate of the river, is present to support Mr. Wright.

Mr. Wright stated he would like to recognize his wife who has been with him in this effort for the past fifteen years and Larry Gleason who is president of their group. He stated he was totally surprised; and thanked the Board for the Resolution. He stated he would like to comment on the Lake Hell’n Blazes restoration; he was here last May so he will not go through that; they laid out the entire scope of what needed to be done; and the Board unanimously voted to help with that. He stated later they came to the Water Management District; he was unable to be at that meeting; but the Board of County Commissioners committed approximately $200,000 toward the restoration; they have partnered with a number of groups throughout the County and have written letters on behalf of the group; and they asked the County and cities to do the same. He stated they went to Representative Weldon and Senators Nelson and Graham because they were embattled with a discussion with the Corps of Engineers for some time; and within two weeks of the letters and investigations, the cost dropped from $15.7 million to $13.2 million, which made it possible for the partnership to form, and for them to come up with their part of the matching money that they needed, which was $2.1 million. He stated he attended a meeting a couple of weeks ago of the Upper Basin Advisory Committee on Recreation; and he went there expecting to hear they were off and running because on August 18 of the previous year they were told by the Corps that as soon as they could get their part of the money, they would be off and running, which he took to be factual. He stated he has done some investigating; Steve Robinson of the Corps has gone on to the Everglades Program; but his replacement has assured him the project is not dead. He stated he had a call from Florida TODAY and was asked to comment; he had a very positive comment that it is going to happen; then headlines
came out that the project was in jeopardy with the Corps dropping out; but that was not factual. He noted he has since called the writer and made sure he understands. He stated it would be good if another letter went forward from the Board asking Congressman Weldon and Senators Nelson and Graham to look into the reprioritization of the projects and explain about the water supply for the 150,000 residents of Melbourne; and the fact that the C-1 rediversion project needs to go on, which will help the Indian River Lagoon; removal of sediment out of C-54 and those outflows that go into the Indian River; and that if the Corps of Engineers project that is scheduled to be completed in the next three years is delayed another one or two years that it will impact the other project. County Manager Tom Jenkins requested the Board consider writing another letter thanking them for their participation in the first round and asking if they would look again at the Corps of Engineers and make the first two legs a priority to get them into the next fiscal year’s budget to get the project done.

Chair Higgs requested Commissioner Carlson draft a letter and bring it back for the Board’s consideration.

Commissioner Carlson presented the Resolution to Mr. Wright. She advised Mr. Wright does not get paid for what he does, but he is always there when it comes to the St. Johns River and the Board appreciates him for that. She stated at a previous meeting she asked for a report on Lake Hell’n Blazes; and she would like to see another letter from the Board. Chair Higgs requested Commissioner Carlson bring the draft of the letter to the next meeting.

ANNOUNCEMENT, RE: TOWN MEETING

Commissioner Colon stated the next town meeting is going to be March 20, 2004; it will be unique because the City of Palm Bay has asked to combine their meeting with her town meeting; and it will be at the Senior Center at 10:30 a.m.

RESOLUTION, RE: RECOGNIZING ANCIENT HIBERNIANS AND PROCLAIMING
IRISH-AMERICAN HERITAGE MONTH

Commissioner Pritchard stated the 2004 Melbourne St. Patrick’s Day parade will take place on Saturday March 13 at 2:00 p.m. from the corner of New Haven and Strawbridge, and will move through old downtown Melbourne; and he hopes everyone can attend. He read aloud a resolution honoring the Irish and proclaiming Irish-American Heritage Month.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt a Resolution recognizing the Ancient Hibernians and proclaiming the month of March as Irish-American Heritage Month. Motion carried and ordered unanimously.

Commissioner Pritchard presented the Resolution to Fred Galey on behalf of the Ancient Order of Hibernians, who thanked the Board for the recognition.

RESOLUTION, RE: RECOGNIZING JUANITA BARTON

Commissioner Scarborough read aloud a resolution recognizing Juanita Barton.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to adopt Resolution recognizing and commending Juanita Barton for her many continuous years of dedicated service as a member of the CDBG Advisory Board. Motion carried and ordered unanimously.

Commissioner Scarborough presented the Resolution to Ms. Barton. Ms. Barton thanked the Board for the Resolution.

PRESENTATION, RE: PROFESSIONAL DEVELOPMENT CERTIFICATES TO EMPLOYEES
WHO ATTENDED EMPLOYEE DEVELOPMENT PROGRAM

Human Resources Director Frank Abbate stated one of the most enjoyable privileges he has is recognizing County employees who worked hard to achieve their Certificates of Professional Development; they attended sixteen workshops, studied the material that was presented, and passed three written examinations after each of the phases of the program. He commented on the courses included in each phase; and stated this year there were 942 attendees, and as a result 16 employees passed and obtained their Certificates of Professional Development. He stated the individuals are Perry Cusamo with Parks and Recreation, Wendy Dulay with Facilities, Scott Heil with Water Resources, Josh Henderson with Parks and Recreation, Terrie Lewis with Roadways and Landscaping, Micheline Luken with Library Services, David Moore with Parks and Recreation, Janice Murray with Library Services, Marina Nebel with Land Development, Patti Plant with Water Resources, Richard Szpyrka with Water Resources, and Renate Williams with Support Services; and four individuals received the Certificates with honors, meaning they scored a 90 or better on their examinations, Janet Lindstrom with Library Services, Kathleen McHugh with Court Administration, Patricia Moore with Human Resources, and Emelie O’Brien with Water Resources.

Chair Higgs thanked the recipients on behalf of the Board and the citizens for their efforts, which enhance the County’s ability to serve the citizens.

ITEMS PULLED FROM CONSENT AGENDA FOR DISCUSSION

Chair Higgs stated cards have been submitted by citizens on items III.B.4, Approve Contribution to Titusville Area Chamber Of Commerce, Re: 2003 Fourth Of July Fireworks and Item III.F.1, Request To Rescind Resolution No. 90-188, Re: Requiring May 1st Budget Submittal Date For Constitutional Officers.

PERMISSION TO APPEAL STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT
SERVICES ADMINISTRATIVE LAW JUDGE NON-CREDITABLE SERVICE
DETERMINATION, RE: FLORIDA RETIREMENT SYSTEM

Commissioner Pritchard stated he would like to comment on Item III.E.1, which is a request that the Board write a letter appealing the State of Florida’s Department of Management Services regarding its current position on something that would negatively affect the employees; the determination is inconsistent with prior direction provided by the Florida Retirement System (FRS); it negatively affects retirement benefit calculations; and the Board needs to take a very firm position on this and also let the Legislative Delegation know that the Board totally opposes the FRS’s recent determination.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the County Attorney’s office to appeal the Florida Department of Management Services Administrative law judge’s determination that lump sum merit pay increases made to permanent employees at the maximum end of their salary ranges are not considered retirement creditable compensation. Motion carried and ordered unanimously.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: INDIGO CROSSING
SUBDIVISION

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to grant final engineering and preliminary plat approval for Indigo Crossing Subdivision, subject to minor engineering changes as applicable and developer responsible for obtaining required jurisdictional permits. Motion carried and ordered unanimously.

RESOLUTION, RE: RELEASING CONTRACT FOR CONSTRUCTION OF IMPROVEMENTS
TO SONOMA SUBDIVISION, PHASE 3

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution releasing Contract with The Viera Company dated July 8, 2003, for improvements in Sonoma Subdivision, Phase 3, as the developer has completed all required improvements. Motion carried and ordered unanimously.

CONTRACT WITH PINEDA PARTNERS, LLC, RE: IMPROVEMENTS TO GRAND HAVEN,
PHASE 8

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to execute Contract with Pineda Partners, LLC guaranteeing infrastructure improvements in Grand Haven, Phase 8. Motion carried and ordered unanimously.

PERMISSION TO FILE INJUNCTION AGAINST JAMES ROBERT HELLUMS AND
RHONDA J. SPENCER, RE: CODE VIOLATIONS

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize the County Attorney to file an injunction on behalf of Code Enforcement against James Robert Hellums and Rhonda J. Spencer, for a continuing and recurring violation of Brevard County Code Sections 94-312, Junk Vehicles; 94-48, Maintenance of Property; and 62-2113, Animals. Motion carried and ordered unanimously.

WAIVE EXEMPTIONS TO TITLE AND PERFORMANCE OF PHASE 2 ENVIRONMENTAL
ASSESSMENT AND SURVEY, RE: DEDICATION OF TRACT LOCATED WITHIN
RECENTLY PLATTED CHASE HAMMOCK LAKES SUBDIVISION

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to waive executions to title for Chase Hammock Lakes property on North Merritt Island and performance of a Phase 1 Environmental Assessment and survey provided by the developer as part of the plat approval; and authorize the Regional Stormwater Utility Director to waive title exceptions of a similar nature having no impact upon the County’s intended use of property for future acquisitions by the Regional Stormwater Utility Department, subject to approval by the County Attorney’s office. Motion carried and ordered unanimously.

APPLICATION TO FLORIDA DEPARTMENT OF STATE, DIVISION OF LIBRARY AND
INFORMATION SERVICES, RE: LIBRARY SERVICES AND TECHNOLOGY GRANT FOR
FAMILY LITERACY PROGRAM

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve application to Florida Department of State, Division of Library and Information Services for Library Services and Technology Grant in the amount of $65,100.47 to continue the Brevard County Libraries Family Literacy Program; and authorize the Chair to execute the follow-up Agreement contingent upon County Attorney and Risk Management approval. Motion carried and ordered unanimously.

AGREEMENT TO AMEND AND EXTEND EXISTING AGREEMENT WITH PAUL FRIDDLE,
BIRDIES AND EAGLES, RE: CONCESSIONAIRE SERVICES AT HABITAT GOLF
COURSE

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to execute Agreement to Amend and Extend Existing Agreement with Paul Friddle, Birdies and Eagles, to continue providing concession services at the Habitat Golf Course from April 1, 2004 through March 31, 2005. Motion carried and ordered unanimously.

EASEMENT TO FLORIDA POWER & LIGHT COMPANY, RE: ELECTRICAL SERVICE TO
HARRY T. AND HARRIETTE V. MOORE MEMORIAL PARK

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to execute Easement to Florida Power & Light Company to construct, operate, and maintain electrical service to the newly developed Harry T. and Harriette V. Moore Memorial Park in Mims. Motion carried and ordered unanimously.

APPROVE REVISIONS TO POLICY BCC-23, RE: TANGIBLE PERSONAL PROPERTY

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve revised Policy BCC-23, Tangible Personal Property, and revision to the Glossary definition of capital improvement in the Comprehensive Plan. Motion carried and ordered unanimously.

APPROVAL, RE: ALTERED AND ADDED PRECINCT LEGAL DESCRIPTIONS

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve revised precinct legal descriptions for changes to existing precincts cue to annexations by the Cities of Cocoa, Indian Harbour Beach, Melbourne, Palm Bay, Titusville, and West Melbourne, as well as revised descriptions due to errors and new Precinct 218. Motion carried and ordered unanimously.

APPOINTMENT, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to appoint Kelli Jo Strabley to the Electronic Pet Systems Containment Review Committee with term of appointment to expire December 31, 2004. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Bills and Budget Changes as submitted. Motion carried and ordered unanimously.

ADMINISTRATIVE APPEAL, RE: COURTNEY ROBERTS

Chair Higgs stated the procedure that was adopted by the Board on February 11, 2004 for this hearing are specifically for this hearing; the applicant, Courtney Roberts and his representative will be given 30 minutes to begin; the staff representative will be given 30 minutes to present; and that will be followed by Mr. Nohrr representing his clients, who will be given 30 minutes.
Chair Higgs stated following those presentations, each of those representatives will have 15 minutes to sum up and rebut; she has approximately 25 citizen cards; and each speaker will receive five minutes. She stated she has a card from Mr. Roberts; and inquired if the intent is for him to be the opening speaker. Attorney Richard Torpy advised Mr. Roberts will not speak at this time. Chair Higgs stated the process would be served best if it allowed the 30-minute segments to go forward uninterrupted so there is no dispute in terms of time; any questions can come after all the speakers or after each individual speaker; and she is the official timekeeper.

Commissioner Scarborough suggested, for the benefit of those watching on television, Chair Higgs may want to tell generally what is going to happen and the length of time. County Attorney Scott Knox stated what is before the Board today is an administrative appeal of a decision made by staff to issue a stop work order on a house that was being constructed by Mr. Roberts; the staff gave several reasons for the issuance of the stop work order, which he assumes the Board will hear about in today’s proceeding; this particular proceeding deals with the interpretation of the provision of the Code, which was the source of the staff’s decision to issue the stop work order; and in the context of that administrative appeal, the Board may hear about other issues that fall within the ambit of the appeal. He stated there is also litigation pending in this case, raising similar issues in the Circuit Court, but that proceeding is, for all practical purposes, abated at this point pending some determination by the Board. Commissioner Scarborough inquired how much time do they anticipate for the process; with Mr. Knox responding at least one and one-half hours and perhaps two or three hours.

Chair Higgs stated she will indicate to Mr. Torpy when he has a minute left. Mr. Torpy requested the Chair advise when he has ten minutes left; with Chair Higgs responding she will do her best.

Mr. Torpy stated there was a point he mentioned to Mr. Knox; if there are questions from the Board of facts that are presented to either side, he would like the opportunity to answer the questions; his specific concern is that at one of the previous proceedings, fact questions were coming up from the Board that they did not anticipate; and he wants to be sure the Board gets correct, accurate answers. He stated that is something they agreed to; it would come up in the context of a Commissioner asking a question; and they want to be given a chance to respond.

Chair Higgs stated what she is hearing is that if there is any question directed at any of the three representatives of the group, each individual should be allowed to answer that question. Mr. Knox stated the Board does not have to because it did not agree to do that; but if it chooses, for the purpose of allowing the facts to come out or at least the positions of both sides that the Board may have questions about, that may be a viable alternative to waiting until the end and letting Mr. Torpy try to rebut everything that came out a half an hour ago and whatever questions were asked. Chair Higgs stated she needs some consensus of the Board on how to proceed so everyone understands because she does not want to get into any difficulty with rules; and any Commissioner asks questions to any of the folks involved, each of the three key parties would be allowed to respond. She inquired if that is what the Board wants; with Commissioner Colon responding it is not what she wants because they will be here all day.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to provide that if anyone asks questions of any of the people involved, each of the three key parties will be allowed to respond to the question. Motion carried and ordered; Commissioner Colon voted nay.

Mr. Torpy stated Chair Higgs mentioned three key parties; it is his understanding there are two key parties, himself representing Courtney and Carol Roberts and then staff whose decisions are being appealed today. He stated he understands there are attorneys; he knows of two who are representing various citizens; but he does not believe they are parties as much as they are making citizen comments. Chair Higgs stated Scott Roberts is representing a number of people; they have signatures of those people as well; so there are actually four parties, although Mr. Roberts was not part of the agreement the Board made. She stated Mr. Roberts’ cards will be taken with the rest of the citizens. Mr. Torpy stated as long as they are all given the same time; and inquired if Scott Roberts is going to consolidate because he represents so many people. Chair Higgs stated Scott Roberts will be given five minutes as will all of the individuals who submitted speaker cards. She stated if the Board wants to change the procedures, it needs to do it now. She stated Mr. Roberts represents eight or nine different parties.

Attorney Scott Roberts stated there are about 46 who have signed the sheet that he presented asking him to represent them; and there are 24 speaker cards. He stated in the last 24 hours, approximately 46 residents have asked him to speak on their behalf; about half of them could not be here today; and the other half have signed speaker cards relinquishing their time to him to speak on their behalf. Chair Higgs advised that is not the procedure the Board normally follows, so she will need some guidance from the Board. She inquired if Mr. Roberts is related to the applicant; with Mr. Roberts responding yes, but he is also an attorney.

Mr. Knox inquired how long Mr. Roberts will need; with Mr. Roberts responding 48 people at five minutes each is approximately four hours; but 20 minutes is the maximum he would take.

Chair Higgs stated there was an agreement between several parties as to how they would proceed; and this is a new wrinkle. Commissioner Carlson stated the Board already acknowledged in the previous action how it was going to address this hearing. Chair Higgs stated that did not include Mr. Roberts representing others. Commissioner Carlson inquired if it would be prudent to allow Mr. Roberts to be included; and for how much time; with Mr. Knox responding the Board can waive the procedures, especially for occasions like this; and it sounds like Mr. Roberts could probably save the Board a lot of time by taking 15 to 20 minutes to sum up what 40 people might otherwise say. Commissioner Carlson inquired if the cards they currently have are the individuals that Mr. Roberts is representing; with Chair Higgs advising that is not the case. Mr. Roberts stated there are some that he is representing; with Chair Higgs noting there are also others who wish to speak. Chair Higgs stated there are 26 cards; and they indicate that 15 or 16 people are here who are represented by Mr. Roberts.

Commissioner Colon stated that is why she is not supporting what the Board is doing today; it should follow the same procedure it has followed for years; and there should not be an
exception for today’s proceeding. She stated the attorneys have time to give their presentations; there is opportunity for rebuttal; and that is as it should be because by the time they add up everyone who is speaking, they are talking about at least three hours. She stated what the Board voted on, which she did not support, was that any time a Commissioner asks a question, all parties will answer the question; and that is insane. She stated it means they will be on this one item and will not accomplish anything by doing it. She stated she wants this on the record because four hours from now everyone will understand what she is saying, which is that anytime the Board asks a question, they would have an opportunity for rebuttal.

Chair Higgs stated Commissioner Colon makes a good point; she voted in the affirmative; and the Board should reconsider about questions directed to those individuals. She stated allowing each of the four parties to respond is going to lead down a path the Board cannot get to.

Mr. Roberts stated for clarification, he does not need to rebut every question that is directed; and Mr. Torpy and the County should address that.

Chair Higgs passed the gavel to Vice Chair Pritchard.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to reconsider the vote to provide that if anyone asks questions of any of the people involved, each of the three key parties will be allowed to respond to the question.

Mr. Roberts stated he is simply looking for time to represent some of the residents.

Commissioner Pritchard stated the reason he voted as he did is because they have gotten to this point due to all the convoluted evidence they have been presented with; it has become a he said/she said, this we can find/this we cannot find issue; and during the previous meetings, one party or another has said they did not have a chance to refute what someone else said. He stated that is why he voted to end this today; and if it means allowing Mr. Torpy or Mr. Nohrr to speak because staff said something they disagree with, he does not want this coming back. He stated he would like to get this over and done with; and if that means spending three hours today, he is willing to do that.

Chair Higgs stated she is not hesitant to spend the time; but if the vote to reconsider is in the affirmative, she would want, as the Board asks questions of individuals, to allow that person to respond. She stated each of the parties still has 30 minutes; they still have rebuttal; and the reconsideration would not affect that. She stated if every question is responded to by four people, that will not be particularly productive.

Commissioner Carlson called the question on the motion. Vice Chair called for the vote on the motion. Motion carried and ordered; Commissioner Pritchard voted nay.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to proceed in the normal fashion, asking questions of individuals and allowing those individuals to respond. Motion carried and ordered; Commissioner Pritchard voted nay.

Commissioner Scarborough stated if it is a critical factual issue that needs both sides, the Board can be sensitive and call for that information.

Vice Chair passed the gavel to Chair Higgs.

Chair Higgs inquired how do they want to handle Scott Roberts; with Commissioner Pritchard stating he would rather the Board spend the 20 minutes and gave Scott Roberts a chance to make his presentation; he is representing a considerable number of people; and the Board can probably get through this a lot quicker by allowing him 10 or 15 minutes.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to allow up to 20 minutes for Attorney Scott Roberts to speak. Motion carried and ordered unanimously.

Chair Higgs inquired if the intent is to give Mr. Roberts 20 minutes, but no part of the rebuttal; with Commissioner Carlson responding that is right.

Attorney Richard Torpy, representing Courtney and Carol Roberts, stated they have discussed the procedures; he originally asked for an hour to make his presentation today; but the Board said a half-hour was sufficient. He stated each Commissioner has been given a black notebook; and he will go through it page by page in his 30 minutes. He stated he has tried to distill this case to the bullets as best he could; and he wants to show the Board something so it will understand why the case has been complicated. He stated there has been a lot of he said/she said; the case is not about what they know to be the facts; it is what they can prove are the facts; and in order to do that, they had to go back and reconstruct records that got back to 1993, 1988, and 1986. He stated they had much difficulty in assimilating those records from the County’s public records; but he will not go into that issue right now because it is not as important as what they have put together. He stated what the Board has in front of it is what was distilled down from what was in the box, which is a representation of a year’s worth of efforts by Mr. and Mrs. Roberts, their son Scott, and himself to recreate a record of what has happened. He stated the importance of the case tonight involves two things; the Board needs to know what Mr. and Mrs. Roberts owned and what they can do with it; and those are really the legal issues that were presented to staff, and are being presented to the Board today. He requested the Board address the large map to his right; and stated they have circled the properties there because there has been much concern and debate as to whether or not Mr. and Mrs. Roberts have two single-family residences in Snug Harbor, which is the subdivision in which they live in the unincorporated area of Cocoa Beach. He stated the two lots on the map are circled in red; and commented on variance numbers for the lots. He stated it is a copy of the original plat map that was recorded in the late 1960’s and early 1970’s; the two lots were not shown on the original map; if one takes out the center line, it shows what was originally there; and it was a very large
lot with a lot of riverfront. He stated Mr. and Mrs. Roberts acquired both of the lots in March 1993; and everything he is going to say in summary, he will show in the record. He stated in March 1993, Mr. and Mrs. Roberts acquired the lots by two separate deeds from the previous owners, Mr. and Mrs. Bryan; and the question now is what were they legally allowed to do with that. He stated the specific single issue was that they wanted to build a single-family detached residence on the southernmost lot, which is the one that is narrower; and the question was what was the setback and building envelope on that lot. He stated the specific question was whether or not they were entitled to build a structure subject to a 50-foot buffer from the Indian River or a 25-foot buffer; the relevant date and time that was disputed and debated was when the lots were created; according to the County Code, if the lots were created prior to September 8, 1988, which was when the County adopted the Comprehensive Plan and Land Development Regulations, then they were entitled to the reduced buffer; but if the lot was created after September 8, 1988, then they had to use the higher 50-foot buffer. He stated the case he will present today is what the Roberts did in 1993 to establish and prove to staff that they were entitled to build a single-family residence pursuant to only the 25-foot buffer from the Indian River. He stated the second map is a copy of the site plan that was submitted consistent with the request; it is the southern lot; there is already a single-family residence on the northern lot that Mr. and Mrs. Robert live in; and the southern property is where they have the additional residence approximately 80% constructed, which resulted in all the dispute. He stated the residence is 80% constructed based on the 25-foot setback; and the reason that is important is there was a lot of concern that somehow this proceeding was going to result in the Roberts building a house with a 50-foot setback; but it is not going to happen unless the Board decides to tell them to tear down the structure that is there, and there is no evidence to support that. He stated they have been allowed and permitted by staff to construct a residence with a 25-foot setback; in 1993 there were many things presented to staff; and there was information about how the lot was created, which in this case, involved going to the Board of Adjustment for a variance from the front yard setback, going to the Planning and Zoning Board and the Board of County Commissioners, and being discussed by the County Attorney’s office, the Planning and Zoning office, and the Office of Natural Resources. He stated all of those representatives of the County addressed this issue in 1993 ultimately leading to the final opinion letter of November 3, 1993 by then Director of Natural Resources Lisa Barr advising the property was entitled to a single-family residence subject to the 25-foot buffer. He stated unfortunately the Roberts did not proceed with construction of that home or get a permit until 2002; in that period of time, the 1993 opinion was lost; and the debate started again. He stated the problem is that today many of those records have been lost; they cannot re-prove what was proven in 1993 because the documents no longer exist; and because they cannot re-prove those, it is their position that the County is equitably estopped from denying the opinion it gave in 1993 through Ms. Barr. He stated one of the things the Board probably heard so far in this proceeding is that Ms. Barr was wrong and that her 1993 conclusion was incorrect; and therefore the Board is not bound by that opinion. He stated in December, after he had to file suit, he took the deposition testimony of Director of Planning and Zoning Mel Scott because it was his office that issued the stop work order on the Roberts’ property in March of this year; and he will read some of that testimony. He stated on page 90 of Mr. Scott’s testimony, he asks, “do we agree the law in 1986 should prevail on how you create a legal lot of record and not the law in 1993”; and Mr. Scott’s answer was, “absolutely.” He stated then Mr. Scott took a break because he wanted to review the law
of 1986; he called his office; and when he came back on the record, the testimony went as follows. Mr. Torpy stated he advised they were back on the record; noted he just got off the phone with his office to determine what the rules were for creating a legal lot of record in 1986 in Brevard County; and Mr. Scott’s answer was yes. He stated he asked what Mr. Scott had determined; and Mr. Scott responded, “There was an ’85 Zoning Code. The only other 1986 Zoning Code we could find was October, so I went earlier, assuming that a provision like that in the Zoning Code is not something that is traditionally tinkered with very often, so I went prior to the 1986 date and it references a recorded document.” He stated he asked if in 1986 one were to record a survey, would that have been sufficient in 1986 in Brevard County to create a legal lot of record; and Mr. Scott responded that based on his research, it would. He stated they are saying that Ms. Barr’s opinion was incorrect and that she was wrong to say they were entitled to a 25-foot setback; Mr. Scott said in 1986 if there was a recorded instrument, it was enough to create a legal lot of record; and they are now talking about Ms. Barr’s opinion because he knew that staff disagreed with it. He stated they had just shown a letter from Mr. Bryan that included a survey; but they unfortunately do not have the survey. He stated it has never been produced to them; but Mr. Bryan’s letter of October 21, 2003 to Ms. Coles, who worked for Ms. Barr, says, “I recorded it on March 6, 1986.” He stated he asked Mr. Scott if that was correct and Ms. Barr was looking at the document that created lot 7.1 by a recorded instrument in 1986, would she have been correct; and his answer was yes. He stated the law in 1986 to create a legal lot of record in Brevard County only required that one record some document demonstrating that a lot existed; and Mr. Scott responded, “my research of the Zoning Code was that it references the phrase recording document and in short, it could be a survey. He stated he inquired if it would be a cocktail napkin; with Mr. Scott responding, “it could be a cocktail napkin that was all legible.” He stated finally he asked Mr. Scott about the property that could bear a detached single-family residence of particular size; Mr. Scott said this was hypothetical testimony; but what he was being hypothetical about was the structure itself, the size of the house, and what the setbacks would be; and he was not being hypothetical that a legal lot of record could have been created in 1986 by recording a document such as a survey. He stated that was factual based on Mr. Scott’s research of the County Code. He stated it appears there would be a building envelope on the property that could accommodate a house of a particular size with a 25-foot setback from the Class II waters; and that is a summary of the case. He stated in 1993 Lisa Barr did all of this work; several people looked at it and concluded that whatever she was looking at caused her to not only conclude that Lot 7.1 could contain a single-family residence subject to the 25-foot buffer but it caused her to change her mind, because she originally issued a written opinion in August 1993 that the 50-foot buffer applied. He stated appeals and research ensued; documents were produced; and Ms. Barr changed her mind in November of that year; but unfortunately today they cannot reconstruct the record. He stated he will walk the Board through some documents of record so it can see how conclusive the issue was in 1993; and the first thing in the book in green are documents that were not produced to them as part of their public records request. He stated there are many more, but they did not come out to the Board today because he did not include them in the packet; and that, as the Board knows, has been a significant issue. He stated one thing of interest is that part of the stipulation they had to agree to is that all the documents the County would be relying on would be provided to them seven days ago; they did that; but last night at ten minutes to 5:00, Mr. Peffer called his office,
and at 5:30 Pat Overmyer of his office met with Mr. Peffer. Mr. Torpy stated those are the documents that are public record documents that are responsive to their request in April of last year, that were produced to them for the first time last night at 5:30 p.m., so the issue has been significant. He stated he does not know what they mean; they started to look through them; and what they show is that there are still more documents missing on this file that are potentially and probably in the possession of the County somewhere, but are likely lost. He stated there was a Board of Adjustment hearing; the first thing the Roberts tried to do was get relief from the front yard setback; and on page 49 of the March 17, 1993 Board of Adjustment minutes, which is in green, Mr. Enos is testifying in a hearing where the Roberts are asking for relief from the front yard setback. He noted the request for variance was denied, which further exaggerated the need for the rear yard setback; Mr. Enos said the two parcels in question were originally one lot; it is described as Lot 7 in Snug Harbor Subdivision; and it is his understanding the one lot had been subdivided into two lots by the previous owner. He stated both of the lots are legal lots according to the Zoning Code, but are smaller than the lots in the subdivision; and advised the reason he provided the minutes was because he wanted the Board to realize that there was lengthy discussion in 1993 about the lots and their significance, and it was not something that was given cursory review by staff or the boards. He stated Mr. Sears who was Chair of the Board of Adjustment said, after discussion with Attorney Bentley, that he was advised that it was a divided lot; and the description he has listed on the Warranty Deed is the same as for the variance request. He stated they are looking at two lots; however, the are only examining one lot, which would be 7B or 7.1. He stated there was no dispute that his clients, Mr. and Mrs. Roberts, owned two separate lots and acquired them by separate deed in 1993. He stated the next document is a copy of a letter dated August 23, 1993; as he said a moment ago, Ms. Barr changed her mind; her initial letter states it is her ultimate conclusion and therefore the administrative interpretation that the 50-foot shoreline protection buffer applies without capability of reduction; and the next thing that happened was Mr. and Mrs. Roberts appealed the determination of Ms. Barr. He stated his concern with the appeal hearing was that Ms. Barr did not present all of the information she possibly had, and more importantly, she made a misstatement of fact. He stated he has included a letter dated October 25, 1993 from Mr. Roberts to Ms. Barr, which was very critical of Ms. Barr’s handling of the appeal hearing and the representations she made; and the next document he included is the 1993 minutes from the LPA. He stated the second page of those minutes reflects Ms. Barr’s statement that Mr. Roberts had established his lots by deed in February 1993; and she added that Lot 7 was then further subdivided into two lots. He advised that was inaccurate; at the time records were in the County’s possession to show it was inaccurate; and that was part of the content of Mr. Roberts’ October 25 letter to Ms. Barr challenging her on the misstatement to the board. He stated the next document is a letter dated October 21, 1993, which is a critical document; and it is in green because they did not get it from the County, but found it in Mr. Roberts’ records. He advised it is a letter dated October 21, 1993 from George J. Bryan, who was the original owner; apparently Ms. Coles still works for the County, and worked for Ms. Barr at the time she was trying to research this issue; the letter came in after the LPA hearing and appeal on this matter; and they are not saying that Ms. Barr had the letter or information; but it is critical because it came in October prior to Ms. Barr changing her mind in November. He stated the LPA upheld Ms. Barr’s opinion even though they believe there were misstatements of fact; and in Mr. Bryan’s letter to
Debbie Coles he states, “In 1986 I was contacted by Marjorie Humphreys, a realtor and resident of the adjacent property 22 West Point Drive, to purchase the undeveloped part of lot 7. We negotiated an agreement.”

Chair Higgs advised Mr. Torpy has ten more minutes.

Mr. Torpy continued, “We negotiated an agreement and retained William Weller of the Rose Weller Law Firm to split out that portion of the property for sale. A copy of that survey is enclosed.” He noted they never got the letter until after Ms. Barr changed her mind; and they have never gotten the survey that Mr. Bryan is referring to; but Ms. Bryan specifically tells Ms. Barr that in 1986 he recorded a document with Brevard County to split out the lot. He stated on November 2, 1993, based on the information he just told the Board about, Ms. Barr issued a second letter with a new opinion that says it allows for a reduction of the buffer to 25 feet within an approved stormwater system, if the lot was platted or established by official records book prior to September 8, 1988, and since the parcel was established by lot division and recorded by the Clerk in March 1986, the administrative interpretation is that the 25-foot shoreline reduction buffer applies. He stated it cannot be any clearer; based on that information, Ms. Barr said he was entitled to the reduction; but the recorded instrument was never produced to them and it ceases to exist. He stated they are here today because they cannot find that document; and advised of the email from Mr. Scott to former Commissioner O’Brien trying to address the issue of what the problem was. He stated Mr. Scott said, “unless and until the alleged 1986 documents are produced, Lot 7 remains one lot and Mr. Roberts is left with a vested rights request as his only option for building a second residence as opposed to an addition to the existing home”; Mr. Scott is telling them to find those documents and recreate the wheel of 1993, and that maybe staff can help; and if they cannot do that, they are stuck with a vested rights hearing. He stated they believe vested rights is not the right legal theory; they have been equitably estopped because they cannot re-prove their case because the documents are missing. He stated the next thing in the packet is the deposition of Lisa Toland who was Lisa Barr, who wrote the letter that said when she changed her mind, it was because she was looking at documents provided to her by Mr. Bryan; and the new information she obtained after the LPA hearing caused her to change her opinion. He stated the law in 1986 said a recorded document created a second lot; it is known that Mr. Bryan gave Ms. Barr a survey that was apparently recorded because she says in her letter that it was recorded with the Brevard County Clerk creating the separate lot in 1986; and she concluded she was given enough evidence to say the lot was created in 1986. He stated that fact makes what happened in 2002 and 2003 almost irrelevant because all of the dispute in 2002 and 2003 has been over whether or not Mr. and Mrs. Roberts can build the house. He stated the next documents are the 2002 and 2003 permit stop work orders; there are eight separate documents, starting with the building permit application and proceeding through the recording of the Notice of Commencement during the permitting process that began in January 2002, was submitted in February 2002, and culminated in a building permit being issued in September 2002 that refers to the Roberts’ request for a single-family residence. He stated that is what they were looking for and that is what was permitted; but during the permitting process, staff required that there be a roof connecting the new 5,000 square-foot structure to the existing single-family residence. He stated what was actually going on was there were two building permits that were originally
sought; one was for the new 5,000 square-foot home and the other was for a room addition to the existing home; and staff required them to connect those with certain statements of how it eliminated some of the problems they were having with permitting. Mr. Torpy stated they started to build the house, believing the connection was not a requirement that would be required to stay forever; when they got into the process and timing became an issue, he sat with Mr. Roberts, after he found out what happened, and advised him he did not ultimately get a permit for what he asked for. He stated Mr. Roberts did not understand that because he had asked for a permit for a single-family residence, and up to the recording of the Notice of Commencement, the owners’ affidavit shows that is filled out SFR for an addition; and that was filled out by a staff member, signed by Mr. Roberts, and the SFR has been scratched out. He stated he can assure the Board that Mr. Roberts did not scratch that out; the owners affidavit that he filed when he got the Notice of Commencement was for a single-family residence. He stated the stop work order that was issued in March 2003 simply says building not per plan; the second page of the document, which was not with the stop work order, is an unsigned statement, apparently from Planning and Zoning’s Ryan Rusnak, asking for six things; and two of them, numbers five and six, are that the house has two kitchens, and the plans should be amended, and that a second electric meter is not permitted. He advised he provided copies of those plans; the original plans that were permitted had a second kitchen and second electric meter; and with the house 80% complete, staff said they had to be removed. He stated the County permitted it, but is telling Mr. Roberts that he has to remove the structure; when he asked Mr. Scott why they had to remove those when the County permitted them, he said because that is what they have to do; and there is no basis in law for that. He stated they are now taking the position that this was just an addition, that Mr. and Mrs. Roberts had only asked for an addition, and that they were trying to pull a fast one over on the County to get a new single-family residence under the guise that it was a room addition. He stated that is not at all the case; it was a room addition to the extent there was one on their existing house; but it is hard to say today that a 5,000 square-foot home, which was originally submitted on the plan, building permits, and drawings was a room addition. He stated one of the documents that did not come to them until after they filed suit for the public records and had people under deposition, is a two-page document called the permit jacket; there has been a dispute as to who changed the application from single-family residence to an addition; staff has said the Roberts changed it; and the permit jacket was not produced until they took the deposition. He stated they found out it existed; what is important on the hand-written document is that the census code changed; it has the new code and the initials of the secretary to Carroll Brown, the Building Official; and she has stated that was done at the request of someone from the Zoning Office. He stated Mr. and Mrs. Roberts got their building permit for what they believed to be their room addition and a single-family residence albeit connected by some structure; the structure was nothing more than a breezeway; under County Code there is no law that says if someone connects one structure to another with a breezeway, it makes it an addition; and in order to qualify as an addition under County Code, it would have to be an enclosed structure connecting the two. He stated the breezeway was insignificant, factually and legally; it was something staff asked the Roberts to do; the lot was created in 1986; and under the Code the Roberts clearly had the right to build a single-family residence subject only to the 25-foot setback. He stated the last part of his comment is the rest of the book that includes the damages that Mr. and Mrs. Roberts have sustained; and he will present those when he does his closing argument.

The meeting recessed at 10:42 a.m. and reconvened at 10:50 p.m.

Mel Scott, Planning and Zoning Director, stated the Board is being asked to consider two main issues as part of this agenda item; and he will briefly go over the essence of the request and then spend a little bit of time responding to some of the statements made in the previous presentation. He stated there are two main issues; and the first is whether a 50 or 25-foot shoreline protection buffer should be applied to the lot that contains the partially constructed and permitted addition; and it is important to reemphasize that this is not an issue regarding whether or not the subject property is one or two lots as all involved recognize that the property was recorded via Warranty Deeds as two distinct lots in 1993. He stated even the Board of Adjustment discussion in 1993 was about two lots; and the 25-foot versus 50-foot buffer issue is what they are discussing. He stated it is about when the lots were created and which section of the Code to go to regarding whether or not the 25 or the 50-foot buffer would be applied to this property; and the 25 vs. 50-foot buffer issue was settled in favor of a 50-foot buffer. He stated if the Board gives deference to the 1993 act of recordation via Warranty Deeds and the 1993 Board action, which upheld the determination that the 50-foot buffer as contained in the Shoreline Protection Ordinance should apply to the subject property, the issue could potentially be settled in favor of a 25-foot buffer, if the Board honors the November 2, 1993 letter from Lisa Barr, in which was determined coincidentally on the same date the Board ruled in favor of the 50-foot buffer that the subject property would need to retain only a 25-foot buffer. He stated if he were to sum up the crux of the issue it would not be necessarily on the documents that are referenced in the previous presentation, but on a letter that in its face is something that good faith reliance could be based upon. He stated the issue has been challenging to wrestle with due to the conflicting messages that were sent to Mr. Roberts on November 2, 1993; present day staff felt that the only choice that could be made administratively was to honor the Board’s position; and the forum today allows the issue to be readdressed by the Board. He stated the first issue was the 25 vs. 50-foot buffer; and the second issue is the subject structure. He stated if the Board determines that Lot 7.1 is subject to a 25-foot shoreline protection buffer, the existing structure on the lot could be permitted as a single-family home; if the Board goes to a 25-foot buffer, a separate single-family residence could be constructed; and if the Board determines that Lot 7.1 is subject to a 50-foot shoreline protection buffer, the existing structure on the lot could be permitted as an addition to the single-family home. He stated should this occur, staff would be seeking Board direction on certain issues; and they are highlighted on page 2 of the staff report. He stated they are talking about issues that would need to be resolved if the Board makes the decision that they are talking about an addition; and the first would be the roofing materials required. He stated he made an interpretation that the intent of the Code is that additions would look similar to the principal structure it is joining to; as part of that, they have talked about architectural integrity in the Zoning Code, which gets them to the connection that has been referenced previously as a breezeway; in essence, it is a connection that makes an existing house into a bigger one; and he understands the roofing material Mr. Roberts desires for the addition that was permitted is metal while the existing structure has a tile roof; so if the Board goes with an addition, the issue would be whether or not it would want uniform roofing material to be used. He stated the second issue is the second electric meter; on July 22, 2002, there was a conference between Mr. Roberts, the Building Official, and several members of staff; and at that point it was identified that a second electrical meter could not be
placed within this proposed addition, which was the focal point of the discussion at that time. He stated that is contrary, as the record shows, to Mr. Roberts’ wishes; but at that point they had gotten down to what they would be talking about with an addition; however, even though that was pointed out on July 29, staff did miss the fact that a second electrical meter was contained in the permit approved in September of that year. He stated the third issue on which they are seeking direction, if this is determined to be an addition, would be what to do with the second kitchen; the approved plans do show a second kitchen, which is contrary to the Zoning Code; and this is something that staff missed. He stated there was a time in the process where the site plan was getting very difficult to follow; there were several redlines, strikethroughs, iterations, and pieces of paper coming in and representing the official site plan submittal; at some point they struck through a second kitchen on one sheet but not the second sheet; and they are seeking direction on how the Board would want to deal with that if the decision was made that they will be discussing an addition and not a second single-family residence. He stated there was a lot of back and forth regarding the permits and representations made to an addition or second single-family home; and he will provide two instances on this point. He stated a Notice of Commencement filed with the Clerk of Courts gives a description of the improvement as a two-story single-family home; the date of recordation is August 28, 2002 for the Notice of Commencement provided by Mr. Roberts to the Clerk; however, Mr. Roberts also provided an Owners Affidavit of Notice of Commencement filed September 10, 2002, a little less than two weeks later, to the County that states the work will be completed as an addition. He stated again there was a lot of back and forth and confusion; at its essence it was ultimately a sincere desire on the applicant’s part to build a second single-family residence; but through the process there was the realization that could not happen without a forum such as they are in today. He stated as part of the Board’s consideration of Mr. Roberts’ interests are those of the neighborhood; the Board is in the unenviable position of weighing the representations made by Mr. Roberts’ attorney against those the neighborhood has towards the property, which they saw as a lot that could possibly bear an addition but not a second single-family residence. He stated there is a fork in the road, once the Board gets to deciding 25-foot vs. 50-foot buffer. He stated he will go over and clarify from his point of view some of the representations made in the first presentation. He stated several references were made to the construction of a residence; however, in looking at the documents contained in the report, there is something to be said about the ultimate wish of the applicant and what is being applied for. He stated Attachment 6 is to build auxiliary building for recreation and enlarge master bedroom; Attachment 7 is a copy of the permit; and on the upper left-hand corner, just under a series of numbers, is the word addition. He stated Attachment 9 is the owners affidavit notice of commencement filing; it is not in Mr. Roberts’ handwriting, but the signature is there; and where it says specify the improvement work, one can see that SFR was written but scribbled out. He stated the word “addition” is placed in the block that seeks the individual signing the paper to specify the work being sought; and yet Attachment 8 is the Notice of Commencement, which was previously referenced, talking about a two-story single-family home. He stated just for clarification, Ms. Barr’s letter, which was referenced as being written on November 3 in the presentation was written on November 2. He stated regarding a deposition that he was part of, the representation was made that they were talking about an addition, something to be constructed on this portion of the property; his understanding of the hypothetical was what was being constructed was in fact what makes a lot; the statement was if in fact the 1986 survey was create at a time where a
survey was good enough to create a lot, would those rules apply; and he responded absolutely. He stated when one set of rules applies, which creates lots, and those rules are changed such that one cannot satisfy the new rules, that is the definition of a nonconforming lot of record; going along with the hypothetical, they said that was a very interesting point, and what if a survey would have buttered the biscuit proverbially in 1986; and they stopped the deposition and he went to the phone. He stated in today’s Code, it is contained in the definition of lot; they went to the definition of lot in 1986 and it just referenced a recorded document; and he then hung up the phone and they began the deposition again. Mr. Scott stated that was the research that was referenced in the previous presentation; however, recognizing that was such an interesting hypothetical discussion that they are engaged in, and recognizing today what his answer would have been if the 1986 Code had recognized a survey, he went back and researched the 1985 Code, which contains a definition for nonconforming lot of record that references a warranty deed, but not a survey. He stated the house of cards that was the hypothetical scenario in the deposition fell apart; and he mentioned that to Mr. Torpy previously. He stated even having all that aside, the issue really is not what the Zoning Code says regarding the definition and creation of a lot; it is really regarding what the Ordinance that is being implemented by the Office of Natural Resources says; and the question is in 1988 whether the Ordinance says a 25-foot or 50-foot buffer is needed. He read from the first attachment, on page 6, “for residential lots platted or established by deed on the official record books of the County prior to September 8 1988”; stated it does not matter what the Zoning Code says because what they are talking about is the buffer requirement contained in another section of the Code; and it is in the Ordinance that the recorded deed is set forth as the instrument. He stated he wanted to make that point; and it is critical for purposes of discussion to understand the documents, the Ordinances that are in play, and the Ordinances that create or potentially destroy the 25 or 50-foot buffer. He stated the breezeway has been referenced; it is a work that admittedly has been used in a clumsy fashion throughout the proceedings; in the depositions there were references to the breezeway; and Mr. Torpy asked if a breezeway requirement would ever apply to the property, to which he answered no. He stated the Zoning Code references breezeway and exempts single-family residences; but what they are really talking about when they use the term breezeway is the connection that enables the principal existing house to be connected and have an attachment constructed as a part of it. He stated when the Board hears the word breezeway, they are talking in terms of the Zoning Code definition and not in the terms which the Board has discussed something else many times. He commented on inability to find the recorded documents, the adversarial relationship that came to be, and everyone’s efforts to find the documents and see if something was recorded in 1986. He stated Mr. Bryan’s letter references a survey, regardless of whether a survey gets you there or not, which he is reporting it does not; there was an earnest effort made to find something recorded; they all found the 1993 Warranty Deeds that were recorded; but that does not satisfy the intent of the 50-foot buffer exemption. He stated if this was recorded, and if the records were lost in Building A, understanding the process of recording by the Clerk of Courts and how that information is assimilated to the Property Appraiser, even if those documents were lost or misplaced by Mr. Roberts and staff, they would at least know something was recorded in 1986 because they would have those numbers documenting the recordation, which would be proliferated through the system by computers, maps, etc. He stated it is his opinion, knowing they cannot find that, and that the Clerk of Courts worked on Mr. Roberts behalf, and that the
Property Appraiser’s records were also searched, that when Mr. Bryan’s letter references a survey, that was all they had; and his theory is that when Ms. Barr was looking for something and found something to compel her to overturn her previous position that a 50-foot buffer needed to be applied because the 1988 date could not be satisfied, it was probably a sealed survey. He stated that was clearly a mistake; and it would be something the Board would be wrestling with in regard to good faith reliance potentially of the letter that Ms. Barr wrote as opposed to a case being made that there is a lot that satisfies the 1988 deadline. He stated no one can get there; no one can find the documentation because it does not exist; and it is not a case of it being misplaced or destroyed. He stated there is also some reference to a second building permit application for a house; the County has not found a record of a second building permit application for a home; and no copy of such a permit application was found in the information provided by Mr. Torpy. He stated permit applications for reroof and swimming pool are included in the County’s records. He stated to summarize the issue, there are two issues as he see it; and there were some points of rebuttal from the previous presentation.

Commissioner Pritchard stated he has a question. Chair Higgs stated she thought the intention was to go through each of the speakers and then ask questions; with Commissioner Pritchard advising that is fine.

Attorney Phil Nohrr stated he is present on behalf of a number of owners in Snug Harbor who are opposed to the Roberts’ request for building of a second single-family residence on Lot 7; and the specific issue today is whether the Roberts must comply with the County’s Land Development Regulations, which stated along Class II waters, a 50-foot shoreline protection buffer extending landward from the mean high water line or safe upland side, must be enforced. He stated the Roberts either have to comply with this provision or show why it does not apply; the burden is on them, and not staff or his clients to show why it does not apply; and there are two ways for them to do that. He stated one way is to show that the setback should only be 25 feet; but in order to do that, the Roberts must show that the lot in question was platted or established by Deed on the Official Record Books prior to September 8, 1988 or prove that the County is equitably estopped to enforce its own duly enacted Ordinances. He stated in the books the Board has before it, he listed the undisputed facts; Mr. and Mrs. Roberts acquired their lot on February 18, 1993 from George and Olivia Bryan; they acquired Lot 7 through two deeds; and they were recorded in ORB 3268, pages 3257, 3258 and 3259. He stated the deeds subdivide Lot 7 into two separate parcels; but those recordings are five years, seven months, and ten days after the September 8, 1988 deadline. He stated Lot 7 was owned by Mr. and Mrs. Bryan from 1967 until the sale to the Roberts on February 18, 1993; and no instrument was placed on the Official Record Books prior to September 8, 1988 establishing the two separate parcels for Lot 7. He stated there is nothing in the records to show that this is anything other than one Lot 7; and there was no subdivision prior to September 8, 1988. He stated on August 21, 1992 the Office of Natural Resources Management issued approval to Mr. Bryan, then the record owner, to rework the existing rock revetment; on that approval, it shows that the setback in question is 50 feet; and Mr. Roberts is also listed on the document. He stated the document was five months and 28 days before Mr. and Mrs. Roberts purchased Lot 7; and on August 11, 1993, Mr. Roberts requested an amendment to the Comprehensive Plan Conservation Policy to allow a 25-foot setback. He stated in a letter of August 23, 1993, staff
determined that the 50-foot setback buffer applies without capacity for reduction; that staff determination refers to the Mr. Bryan’s request of August 21, 1992 showing 50 feet; and Mr. and Mrs. Roberts filed their appeal to that interpretation on September 3. He stated in the records, there is the staff writeup of the appeal; and it was heard by the LPA on October 18, which unanimously denied the appeal and upheld the 50-foot setback requirement. Mr. Nohrr noted Lisa Barr, Director of the Natural Resources Management Division, determined that Lot 7 was parceled and established by lot divisions and recorded by the Clerk in March 1986; and therefore the 25-foot shoreline protection buffer would apply. He stated for the record, the November 2, 1993 Board minutes reflect that the day before the meeting, Mr. Roberts asked for the matter to be tabled as he had just gotten back from Europe and his attorney could not be present; he was told that a continuance is not automatic, and that he should attend; but he did not attend, a number of others did attend, and the hearing on the appeal was heard and denied. He stated no documents have been produced to show that Mr. Roberts’ appeal before the Board was withdrawn or as was suggested in an affidavit, abandoned; and on February 28, 2002, eight years, three months, and twenty-six days from Ms. Barr’s letter and the Board’s decision of December 2, 1993, Mr. Roberts applied, as owner of Lot 7, for a building permit. He stated that building permit described the work to be done as enlarge a master bedroom and build an auxiliary building for recreation; and it further shows the legal description as Lot 7, and does not make any reference to any parcels or subdivision. He stated on August 28, 2002 a Notice of Commencement was recorded showing the improvements as two-story single family home and that Mr. and Mrs. Roberts were the owners; Florida Statutes require that an owner put on the public record such a document; and that does not necessarily have any involvement with the County staff. He stated on September 10 a building permit was issued to Courtney Roberts as owner of Lot 7; on September 10 an owners affidavit of notice of commencement filing indicated it was for an addition; something is crossed out that looks like SFD; but the document does contain the notarized signature of Mr. Roberts; and attached to it is a second notice of commencement that was not filed with the Clerk of the Courts. He stated the second notice describes improvements as a pool/house and MBR addition; that is what is filed with staff on September 10 as the notice of commencement; and its language differs from what was filed on the public records on August 28. He stated on March 18 staff notes of comparison of corrected plans points out the issue of the addition versus the single-family home; and on March 25 the Stop Work Order was issued. He stated on March 28 there were notes of a meeting with Mr. Roberts that talk about the 25-foot setback if it is a new home; and there are numerous documents in the files including a letter from George Bryan, the former owner of Lot 7, dated October 21, 1993, which references activities going back to 1986 including a 1986 survey that is not part of the County records. He stated Chapter 62-507 talks about vested rights; and it talks about an act or omission of the County, the property owner acting in good faith reliance on the County’s acts or omissions, and the property owner substantially changing position based on reliance. He stated moving from there to Florida case law, equitable estoppel, which is the legal term heard today, is defined as “good faith, upon some act or omission of the government, and has made such a substantial change in position or has incurred such substantial obligations,” which is basically almost word for word what the County’s vested rights Ordinance says. He stated the Florida Supreme Court in 1959 and 1981 said that equitable estoppel will be applied against government action only in rare instances and under very exceptional circumstances, and every fact essential to equitable estoppel must be proven by clear and convincing evidence,
not merely the greater weight of the evidence; and he has provided citations for that case. He stated the burden of proving equitable estoppel rests on the party evoking it, which in this case would be the Roberts. He stated the owner of the land is deemed to have constructive knowledge of the general laws and land use regulations prescribing the manner in which his or her property may be enjoyed or the title thereto affected; the Doctrine of Equitable Estoppel is not applicable in transactions that are forbidden by ordinance or that are contrary to the public policy; it is settled law that equitable estoppel will not apply where there has been a mistake of law; and a quote on the last section applying to the Gayer case says, “While at first blush it seems that the application of the rule may be harsh, it would be inconceivable that public officials would issue a permit either inadvertently, through error, intentionally, or by design, which would sanction a violation of an ordinance adopted by the legislative branch of the government.” He stated in this quasi-judicial proceeding that is the law that should be applied. He stated going back to the first issue of whether the lot was established by September 8, 1988, they believe the Statute is clear; they must show that it was platted or established by deed prior to that date or they cannot comply; and there is simply no proof of that. He stated the Official Record Books of the County are kept by the Clerk’s Office; and they do not show a subdividing of the lot by deeds prior to 1993. He stated those are the only records that matter in this case; as to Mr. Bryan’s letter of October 21, 1993, it speaks about a copy of a survey being enclosed, splitting out portions of property in 1986, negotiations with the Roberts that ended unsuccessfully by 1988, double heresay statements alleging discussions between the Roberts and Brevard County officials about a parcel and it being a buildable lot, and eventual negotiations of 1992 that resulted in the sale on February 18 to the Roberts in 1993. He stated that letter talks about events that occurred as much as seven years earlier; there is no reference or mention of deeding or plotting of Lot 7; discussion about incomplete response to production requests must be troublesome to the Board; but the simple truth is it is not an issue today. He stated that may be a matter that should be taken up at a different time or at a different forum. He stated whatever the request that was made and however the County staff responded, there either was or was not a recording prior to September 8, 1988; that is something staff does not control; and that is not the issue and it does not apply. He stated the Board cannot turn it around and say the burden is on the County because that is not the law or the process; and urged the Board not to go down that road. He stated the second issue is equitable estoppel; he has gone over the law; and suggested going right to item 3, which is reliance. He stated there is no way the Roberts can meet the reliance category; whatever his discussions with staff in the early or mid-1980’s, he did not purchase the lot; the evidence shows he broke off negotiations; and inquired how can Mr. Roberts have the basis of reliance on some ill-defined discussions with no notes or documentation that did not result in the purchase of the lot. He stated the purchase of the lot occurred many years later; and it simply does not rise to the level of reliance. He stated admittedly the Roberts did purchase the property on February 18, 1993; but there cannot be reliance then on Ms. Barr’s letter of November 2, 1993 because that letter is still eight months, five days in coming. He stated he would submit there can be no reliance on the Lisa Barr letter of November 2, 1993; the reason is the Board of County Commissioner’s predecessors voted on that same day to deny the 25-foot setback; and there is no letter indicating the Roberts appeal had been withdrawn. He stated it has also been suggested they may have abandoned it; but there is no procedure for abandonment; and the Board of County Commissioners did not feel it was abandoned. He stated the Board voted to deny it; that is not
an act of abandonment; so the Board cannot rely on the abandonment or withdrawal theory because the facts do not show that. He stated the Board is the ultimate interpreter; Ms. Barr was subordinate to an Assistant County Manager who reports to the County Manager who reports to the Board; and the 1993 Board decided the 50-foot setback applied. He stated the building permit was issued on September 10, 2002; that is eight years, ten months, and eight days after the Lisa Barr letter; and as the Board heard from the other documentation, the Roberts submittal was for an addition. He stated that was the only way to have a 25-foot setback; that is the constant thread that goes through all the documentation; it is a struggle to try and build within the 25-foot setback line; and the only way to do it is by doing an addition. He stated they have gone over the differences between the Notice of Commencement; there are three different descriptions on them; and it all depended on when it was being filed and who it was being filed with as to how the Roberts described it. He stated the Roberts signed and the signature was notarized on all three documents; his clients bought or built their homes in a platted subdivision of single-family homes on single-family lots; that is undisputed; and the Roberts are attempting to change that by creating two lots from one. He requested the Board, as it deliberates today, to keep his clients’ vested rights interests in mind; what the Roberts and Bryans did in splitting Lot 7 in 1993 was done without their knowledge; and when the neighborhood found out about this in 1993, the record is clear that they opposed it and the Board’s predecessors agreed with them. He stated almost nine years later, the Roberts are back again attempting to build a second home on their lot; their neighbors are asking the Board to uphold their rights; and the individuals with the vested rights today are his clients who are opposing, and not the Roberts. He stated the Code allows the Roberts to build an addition; that is what the people thought they were asking for; and requested the Board limit their rights to an addition and nothing more with no separate meter or kitchen and require a connection, not in the form of a breezeway, but a real connection to the main house. He stated all of that is set forth in the Code; the Roberts, no matter how good their intentions have been, have failed to show that they are entitled to the relief requested because they cannot show reliance on any of the acts being discussed. He stated whatever happened with Lisa Barr, there never was a document recorded in the public records; that is not the fault of staff or perhaps of anybody in the room today; but it did not occur so they cannot get there on the first leg, which is that there was a recorded document. He stated the second leg of equitable estoppel is their reliance arguments; but when the Board breaks down the time period and when things happened, there is no reliance to support equitable estoppel.

Attorney Scott Roberts stated some of the individuals that asked him to speak on their behalf have requested to speak themselves; and inquired if he can reserve his comments for public comment and allow them to go ahead. Chair Higgs inquired if they wish to speak, she will give Mr. Roberts five minutes under the public comments as the cards indicate. Mr. Roberts stated he is asking for fifteen minutes during public comments to speak as opposed to now since he is speaking on behalf of the public. Commissioner Carlson stated the Board already went over this; it needs to let Mr. Roberts speak; and then it will hear from the public. She stated his concern is what he will say and what the people he is representing will say and whether they are going to say something different than what he is going to say. Chair Higgs inquired if the people Mr. Roberts is representing also want to speak; with Mr. Roberts responding a couple of them, but he will reduce his comments accordingly. Chair Higgs stated the Board will allow Mr.
Roberts 15 minutes; with Mr. Roberts responding that is fine. Commissioner Carlson inquired if the Board is giving Mr. Roberts fifteen minutes and five minutes later after the others talk, and is that what she is understanding. Chair Higgs stated the procedure is that they are going to let four representative groups speak; and one of those is Mr. Scott Roberts. Commissioner Carlson suggested allowing him 20 minutes. Chair Higgs stated Mr. Roberts has 20 minutes unless there is a different motion from the Board.

Attorney Scott Roberts stated he got directly involved in this case after Mr. Torpy and his parents spent a considerable amount of time trying to address the issues with the County; and from the outside he has been able to look in and see what is going on. He stated he was raised in Brevard County, and has seen it grow with tremendous speed; and he understands all the issues the Board has to deal with. He stated he was raised in Cocoa Beach; he saw Ron Jons explode, and has experienced red tide; and right now something stinks in Brevard County and it is not red tide. He stated he reviewed the documents produced by the County and the submission made by the County staff to the Board; and he appreciates Mr. Scott’s comments addressing that submission. He stated the people he represents today, approximately 46 of them, are here to support the Roberts; and they too had the opportunity to review what is going on. He stated the Board has probably seen numerous emails from others not in the room who support the Roberts; requested those in support of the Roberts stand; and a group of approximately 20 individuals stood in support. He stated there were numerous others who are on his representation letter that could not make the meeting, but have asked him to speak in support. He stated the light that has been painted by Mr. Nohrr and somewhat by staff in the past is that his parents, the Roberts, are like the developers of the Everglades who are going in and destroying the environment and trying to manipulate the system. He stated in fact, his father, Courtney Roberts, is an engineer who worked at the Cape, but is now retired and trying to build their dream home; his mother is a nurse who works at the Cape who is about to retire; they moved there in the 1970’s and raised two children; and their desire is to simply live in a community that allows them to enjoy the lifestyle that many of the retirees in the community enjoy. He stated the Board heard the statements of various parties regarding the documents produced and not produced; Mr. Nohrr says that is not an issue; but the County admits it is an issue in that there has been some confusion there. He stated the Board has been subject to various meetings related to who said what and those sorts of things. He stated in 1993 the Director of the Office of Natural Resources issued a letter that gave the Roberts permission to build a single-family residence with a 25-foot buffer; he was in college so was not there when that transpired; but in 1993 his parents kept and maintained the home that they live in currently with the anticipation of building their dream home when they had the opportunity to do so. He stated they came in 2002 with plans that clearly delineate a single-family residence with applications that say SFR, single-family residence; through the process somehow those documents were changed; but the plans continued to represent a single-family residence. He stated they continued to build; the structure is 80% done; and then the Stop Work Order was issued. He stated there is a reliance issue here; they relied on the Director of the Office of Natural Resources when she said yes; they kept the property and continued to develop, maintain and pay taxes on the parcel with the intent of building a home when they retired; and there was either an act of negligence, incompetence, or malice on the part of County staff that has created these issues. He stated some of the key players in this were Ms. Chris Hebert, who
was with the Office of Natural Resources, but who has now resigned, with the public document issue and the continued battle to receive public documents; Conrad White, then acting Director of the Office of Natural Resources, who testified under oath that he had produced everything, but when pressured, it was discovered that he had not produced tapes, emails, or archive records; and he has since resigned from the Office of Natural Resources and is now with another department. Mr. Roberts stated Mr. Nohrr said the burden is on the Roberts to prove their case; the Roberts have come in with evidence showing they relied on County staff throughout the process to tell them what to do to build the single-family residence; Ms. Barr, who is now Ms. Toland, wrote the letter with the original opinion that it did not qualify; but she went through the same research that Mr. Scott has gone through ten years later, and determined it did apply; and the Roberts relied on that opinion. He stated Mr. Bryan is deceased, which is why he is not present; he wrote a letter with an enclosed recorded survey; he had no reason to write the letter as he has not the owner of the property at the time; but he was simply trying to convey that there was a recorded document; and Ms. Barr looked at the document and opined that it verifies that there is a 25-foot setback. He stated now something is trying to present that the Roberts were trying to manipulate the system somehow to get where they are. He stated when the Stop Work Order was issued, the Roberts immediately proved to the County staff that they were building according to the plans; that was the original comment; and then came the issue of the separate electric meter and kitchen. He stated their response was it was on the plans, and staff approved the plans; the staff comments to the Board are that they spent three reviews going through the plans; but Mr. Scott has now said the staff report was a mistake. He stated staff requested the supporting documentation and the recorded survey; but now they are saying that was a mistake. He stated the Roberts advised the County had the documents, and that they never had them in their control; but staff said they are lost now and it was a mistake. He stated they did a public records request, and staff produced; the Roberts noted staff did not produce everything; and staff said that was their mistake and produced more documents. He stated when the deposition was taken, staff was asked if everything was produced, but when Mr. Torpy asked about certain documents, staff responded it had not even thought of those documents, and produced more documents. He stated yesterday at 5:30 p.m. more documents were produced; all of the documents that Mr. Nohrr is saying are the Roberts burden to produce were always in the possession of the County; and County staff has destroyed them. He stated their public records request was to produce the documents to support their case; the County’s official response in its staff report was that they destroy such documents pursuant to the Code; and that is the same Code that requires them to document what documents are destroyed; but they did not document any of that. He stated in the box of documents that were produced there were approximately six documents that were not produced; those six documents are key documents in support of the Roberts; they go back before 1993; there are only certain documents that support the Roberts, and those were the ones not produced; and he does not think that is a coincidence. He stated it is either a mistake, negligence, or malice; and the taxpayers are the ones that suffer; the people he is representing today including the Roberts are the ones that suffer because a considerable amount of time and money has gone into the process to achieve something that was already achieved in 1993 with the Lisa Barr letter. He stated in terms of the Board meeting that happened the same day as the Lisa Barr letter, Ms. Barr testified under oath in the deposition that it was her obligation to cancel the hearing and that Mr. Roberts was not responsible for canceling that meeting. He
stated Ms. Barr advised when Mr. Roberts received that letter, it rendered the issue moot; and
so his non-appearance at the hearing was not a result of his error, but of her error; and the result is that the taxpayer or someone in the room will incur costs in the hundreds of thousands of dollars. He stated his parents have spent about a hundred thousand dollars in legal fees pursuing this and trying to get the documents; every time the County came up with an excuse, they proved them wrong; someone is going to pay for that; and it is going to cost the taxpayers a lot of money and already has. He stated they would like the issue put to a stop; the people he represents are requesting the Board allow the Roberts to build their single-family residence with the 25-foot buffer; and five of the people listed on the letter are neighbors who support them in spite of the representation that the neighbors all oppose them.

Chair Higgs stated the procedure the Board agreed to would be for any questions to come from the Board to any of the previous presenters.

Commissioner Carlson inquired since each of the presenters brought up the issue of Lisa Barr and the Board meeting that occurred on the same date as the letter, the fact that the issue was brought up even though Ms. Barr said it was a mistake, and that it was her position that she should have cancelled or discontinued the meeting because the letter made the whole issue moot, was Mr. Roberts notified that the meeting had occurred and that the decision had been made. She inquired if there was any reason for it to come back under reconsideration of that vote; and what would lead the Board to believe that particular decision would not be upheld. Mr. Scott requested clarification of the question. Commissioner Carlson stated her confusion is when Mr. Roberts was saying that in Ms. Barr’s deposition, she said it was her fault that she did not ask for the continuance of the item so the Board could not hear it and the decision would not have been made; and inquired was there any intent of reconsideration if there was a mistake made by Ms. Barr, did she rectify it in any way, and was Mr. Roberts not notified about it. Mr. Scott responded he is not aware of whether or not Mr. Roberts was official notified of that action that occurred on November 2, 1993; and it is a matter of debate whether if Ms. Barr had stepped forward with a reversal of her position in the Board hearing whether the Board would have been compelled to side with the reversal. He stated they can all agree that if Ms. Barr had attended the proceeding and articulated the reasons as to why she reversed her position, a lot more would be known today; but that is wishful thinking and water under the bridge. Commissioner Carlson stated this was in November 1993; and inquired if Mr. Roberts owned the property by then; with Mr. Scott responding in 1993 he is not aware of the mechanisms that were in place that would automatically bring a memorandum or some kind of documentation to the applicant documenting what happened on that date; but if this were like a zoning hearing, the applicant as a matter of course receives an official mailing regarding what occurred. Commissioner Carlson stated if in her testimony Ms. Barr thought that was the case, she assumes she would have brought that forward; the chain of command would have known that this was an error that should be reconsidered; but that did not happen based on the documents she has seen. She stated she has not seen anything that has been a communication to Mr. Roberts of what occurred. Mr. Scott stated that is one of the confounding points of this issue; with Commissioner Carlson responding that is an understatement.

Commissioner Pritchard inquired if the minutes of the Board meeting reflect Ms. Barr in attendance; with Mr. Scott responding they do not. Commissioner Pritchard inquired if they
reflect any input from her whatsoever; with Mr. Scott responding no, they do not. Commissioner Pritchard inquired do the minutes reflect any discussion by the Board regarding the possibility of a 25-foot buffer or anything that would lead them to believe there is an alternative to what they apparently discussed and voted on. Mr. Scott responded the minutes are Attachment 4 in the report; they do not focus as much on the essence of the issue as they do the fact that Mr. Roberts was not present; it was publicly noticed and there were people in attendance from the neighborhood; it was a matter of record that automatic tabling was not to be expected; and Commissioner Andreas offered that she reviewed the information presented and was ready to make a decision at that time. He stated a motion was made and a vote was taken. Commissioner Pritchard inquired if it was all based on the information they had; with Mr. Scott responding it was based on information in packets and previous briefings. Commissioner Pritchard stated the reason he is bringing that up is because it relates to the issue of abandonment; and advised of his attempts to permit a residential marina where he was told yes by staff and then denied a building permit; and if he had not recorded the meeting, the answer would have been no. He stated there is a certain amount of reliance placed on people spoken to in government; and when they tell someone yes or no, generally that is the path the people follow. He inquired of Mr. Torpy if Mr. Roberts knew of Ms. Barr’s letter prior to the meeting, and is that why he might not have attended. Mr. Torpy responded it is in the package; he took Ms. Barr’s deposition in December as to the process when she issued the new letter on November 2 for withdrawing or canceling the appeal; and she was quite lengthy in saying she would then have been obligated to contact either Mr. Jenkins’ office or the District Commissioner to let them know the item had been withdrawn. He stated one of the specific questions he asked was whether Mr. Roberts would have known what he should have done to withdraw the item; and her answer was no as it was really not Mr. Roberts’ responsibility at that point, and if staff changed its mind, it should have notified the Board that it was no longer necessary. He emphasized they were hearing an appeal of Ms. Barr’s August letter, so when she changed her mind, the appeal became moot. He stated on the morning of November 2, Mr. Roberts showed up and was given the new letter by Chris Hebert; and he was told the appeal was no longer necessary, but was moot, so he left. He stated in terms of whether or not he received notice of that meeting, he does not know what the procedure was then; but in the documents he received last night there was another gentleman before the Board in August 1992, Kenneth L. Chapin. He stated he does not know who Mr. Chapin was or what relevance it is to his case except it was produced in the documents last night, but what is interesting is that Mr. Chapin had also appealed an issue on a lot; in a letter dated August 18, 1992, Mr. Chapin was given notice from the County of the results of the appeal hearing; but no such document has been produced to them in regard to the meeting of November 2. He stated Mr. Roberts was not sent a letter indicating the Board met and denied the appeal; if that had happened Mr. Roberts would have realized something went wrong and could have come up to advise he thought the appeal was not necessary any more; but since he was never sent a notice of the appeal, he assumed it was withdrawn as he was told it would be. He stated that is all in the documents; and the Board can read those in the records in front of it today. Commissioner Pritchard inquired if it is Mr. Torpy’s testimony that Mr. Roberts was given Ms. Barr’s letter on the morning of the meeting, and because it rescinded her previous decision, the issue was
considered moot; with Mr. Torpy responding that is precisely correct. Commissioner Pritchard inquired if Mr. Roberts did not attend the meeting; with Mr. Torpy responding that is correct, and the minutes reflect that neither did the Office of Natural Resources, or at least there is no reference to them or discussion on the record about the merits of the appeal. Mr. Torpy advised Commissioner Andreas stated she was upset that Mr. Roberts was not there; the minutes of that issue are only two pages long; they specify that Commissioner Andreas was annoyed that the applicant was not there, and then it went to a vote to approve the LPA opinion and Ms. Barr’s opinion of August.

Commissioner Carlson stated Mr. Torpy was quoting out of the minutes, which go on to say Commissioner Andreas was annoyed; and it says her office and County Administration specifically advised Mr. Roberts to be present because they did not know if the Board was going to decide to table the item or not. Mr. Torpy advised that is correct. Commissioner Carlson inquired if Mr. Roberts did not stay throughout the meeting; with Mr. Torpy responding it did not happen that way. Mr. Torpy advised Mr. Roberts initially requested not to be at the meeting because he was coming in from out of town and could not get all his ducks in a row; he was told he should be there; but simultaneously he had sent a letter to Lisa Barr saying she did not tell the Commission everything, Ms. Barr had received new information from George Bryan, which resulted in her changing her mind on November 2 and advising the appeal was no longer necessary. He stated he was aware that the Board wanted him there, but that morning he received contrary information that it was no longer necessary, including a written letter on the issue he was addressing.

Commissioner Colon stated she hopes that is not the kind of procedure the Board has now; she has not had that problem with lack of communication between County staff and the Board; but it is evident it is what happened on that morning in 1993. She stated she is also concerned about the procedure afterward of notifying someone of a denial; and inquired if Mr. Torpy is saying there is no record of that either. Mr. Torpy responded that is of concern; there seems to be records that other people got such a letter; Kenneth L. Chapin received notice of a letter saying what the Board did on his appeal; but for whatever reason, the public records do not reflect that the Roberts received any similar notice. He stated it might be there, but it has not been produced to them. Commissioner Colon stated to be fair she would like to ask a question of Mr. Nohrr; obviously he heard what transpired; she was not aware of how inadequate the communication was on that morning; and inquired to the recollection of his clients did any of them speak at that meeting or have knowledge of the letter that had been given to Mr. Roberts. Mr. Nohrr stated he is not in a position to answer that; he does not know if any of his clients owned property then; and they would be the ones to speak to that. Commissioner Colon stated it seemed Mr. Nohrr was knowledgeable of the fact that Mr. Roberts did not think he was going to be present at the hearing and had asked for the item to be tabled; and that is why she asked the question. Mr. Nohrr stated it is in the minutes; he was paraphrasing what was in the minutes; and he was trying to present what he knew about what happened at the meeting. Commissioner Colon stated she just wanted to give Mr. Nohrr an opportunity to elaborate.

Commissioner Scarborough stated the cover sheet says the Board is considering an administrative appeal; he heard the words vested rights this morning and equitable estoppel; he
heard it distinguished by Mr. Torpy between vested rights and equitable estoppel; and Mr. Nohrr spoke to the subject as well. He inquired what is the Board considering this morning. Mr. Knox advised at the outset there were some issues that would be heard besides the administrative
appeal because when this was first considered as a vested rights application, when Mr. Torpy withdrew that application on behalf of his client, the Board agreed that the estoppel issues or fairness issue would be heard as part of the administrative appeal. Commissioner Scarborough inquired what is the basis of the lawsuit; with Mr. Knox responding it is a declaratory judgment that Mr. Torpy has asked for equitable estoppel, and he has also filed a public records action. Commissioner Scarborough stated Mr. Torpy made a distinction and Mr. Nohrr has stated when looking at vested rights, it is essentially tracking the case law and equitable estoppel; and inquired why has Mr. Torpy wanted to distinguish between equitable estoppel and vested rights this morning. Mr. Torpy responded the main reason he is doing that is to preserve all legal issues for Mr. and Mrs. Roberts; the facts of the case as they know now are convoluted at best and contrived at worst; all of the issues are present in the case; and there are an equitable estoppel issue, vested rights issue, and basis for an administrative appeal; and the facts support all the legal theories.

Chair Higgs stated a packet was delivered to his office; it included some minutes from the Board of Adjustment meeting of March 17, 1993; and there is also a letter from Mr. Roberts to his neighbor discussing the buildability of the lot. She stated he wants to be sure those are in the record. Mr. Torpy stated he has the March 17 1993 Board of Adjustment minutes; but he is not sure he has the letter, which is a generic letter to Mr. Roberts’ neighbors; and he will ask Mr. Roberts if that is something he has seen as part of the public records request. Chair Higgs stated she does not know that it would be in the public records as it was provided by someone else. Mr. Torpy stated one of the agreements with County staff was they would get all documents that the Board relied on; not having read the letter, he is not sure there is any significance; but because the Board is asking about it, he wants to make sure. Chair Higgs stated it was apparently delivered by Alma McLaughlin. Mr. Torpy stated it is discussing the same issue in 1993 of the 25-foot setbacks; and it appears to be a letter done by Mr. Roberts. Chair Higgs stated she just wants to be sure it is on the record. Courtney Roberts stated he does not know where Ms. McLauglin got the letter as she was not a resident at that time; but he did compose the letter to the neighbors.

Commissioner Carlson stated she gave staff the packet to see if there are any documents they do not have. Mr. Torpy requested to see the packet as well.

Commissioner Colon stated as part of that package, there is a part two; the first page shows Sherry Williams’ emails to Conrad White and Ms. Williams’ emails to her; and she wants to make sure that Ms. Williams is given an opportunity to explain whether she got that copy because she was Chairperson of the Board at that time or because her office inquired about it.

Commissioner Scarborough stated this is a hypothetical question; and inquired if there was no Lisa Barr letter and the Board was just looking at what occurred subsequently with the plans, how would that alter the applicants’ position. Mr. Torpy responded if there were no Lisa Barr letter, it would make a much more difficult case on the theory of equitable estoppel.

Commissioner Scarborough stated the question is how would Mr. Torpy proceed if that was not the case; with Mr. Torpy responding they would still be back trying to prove they had a legal lot prior to September 1988; and the Code has been interpreted by Ms. Barr and that talks about platted lots or recorded deeds. Commissioner Scarborough inquired if Mr. Torpy would argue that there is sufficient reliance on acts of staff in proceeding with the building that would allow them to proceed with what they want on equitable estoppel without Ms. Barr’s letter; with Mr. Torpy responding yes, there is a house sitting there, and there have been a hundred acts that would support it. Commissioner Scarborough stated there are two factual events; and inquired what is Mr. Nohrr’s position. Mr. Nohrr advised it would gut his vested rights; it would leave him with equitable estoppel; and they would still get to the reliance issue under either one. Commissioner Scarborough stated there is a structure that is 80% built; and that is what the Board has to deal with regardless of the Lisa Barr letter. Mr. Nohrr stated there is a structure and the Board will have to deal with that; but the question is whether it was build as an addition so it still gets back to reliance issues.

Commissioner Carlson inquired if Mr. Nohrr is familiar with the packet from Ms. McLaughlin; with Mr. Nohrr responding yes, it was delivered to him as well.

Commissioner Scarborough stated there are two separate issues here because of the events that were occurring with the Board meeting and Ms. Barr’s letter on the same day; and inquired how would an equitable estoppel argument play on the fact that there is a partial building there. Mr. Knox advised what the Board would hear is Mr. Roberts saying that he came in, applied for a single-family residence built permit, and acted in reliance on staff’s actions in preparing the plans, submitting them, and having them approved as a single-family residence; and he built on that basis. He stated Mr. Roberts had something out there; he was told to stop; and that is where the estoppel would pop up, so it is based on the building permit process, if the Board does not consider the Lisa Barr letter.

Chair Higgs stated on March 17, 1993 when Mr. Roberts was before the Board of Adjustment, there was ongoing discussion between Mr. Roberts, Mr. Dillon, and Mr. Sears concerning whether there were two lots when Mr. Roberts signed the contract for the property; with Mr. Roberts asserting he signed one contract for both parcels and he got two Warranty Deeds for two separate pieces. Chair Higgs stated Mr. Roberts talked about a survey.

Mr. Torpy stated the problem with that is no one knew the answer because it depended on what the law was in 1986; when citizens take action on their properties, they are not experts on what the Code says; but the belief is that Mr. and Mrs. Roberts were acquiring two lots; and that is the specific reason they bought it. He stated they would not have bought it, if they had not been able to build a separate single-family residence on Lot 7.1; he does not know what the legal status was according to a title company in 1993; from the title insurance there was a contract for both parcels; and there was a memorandum from the Property Appraiser’s office, which is also in the record where Ms. Coles was trying to get some clarification. He stated on October 18, 1993 the Property Appraiser says it was acquired by two Deeds using the reference to the language about the lot split, that the Property Appraiser did not care how it was recorded, and that it would only become important when Mr. Roberts came in to build a house on it. He stated
at that time, they would record it appropriately as a lot split or whatever; people split lots; and they are still common. He stated the Code of 1985 was all the law that was existing in 1986 on how to split one lot into two; and it talks about alteration of lot size and necessity for abutment on public way; and the only rule that existed was that if one reduced their lot size, they could not make an illegal lot. He stated Mr. Scott mentioned earlier a definition of a recorded lot and commented on a nonconforming lot of record; but this is not a nonconforming lot of record; they are both conforming lots because they were reduced pursuant to the Code, and were both of buildable size in 1986. He noted they are still buildable size; they are legal lots of record; and the only issue is the setbacks they have to abide by, so that is why there was such a difficult question to answer in 1993. He stated he thought he was getting two lots; they still believe h e has two lots; and the Code seems to say that whatever Mr. Bryan did in 1986 created two lots, but there is a dispute now that four lawyers and 50 people cannot agree on.

Chair Higgs stated there are a number of speakers who wish to speak.

Commissioner Colon inquired if Mr. Torpy received a copy of the email where she asked a question in regard to Sherry Williams. She stated Mr. Roberts sent a letter on September 6, 2002 regarding what was happening with his house plans; and read aloud the email from Ms. Williams to her concerning Mr. Roberts’ letter, his denial of appeal, decision of the Code Interpretation and Waivers Committee concerning elevated walkways and balconies, and previous reduction of the shoreline protection buffer from 50 feet to 25 feet. She stated the email advised that Mr. Roberts had been informed of the requirements of the Surface Water Protection Ordinance since 1993 when he attempted to obtain a variance to the 50-foot buffer and front building setback; at that time he wanted to divide the existing lot into two lots; and a Code violation for a seawall was also investigated but was resolved without moving to Code Enforcement proceedings. She stated even this morning, the Board has heard contradictory statements in regard to what each department is aware of; that is consistent with the records they have been reading regarding communication between departments; and she wonders at what point is it legal, at what point is it not legal, and is it contradicting. She requested feedback.

Mr. Torpy stated he has read that; and he does not need to elaborate except for one thing that he finds interesting. He stated in Mr. Rusnak’s testimony and Ms. Hebert’s testimony relating to interpretation of the Code on the Surface Water Protection Ordinance, Planning and Zoning is driving the issue because of interpretations of whether the current structure meets Zoning Code. He stated he was specifically inquiring how staff resolves these conflicts; and both testified that in this particular case everyone relied on Ms. Hebert’s statements of whether or not the lot qualified for the 25-foot reduction of the Surface Water Protection buffer. He stated that is interesting because there did not seem to be any independent verification from the department of what the law was; everyone went to one source; and that would have made sense except if the one source was incorrect, which is what happened in this case.

Chair Higgs stated on October 18, 1993 the LPA met and discussed an appeal of the interpretation of the Comprehensive Plan, seeking the 50-foot exemption; at that time Margaret Humphreys of Stafford Realty explained that she had listed the property as one lot; she added
that Mr. Roberts purchased the property as one lot; and she advised she had no idea that they intended to split the lot. She stated Ms. Humphreys continued that when she listed the property,
she went to the Zoning and Building Departments and asked if it was a buildable lot and could it be subdivided, and she was told no. She stated there was another discussion with Teddy Brown who was a realtor who said Mr. Roberts acquired the property when it was advertised as one lot; these things preceded the November 1993 hearing; and inquired if Mr. Torpy can speak to those comments.

Mr. Torpy requested Chair Higgs read the part of the minutes concerning Ms. Humphreys statement to the Board; and Chair Higgs read aloud a portion of the minutes. Mr. Torpy read aloud from Mr. Bryan’s letter dated October 21, 1993 where he refers to Ms. Humphreys who was realtor and adjacent resident, who contacted him to purchase the undeveloped part of Lot 7. He stated Mr. Bryan indicated they negotiated an agreement; he retained Mr. Weller; and he talks about a recorded survey being enclosed. He stated apparently in 1986 Ms. Humphreys was trying to buy the very same lot from Mr. Bryan that she is in front of the Board in 1993 saying could not be split out, so depending on the question being asked, there seem to be very different answers. He stated Ms. Humphreys was telling the Board in 1993 that she knew it could not be split out; but apparently in 1986 she tried to buy it; and maybe those are consistent statements, but they seem inconsistent in going through the record. He stated if the Board wants to engage in interpretation of this, he would need to go back and pull out 1,000 documents; they could do this for a long time; everyone has opinions all over the map; and that is why he keeps coming back to what the Code was in 1986 on how one creates a lot.

Chair Higgs inquired if there was a change in the Comprehensive Plan in 1988; with Mr. Torpy responding there was in September 8, 1988; but if the Code legally existed in 1986, and the lot legally existed in 1986, then it simply existed and a change to the Code would be irrelevant. Chair Higgs stated there are rebuttals and people who wish to speak; and inquired what the Board wants to do.

The meeting recessed for lunch at 12:19 p.m. and reconvened at 1:02 p.m.

APPROVE CONTRIBUTION TO TITUSVILLE AREA CHAMBER OF COMMERCE, RE: 2003
FOURTH OF JULY FIREWORKS

Commissioner Scarborough stated Thelma Roper and Walter Pine were interested in the item concerning the Fourth of July fireworks; they are unable to stay but would like to speak to the item; and as there is no urgency, they can table the item to the next meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table consideration of Item III.B.4, Approve Contribution to Titusville Area Chamber of Commerce for 2003 Fourth of July Fireworks to the March 16, 2004 meeting of the Board of County Commissioners. Motion carried and ordered unanimously.

DISCUSSION, RE: ITEMS TO BE CONSIDERED FOR TABLING

Commissioner Colon stated she spoke to some folks who are here on other items; and they were wondering if some items might be moved to Thursday night’s meeting versus waiting four hours today.

Chair Higgs stated she gave a 1:15 p.m. time certain to Sawgrass; obviously they are not going to hit that time; she does not see the applicant present; and she would be concerned if they are not present to discuss that.

Commissioner Colon inquired how Commissioner Carlson feels; with Commissioner Carlson responding there are at least another three hours on the current item; and inquired if they postpone it, when is the earliest day. Assistant County Manager Peggy Busacca responded the next regularly scheduled Board meeting is on March 16, but there is a zoning meeting on Thursday night. Chair Higgs noted the zoning agenda is not long. Commissioner Scarborough cautioned that there may be a number of residents present for the Davoe Avenue issue. Commissioner Carlson stated the Board can wait until the applicant for Sawgrass comes in to confer to see if he would prefer to wait or postpone to another meeting. Commissioner Colon stated there is also an issue with the City of Palm Bay. Chair Higgs stated there was a note that there was a desire to table the item. Commissioner Colon stated Thursday would be good to discuss whether they want to continue it or not; and if more time is needed they can table it to March 11. Chair Higgs inquired if Commissioner Colon wants to discuss it Thursday at the Zoning meeting; with Commissioner Colon responding it is on the Agenda today to be discussed; everyone was comfortable to move it forward; and if the Board does not mind, it can be moved to Thursday.

ACKNOWLEDGE RECEIPT, RE: ANNEXATIONS A-1-2004 THROUGH 5-2004 AND
COMPREHENSIVE PLAN AMENDMENTS BY CITY OF PALM BAY

Motion by Commissioner Colon, seconded by Commissioner Carlson, to table acknowledgement of receipt of annexations A-1-2004 through 5-2004 and Comprehensive Plan Amendments by the City of Palm Bay to May 4, 2004. Motion carried and ordered unanimously.

APPROVAL OF MINUTES

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve the minutes of the December 4, 2003 Zoning meeting and the January 29, 2004 Special meeting. Motion carried and ordered unanimously.

REQUEST TO RESCIND RESOLUTION NO. 90-118, RE: REQUIRING MAY 1 BUDGET
SUBMITTAL DATE FOR CONSTITUTIONAL OFFICERS

Thelma Roper requested Item III.F.1 be tabled to the next regular meeting.

Chair Higgs stated it is a matter of a date; and there would be no great harm in putting it off to the next meeting. Assistant County Manager Peggy Busacca stated the Sheriff’s office is requesting to put their budget in a month later than usual. Chair Higgs stated the Board can discuss that on March 16; with Ms. Busacca responding that would be fine.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table request to rescind Resolution No. 90-118, requiring May 1 budget submittal date for Constitutional Officers to May 16, 2004. Motion carried and ordered unanimously.

DISCUSSION, RE: ITEMS TO BE CONSIDERED FOR TABLING (CONTINUED)

Commissioner Carlson inquired if the Board wants to discuss III.B.4; with Commissioner Scarborough advising it was already tabled.

A member of the audience inquired if it will be four hours before any of the citizen requests are considered; with Chair Higgs requesting the citizens with requests on the Agenda to meet with staff to reschedule.

ADMINISTRATIVE APPEAL, RE: COURTNEY ROBERTS (CONTINUED)

Chair Higgs advised of the procedure and time limits to address the Board.

Joel Brown stated he lives at 14 West Point Drive in Snug Harbor, is a building contractor, and has spoken to the Board before on this item. He stated he and his neighbors are against subdividing any of the properties; they have waterfront lots with beautiful homes; and they do not want a precedent to be set. He stated all the lots are big; and they do not want a precedent to allow people to circumvent the Codes and building restrictions to try and build condensed housing. He stated he built his first home in 1954; since then all of the vacant lots have been built up; and his first meeting with the Board was in 1993 when Mr. Roberts applied for a variance, which is documented in the minutes of the Board of Adjustment. He stated at that time Mr. Roberts was confident he could get variances to build a house on the unbuildable lot; that the lot was unbuildable was documented many times in the Board of Adjustment hearing; and it took two pages and a half hour for Mr. Roberts to define whether he bought a divided lot or divided it in purchasing. He stated his son will address that issue later. He stated his wife Teddy Brown appeared at the Board of Adjustment meetings in 1993, and listened to the attempts to circumvent the various Codes and enforcement in the County; in the case of the variances, there were initial meetings, administrative decision appeals, and other appeals; and every attempt to circumvent the Codes would result in one step higher to circumvent the Codes. He stated he watched construction of the lots in 1992; he abhorred the decision to try to build a residence rather than an addition; the 50-foot buffer had been well established by that
time; and seeing a 5,000 square-foot structure as an addition to a 2,000 square-foot house violated almost all the Codes. He stated the building that exists does not have a 30% requirement in the width of the structure to provide for free flow of air; it has ducts on the second floor and an addition, which he does not understand; and evidently the plans that were submitted originally were for a residence. He stated as issued for an addition, they do not meet the requirements; the zoning is bad; the Codes for construction are bad; and when he and his wife spoke at the 1993 Board of Adjustment meeting, they both opposed building the place. The stated at that time he talked to George Edwards, and determined the lots were not buildable; Lot 7.2 does not have the proper restrictions; and he wants to be sure the precedent cannot be established.

Nancy Bernard stated she is an acquaintance of Mr. and Mrs. Roberts; but she also owns a riverfront lot on Merritt Island, on which they have run into the same legal confiscation of property. She stated they have a house they are trying to get finished; but they ran into the same situation where one department has rules that either contradict another department or are totally different. She stated people are supposed to know all the rules and regulations; but it takes a staff of lawyers to figure them out and then they come down to interpretation. She stated it sounds as if some of the neighbors are upset over their water views being taken away from them; she has not physically walked the lot; but in looking at the site plan, there was enough room for Planning and Zoning to permit a home, which is now 50 to 80% complete and just sitting there rotting away. She stated that seems like it is a much worse thing for the neighborhood; and it is impossible for her to fathom how people could go to the expense of paying impact and permitting fees, walk through all the departments to get paperwork signed, get their house half built, and find themselves in this position. She recommended the Roberts be able to continue to build their dream home.

Alma McLaughlin stated she distributed a packet last Friday; and she will go over part of it. She stated one thing that jumped out was that Mr. Roberts was denied a 50-foot setback eight different times; and Mr. Roberts’ own architect told him it had a 50-foot setback. She stated the Board of Adjustment told Mr. Roberts he had a 50-foot setback; the appeal of the Comprehensive Plan was turned down by Natural Resources Management; and he was turned down by the LPA where Ms. Barr testified considerably about the 50-foot setback. She stated Ms. Barr said it would set a precedent if the appeal were passed in favor of Mr. Roberts; and the question is why Ms. Barr changed her mind. She stated Ms. Barr received a letter from Mr. Roberts accusing her of withholding and falsifying information with malicious representation; and threatening that if the interpretation was not reversed, he would take legal action. She stated that sounds like a threat; she believes Ms. Barr thought she was being threatened; and this is a recurring theme of Mr. Roberts, that if he does not get his way, he is going to sue. She stated on November 2, the Board denied his appeal; and that very day Ms. Barr wrote a letter contradicting the Board’s finding. She stated she finds it interesting that Ms. Barr did that on the same day; and inquired what was in it for her. She stated number 1, Ms. Barr would be a hero because the lawsuit that Mr. Roberts filed would be dropped; she does not think Ms. Barr even saved the letter; and the only person who saved the letter was Mr. Roberts. She stated Ms. Barr already knew the Board had overruled so it would not affect the letter; so she gave him a letter to get him off her back. She stated in Commissioner Pritchard’s office on June 12,
Mr. Roberts said, “I withdrew the lawsuit when she issued the waiver”; Commissioner Pritchard was there so he heard it; and she, Commissioner Pritchard, and Mr. Roberts have a tape recording of it. She inquired if Mr. Roberts knew he had a 25-foot setback, why did he not apply for a permit for a single-family residence; he made out a permit application for an addition to his master bedroom and an auxiliary building; and there is nothing about a single-family residence that he put down or asked for. She stated Mr. Roberts knew that 21 West Point Drive was never platted as two lots when he purchased it; it was not platted as two lots until he purchased it in February 1993; and there are no missing documents. She stated it is not the responsibility of County staff to find the warranty deed or platted document; no document exists; and Mr. Roberts has manipulated the system for his own purpose. She requested the Board do the right thing, which is to deny Mr. Roberts. She stated she knows the Board has gone through a lot of paperwork, and she appreciates its interest and concern in this matter.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: SAWGRASS SOUTH
AT SUNTREE, PHASE 2
Commissioner Carlson advised the representatives of Sawgrass are going to wait to be heard.

ADMINISTRATIVE APPEAL, RE: COURTNEY ROBERTS (CONTINUED)

Dr. Ralph Swanson stated he lives at 18 West Point Drive; and advised of his military background. He stated he built the first house on West Point Drive in 1961; and the Board has been presented with a very well crafted smokescreen to divert attention from the facts of this matter. He stated their attorney presented a clear view of the facts to the Board; the building at 21 West Point Drive is beginning to lower property values; it is a dilapidated structure wasting away; and the Board has the simple job of insuring the law is maintained. He stated a variance would be a very wrong action and would set a dangerous legal precedent.

Mr. Torpy stated Mr. Nohrr and Mr. Roberts are speaking on behalf of clients; but he does not know if the intention was that those attorneys would speak for the clients and would not be duplicative. He stated he is not sure if the last speaker was represented by Mr. Nohrr; but he wants to make it clear that whoever Mr. Nohrr spoke for does not provide duplicative testimony.

Chair Higgs stated the confusing point is that Scott Roberts came before the Board requesting time; he indicated a client list, but then came back and said those people want to talk; so the Board is in a pickle.

Mr. Torpy stated Mr. Roberts said a couple of the people want to speak on their own, not all 46 of them; and if it is the intention of the Board to allow everybody to speak, those 46 can speak. He reiterated he does not know if the last speaker was represented by Mr. Nohrr; with Mr. Nohrr advising he was not on his list, so the deal is still intact and nothing has changed. Mr. Torpy stated that is good, and those represented by counsel should not speak.

Chair Higgs stated Mr. Scott Roberts came forward and said that his clients wanted to speak, so the Board agreed it would let everyone speak. Mr. Torpy stated if that is the understanding that everyone is going to be allowed to speak, then he will sit down and they can speak, but he wanted to make that clear. Chair Higgs stated that is what the Board said when Mr. Roberts came forward and said some of his people wanted to speak. Mr. Knox stated if that was the case, the Board would not have given Mr. Roberts 15 minutes; the Board gave him 15 minutes instead of 20 minutes; and Mr. Robert represented that only a couple of people were going to speak. Commissioner Carlson inquired how would the Board apply that to the other attorneys present; with Mr. Nohrr responding he is happy with the original procedure. Mr. Nohrr noted the last speaker adopted him; but he is not someone he is representing.

David Mathias stated this is the third time he is speaking to the Board on this matter; he lives at 22 West Point Drive, which is immediately south of Mr. Roberts’ home and construction project; and he previously registered his objections and concerns about the project. He stated when he purchased his home in 1996, he bought if from the resident owner Marjorie Humphreys; there were discussions and negotiations; and she told him about some of the issues with his soon-to-be new neighbor. He advised Ms. Humphreys told him Mr. Roberts had attempted to get the property permitted for another home, but that the Board had denied his request and ruled it was an unbuildable lot. He stated when he purchased his home and looked at the valuation of that property, he took that into account; Mr. Roberts has a lovely piece of property; and at the time of his purchase, Mr. Roberts had a parcel immediately north of him that was not developed, which factored into his thinking when he purchased his home and assessed whether the valuation was appropriate. He stated now he has a 35 to 40-foot structure, seven and one-half feet from his property line; it is purported to be a single-family residence; and inquired how did that happen. He stated certainly Ms. Humphreys did not lie to or deceive him; at the November 2 meeting, the Board determined it was not a buildable lot because of the setback requirements; and inquired where is he now. He noted as a taxpayer and voter he relied on the prior actions of the Board; he should be able to do that; and he is concerned because after he bought his property, Ms. Brown explained to him about the process that had occurred in the past. He stated at least two of his neighbors knew that the Board had denied Mr. Roberts request in 1993; it has been suggested today that maybe Mr. Roberts did not know what the Board did; but certainly his neighbors knew what happened; and to suggest that he did not know what the ruling was and should not be bound by that is curious. He stated it has been suggested that perhaps the structure is 80% complete; he is not a builder; the exterior walls are up, there is a partially finished roof, a couple of windows have been installed, but the structure has not been dried in and nothing on the interior has been done, so 80% is a big stretch in how far it has been completed. He stated Snug Harbor was platted in the 1950’s; the deed restrictions are clear that it is for single-family residences only on single platted lots; and Mr. Roberts is not only trying to circumvent the setback requirements and what the Board did on November 2, 1993, but also the deed restrictions in the community. He stated he hopes the Board will look at the big picture and try to enforce the Codes and processes to insure that the single-family neighborhood remains as it is.

Commissioner Colon stated the speakers keep referring to the Board; but for the record, the majority of the Board that took action in 1993 is no longer on the Board; and it is not that this Board took this action and is now trying to fix it as it was the Board of County Commissioners at that particular time.

Bruce Wechsler thanked the various County departments; and stated they have done more than he every could do to prove his philosophy that government is out of hand. He stated government has gotten too big and too complicated; the case of Courtney and Carol Roberts is not an isolated incident; and it may be somewhat unusual as far as the cost in time, money, and emotions to the Roberts; but it is symptomatic of a much larger problem, which is the encroaching growth of government regulations and bureaucracy designed to enforce the alleged collective good of society over the rights of individual citizens to their labor, lives, and property. He stated in this case voluminous documentation obtained with great difficulty by the Roberts shows a clear and consistent pattern of obstruction by Brevard County officials. He stated even the fact that it was so difficult to get this item before the Board today is evidence of a system out of control with no regard for basic constitutional rights. He stated when this case is finished and the Roberts have built the house they have every right to build, even under the burdensome regulations laid as roadblocks before them, there will be two questions to be answered; and the first will deal with the responsibility in this situation. He stated although he understands the homeowners complaining in the neighborhood about their rights being compromised by the view, they are wrong in their assertions as the courts have ruled continually and consistently that there is no right to a view over the rights of those with property justly acquired; but they do have a right to petition. He stated the question will be who, whether elected or appointed, was behind the scenes guiding the power and complexities of government to stifle the legitimate rights of a citizen; and once this case has finished in the courts, there must be a full and independent investigation to determine who is responsible. He stated the second question is how to get government regulations under control; the documents presented by the Roberts show obvious examples of different departments disagreeing with each other and even totally different interpretations from within the same department; and anyone with common sense would draw the single conclusion that there are far too many regulations. He stated the idea of having a nation of laws as opposed to men was to prevent arbitrary interpretation that would enable the corruption of power at the expense of the rights of individuals; it will be argued that all these laws are needed; but as William Pitt said necessity is the plea for every infringement of human freedom, the argument of tyrants, and the creed of slaves. He stated it is clear to him that the Roberts have been wronged at the hands of Brevard County government and that the taxpayers will bear the ultimate burden of making them whole again, as they should be. He requested the Board move to get this case settled, minimize the cost to taxpayers, and make the Roberts whole.

Chair Higgs stated she is now moving into the cards represented by Scott Roberts.

Gretta and Eugene Howell declined the opportunity to speak.

W. K. Forehand stated he and his wife moved to Cocoa Beach in 1961; and they are familiar with the neighborhood the Roberts live in. He stated they have known the Roberts for 25 years; and he has been to the last two meetings, and heard the Roberts’ name bandied about as circumventing rules and doing all kinds of things he knows they are not the type of people to do. He stated he knows a little about the history of the property in question; the house the Roberts bought, prior to their purchase, was a derelict house; people were concerned about loud parties and other things going on; and when the Roberts bought the house, they remodeled it and raised their family there, so it is a much better house. He stated there were other neighbors who tried to purchase the property; one realtor wanted to buy the lot that is in dispute; and other builders wanted to buy the lot for a house, but their offers did not satisfy what the buyer wanted. He stated the Roberts’ reputation has been demeaned by some neighbors; and for the second time, he had heard from Mr. Brown, Ms. McLaughlin, Mr. Swanson, and Mr. Matthews. He stated if the Building staff would go through the Snug Harbor neighborhood, there are obvious violations by other neighbors, some involving the same setbacks that they are concerned about with Mr. Roberts; and it seems like people are saying they have theirs, and now Mr. Roberts can try to get his. He stated there are unpermitted changes made by neighbors; there are violations of the 25-foot setback; and if the Board cannot reach the right conclusion, at least it can have staff go out and look at some of the other properties to make sure every property in that neighborhood meets the requirements that they are trying to hold the Roberts to.

Sally McCullough declined to speak.

Patti Sponsla stated this is an ugly mess; she is new to the riverfront, but has been in the subdivision for more than ten years; and she is appalled at the whole mess. She stated this is not the Board that created this; the Roberts acted in good faith, spending hundreds of thousands of dollars to get where they are today; now all of a sudden that can be wiped out; and she would like to know why and what is being done to correct it.

Thomas King stated he has known Courtney Roberts for 20 years; they worked together; and based on that experience he found Mr. Roberts to command respect. He stated he has rhetorical questions that scream for answers, but not today; and inquired why staff cannot find things and can only assure, believe, and advise they made a mistake. He stated Mr. Roberts must provide and document with documents that are not within his control, and were lost or destroyed without authorization for their destruction or reason for loss; and inquired if effective controls are in place to record, archive, and retrieve public records. He stated if the view is so important to so many people, he does not understand why they did not buy on the other side of the street; and inquired if that has any relevance in this situation. He inquired how does one estimate the percentage of completion of a house; is there a formula, criteria, or specifications; and why does that become relevant. He stated he was present a month and a half ago; he heard the opposition get a chance to speak without Mr. Roberts speaking; people can say any scurrilous comment they want, without any requirement to prove what they say as being valid; no one can challenge it; and they are not required to prove it.

Rada Morgan, Lawrence Hutger, Maurice Cruz, Janet Hutker, and Ben McCullough declined to speak.

Eleanor Chamberlin stated she has known Carol and Courtney Roberts for over 25 years; and over those years they have become very close friends. She stated she was with them when they bought the lots, celebrated with them when they completed renovation of the first house, and looked forward with them to their eventually being able to build their dream house on the second lot. She stated in the meantime, the Roberts have raised their family, taken care of three ailing parents, and put off their dream until now; and now they have come to the point where they can do what they planned, but have run into this problem. She requested the Board do the right thing and grant whatever is necessary for the Roberts to move forward.

Richard Hand declined to speak.

Loretta Hand stated she has served the public for over a quarter of a century as a Melbourne City Council member; and she is aware of the confusion that can be created concerning issues brought before a governing body. She stated that sometimes requires the governing body to go the extra mile to sort the facts from the smoke in order for a just and fair determination to be rendered; and this appears to be such a case. She stated she has known the Roberts family as friends for 25 years, meeting initially as a co-worker of Carol Roberts, who, like her, is a registered nurse. She stated for all these years, she has known both of the Roberts to be sincere, honest, and honorable people; and she is saying this because she understands their reputations have been impugned by their opponents. She stated the Roberts have encountered people who have intent to bring them anguish and financial damage; she understands the necessity of reliance on staff to help elected officials; but urged the Board, as a quasi-judicial body, not to allow fuzzy technicalities and fancy footwork by staff to get in the way of justice. She stated she is confident that since the Board allowed this case to be brought before it, that the Roberts will convince it that their rights are being trampled; and if, after the Board has heard the facts, its conclusions are not the same as hers, so be it. She stated it is their duty as elected officials in their respective offices to do the right thing even if it may uncover facts that may embarrass staff; and urged the Board to find that the Roberts appeal was filed in a timely manner so that all the facts may be brought into the sunlight of public scrutiny and justice may be better served.

Lynn Cruz and Karen McLean declined to speak.

Chair Higgs stated that ends the speakers who were represented by Scott Roberts.

Mark Cameron stated he is a resident of Snug Harbor; this is not just an issue of whether Mr. Roberts had one lot or two buildable lots before 1988 by recorded deed; and the issue was decided by the Board in 1993, which supercedes the Lisa Barr letter written on the same day. He stated as far as the reliance issue, it seems like one person is relying on the Lisa Barr letter and 200-plus residents are relying on the Board back in 1993. He stated they never got the Lisa Barr letter in 1993; the fact is Mr. Roberts was issued a permit for a 1,150 square-foot room addition, and not in excess of 4,000 or 5,000 square feet; and he has the permit that clearly states an addition of 1,150 square-feet. He stated Mr. Roberts used the fact that it was a room addition to obtain the 25-foot buffer setback; if someone was wanting to go hunting and went to
get a hunting license, but was instead given a fishing license, when the game warden catches them hunting, and they only show a fishing license, they only have permission to fish, not hunt; and here Mr. Roberts only has permission to build a 1,150 square-foot room addition. He stated it was explained to the Snug Harbor residents by the County staff that they took six months to review the plans, from February 28 to September 10, 2003; and that the plans had been significantly revised to reflect an addition. He stated staff showed them the plans and revisions in October; and the plans reflected the two structures connected to each other, electrical and plumbing shown to be connected to the existing home, and some appliances crossed out to comply with having one kitchen, therefore reflecting no separate utilities and conforming to the one residence. He stated they were told by County staff that Mr. Roberts would never be able to split or divide the property or use it as a two-family residence; he is passionate about this because he lives across the street from the two houses that have been converted to two family residences; and the County has done little to enforce them as single-family residences. He stated they are trying to prevent this from becoming a trend; what is being built on the lot is not what Mr. Roberts was given permission to build; it does not reflect the revised plans that qualify the structure to be an addition; and Mr. Roberts expresses that the building is 75% to 80% complete, which is not true. He stated the structure is only a shell; there are no doors, only some windows, no walls except for some studs, and no finished plumbing, electric, carpentry, or roof material; and this is far from being 75% to 80% complete. He stated as far as he knows, he does not think the house is blocking anybody’s view; he lives on the water and it is not blocking his view; and everybody around Mr. Roberts lives on the water and has their own view. He stated it was not until June 12, 2003 at Commissioner Pritchard’s office, to the surprise of Natural Resources Management, Planning and Zoning, and Building Department staff, that Mr. Roberts revealed it was always his intention to build a single-family residence; there is a notice of commencement that described a single-family residence, but it was filled out by Mr. Roberts and was filed before the permit was issued; and that shows a pattern of misleading information. He stated the reality is that Mr. Roberts has mislead the County and misrepresented what he was building; it seems there is a pattern and that he changes his story to fit the situation; and Mr. Roberts should be held responsible for his decisions and actions. He requested the Board enforce what was originally permitted to be built.

Joel Brown stated he is a professional realtor; and he also has vested rights in that his father lives across the street. He stated he is interested in the development of Snug Harbor and the compassionate way it was intended when it was developed. He stated as a realtor there are professional and ethical standards they must abide by; and Ms. Humphreys was one who listed the property before, checked out the status of the property, and found it to be unbuildable on the second piece of property, even though it was listed as one piece of property. He stated he has given the Board a letter showing Ms. Humphreys was going to try and purchase a piece of property north of her property as a buffer to keep her property clear from any building on it; and there are two principles involved. He stated realtors when listing property have to do research and cannot sell something that is advertised wrongly; and Ms. Humphreys did that type of thing, researched it, and found out that was unbuildable property at that time when she was taking the listing of the property. He stated as realtors, they take a piece of property from the general public, take it to a contract that is binding, and transfer property to other people; they have considerable knowledge of the situation; and when they do those sorts of things, they find they
need things in writing so they can keep the contract binding and legal. He stated Ms. Humphreys went to the County records and found out when the deeds were recorded and what was there; when Mr. Bryan bought the piece of property, it was deeded as one lot; when Mr. Roberts bought it, it was deeded as two lots; and there is no record in between recorded, so that should solve that situation.

Chair Higgs stated the Board was given a letter written by Marjorie D. Humphreys; and if anybody wants a copy, they are welcome to it. She stated the Board will now hear rebuttals from Mr. Torpy, the staff, and Mr. Nohrr.

Dale Young and Bernard Sher advised they submitted cards.

Dale Young stated this case closely parallels another that the Board heard within the last couple of months that was on the beachside; and that indicates that there is a deficiency in the County management. He stated the assurance of a permit is a serious business, especially of this scope; it involved a great expense with a lot of time and people involved; and it should not be taken lightly, but should signify that when a person has a permit, they have a right to build and proceed. He stated once a permit is given, it should take an act of the Board to retrieve or rescind it or someone should pay the added cost. He stated extraordinary circumstances should be required to rescind a permit that has been given; the knowledge of the rules and regulations are something that is under the County’s purview and not the public’s; the public has no way of knowing all the complex rules that have been laid against property; and it is within staff’s purview to digest those rules and make proper decisions. He stated it is a sign of the times that a person’s private property is no longer protected by the Constitution, but is subject to the expectations of neighbors. He stated the neighbors did not buy a view; they did not buy the lot to the north of them; and inquired if this means there will now be a panel of neighbors sitting in on permitting. He stated reasonable persons would assume that if two such cases emerged in such a short time that many others have occurred as well but have not come to light; and some entity may want to determine the extent of such deficiencies by going to the public and seeing just how much of a problem there is. He stated only the County Manager is responsible to relegate the efficiencies; and if he cannot do it, it is up to the Board.

Bernard Sher stated he lives at 23 West Point Drive in Snug Harbor, two doors down from the Roberts. He noted this is his first time at a Board meeting and he is duly impressed; and he finds the Board’s conduct of the meeting to be quite admirable. He stated he hardly knows the Roberts; he met them a couple of times; but he heard about the problems on their property from the neighbors, so he came to the meeting pretty much impartial, although he does believe that it is the owner’s property and as long as something is permitted, he or she should be allowed to proceed. He stated he is taking a layman’s point of view and how he would feel if he were in the Roberts’ position; and the bottom line is there have been a number of errors made. He stated the Board has also been offered a conspiracy theory akin to Watergate; but the fact of the matter is the Roberts did have a permit to proceed and started building their home. He stated regardless of the percent completed, it is a structure; one gentleman pointed out the structure is dilapidated; and the reason it is dilapidated is because there was a stop work order given months ago and the structure is coming unglued due to of the weather because it is not
finished. He stated what the Board has heard from those who are opposed to this is a smoke screen for whatever reason; and he does not have an agenda. He stated two doors down from his house, there is a beautiful home that was under construction and once finished would be an asset to the neighborhood in terms of property values.

Chair Higgs stated that is all the cards she has; and apologized to the last two speakers for being unable to find their cards. She advised Mr. Torpy now has fifteen minutes and the others will also be given fifteen minutes.

Mr. Torpy stated a gentleman used a hunting/fishing analogy; he thought that was clever; and he had to agree with him. He stated if someone is given a hunting license but is caught fishing, the individual cannot produce the hunting license to justify his fishing. He inquired what if someone went to government because he was going to go hunting and fishing, showed staff the picture of the gun, the bear they were going to hunt for, and the woods they were going to hunt in, and also showed them the river they were going to fish out of, and staff gave the individual a license that says fishing; the individual takes the license and goes off on his merry way; but when the game warden comes up when the individual has a bear in his trunk, he would want to arrest the individual because he or she did not have the right license; and that is the problem here today. He stated the Roberts went to government; the confusion is they did not ask for a single-family residence permit; they did not ask for an addition permit; and they did not ask for a pool permit, but asked for all three. He stated the record is clear on this; he is not making unsubstantiated statements; and recommended the Commissioners read the documents. He stated that is what the Roberts asked for; but through the process of permitting, it got convoluted and confused; and at the other end they got a permit and started building. He stated they are sitting here today with the structure they were given a permit to build; contrary to what the Board has been told, the stop work order that was issued was not to make them stop building the house that was permitted, but was because staff wanted the Roberts to change the plans that were permitted. He stated the only explanation they have to date is, “sorry, we made a mistake.” He stated the way this has been justified over the last year and it was just done again when Mr. Scott testified his deposition was hypothetical and that when he got back after the deposition and researched more, he came to a different answer. He read aloud from the deposition, page 90, “do you agree that the law in 1986 should prevail on how you create a legal lot of record, not the law in 1993”; and the answer was, “absolutely.” He continued page 92, “Okay, so in 1996 if I were to record a survey, would that have been sufficient in 1986 in Brevard County to create a legal lot of record” and the answer was, “based on my research that I’ve conducted through the Zoning Code, it would.” He stated that was not hypothetical, yet he is hearing today it was; and he is disturbed by that. He stated even here today there is still the problem of staff justifying their answers; the reason one takes depositions is to make sure to have the actual answer recorded so if a different answer comes out later, one can at least show people what was really being told; and the reason he asked those questions was because he did not know the law and was trying to research the voluminous Code. He stated Mr. Scott said a few moments ago that in a meeting in July, staff noted that the kitchen had to be removed; and then he went on saying there was a tape recording of that statement and meeting. He stated he does not have that tape recording; he knows it exists because Mr. Roberts told him that meeting was recorded; there were other statements made in the meeting that would be very
helpful, but in spite of public records requests, he does not have that tape recording; and yet, Mr. Scott today uses it as offense. He stated no one has produced it to him; and inquired why is that. Mr. Torpy inquired why are they sitting here today hearing about a tape recording of a meeting with potentially dangerous and damaging information to his client, and yet he has no copy of the recording; and stated he has a problem with that. He stated Mr. Scott also testified that on the plans the kitchen was struck through; in a meeting with Mr. Knox, he was of the same opinion, but it was a refrigerator; and that is true, but there are many pages to building plans. He stated Ms. Busacca brought original plans; they looked at them in front of Mr. Scott, Mr. Jenkins, and Ms. Busacca; they showed that the refrigerator had been shown on the wrong plan, and Mr. Roberts had asked them to remove it, but it was left on the right sheet; and there is no evidence that a kitchen was ever struck through, but that is what he heard today. He requested if it is there, please produce it as he would like to see it, because it is not true; and stated he has a problem with that. He stated everyone is blowing over the smoke on the owners affidavit; he pulled it out of the book because there has been much to do about what Mr. Roberts gave the County; the owners affidavit, when it talks about the structure that is being permitted, has two lines; it has already been testified that it was not filled out by Mr. Roberts but by staff; and it says SRF or SFD; and then it has the word “addition”, all handwritten. He stated it is interesting that when one looks at the phrase SFR or SFD that it has been scribbled out; and he has a problem with that. He inquired why was that document altered and who altered it; stated Mr. Roberts did not do it; but it was done simultaneously with submitting it to staff in order to get them the notice of commencement, which was for a single-family residence. He stated there is another document, which is what Mr. Roberts applied for; in handwriting dated July 29, 2002, it says Code change to SFR; and inquired why has that not been presented to the Board and why has the Board not been told about that. He stated there is no doubt that Mr. and Mrs. Roberts asked for a single-family residence to be built pursuant to a 25-foot setback from the intracoastal waterway; and the only thing they accept today is the premise of why they are here is because of mistakes. He stated he listed the mistakes: the Lisa Barr letter that said he could build it, the loss of public records; the failure to produce the public records; permits for an electric meter that was not allowed, permits for a kitchen that was not allowed, Mr. Scott’s testimony about how one creates a lot in 1986 from what he said to what he said in his deposition testimony; failure of the County to notify Mr. and Mrs. Roberts that the very same Board denied an application or an appeal when the very same day Lisa Barr’s office gave him the letter that said he had the right to build what he wanted to build, and Ms. Barr’s office failure to contact the County Manager or the District Commissioner on November 3, 1993 to withdraw that item from the agenda; and inquired how many mistakes is the government going to allow Mr. and Mrs. Roberts to eat. He stated that is wrong and he has a problem with it. He requested the Board compassionately forget the law; inquired if all the lawyers cannot figure out the laws, how could his clients do it; and why are they paying as much money as they have to beg the Board to do the right thing. He stated if the Board does not have a problem with that, then he has a problem with the Board. He stated Commissioner Colon is right that this Board did not create this problem; but unfortunately this Board is the one that can fix it; and he is appealing to the Board today to fix the problem. He stated he has sympathy for both sides because all of them believe they are right; he has not heard a person today that maliciously made a comment to the Board; he does not think anybody lied; some do not like what his clients are doing; and some believe his clients did something wrong. Mr. Torpy stated that is because
they have been given certain parts of the public record that justify one answer; others have come up and told the Board they disagree and think the Roberts are nice folks who did the right thing; and that is because they have seen other parts of the public record. He stated the Board needs to fix this problem; and unfortunately the only way to fix the problem is to help the Roberts today. He requested the Board: (1) let the Roberts finish their single-family residence on Lot 7.1 the way it was permitted subject to the 25-foot setback; and (2) let them complete the room addition to the existing structure on Lot 7.0 as was permitted, let them finish their pool, and let them remove the breezeway that apparently does not exist in Brevard County Code, but was required for no apparently reason. He stated after the Board does all those things it still needs to get them back to even today; the Roberts have spent over $200,000 on construction of the home with a $350,000 budget; if the Board stops them and makes them tear it down, which is the Board’s only option if the Board is not going let them go forward, the Roberts will have eaten that cost in reliance on the permit granted by the County; and if the Board lets them finish at least, they will not lose that $200,000 and can finish their house. He stated they estimate today it will cost approximately $60,000 to bring this house to where it was in March of last year when the stop work order was issued. He stated he asked in writing for the Building Official to allow them to dry in the house so it would not be sitting there today with problems; and that request was not only denied, but they did not receive any response at all. He stated the bank closed the financing the moment the stop work order was issued so they could not even get the money to seal the house because the stop work order was issued. He stated he tried to do the right thing in the summer of last year with the staff to get permission to at least stop the bleeding; but that was not forthcoming so the Roberts need approximately $60,000 to bring the house back up so they can start all over again. He stated the Board should compensate them for their attorney’s fees; they have approximately $95,000 in legal expenses for the ten months that have been spent trying to uncover the documents that the Board heard so much about today; and they should be compensated for the additional interest they had to pay, which is over $10,000 that they have spent since March 25. He stated right now the total damage, if they are allowed to finish the structure, stand at about $166,000 to get them back to where they were when the stop work order was issued. He stated he feels bad for this case; he has lost relationships with members of staff that he considered dear; but the case is more important. He requested the Board fix it for the Roberts; and stated he is sorry for the citizens who are unhappy that they are going to lose their view or who did not get the lot the Roberts got or the ones who legitimately think the Roberts lied. He stated they have established conclusively that the Roberts did not lie; the Roberts asked to build a single-family residence, but for whatever reason, misfortune, mistake, or intention, County staff messed up; what is worse, when that became a problem, they covered it up; and he is willing to say that publicly. He stated he believes that sincerely; but if the Board does not believe it, that is fine. He stated the Board has a tough job sorting these things out; and requested the Board help Mr. and Mrs. Roberts build the house they asked permission to build back in 1993, again in 2003, and today.

Commissioner Carlson stated she wants the County Manager to be present when accusations are made; and he is present.

Mr. Scott stated he would like to start by having the Building Official address the issue of drying in the structure that the stop work order was placed on.

Building Official Carroll Brown stated stop work orders are not something staff takes lightly; very few of them are issued; and in every situation as a matter of procedure, they contact the individuals to try to let them know the problem and resolve it prior to imposing a stop work order. He stated they never let a project go without closing and drying it in; shortly after they posted the stop work order, a request came by phone; and he addressed that issue. He stated he also addressed it with one of the inspectors that it could be dried in; they have no desire to have anyone’s work undermined because of weather and not closing it in; and when he received the request from Mr. Torpy about closing it in, there were some other issues involved about clarifying the conditions of why it had been stopped. He stated in his mind he had already addressed that issue; maybe he should have addressed it in writing, but he did not do that; he made the call verbally; and he has done that on a the few occasions that a stop work order was posted. He stated since that time they have addressed the issues of getting more detailed information when they do stop work orders; but as far as drying in, permission was given, although he does not remember if it was given through Mr. Roberts or his representative.

Mr. Scott stated in the earlier presentation Mr. Torpy misspoke and said Lisa Barr had written the letter on November 3; that was a mistake; and he was just shown a piece of paper that the July 29 meeting was not recorded, but was attended by Courtney Roberts, so he too misspoke. He stated regarding the hypothetical circumstance that is in his deposition that Mr. Torpy said disturbed him, concerning the 1986 survey and the Zoning Code, and if that created a lot, would the County not have to honor that law, he said that was correct; they stopped for a couple of minutes during which he went to the phone and had someone look up a 1986 Zoning Code; and that is the research that Mr. Torpy was alluding to, a five minute conversation on the phone so he could entertain a hypothetical situation Mr. Torpy was outlining. He stated after that he read a section, which did not ultimately contain the information that determined what a lot was in 1986; and Mr. Torpy joyously said, “game, set, match.” He stated he has already done the research and knew what the answer was when they were going down the road of a hypothetical scenario; unfortunately Mr. Torpy did not look up the definition of a lot; and read from the Code, “a parcel of land shown on a recorded plat or on the official zoning map or any piece of land described by a deed recorded in the Official Record Book of Brevard County.” He stated there have been subsequent conversations regarding his research uncovering this, so the house of cards that was constructed in the deposition, which was hypothetical, fell apart; and Mr. Torpy recognized that; but he is giving that a lot of light right now. He stated Mr. Torpy has talked about a number of things that he has a problem with; but it is not an issue of what creates a lot per the Zoning Code. He stated they are talking about a 50-foot or a 25-foot buffer that is contained in the Shoreline Protection Buffer Ordinance; that references a recorded warranty deed; and the Board needs to focus on that issue and whether or not the documents exist to support whether or not this piece of property is going to be grandfathered in against that Ordinance. He stated the two issues are lot creation and the Lisa Barr letter; and the Board has the ability to look clearly and weigh carefully and say was there good faith reliance placed on that letter. He stated the Shoreline Protection Ordinance recognizes one document, and not the three that are listed in today’s Zoning Code; and if the Board recognizes the 50-foot buffer again, there are a number of things in the permit that exist that staff will seek direction on such as the roofing material required and the second electrical meter. He stated it was mentioned that a second meter cannot exist in July 20, 2002, but one does exist on the permit;
and staff would seek direction on that and the second kitchen. He stated those are the only comments he has in this rebuttal; but he wanted to get it clear because there was a lot of time and energy put in the hypothetical circumstance that occurred in the deposition; and he wanted to clarify the record from his perspective.

Mr. Nohrr stated building on what Mr. Scott just told the Board, it goes back to the two issues; and one was whether there was a platted lot or a deed created prior to September 8, 1988. He stated that is an issue the Board has to decide; and if it accepts Mr. Torpy’s version that something occurred in 1986, the question is what is the Board going to do. He stated what the Board is saying now is that the Code cannot rest upon that; it is now creating some different standard for the creation of a lot prior to September 8, 1988; and this is a very dangerous road they are getting ready to go down. He inquired what is it that is going to be required; is it a survey, a drawing, or something that has to be recorded; and there are absolutely no standards or guidelines if the Board accepts the proposition that a lot was created prior to September 8, 1988. He urged the Board not to go down that road; stated the documents in front of the Board show clearly that the lot was not created; and ultimately it is going to get back to the equitable estoppel issue. He stated then the Board will talk about if it is an addition, what is it going to do about the issue of two kitchens, two meters, and a roof. He stated the Board heard about the bear in the woods and fishing in the pond; all that is cute and maybe needed to keep things going forth; but what the Board has in front of it is a building permit that was issued that clearly says addition. He stated if the Board accepts Mr. Roberts’ position that he is not bound by that document, which is one that he acknowledges he did receive, it has to ask what an addition means. He stated it does not mean a single-family residence standing on its own; it also talks about square footage of 1,150 square-feet; and the Board heard testimony today that the structure is far in excess of that; but that is the permit that was issued. He stated no objection was made at that time; and the objection came many months later. He stated if the Board goes back in the documents that were presented, one is the application for the building permit, which goes back to February 2002; and that document says build an auxiliary building for recreation and an enlarged master bedroom. He stated it says the cost of the project is $300,000; under that number 3150 is written, and he is not sure what that means; and below that there is a line that says the “proposed living area (1,150 new).” He stated that is interesting because the 1,150 tracks the building permit that was issued six or seven months later, so there is some consistency. He stated they can talk about plans going back and forth; there is a process between when one applies for a building permit and when one gets a building permit; and the Board sees now what went into the system and what came out of it on September 10, which was an addition to an existing single-family residence for 1,150 square feet, although admittedly that was not what was built. He stated they can talk about lawsuits and damages; but he hopes that will not deter the Board from doing the right thing, which is following the Code in interpreting the documents that have been produced here today. He stated the Board has been given a doomsday scenario that it has to tear the building down; but if the Board determines the structure is an addition, they cannot argue with the fact that it is a 25-foot setback. He stated the problem is ultimately Mr. and Mrs. Roberts probably do not want an addition because they want two separate homes; but if it is called an addition, they cannot have a second home so that they can ultimately sell one. He stated that is why they are suffering damages today; it is not the fact that they would have to tear it down; they would have to tear it down if the Board
decides it is not an addition; and if the Board decides it is a single-family residence built on a lot that was not created before September 8, 1988, that is the predicament they are in. Mr. Nohrr stated there is a way out of this; the Roberts probably do not want that way out; and ironically, the way out of it is by enforcing the permit that was issued to the Roberts, and which, no matter how they spin it, they cannot say it did not have addition on it or the 1,150 square feet. He stated they can argue about the kitchen and meter; but the problem is it does not get them where they want to go; and if it gets into equitable estoppel, they cannot prove reliance. He stated if the Board ignores its predecessors and what happened on November 2, 1993 and goes with the Lisa Barr letter, it cannot get around the reliance issue on equitable estoppel because the Roberts did not rely on that. He stated that is not what they built; it is not what they submitted to the County; it is not what the Department approved; they did not spend money on the basis of the Lisa Barr letter but on the basis of the application process they started almost nine years later in February 8, 2002, which ended with the issuance of a building permit; and clearly they were on notice at that point. He recommended the Board not fall into that trap of having to give the Roberts what they want so it does not have to pay $166,000-plus; that is where he thinks this case is; and if the Board keeps it within those two issues, it can come up with a decision that keeps the integrity of the Code, does not put the County in a position of having no standard for how a lot was created prior to September 8, 1988, and allows a reasonable interpretation of the issue of equitable estoppel, being an addition, and shoreline protection.

Chair Higgs stated that concludes the presentations as the Board has defined them; and inquired if the Board wants to ask questions after rebuttal; with Commissioner Scarborough responding the Board has to. Chair Higgs stated what concerns her is she thought the Board would have asked questions previously; and now if new information comes out, they are not going to be able to get people to rebut. Commissioner Pritchard stated that is fine. Chair Higgs inquired if the Board has a problem with letting the three agreed upon parties rebut now; with Mr. Knox responding if the Board wants to ask questions, it goes through the same procedure it did before; and if there is more information and there is some other counterpoint, then the Board needs to hear it. Chair Higgs stated the Board has to let somebody respond; and if there is counterpoint, the Board is going to allow someone else to speak. Mr. Knox stated if the Board decides it wants to ask Mr. Nohrr a question and Mr. Torpy has a rebuttal, it needs to hear from Mr. Torpy and cannot cut him off. Chair Higgs stated that is the point the Board voted on twice earlier, once one way and once the other way. Commissioner Scarborough stated if the Board has questions, it needs to be able to ask them.

Commissioner Pritchard stated one of Mr. Nohrr’s comments was that the building permit lists cost of project at $300,000 and the proposed living area at 1,150 square-feet; it does say new; and inquired who pays $300 a square foot for construction. Mr. Nohrr responded he understands the match; that is why he pointed it out; it was not his document, and he assumes it is Mr. Roberts’ document; and Mr. Roberts may be able to better explain it. He stated it shows the 1,150 square-feet new, and that tracks to the building permit that was issued. Commissioner Pritchard stated it is stamped in as being received; it says on the top, code change to single-family residence; it gives the cost and square footage; and his point is no one is going to pay $300 a square foot for construction.

Commissioner Colon stated the Board has an opportunity to focus on the key word regarding integrity; she does not feel there was any conspiracy; but there have been a lot of mistakes. She stated she expects staff to make sure those mistakes do not happen again; and this has to be that kind of example. She stated this is a huge County and many permits go through; she is not making excuses for anybody in the County; but the Board has to do the right thing. She stated on Thursday there was an executive meeting upstairs where a lot of this was discussed by the County Attorney, and the Board was able to have an opportunity to hear a lot of things that were given to Mr. Knox. She stated the Board did not want to make any decisions behind the scenes at the executive meeting; it wanted everything to be out in the public; and the Board said that even if it took hours and hours of hearing testimony, then so be it. She reiterated the key words are integrity and perception; and the Board must do the right thing based on all the information that has been given. She stated there was a time that the Board, based on the information give to it by County staff, was not willing to listen to this case because it felt it had no merit at that time; Mr. Roberts was kind enough to meet with her and show her all the plans; and he explained in plain English what happened. She stated there has been a terrible injustice on what occurred the day of the Board meeting when people left believing one thing happened but something else happened behind the scenes; that is not acceptable and should never happen again; and if the Board makes a decision, nothing should happen behind the scenes after that decision. She stated with the information Mr. Roberts gave the Board and all the testimony given today, it needs to move forward and allow Mr. Roberts to finish his home; the Board has relied on the information that was given; and Mr. Knox has given the Board the guidance that it needs to pay for Mr. Roberts’ attorney’s fees that have accumulated, and also for the deterioration of the home that has happened because of the months of not being allowed to go forward. She stated she wants to keep the integrity of the community because this is the right thing to do based on the information that has been given to the Board; and the Board should direct the County Manager that the money will come from insurance to be able to pay for this.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to approve the administrative appeal of Courtney Roberts; and direct that funds for the compensation of actual costs will come from insurance.

Chair Higgs stated there is a motion and a second to go forward; but she is not sure what it is. Commissioner Colon stated paying the attorney’s fees and the damages, and for it to be paid from the insurance. Commissioner Pritchard stated it is also to finish construction of the single-family residence and the pool, and remove the breezeway.

Commissioner Scarborough stated Mr. Torpy gave two alternatives, to tear down or to proceed with the single-family residence; Mr. Nohrr suggested the concept of the addition; and inquired if within the purview of the addition from looking at the record, if this is an issue of being equitably estopped as to an addition or to a single-family residence. Mr. Knox responded what Mr. Roberts is going to argue if this proceeds any further than today, and what he would argue in his position, is that the County approved the single-family residence building permit; the County may have thought it was 1,150 square-feet, but he built a 4,000 square-foot house, and that is the plan the County approved; so he went out and spent $200,000 for a 4,000 square-foot
house that was a single-family residence with a kitchen and electrical meter; and that is what Mr. Roberts is going to raise. Commissioner Scarborough inquired how many inspections occurred before the stop work order; with Mr. Brown responding he does not have that information with him; but the structure was up and under roof. Commissioner Scarborough inquired normally how many have you had; with Mr. Brown responding at least five to be at that point. Commissioner Scarborough inquired at what moment did the issue of an addition or a single-family residence come up; with Mr. Brown responding in July. Mr. Brown stated first there were some concerns about whether it was an addition or a single-family dwelling; there was a meeting on July 29, 2002 where all the various agencies came to discuss it; Mr. Torpy at that point was a bit frustrated; and his intent on having the meeting was to get all the players in the room. Commissioner Scarborough inquired was this before or after the stop work order. Mr. Brown stated that was before the stop work order; Mr. Torpy at that time made some changes on the plans. Ms. Busacca inquired if it was Mr. Torpy or Mr. Roberts; with Mr. Brown responding Mr. Roberts. Mr. Brown advised when everyone signed off including Zoning, then the permit was issue, new construction started, a number of inspections were performed along the way, it was up and under roof, and staff started getting concerns raised. Commissioner Scarborough stated Mr. Knox makes the point that there was a large structure being built, which would not have the configuration of an addition; and inquired was that issue raised and how was it raised. Mr. Brown stated it is mainly a zoning issue; the Building Department has the unique distinction of being the only department that can stop construction once it is underway; and Zoning and neighbors raised concerns about the things that make a legal addition, the connection, the electrical service, and the roofing. Commissioner Scarborough inquired if the neighbors were notifying staff that there was something going up that looked like something other than an addition. Mr. Brown responded staff went out and verified there were some issues that had been changed and they needed to meet on that. Commissioner Scarborough inquired when Mr. Brown says things were changed, were they building according to the permit or were they doing things contrary to the permit. Mr. Brown responded they were doing things contrary to the original set of plans; they brought Mr. Roberts in; he and Mr. Roberts had numerous conversations to try and resolve the issues; Mr. Roberts was most cooperative in trying to give clarification needed because there were large portions of the drawings that were shown as not to be finished at this time; and the questions of the 1,150 square-feet was that of conditioned space with a lot of area called storage space for future construction. He stated they had many pieces of paper coming in, and notes and changes. Commissioner Scarborough inquired when the slab is poured is there a feeling of how large the structure will be; and at that moment was something apparent; with Mr. Brown responding no, because it was approved by Zoning. Commissioner Scarborough inquired if it did not appear to be an awfully large addition at that moment; with Mr. Brown reiterating it was approved by Zoning. Mr. Scott stated when talking about a building envelope of a lot, the Zoning Code identifies the setbacks; the property in question is fairly large, especially only applying a 25-foot buffer; and the Code does not make any distinction between the size of a principal structure and the size of an addition because if one is attaching the addition to the principal structure, the Zoning Code defines it as being an expansion of the principal structure. He stated there is nothing in the Zoning Code that allows someone to stop work product on a proposed addition even if it is adding on to a 2,000 square-foot principal structure, a 4,000, 6,000, or 8,000 square-foot structure; and theoretically it is all possible if connected. Commissioner Scarborough stated there is equitable estoppel here, but
he does not know if it lies to an addition or to a separate single-family residence; and he is having difficulty. Commissioner Scarborough stated it occurs subsequent to the building permit; the Board has talked about going back to Lisa Barr’s letter; but it is at a moment where the Board is either saying Mr. Roberts has changed or the County has changed; and if the County changed, it loses. Mr. Scott stated on the handout there is a punchlist of the items that were identified that were observed in the field that were contrary to the permit that was issued; one of the photographs that he recalls shows an attachment and the breezeway that was shown on the plan; there was constructed a cinderblock wall from floor to top of pitch that did not contain the cut that was going to be the doorway that was going to be the connecting portion; and that was one of the things in his mind that was going to be the illustrating point of construction occurring in the field that was a divergent from the permit that was issued. He stated the punchlist contains 24 items that were identified; and it is dated March 18, 2003. Commissioner Scarborough stated he is still confused.

Chair Higgs stated she looked at the plans in the staff report and has seen an original set of plans; and it seems that the County issued a permit for an addition. She stated she looked at the language on the permit, which said addition; she saw a plan, which has a 25-foot setback; and so she assumed a large addition. She stated the Board needs to let Mr. and Mrs. Roberts go forward to build what they were permitted to build as it is defined on the plan. She stated if the Board made some errors, then those need to be corrected; if the County let the refrigerator get by on one set of plans, the kitchen is there; and there were some errors the Board needs to let go in the sense that it needs to go forward. She stated the plans show in certain ways; the Board has an obligation to go forward with that; and she is not in a position at this point to go through the damages because she has not looked at that. She stated there are some things the Board needs to look at in terms of cost; Mr. and Mrs. Roberts have a right to build an addition consistent with the plans; if the County allowed in the plan a separate meter, that is the County’s error and it stays; she thinks the refrigerator was on the plans and it stays; but the attachment of the breezeway also stays as that is what was permitted, and it is what gives the 25-foot setback. She stated the other issues that are involved in regard to legal costs and damages need to be assessed and looked at very specifically to determine where to go there.

Commissioner Carlson stated she agrees with what Chair Higgs said in terms of keeping it as an addition to the existing property; but if that is the case, then the Board needs to define breezeway. She stated she heard the breezeway really did not exist and that it needs to be an enclosed breezeway connecting the two dwellings; and inquired if that is correct; with Mr. Scott responding that is correct. Commissioner Carlson inquired if that is how it is displayed in the plans; with Mr. Scott responding affirmatively. Commissioner Carlson inquired is it an enclosed breezeway; with Mr. Scott responding it meets the definition of attached in the Zoning Code. Commissioner Carlson stated when the Board had the other meeting prior to coming to this meeting in terms of the cost to the applicant, there were questions from Mr. Scott concerning one number that was not present; and she wanted to be sure, if the Board goes along with the motion, that there are assurances from the applicant that there will be no additional damages requested. Mr. Knox stated if the Board is going to offer to settle the case today by paying some amount of damage for the attorney’s fees and the prospective damage that will have to be fixed, it should get the agreement from Mr. Roberts and his attorney that it will resolve all the matters including the lawsuits that are pending at this point.

Commissioner Colon stated one of the reasons why she is in favor of making sure this a stand-alone home is because from the very beginning there were permits; and what is confusing everybody is if there was an addition to the first home maybe the first discussion and technicality may not have happened. She stated if she is clear based on the plans that were shown to her and based on the plans that the attorney showed the Board, there were two original permits, a permit for the addition to the home the Roberts presently live in and a permit for a single-family home; and inquired if that is correct. Mr. Roberts responded there were two applications prepared and submitted to the Building Department; the Building Department said since he owned both lots, he could combine them both into one permit application; and Ms. Busacca, in a meeting earlier this week, confirmed that is not in conflict with the Code and is an allowable thing, so apparently staff told him the right thing. He stated the addition was for a 10-foot by 15-foot add-on to the master bedroom; that is 150 square-feet, not 1,150; and then they added the other footage, which was 3,150 square feet as a separate line on the application form. He stated if he can find the form he would like to show what he is talking about. Commissioner Colon stated the reason she is asking these questions is because she wants to make sure if the Board does this today, that it does it right and that there is nothing else that is going to be pending. She stated the Board has gone through so much time to make sure this is done right; doing it right is not by calling it an addition, but calling it what it was from the beginning; and it is important for the Board to understand this because even now she is hearing Commissioners giving certain information that there is more to it from the beginning. She stated Mr. Roberts explained it in plain English, exactly what was presented originally; and just to save some money on the permit, it was recommended it be just one permit. Mr. Roberts stated that is correct; the form that he filled out and submitted, was encoded as 101R, single-family residence, at the permitting office when he submitted it; that subsequently was changed in July, but in March when they logged it in on March 5, they made it 101R, which is single-family residence; and if the Board looks at the lines that people are making a great deal of to-do about, the application did not originally have the writing above the enlarged master bedroom. He stated it was an application for a master bedroom for 150 square feet; and he does not know where the other one came from. He noted the title on the left side says custom home addition. Commissioner Colon inquired what is she looking at; with Mr. Roberts responding the first page of the plans for the addition to the existing home; it is a 10 by 15-foot structure, which is 150 square-feet; and that is what the form that is now on record started as; and the other plan they submitted that was on 11 sheets is for a custom home. Commissioner Colon inquired if it is a complete custom home plan; with Mr. Roberts responding yes, it is a complete stand-alone custom home plan. Mr. Roberts stated when he and Mr. Knox reviewed those plans last week, Mr. Knox observed it was a completely separate set of plans; it has a separate number; and there are just two pages for the home addition. Commissioner Colon stated one says one of two and the other is one of eleven. Mr. Roberts stated the addition is two pages long; and he can get plans from his car or staff can bring them over from the Building Department if the Board wishes to see them. He stated there are obviously two complete sets of plans for two separate projects; the fact that they rushed the addition to get into the system in February is because they were advised when they submitted the single-family application that the Code was going to change and because of the hurricane regulations, it would be much more expensive to build any kind of structure, and that the cut-off date was anything that was in before the first of March; and things before that date would be under the old Code. He stated they got back to
their architect and had them create the plans for the addition to enlarge the bedroom, and brought those in and submitted them; staff said they had two applications and suggested combining them into one project to save money, simplify the review, and allow him to get it all simultaneously, so he said that was fine. Mr. Roberts advised Ms. Busacca can verify what she told him last week that it is not in conflict with the Code. Commissioner Colon stated the reason why that is important is because if this is going to be done, it must be done right; the Board is not doing Mr. Roberts a favor; the Board wants to do this correctly; and that is why it cannot be just an addition, but must be a single-family home. She stated that is as far as she wants to go to be able to hear from Mr. Roberts on what he submitted; and the Board now has to make the decision on how it wants to move forward; but she did want to have it on record that there were two separate applications.

Commissioner Scarborough stated the number $300,000 appears there; Mr. Roberts said he had the desire to come in and get two separate permits; and the $300,000 certainly contemplates more than the addition. Mr. Roberts stated when they combined that with the new single-family home application, they just said to put it on there; it is a single-family application; they are both single-family type structures; and he did not know any different. Commissioner Scarborough inquired who was Mr. Roberts working with during the process; with Mr. Roberts responding whoever is in the Building Department where one turns in applications at the desk in front.

Chair Higgs inquired how big is the new structure that some would call the new single-family home, but others might call an addition; with Mr. Roberts responding it is shown on the application as 4,150 square-feet; and that is the line above the 150 for the addition. Chair Higgs inquired where it says auxiliary building for recreation, what does that mean; with Mr. Roberts responding when he first went in, it was his intention to try to build just enough of the house for them to move into, sell the other house, and get the money needed to complete the construction of the home; but when he made the application to the Building Department, they said he could not live in the house with just that much completed, and would have to have a finished kitchen, etc. He stated they went back and revised their plans, brought them back, and had the finished kitchen and everything large enough to meet the Zoning requirements, which is something on the order of 1,300 or 1,400 square feet minimum, so they made sure that they had sufficient space to do that. He stated when that was done they increased it up to the 3,150 square feet that is shown.

Commissioner Pritchard stated the road Commissioner Scarborough is going down is the one he traveled earlier about the $300,000; but at that time he did not know it was for 150 square feet. He stated 3,150 plus 150 square feet is 3,300 square feet, and that puts it into the 80 to 90 dollar a square-foot ballpark, which is reasonable. He stated if anything, this has shown that there are too many convoluting requirements; one hand does not know what the other is doing; and maybe it was designed that way, but in 1988 for Natural Resources to call the only acceptable instrument a deed whereas previously it was just a recorded instrument, leads one to wonder what other requirements are out there or what else they may be called. He stated in some cases deed might be the word, and in others it might still be instrument, or even recorded
survey, so if this is taken back to the beginning, it has been a screwed up mess right from the start. Commissioner Pritchard stated it is just absolutely incredible what has happened; some of the comments he heard include, “it should have been addressed in writing”, “staff errors”, “mistakes”, “I misspoke”; and “you’ve got it all and then staff would find more”; and from the beginning the Roberts have relied on staff direction continuously, which is why he seconded the motion. He stated this needs to be ended now; and called a question on the motion.

Chair Higgs stated she needs to ask a question before it goes to a vote; and inquired if Ms. Busacca can clarify the process that went through in this combination and what staff thought it permitted. Mary Thompson with Brevard County Building Code stated the application was originally submitted to their office; on the original application there is the code for single-family home written over white-out; and the original application was entered into the system as an addition. She stated during the review process, they determined the drawings were more reflective of a single-family home; and they amended the review code to a single-family home, which was when it was place on hold. She stated once the package was placed on hold, there were certain requirements that had to be met for the permit to be issued as a house; Mr. Roberts could not meet those requirements, so eventually it was changed back to a single-family addition with a bathroom, and that is how the permit was issued. She advised it was only issued for an addition; their records only indicate that they had one application; the process is that if application is made to their office, it is entered into the system; and there is nothing in the system to indicate there were two applications. Chair Higgs stated in the staff report dated January 23, 2004 from Ms. Busacca, she sees a picture labeled exhibit 1 and a floor layout; and inquired is that part of what staff reviewed for an addition. Mr. Brown responded no, it is not; and displayed what was reviewed. He stated the only other set of plans staff ever reviewed were when they asked Mr. Roberts to condense all of the myriad paperwork into a workable clean set of drawings; and those drawings still reside in his office as they have never been picked up. Chair Higgs stated she is confused. Mr. Brown advised the large set of drawings is what they reviewed. Chair Higgs stated the picture that is labeled exhibit 1 shows a pretty front elevation and a floorplan; and inquired if that is part of the plan that staff approved; with Mr. Brown responding no, that has not been approved; they are revisions; and this is part of the problem that they have run into in that they were getting all of the drawings piecemeal.

Commissioner Scarborough stated the Board needs to see the plans at this moment. Chair Higgs stated she needs to see the plan that staff approved that resulted in the issuing of a permit. Mr. Brown stated the drawings he has are the only approved set of drawings. Chair Higgs inquired if the picture is what was approved; with Mr. Brown responding it was approved but the floorplan was different; and the revision that came in was different. Mr. Brown stated Mr. Roberts started reducing that; and he took out the refrigerator and made it start to conform to the Zoning regulations. Chair Higgs inquired if that is what was approved as an addition and a permit was issued to build; with Mr. Brown responding that is correct.

Commissioner Pritchard inquired if it was submitted as the addition; with Mr. Brown responding they were the original drawings that came in and were addressed.

Mr. Torpy stated Mr. Roberts is not able to address the Board with the same questions that are being answered by staff; and he should be allowed to be up there. He stated he appreciates what the Board is doing but Mr. Roberts should be allowed to get up and tell the Board what is going on.

Commissioner Pritchard stated the plan they are looking at says custom home plan, but does not say addition. Mr. Brown stated the addition is a separate attachment; the drawing showing the 3,100 square-foot structure does not say addition; and it says custom home plan. He stated what the Board needs to realize is that this was the original set of plans that were not approved; and when Mr. Roberts came in, in order to get approval, they had the meeting that he referenced earlier in which Mr. Roberts x’d out certain things that would have precluded him from getting approval. He stated at that point in order for Zoning to sign off, he had to make certain deletions; and the refrigerator is one. Mr. Brown stated there were a number of other issues that he addressed also and made changes; they found out there was one that was missing, which was the separate electrical service, which is a zoning requirement; the Building Code does not care how many services one has; and it is was a zoning issue. He displayed the drawings; and stated they are the only drawings. He advised there were other revisions coming in; it was getting confusing; there were a myriad of changes; and that is when he requested one clean set of drawings that reflected all of Mr. Roberts initialing, etc. He stated Mr. Roberts did that, and that reduced set is still in his office.

Chair Higgs inquired if Mr. Roberts agrees that these are the plans he got approved; with Mr. Roberts responding yes. Chair Higgs requested someone show her the attachment; with Mr. Brown pointing it out. Mr. Roberts stated that is not correct because it is not what was approved. Commissioner Colon requested Mr. Roberts show his records. Planner Ryan Rusnak stated it is important to understand the permit at some point was a single-family residence; it was realized it would not work because of the 50-foot setback; and at that point the plans were amended to become an addition. Mr. Torpy inquired if Mr. Rusnak is going to testify, may he ask him questions; with Chair Higgs responding not right now. Mr. Torpy advised Mr. Rusnak is saying things on the record; and recommended the Board be careful. Mr. Rusnak advised the separate cut sheets were added to the plans showing the breezeway and things like that. Chair Higgs stated on the plan is identified a new breezeway elevation between the main house and the pool house; and inquired if the main house is the existing house; with Mr. Rusnak responding yes. Chair Higgs inquired if the pool house is new construction represented by the other drawings; with Mr. Rusnak responding yes. Chair Higgs inquired if Mr. Roberts found the connection; with Mr. Roberts responding no, but he knows it is in the package. Mr. Roberts noted several of the things were put in the original application but were then deleted from the plans. Mr. Rusnak stated the reason this one was deleted and the other was approved is because staff would not permit just a flat level; and it wanted something like a truss could tie into the main house. Mr. Roberts stated instead of having a flat roof, which is what they originally agreed to, he was required to come back and put a pitched roof with tiles like the existing house has. Chair Higgs inquired if Mr. Roberts agrees there is an attachment in the plans that were approved between the home he owns now and the built structure; with Mr. Roberts responding
not according to the Code. Chair Higgs inquired if in the plan was something approved between the existing house and the new structure. Mr. Torpy requested Mr. Roberts be allowed to
answer the question because he has a very important point to make. Mr. Roberts stated the Code says an attachment; in the Zoning Code it is what they call an addition; an attachment between a new building and an existing building has to be an enclosed room; and a covered walkway between two rooms does not qualify it as an attachment. He inquired if that is correct; and stated he got the Code from the Planning and Zoning office after being requested to remove the electric meter in March after the stop work notice. He stated the point is that does not qualify it as an addition according to the Code.

Mr. Brown presented the set of clean drawings; stated it is identified as a poolhouse; some changes were made for the pitch; and these were the issues that Zoning signed off on so they could issue the permit. Mr. Brown stated it shows the walkway between the two buildings.

Commissioner Pritchard stated the poolhouse is also represented as pool/house; with Mr. Roberts responding that is correct. Mr. Roberts stated they had a separate permit for the pool; that was required because the County does not issue pool permits along with house permits as they have different review requirements; and they had a separate permit for the pool. He stated he noticed the commencement with the Building Department, there was the pool, which was one permit, and then the house, master bedroom addition, so that was defining two separate permit numbers, one for the pool and one for the house addition.

Chair Higgs inquired is this the elevation from the side of the connection between the existing home and the new part; with Mr. Roberts responding yes, it is the doorway and the wall of the new house, the overhang of the existing home, and the open walkway to the new house. Chair Higgs inquired if it is described by certain paperwork; with Mr. Roberts responding yes.

Commissioner Pritchard stated Mr. Torpy wanted to ask Mr. Rusnak something. Mr. Torpy stated he is not going to ask a question, but would like the opportunity to comment on a couple of the staff comments before the Board finishes its deliberation. Chair Higgs stated the Board is probably going to wind up its deliberation.

Commissioner Scarborough stated he is still perplexed as to what was permitted; and inquired why was there a connection between the old and the new. Mr. Rusnak responded the connection between the old and the new is required in order for it to conform as an addition. Commissioner Scarborough inquired if that was something that was part of the plans that were originally submitted; with Mr. Rusnak responding the plans that were originally submitted did not show a connection. Commissioner Scarborough inquired was that added as a condition preceded to the issuance of the permit; with Mr. Rusnak responding that is right, the connection was later added in order for it to conform as an addition. Commissioner Scarborough inquired if that was added prior to the permit being issued; with Mr. Rusnak responding that is correct.

Commissioner Pritchard stated this all goes back to 1986 with George Bryan that says he was contacted by Ms. Humphreys about purchasing the undeveloped part of Lot 7 and retained William Weller of Rose and Weller Law Firm to split out that portion of the property for the sale;
he enclosed a copy of the survey; and Mr. Bryan advised the lot split was recorded by the County in 1986, so it was a recorded instrument. He stated there is other testimony to that
effect; and Lisa Barr says the parcel was established by lot division and recorded by the Brevard County Clerk in March 1986, and therefore an administrative interpretation is that the 25-foot shoreline protection buffer reduction applies. He stated he does not think that information ever got to the Board in 1993; and the Board operated on something it did not have enough information on. He stated it was Ms. Barr’s responsibility; she should have pulled it from the agenda; but she did not. He stated the reason it came before the Board was as an appeal of Lisa Barr’s first letter claiming it was a 50-foot buffer, so there were problems right from the beginning. He stated the only reason this addition or single-family residence has become an issue is because the 25 or 50-foot setback, so there is Zoning on one side, Natural Resources on the other, and he does not know who is in the middle. He stated he is fed up with the whole thing; and he supports the motion.

Mr. Torpy stated Commissioner Scarborough sees this as problematic; the permit that was issued for what is seen; the walkway was added, but it was a single-family residence of 3,150 square-feet; and if the Board asks Mr. Brown what is sitting there today, it is consistent with the plans that were issued. He stated the permit that was issued is obviously confused; it contained the walkway; but they maintain it is a legal nothing. He stated it was an attempt by staff to get around some perceived issue that Mr. and Mrs. Roberts rectified in 1993; and it should never have been a perceived issue in 2002. He stated Commissioner Pritchard stated he does not know who is in the middle, but it is Courtney and Carol Roberts who are in the middle.

Chair Higgs stated she is going to vote against the motion because of the scope of it; there is a building that was permitted that needs to go forward; and the County’s actions may have caused some damages. She stated it should go forward as was permitted; and she is willing to work on what the damages may be and the legal costs; but the plan showed the attachment and the home attachment to the other. She stated it was an attachment and that is what she thinks was permitted. She stated there is a building that was permitted that needs to go forward; the County’s actions may have caused some damages; but it should go forward as it was permitted. She stated she is willing to work on what damages there may be and legal costs; but the plan showed the home attachment to the other; and it was an attachment that was permitted.

Commissioner Carlson stated she will go along with the motion as long as there are assurances that no additional legal issues will be brought up.

Mr. Torpy advised the motion, as Commissioner Colon made it, is: to allow the detached single-family residence to be completed on Lot 7.1; allow the room addition to be completed; allow the connection to be removed; allow the pool to be completed, and provide compensation for the losses including lost interest, attorney’s fees, and deterioration of the structure since the stop work order was issued, subject to verification of costs by the County Attorney.

Chair Higgs inquired if in the motion Commissioner Colon is going to accept what has been proposed in terms of cost. Mr. Knox stated the $60,000 cost for refurbishment is only an
estimate, and the Board should get a contractor to provide an estimate because it will have to be justified. Mr. Torpy stated they are in agreement as long as the agreement is actual costs, because it could be $80,000 in actual reimbursement; and they are also looking for $10,000 in
interest costs. Commissioner Colon inquired if after that, this issue is over; with Mr. Torpy responding they will dismiss all actions currently pending with prejudice. Mr. Torpy stated he knows the wheels of government go slowly; they are going into the rainy season; and inquired if there can be a stipulation that the building permit issues would be resolved within the next five days so they can start construction, and settle the compensation issues within the next 30 days. Mr. Knox stated that will be dependent on when Mr. Torpy provides an estimate. Mr. Torpy stated that is fair. Mr. Roberts stated in order for them to get their construction funding on again they need something from the County stating they have the right to build on the single-family lot, and that they are in compliance with Zoning. Commissioner Pritchard stated the County needs to lift the stop work order. Mr. Torpy stated the Roberts need a little bit more than that, but if the Board will agree that Mr. Brown will issue the proper paperwork, he knows what the bank wants, which is to get this mess straightened out so they know they are giving money for the right thing; but that should be able to be done in three to five days; and requested that be made a priority for staff.

Commissioner Scarborough stated he is not going to support the motion; there is equitable estoppel as to an attachment; the fact that the attachment came in as a condition precedent bothers him; and there are other things in the record that indicate there was an apparent communication that this was not supposed to be a single-family structure. He stated he does support paying the damages, and that there is equitable estoppel to a lesser extent.

Chair Higgs called for a vote on the motion as stated. Motion carried and ordered; Commissioners Pritchard, Carlson, and Colon voted aye; Commissioners Scarborough and Higgs voted nay.

The meeting recessed at 3:26 p.m. and reconvened at 3:35 p.m.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: SAWGRASS SOUTH
AT SUNTREE, PHASE 2 (CONTINUED)
Interim Natural Resources Management Director Virginia Barker stated per the Board’s direction, staff monitored the eagles’ nest on February 10, 19, 20, 24, and 27, 2004; of those five visits the eagles were only seen present at Nest BE-17B on February 19; and they were not seen on the last three visits.

Chair Higgs inquired about the size and development of the nest. Ms. Barker responded they took photos of the nest during some of the visits in February and showed them to Donna Oddy, the previous wildlife biologist who had seen the nests in December 2003; and based on her interpretation of the photograph, the nest had increased in size. Chair Higgs stated Ms. Oddy was not onsite; with Ms. Barker advising that is correct.

Commissioner Carlson stated the report dated February 27, 2004 said that observations were made and there were discussions with Florida Fish and Wildlife Conservation Commission and
U. S. fish and Wildlife Service biologists; and inquired what part did they plan in any sort of recommendation. She stated the reason she asks is because the original incidental take conclusion from U.S. Fish and Wildlife Services says reasonable and prudent measures, and that if the bald eagle pair does not return to the 17-B nest location by late Fall 2003-04 nesting season, the Service should be called for a determination regarding the status of the nest. She inquired if that means they would have been contacted by the applicant or did staff talk at all in that regard based on the June letter. Ms. Barker stated not specifically based on the June letter; she talked to them about if the nest was growing in size and if the birds were seen using the nest, how that would affect their opinion and permit to the applicant for the site; and they said they already issued a take permit and even use of the nest at this point would not change their prior issuance of a permit. Commissioner Carlson inquired if based on her conversation, is there no intent by the agencies to talk to the abandonment issue; and stated they have given an incidental take permit, which allows construction to go on based on the various lots having been preserved, etc. She stated she is wondering if it would be prudent of the Board to wait until such time that they are changing the status of the nest or whether they have said there is already an incidental take so it stays the way it is; and it will be reviewed based on the activity when the applicant goes to them and says nothing has been happening, and requests to build on the four lots. Ms. Barker stated her view of the opinion was that if BE17-B appeared to be abandoned at the end of this season, then the applicant could apply to have U.S. Fish and Wildlife Service review the nest, and then for two to five years following this time, Lots 8 through 11 would still have to be reserved; however, when U.S. Fish and Wildlife releases it, the lots could be developed.

Attorney James Fallace, representing the applicant, stated the Board has heard quite a bit of testimony; but he does want to point out a couple of things. He stated first, as Commissioner Carlson has pointed out, the Fish and Wildlife issued an incidental take permit are the findings that they put into writing to the applicant as well as the Board; they studied the cumulative effects of the proposed subdivision, the services considered, and the cumulative effects of the project on the eagles’ nest; and in this instance, there are no cumulative effects. He stated their conclusion specifically and expressly stated the project, as proposed, is not likely to jeopardize the continued existence of bald eagles; as no critical habitat has been designated for this species, none will be affected; and the objections made on the record because of the pending litigation stand. He stated the reference that the nest may have grown in size is based on analysis of a photograph; that would not stand up in a courtroom; and the reason is it is not possible to tell the dimension, size or scope from a photograph. He stated the Board is going to hear Frank Rockwell in a moment, saying he lives within 125 feet of the nest and sees it every day; his house and his activity in his backyard are closer than what the applicant is proposing; and Mr. Rockwell may want to tone down that activity in his backyard if he believes it is within the critical zone that would adversely affect the bald eagles. He stated Mr. Rockwell in his letter says he thinks the nest is getting larger; he wants to go beyond what Fish and Wildlife Service says are reasonable and prudent measures; but the County has taken what Fish and Wildlife has said are reasonable and prudent measures including not building on Lots 8 through 11. He
stated no evidence has been presented that the bald eagles have ever occupied the nest on a permanent basis; there are no eggs that have been laid; there are no new bald eagles in the
nest; there is speculation about what is going to happen in a year or two years, but that is why U.S. Fish and Wildlife issued the type of permit and has the reasonable and prudent measures outlined in the letter. He stated if Frank Rockwell says he sees the eagles in the nest, he is in his backyard every day, and the nest is getting better, that is not competent objective evidence, and it flies in the face of the experts’ testimony in this case. He stated the Board asked them to wait until March 1; they anticipated there would be an outcry to wait for another year; but it could go on forever. He stated there is no evidence the nest is being used or that there are eggs or newborns in the nest; and requested the Board approve the final phase. He stated they intend to comply with the permit and work with U.S. Fish and Wildlife; and it does not appear there is a viable request at this point.

Jeff Rogers, resident of St. Andrews Isle, stated his neighbor Glenn S. Ward was unable to be present, but has written a letter to the Board. He stated Mr. Ward writes, “To the Board of Commissioners, 28 February 2004; reference the nesting pair of American Bald Eagles. I’m unavailable for the Sawgrass II hearing on March 2, 2004, and have asked my neighbor Jeff Roberts to present this letter that day to the County Commissioners on my behalf. My wife and I have been Florida residents for over 30 years and have lived in Brevard County for three years. We both have observed adult and young bald eagles living just to the south of our property in St. Andrews Isle. They evidently migrate from time to time, but two adult eagles are presently living in the same location they have for the two years we’ve been in our home. The area is known as Millstone Drive in the proposed subdivision. The eagles can be observed predominantly sitting in one tree containing a nest, and specifically another tree 100 to 200 feet west of the nesting area almost daily. On two separate occasions within the past 60 days I’ve personally observed one of the eagles carrying small limbs and sprigs to the existing nest. I’ve also on numerous occasions seen them carrying fish and rodents into the trees and nesting areas. The difference between food and nesting materials is easily distinguishable from our vantage point. My issue is not to stop growth in Brevard County, but at the same time I believe setting aside only Lots 8 through 11 in Sawgrass II, Phase II for the eagles is naïve. Any pressure put on the eagles will cause them to leave their habitat. They must then attempt to find an area to live and raise their young in an already limited space created by development without regard to bald eagle habitats. I believe the American bald eagle is still a threatened species. Ignoring the presence of an area and a nest that can be used year after year is not acting responsibly with regards to our environment. Development has been sensitive to the Florida scrub jay and it is incumbent on the leadership of the County to act with the same sensitivity with regard to the bald eagles living in our beautiful County. I strongly believe the Millstone Drive phase of the proposed development should be denied. Signed Glenn S. Ward” Mr. Rogers stated as recently as Thursday, February 19, his wife observed over a 30-minute period from 8:30 to 9:00 a.m. the nesting eagle pair transiting back and forth from the nest area, and one eagle in particular sitting on the nest; and previously he and his wife observed the eagle pair on February 16 flying from the nesting area over their home. He stated the habitat includes not only Lots 8 through 11, which are temporarily set aside by the developer, but roosting areas as well, which have previously been observed on projected Lots
3, 7, and 12. He displayed photos taken February 22 of the nesting pair roosting on proposed Lot 7; and advised the pictures were taken by Tom Lancaster. He recommended the entire Millstone portion of the subdivision not be developed because of the nesting eagles’ habitat.

Frank Rockwell, resident of St. Andrews Isle, stated the purpose of his presentation is to update the Board on his observations of the eagles’ activity in and around nest BE17-B since February 10 and related matters. He stated as he indicated on February 10, the back door of his home is approximately 125 feet due north of the nest; he has an unobstructed view of the nest; and since February 10, he has continued to hear and see the eagles in the nest tree every day. He stated often both eagles are present at the same time; the nest is larger now than it was a month ago; nest refurbishment has occurred; and clearly the nest is not abandoned, nor is it a so-called decoy nest as alleged by the developer. He stated the eagles seem determined to make nest 17B their home; hopefully they will succeed this year or next; and on February 10, the Board placed their habitat at risk by approving Brisbane Boulevard and the Waterloo Place section of Sawgrass South. He stated the Millstone Drive section lies entirely within the mandated 750-foot primary protection zone around the nest; further compromise of the eagles’ habitat within this zone will assuredly raise the risk to an intolerable level; and requested the Board not approve the Millstone Drive section of Sawgrass South until eagle habitat risks can be safely resolved to an acceptable level. He stated if after migrating this year the eagles do not resume nesting activity in 17B, the developer could petition U.S. Fish and Wildlife Service to declare the nest abandoned; and at that time he would not oppose such a petition. He stated if the Service declares the nest abandoned, it is his understanding that the nest and Lots 8 through 11 must be preserved for an additional period of two to five years depending upon the ongoing condition of the nest. He stated under that scenario, he would not object to the Board’s approval of Millstone Drive based on eagle habitat protection; and at the end of the additional preservation period, Lots 8 through 11 could be developed. He stated it will likely take several years for the developer to construct Brisbane Boulevard and build out the 39 lots in Waterloo Place, which will be more than enough time to resolve safely the BE17-B habitat issues. He requested the Board not make an irrevocable decision today that everyone will regret later.

Dick Northrup, President of St. Andrews Isle Homeowners Association, stated the residents of St. Andrews Isle are very concerned with the Sawgrass South development, particularly its potential negative impact on the environment. He stated the eagles’ nest issue remains of paramount importance to them along with the continued preservation of the wetland property; and hopefully the Board will strongly support Objective 9 of the Comprehensive Plan, which states, “protect endangered and threatened wildlife species and species of special concern from adverse impacts due to loss of crucial habitat.” He stated Mr. Ward’s letter provides strong evidence of ongoing eagle nesting behavior; and Mr. Rogers’ personal observations, along with photos taken by Mr. Lancaster, are solid indicators of the eagles’ presence. He stated based on Mr. Rockwell’s presentation this afternoon and his previous photographic evidence of numerous eagle sightings in and around nest 17B in Sawgrass South, the residents request the Board uphold its previously denial to develop the 18 lots on Millstone Drive in order to protect crucial bald eagle habitat. He noted he personally witnessed an eagle in a tree containing nest BE17-B on February 27 during a visit to Mr. Rockwell’s home. He stated he carefully read the February
27 memo from the Natural Resources Management office, which documented its monitoring of bald eagle activity at 17B on nine separate dates from January 9 to February 27, 2004. He stated unfortunately staff was only able to confirm significant activity on two of the monitoring dates; although the staff monitoring was conducted for up to four hours in duration on several
visits, the residents of St. Andrews Isle believe that out of necessity, it was a very brief sampling compared to the information that residents have obtained; and so they request the Board fully examine the St. Andrews Isle sighting information including photographs, and then reconsider County staff’s conclusion outlined in the memo. He stated the residents would be pleased to submit affidavits to enhance the credibility of their observations; and they are confident this evidence, along with that reported by staff, should support a conclusion that the eagles are in fact nesting in and around nest BE17-B at Sawgrass South. He recommended the Board continue to protect the nesting eagle habitat by denying the final engineering plan and preliminary plat approval for Millstone Drive in Sawgrass South.

Commissioner Carlson stated she asked staff earlier about the location of the tree where the two birds were residing; and Ms. Barker gave her a picture that pretty conclusively shows which tree it was, and it is the tree right next to 17B. She stated there are no observations from staff that are conclusive; she is uncomfortable, until such time that the various agencies deem this abandoned, to go forward with anything but a denial because she is not convinced; and while there is no expert testimony from the Natural Resources staff, there are pictures. She stated she has been hearing all along that they have not seen anything; but there was a nesting pair sitting in a tree on February 22, 2004 so she is concerned that perhaps the timing of observing is not going to be perfect. She stated they show that there was not anything when they were there; she does not know if the Board would want to wait until the end of March; and she hates to bring the developers back and lead them on thinking the Board is going to be doing something if the Board does not support that. She stated the Board could deny and suggest waiting until Fish and Wildlife says it is clearly abandoned; then they can go on and develop the entire development. She distributed a picture and pointed out tree 17B; and stated the one immediately to the right is the one the public has pictures of.

Commissioner Pritchard stated Fish and Wildlife Service issued a take permit; it is not going to change its position on this; and inquired what does it matter whether there are two birds in the tree. Ms. Barker stated she does not believe it matters to the Fish and Wildlife Service, but it does matter to the Board, which is the reason for its prior action. Commissioner Pritchard stated U.S. Fish and Wildlife Service is the one that issued a take permit, so it does not seem to matter to it whether or not the eagle is present or not present; and inquired why should it be a consideration of the Board.

Commissioner Carlson stated the incidental take permit has been authorized so the Board is sitting with that; and inquired if nothing occurs at the nest and the developer requests the U.S. Fish and Wildlife Service to reassess the nest, would that bring up the issue of abandonment. She inquired just because the Service has given an incidental take permit that keeps the developer from developing the four lots, where does that leave the Board in terms of when and if the nest is considered abandoned and do they have to wait two to five years or can that be
interjected by the applicant going to the agency saying this is abandoned, and asking for a reprieve on this. She stated then they can come back and request full use of their property. Ms. Barker stated the problem is that U.S. Fish and Wildlife, because of the potential status of the nest, put a hold on Lots 8 through 11; their take permit allows activity to occur everywhere
else; so if the nest is seen to be abandoned, and if Fish and Wildlife comes through and says the area is not being used by eagles any more, that would release Lots 8 through 11, but the Board has stopped development of everything on Millstone Drive, so there is a difference between the Board’s action and the U.S. fish and Wildlife Service action.

Commissioner Pritchard stated it was interesting that one of the letters that was read said the issue was not to stop growth in Brevard County; but his issue was to stop growth in his backyard; and that is what he said all along about the eagle being used as a surrogate. He stated he cannot help but wonder if Sawgrass South has an environmental consideration and whether the neighbors who are in adjacent subdivisions would have said they did not want anything there. He stated everybody seems to hopscotch in and when they move into the neighborhood, the first thing they do not want is anything to move in next to them; and that has been his point behind the whole eagle issue. He stated at some point Sawgrass South and all of this could be considered crucial habitat; but the main thing is they do not want people in their backyards. He stated it is a lake issue; the people have said they do not want people in their lake; they do not want people to build; so, they found an eagle to save. He stated one man lives 125 feet from the eagles’ nest; and maybe his house should be closed down while the eagles are present. He stated it does not make sense; the very least the Board should do is move it forward with the development of Millstone Drive and see what happens with the couple of houses at the end; but to shut down a development when there is a development on the other side is relying a little too much on the twigs of the tree and whether there are a couple of eagles present.

Commissioner Colon stated she would support Commissioner Carlson if she felt the need for more time; if there was not the picture, it would be a different story; but there are definitely eagles standing on a tree in the area in question. She stated there was a time when they were saying the eagles were not in the area; but she will support Commissioner Carlson if she is planning to hold still until the end of the month as the Board has no control over Mother Nature.

Commissioner Pritchard stated the Board is relying on the photo taken February 22; and inquired how does the Board even know the date is accurate or that it is even the right tree. He stated they have looked at certain things; what staff reported is not what some of the neighbors have been claiming to see; but the neighbors have a vested interest in seeing what happens in this area. He stated he is in favor of allowing the development of the entire Millstone project.

Commissioner Carlson stated the actual nesting season goes on through March; she does not know if the Board would support it or if the applicant can hold off for a month; but if they wait until April 1, 2004, they may have a better assessment. She stated that would be her motion, to postpone until the end of nesting season; and inquired what would lead them to believe that the
nest has actually been used. She stated they have seen the nest grow and birds around; and inquired what other evidence would they look to. Ms. Barker responded there should be eggs in the nest by the end of the month if there is any possibility of them nesting this year; and the way they would tell is there would be birds sitting on the nest. She advised they would have a different stature than what they have been seeing with the birds always standing; and there
would also be billing activity that goes with the mating behavior two weeks prior to the female’s ability to lay eggs. Commissioner Carlson stated by the end of March, they should see this behavior. Ms. Barker stated what they are seeing now by staff going and viewing the nest for whatever hours are available is that the eagles are not there, so there are no eggs being incubated or the eagles would have to be there more of the time. Commissioner Carlson inquired if Ms. Barker thinks next month they will either do it or not; with Ms. Barker responding yes, according to U.S. Fish and Wildlife Service experience.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to table consideration of final engineering or preliminary plat approval for Sawgrass South at Suntree, Phase 2 to April 13, 2004 Board meeting. Motion carried and ordered; Commissioner Pritchard voted nay.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENT IN CITRUS ISLE SUBDIVISION - GRETCHEN W. VOGLER

Chair Higgs called for the public hearing to consider a resolution vacating public utility and drainage easement in Citrus Isle Subdivision as petitioned by Gretchen W. Vogler.

There being no objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt a Resolution vacating public utility and drainage easement in Citrus Isle Subdivision as petitioned by Gretchen W. Vogler. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE DISSOLVING THE CENTRAL VIERA COMMUNITY
DEVELOPMENT DISTRICT

Chair Higgs called for the public hearing to consider an ordinance dissolving the Central Viera Community Development District.

Jay Decator stated he is present to respond to questions.

Brian Crumbaker stated Mr. Dillon had a conflict and he will be representing the applicant, the Central Viera Community Development District.

Chair Higgs advised there is no one present in opposition.

Commissioner Carlson stated the only question she has is the cost for maintenance of the right-of-way the County will be taking over; and inquired if this has been considered. Planner Steve Swanke advised The Viera Company contracts with the Central Viera Community Association to maintain the landscaping, medians, and right-of-way. Commissioner Carlson inquired if they will continue to do that; with Mr. Swanke responding affirmatively. Commissioner Carlson stated
she did not read that in the resolution; with Mr. Swanke responding it is not contained in the resolution. Mr. Crumbaker stated it is not contained in the resolution at this time; however, The Viera Company is present and can provide assurance in terms of that maintenance.

Mr. Decator, representing The Viera Company, stated currently the only portions of Lake Andrews Drive that are part of this action have been constructed and have been previously conveyed to Brevard County as part of the conveyance of the Community Oak area and the extension of Wickham Road. He stated all the landscaping improvements in those areas were put there under a separate Use Agreement between The Viera Company and Brevard County; under that Use Agreement, The Viera Company and its assigns, which will be the community association, will maintain that landscaping; and it is their responsibility to pay the cost of that maintenance. Commissioner Carlson inquired if this is an expansion of the Use Agreement. Mr. Decator responded it is not really an expansion; the Use Agreement is independent of this; the Use Agreement exists; and once the school construction is completed and the landscaping is extended south in the median of Lake Andrews Drive, they will be coming back to the County asking to amend the Use Agreement to allow the additional landscaping. Commissioner Carlson inquired if the Association will be taking care of it at that point; with Mr. Decator responding yes. Mr. Decator advised he cannot recall if that Agreement has actually been conveyed or assigned, but certainly it will be; it is part of the community maintenance program; and the Community Association maintains the corridor. Commissioner Carlson stated they will make sure the Use Agreement comes back and will stay up to date on that.

There being no objections, motion was made by Commissioner Carlson, seconded by Commissioner Scarborough, to adopt an Ordinance of the Board of County Commissioners of Brevard County, Florida, providing for the dissolution and termination of the Central Viera Community Development District pursuant to Section 190.046, Florida Statutes (2003); adopting a plan of transfer; providing for the transfer of all the community development services of the Central Viera Community Development District in accord with a plan of transfer; providing for severability; and providing an effective date. . Motion carried and ordered unanimously.

STAFF DIRECTION, RE: COST BENEFIT ANALYSIS FOR RECYCLING CITIZENS
ADVISORY COMMITTEE RECOMMENDATIONS

Bette Danse stated she is in support of better recycling practices for the County as recommended by the Recycling Citizens Advisory Committee (RCAC); and the recommendations from last August that were deferred to November and then to today now include a comprehensive cost analysis report prepared by the Solid Waste Department, which she fully supports. She stated it is her hope that the Board will act today to approve the recommendations regardless of cost since the extra landfill money can cover any cost that the
RCAC agreed upon in deliberation of the recommendations. She requested the Board respond to the request submitted November 18, 2003 based on Commissioner Carlson’s request to review all issues that came before the Committee; in particular she is concerned about 2.a, that
a meeting between the School Board and Solid Waste Department occur to offer the assistance that the Superintendent requested; and she is curious to know whether the Superintendent’s request has been answered. She stated 3.a is that the quarterly meetings take place between Solid Waste Department and volunteers with the city recycling contacts and Waste Management to improve communication regarding recycling concerns. She stated Brevard County is a large County; and sometimes the different cities do not communicate well. She stated the correspondence she submitted relates to today’s cost benefit analysis for number 4, initiate a mandatory recycling program for commercial properties; it was the recommendation of the RCAC that all businesses be required to recycle through a County Ordinance; while RCAC did support the method of individual calculations, it was not to replace the ordinance, but in addition to it. She stated it was not the Committee’s recommendation to make commercial recycling voluntary; people will not recycle unless they absolutely have to; and Montgomery County, Maryland and Broward County, Florida use investigators or compliance assistants. She stated there is extra money being generated from the disposal fees and the new tipping fees; she has spoken to Mr. Rodriguez and would like to know from Mr. Knox if the salaries of these officers could be taken from the disposal fees; and if so, would the Board approve these compliance officers for all Brevard County commercial properties.

Amy Tidd stated today they are just looking at the recommendations that have come back; most of them are reasonable and workable; and the County needs to step forward as an example to the community because without government pushing recycling, people do not worry about it, know where to go for their bins, or know what can be recycled. She requested the Board step forward on this; and stated the commercial side is the only question because the other ones seem reasonable. She stated they have recommended a mandatory commercial recycling program, with only three Code Enforcement officers; but that was only recommended when considering the tipping fees that the Board already approved. She stated the Committee does not want to incur any additional cost to the citizens of the County, so the tipping fees that were approved in August were considered in the proposal for the three Code Enforcement officers; and if that is not considered, then she would recommend the conversion. She stated one item was left off the Agenda that the Board did not take action on, and that is the converting of the commercial accounts to individual calculations; and they recommended three years, but Mr. Rodriguez said it would be possibly four years. She stated the information was given to the Board at the November meeting; it is not anything to do with a cost problem for the County except for the informational brochures at $29,000; and requested if the Board does not choose to make commercial recycling mandatory, it make a motion to go to individual calculations. She stated that encourages businesses to look at their pocket; if it is cheaper to recycle, businesses will do it; and she would like to see Brevard County recycle wherever it can.

Commissioner Carlson inquired what does the calculation entail currently and what would happen if the accounts were converted to individual calculations. Mr. Rodriguez responded what the individual calculations would mean is calculating how big the container is for the
individual business and that amount would be multiplied against “X” dollars approved in the rate resolution, so businesses would pay for what they actually use. He stated right now there is a hybrid system where some pay by square footage and others pay by individual calculations.

Commissioner Carlson stated if they went with a mandatory recycling program and the recommendations that were attached to the Agenda, it says there would be commercial recycling and the estimate would necessitate an increase in the assessment for commercial recycling from the current $15.45 to $26.16 per billing unit; and inquired how did staff get to $26.16. Solid Waste Management Director Euri Rodriguez stated that was originally calculated from the fee that the commercial businesses in the unincorporated area pay for recycling education and addition money needed to cover the Code Enforcement officers; and there is a question whether the fees could be paid out of the disposal money; he does not think so; but he will defer to the County Attorney’s opinion. Commissioner Carlson stated the other question is if it did go to individual calculations, would there be occasions that commercial entities would see an increase in the $15.45 fee; with Mr. Rodriguez responding no, the individual calculation might be a decrease or an increase in that portion; but they would see it much more on the disposal side. He stated that is on the recycling and education; in the past they have seen some commercial being able to save $1,000 to $2,000 a year depending on how much garbage they generate; but there are also some preliminary calculations they brought to the Board in November that show some categories of businesses going up 700%. He recommended not going by percentages alone because that particular one was a $4,000 total increase; a lot of them are going down; and what will happen is that businesses will control how much they pay by how much they recycle and how much they throw away. Commissioner Carlson stated Ms. Danse and Ms. Tidd also spoke to the dollars charged for C&D tipping; the Board discussed it but did not take any action about designating those dollars toward the recycling efforts; and inquired if the Board is interested in doing that. She stated she is assuming those dollars will become available as the tipping fees come in; with Mr. Rodriguez responding that is a reoccurring revenue. Commissioner Carlson stated the RCAC made a recommendation; the Board did not vote on whether it would designate the new dollars; and the recommendation was to start charging a tipping fee for C&D debris, which was estimated to bring in approximately a million dollars. Mr. Rodriguez advised it was estimated at a million dollars; but it does not look like they will be reaching it, although it is early in the year to determine whether they will reach the goal or not. Commissioner Carlson stated the recommendation was to apply those dollars to some of the types of recycling opportunities to offset any additional cost to the taxpayer; and that is where the mandatory recycling for commercial comes in because there was a significant cost to it and some of the others were more minimal costs. She stated she wants to see if the Board wants to designate those dollars to recycling efforts to give the program more muscle versus just doing a low level educational process in recycling. She stated she would like to see all recycling mandatory; but the community has to get used to that idea; and a good place to start would be the commercial sector because it is more controllable than the residential sector.

Commissioner Pritchard stated the only concern he has is if the cost of doing business increases, the cost to the consumer will increase. He stated he read an article about Orange County, which paid approximately $3 million to collect $60,000 in recylables; and inquired if the
figures sound correct. He stated he is not opposed to a recycling program; but he is opposed to one that is going to cost a lot of money; and he is also opposed to using a new revenue stream for a new project. Commissioner Pritchard stated he would rather use the revenue stream to pay for what the County has that is currently underfunded; the capital outlay list is enormously
underfunded; and there must be other things that they can use in the current operation that they can help pay for with the creative revenue stream by not creating new programs. Mr. Rodriguez stated some of the money has already been targeted for recycling; they have already separated $150,000 this year for concrete crushing; and next year part of the money has been targeted toward something else. Commissioner Pritchard stated the concrete that they will be crushing is going to be used for roadbed, etc., so it will be in lieu of paying for other things; and that is his point. He stated if they are going to use it to offset a current payment and derive a benefit by getting a higher return on the investment, he has no problem with that; but he does have a problem with creating a new program just because there is a new revenue stream. He stated there are too many things the County currently cannot afford that should be taken care of first. Commissioner Carlson stated she does not think they can use those dollars for anything outside of Solid Waste; with Chair Higgs concurring. Commissioner Pritchard stated Solid Waste has programs that are underfunded. Commissioner Carlson stated the fee to recycle C&D debris was never there before; it was created based on the recommendation of the RCAC as an avenue to pay for some of the programs or to expand existing programs; and they are trying to put a little muscle into some of the existing programs. She stated she is not for creating a new program; but as long as it does not cost the taxpayers and they are doing something good in terms of making sure people start recycling more actively, it seems like a good use of those dollars. She stated it may not be the full amount, but some amount would be better than nothing. Commissioner Pritchard stated if the Board is going to create recycling programs, the residential recycler needs to have convenience; that is her primary focus; there will always be people who will pick up cans or newspapers because they enjoy that; but in order to get the majority of the residential recyclers to participate, it has to be convenient, so that is the big issue. He stated for commercial it needs to be more cost effective; if it is not going to be cost effective, there will be ways to circumvent the recycling program; they are not going to have the incentive to participate; and if they have to participate, the taxpayers are going to pay the freight because the cost of their product is going to increase to offset their cost. He stated before he is going to leap in and get involved with the various programs, he needs to know the specific outcomes and the potential effect it is going to have on the residential as well as the business community.

Commissioner Scarborough requested Mr. Rodriguez go down the bulleted list. Mr. Rodriguez stated they include placing recycling bins and/or reuse tables for magazines in libraries; this is at no additional cost; one has been deployed; and there are plans to deploy the following. He stated they recommend green procedure policies in all facilities. Chair Higgs stated there is a policy in the package; and inquired if anyone wants to move that item.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve the draft Policy for green procedure policies.

Mr. Rodriguez stated the draft policy is to encourage recycling; it has a cost of approximately $11,000 to use recycled paper in all facilities, to encourage the use of Energy Star products, and to pursue additional recycled products that are cost effective to use.

Commissioner Pritchard stated the $11,000 financial impact for office printing services and inquired does the Board recover any of that; Mr. Rodriguez stated as people recycle, the recycled paper stays away from the disposal. Commissioner Pritchard stated that is what he is getting at; there is recycled paper that is collected at Viera; it goes off to a recycling company and stays out of the landfill; and inquired what is the $11,000 cost; with Mr. Rodriguez responding it is the additional money to purchase recycled goods. Commissioner Pritchard inquired if Mr. Rodriguez is just talking about purchase and not what might be saved by not sending paper to the landfill; with Mr. Rodriguez responding that is correct. Commissioner Pritchard inquired how much are they saving by not sending paper to the landfill; with Mr. Rodriguez responding approximately $100 to $200 a month. Commissioner Pritchard stated the County is saving $2,400 a year; and it is costing $11,000. Mr. Rodriguez stated they are using the Government Center as an example; and the $11,000 is Countywide. Commissioner Pritchard inquired Countywide how much are they saving by not sending paper to the landfill; with County Manager Tom Jenkins responding they are mixing apples and oranges; the $11,000 is how much more they will pay when they buy paper; and the cost avoidance at the landfill when they recycle paper is the saving of space. Mr. Rodriguez stated they save the landfill space and they save the General Fund from having to pay disposal charges. Mr. Jenkins stated it costs $62,000 a year to pick up the paper at all facilities; right now they only do it at the major facilities; there will be a savings at the landfill because they will not be using up space; and the collection bill will go down because there will not be as much trash hauled away. Commissioner Pritchard stated the Board does not know how much the collection bill will go down or how much it will be saving by not going to the landfill. Mr. Rodriguez stated that depends on participation rates of individual employees. Commissioner Pritchard stated right now it is $62,000 to pick it up and $11,000 to buy office paper and printing services, so it is $73,000; and inquired what is he getting for it. Mr. Rodriguez stated it might be better to have the Purchasing Department bring back the policy with a detailed explanation of what it will cover and what it will not cover. Mr. Jenkins advised staff needs to come back with a cost savings at the landfill. Chair Higgs stated she has a motion and a second to move the policy. Commissioner Pritchard stated they are not finished discussing it. Chair Higgs stated she is just saying there is a motion and a second to consider before talking about bringing it back. Mr. Jenkins stated he is trying to make the point that the green policy is a separate issue than how much capacity will be saved at the landfill. He stated he hears Commissioner Pritchard saying he would like a cost benefit/analysis of issue number three. Commissioner Pritchard stated he is tying it into the purchase; and he would like to know why he is spending an extra $11,000 to buy recycled material and then he is paying $62,000 to ship it to the recycler; and he wants to know how to offset some of the cost. He stated he is not looking for a feel-good program; he is looking for some value; and if the Board is saving a considerable amount of money by not having it at the landfill, he would like to know that also; but right now he is looking at $73,000. Commissioner Carlson stated the green procurement policies include other things than office paper; and recommended the Board be given a cost savings analysis. She stated Mr. Rodriguez stated it depends on how many of the agencies want to cooperate; but she would favor making it mandatory for all departments. Commissioner Pritchard stated using plastic/wood composite lumber is cost saving because it will last five times longer than pressure
treated lumber, so he knows there is a cost savings there; lighting conversion to energy efficient lamps would have a cost savings, so there are some good policies; but he is just questioning why they are doing what they are doing when he does not see what the cost savings are.

Commissioner Carlson withdrew the motion; and requested information be brought back in a timely manner about savings. She stated the Board may wish to go forward with the policy and bring the data back. Commissioner Scarborough stated part of the need for recycling is the market for recycling; it is cyclical; and if the Commission is not interested in purchasing, it is saying it does not want to create the market; but it is also saying it is wise to recycle because there is a market out there.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve the green procurement policies for all facilities.

Commissioner Pritchard inquired what is the point of having a program if it does not derive a benefit. Commissioner Scarborough stated sometimes when one analyzes benefits to individual units, it does not make sense; but when benefits are analyzed in a society sense, it does have benefits. He stated there are benefits to society to recycle; it is necessary to be participant in creating the market; and if the County is not willing to help create the market, then it is inconsistent in its philosophy. Mr. Jenkins stated the recycled paper the County may be buying probably will not from Brevard County, so it is not going to have a direct impact on the landfill. Commissioner Scarborough stated if the County does not do it, how can it expect other counties or businesses to do it; if there is no market, there is no ability to recycle; and inquired how much is the annual budget for Solid Waste; with Mr. Rodriguez responding $68 million. Commissioner Scarborough inquired what percentage is $11,000 of $68 million; with Mr. Rodriguez responding it is very small, but the $11,000 is spread through all the County agencies. Commissioner Pritchard stated it is taxpayer money and that is why he is more concerned than if he were running a company and decided to do something because it made him feel good. Commissioner Scarborough stated if he was the CEO of a company and he did not want to use recycled paper because it is more expensive, then the company would not do recycling. Commissioner Pritchard stated that is why he is asking for clarification.

Commissioner Carlson stated as the seconder of the motion she wants to be sure if this motion passes, that all departments participate.

Chair Higgs called for a voter on the motion. Motion carried and ordered; Commissioner Pritchard and Colon voted nay.

Commissioner Scarborough requested Mr. Rodriguez go through the rest of the items; and stated this has been back a couple of times.

Mr. Rodriguez another recommendation is to recycle office paper in all County facilities; they have determined that it would cost approximately $62,000 to have recycling going on in all County facilities; and it is not an additional $62,000, but reflects employee time to bring the office paper to existing facilities that have recycling. Commissioner Scarborough stated apparently there is a great difference between picking up every place and only picking up at key locations; and inquired if someone is not generating a lot, will they need the same frequency of pickup, and therefore could the cost be limited for the less frequent producers. Mr. Rodriguez stated this is supposing that it is a small office with one to three people; they would generate a box of paper; and they would take an hour to take it to a facility at an average employee salary of $20,000. Commissioner Carlson stated it is an existing employee who would be doing that as part of their job. Mr. Rodriguez stated that is the cost of existing employee time; with Commissioner Pritchard advising that time could be used to do something else. Commissioner Pritchard stated people are hired to do a specific funding; this is taking them away and adding something else; and it is costing $62,000 to have them do that. He stated there either has to be a better way or there has to be another plan.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to recycle office paper in all County facilities, and direct it be done when staff has no other more critical tasks. Motion carried and ordered; Commissioners Pritchard and Colon vote nay.

Mr. Rodriguez stated the next item is to initiate a mandatory recycling program for all commercial properties. Chair Higgs stated everyone understands that one; and inquired if there is a motion.

Motion by Commissioner Carlson, to initiate a mandatory recycling program for all commercial properties.

Commissioner Scarborough inquired about Mr. Rodriguez concerns on this issue; with Mr. Rodriguez responding his concern is enforcement. Mr. Rodriguez stated in order to not have a paper tiger, it would be necessary to hire Code Enforcement officers to make sure it is mandatory for all commercial properties within the unincorporated area. Commissioner Scarborough inquired if there is any way to start this without hiring personnel. Chair Higgs stated the Board discussed this earlier; and moving to individual calculations creates an incentive plan; but she is not ready to support a mandatory commercial plan today. She stated she is interested in moving to the calculations.

Commissioner Carlson withdrew her motion.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to initiate individual calculations for a recycling program for commercial properties.

Commissioner Scarborough stated the Board should get some real detail and share it with the Chambers of Commerce so they will know about the issue. Commissioner Pritchard inquired if it should come back as a report; with Commissioner Scarborough responding it needs to have some input.

Mr. Rodriguez stated #5 is to investigate establishing manned reuse centers at the landfills; and the Department is suggesting putting a pilot program at the Sarno Road landfill. Mr. Jenkins inquired what is the cost; with Mr. Rodriguez responding $52,000 and $4,000 for a shed. Mr. Rodriguez advised the $52,000 reflects a yearly salary for two employees; and if it is a pilot program, the can use temporary employees. Chair Higgs stated there are lots of reuse and recycling centers around the County; she does not see any reason the County is uniquely situated to do that; and she sees other things only the County can do. Commissioner Pritchard stated he agrees. Mr. Jenkins stated they can make an effort to promote those existing locations. Chair Higgs stated that would be a great idea.

Commissioner Carlson stated in the briefing, they said they were already considering starting one at the landfill. Mr. Rodriguez stated it is very similar; it is a recycling center instead of a reuse center; and it has worked well at the Mockingbird facility where they put out a bins for tires, magazines, etc., and has been well received by the community. He noted they were able to achieve that at no additional cost, so he is proposing to do is to the same at all Solid Waste facilities. Commissioner Carlson inquired if that is different than the reuse centers; with Mr. Rodriguez responding yes. Commissioner Carlson stated it would be good to duplicate the success at Mockingbird facility. Mr. Rodriguez stated it is not listed because they planned to do it anyway since it was at no additional cost.

Chair Higgs stated the next issue is the use of glass cullet in road base. Mr. Rodriguez stated it is to investigate the use of glass cullet in road base course to reduce material cost in construction of County roads and pathways; they have sent the item over to the Transportation Department, which did some estimates; and the bottom line is it would cost more to use the glass cullet than to use the traditional cement base.

APPROVAL, RE: 2004 FEDERAL APPROPRIATIONS REQUESTS PACKAGE

Commissioner Scarborough stated he planned to have lunch with Lobbyist Ed Pauley, M. J. Soileau of UCF; he went over with Frank Kinney, but unfortunately Mr. Pauley was sick and could not make the meeting. He stated the issue may be more than just hydrogen; hydrogen is not a source of energy because it takes energy to create hydrogen; so it is an alternate fuel. He stated certainly there is a lot of money going into hydrogen; but since the County has the Solar Energy Center, it may want to rephrase in a broader sense. He inquired if the Board has to act
on this today; with Mr. Jenkins responding the sooner the better, but they can continue to work on it. Commissioner Scarborough stated he may need to get Mr. Soileau and Mr. Pauley on the phone together. Mr. Jenkins stated they can do the rest, but leave that item for further work. Commissioner Scarborough stated the base closing issues and the nature of what KSC will play
in the future are not mentioned; and inquired should they be mentioned in a general sense; with Mr. Jenkins responding yes. Commissioner Scarborough suggested staff draft something and bring it back when they discuss the energy issue.

Commissioner Carlson stated since the County is a partner in the Brevard Tomorrow strategic initiative and the program of Leadership Brevard, she would like to know if the Board would support having the lobbyist assist in the County’s behalf to see if there is any one-time funding available to continue development of the model program. She advised the County has invested financially into the Brevard Tomorrow strategic effort. She stated Kristen Bakke, who is president of Leadership Brevard has been asked to do a presentation on the Brevard Tomorrow model in a national forum for regional programs; and she also wants to have a meeting with Secretary of State Hood to request funding potentially of a model program for the State. She stated MyRegion is working with the program and the model that Brevard Tomorrow initiated; and she wants to see if it is possible to get community support to see if there is funding available. Chair Higgs inquired if that is in the State; with Commissioner Carlson responding no, she is talking about federal funding; there are 13 appropriation bills; and Ed Pauley said there might be some dollars available that could be earmarked for something like this, but they will not know until he pursues that.

Chair Higgs stated the Board needs to prioritize the four since it deleted the hydrogen; beach restoration matching funds are critical; this would be the third year for requesting reimbursement for land that U.S. Fish and Wildlife requested the County buy; and she does not know about the other two. She suggested A be first, and C be second; and she is not sure about B and E.

Commissioner Scarborough stated the Board may want to bring back some other items too. Chair Higgs suggested not doing any of it now as the Board needs to prioritize. Commissioner Scarborough stated if he was a lobbyist, he would want to bring home whatever he could. Chair Higgs inquired if Commissioner Scarborough does not want to prioritize; with Commissioner Scarborough responding the Board can prioritize but the bottom line is the Legislators represent the same constituency and if something breaks, they would work as a team. Chair Higgs stated she appreciates that they should go after what they can get; but some Senate appropriations require that items be prioritized. Mr. Jenkins advised the County is required to fill out a form and rank the items; and inquired if the Board wants him to do it. Commissioner Scarborough stated his problem is he would want the Space Center at the top, but another Commissioner may want Patrick Air Force Base or the beaches, so they may be split on some things. Chair Higgs stated those are not in the House or Senate appropriations requests. Commissioner Scarborough stated how they divide money in NASA is a big deal; the County has never been there; but it better go there. Chair Higgs stated she disagrees; and suggested scrapping what they have and starting over with the things they really care about such as Patrick Air Force Base and Kennedy Space Center. Commissioner Scarborough stated each Commissioner has different priorities, which is why there are five Commissioners. Chair Higgs noted the Space Center is not even listed; with Commissioner Scarborough responding he just added it. Chair Higgs suggested prioritizing again; and inquired if the Space Center is number one. Commissioner Carlson stated it would be high on the list; with Chair Higgs responding she agrees, so it will be
number one. Commissioner Pritchard stated he does not have a problem with that, but he has a lot of issues that District 2 submitted including funding additional VA hospitals. Commissioner Scarborough requested Commissioner Pritchard make copies and send that list to him. Commissioner Pritchard suggested the item come back at another meeting. Mr. Jenkins noted Commissioner Pritchard’s list is on the back. Commissioner Pritchard stated the Board needs time to digest this; and recommended bringing it back at the next meeting.

Chair Higgs stated Mr. Peffer is going to advise that if the Board does not submit its beach funding request, it will not get in the ballpark. Assistant County Manager Steve Peffer stated that is his concern; he has been told the lobbyist wants information by March 10, and that he needs to provide that to the House Appropriations Committee by March 15, so that is the time constraint; and he does not know if they do not get it in by then whether they will lose everything, but the Board needs to be aware of the time constraint.

Commissioner Scarborough inquired how many requests can the Board legitimately put on the list; with Mr. Jenkins responding a lot of Commissioner Pritchard’s items are support for items rather than a specific appropriation request. Commissioner Pritchard stated instead of “support”, it could be “request.” He stated he can provide a revised list by tomorrow, and the Board can consider it at Thursday’s night meeting. Mr. Jenkins inquired about the timing; and could it be stretched to the workshop on March 11. Commissioner Carlson stated the deadline is March 10. Mike McGarry stated Congressman Weldon’s office has March 15 as an absolute deadline to receive the requests; Mr. Pauley requested he get it by the 10th to give him time to communicate and get the requests to each individual office in a more personal form; and Senators Graham and Nelson had a deadline of March 1. He stated the beach funding request was sent to their office as was the land acquisition funding for EELS; the Senate requested ranking, but did not mandate it; and he and Anne Birch agreed to rank high both projects, expecting the offices to call and request a number; and they requested a number, but it was not mandated in the instructions. He stated Congressman Weldon’s instructions mandated a number. He stated the deadline is tight; and as far as the Senate goes, if projects have not gotten in, it is too late according to the official instructions. Commissioner Scarborough inquired why is the Board seeing it today if it had to be in by March 1. Mr. Jenkins stated they put the request out, it took time to get the responses, and then they put it on the Agenda. Commissioner Scarborough stated someone did not communicate to Mr. Jenkins the timeframe to work under. Chair Higgs stated since they have missed the Senate, they need to go for the House. Mr. Jenkins stated he thinks they can still get in the Senate, although that is their preferred date. Commissioner Scarborough suggested considering this Thursday night, March 4, 2004. Chair Higgs stated that sounds good; with Commissioner Carlson agreeing.

CITIZEN REQUEST - DIAHN L. CLARK, RE: REFUNDING OF ZONING AND
CUP APPLICATION FEE FOR TINGLEY MARINA

Chair Higgs inquired if Ms. Clark or her representative is present; with no response heard. Chair Higgs stated all of the citizen requests should be rescheduled.

CITIZEN REQUEST - TIMOTHY POWELL, RE: CODE AMENDMENT LANGUAGE TO
ACKNOWLEDGE CERTAIN OPERATIONAL CONDITIONS WITHIN BU-1 ZONING
DISTRICT

Chair Higgs instructed Mr. Jenkins to reschedule the item as the citizen is not present.

CITIZEN REQUEST - GEORGE FREEMAN, RE: REVIEW OF CLARIDGE OCEANFRONT
CONDO SITE PLAT SP-03-12-001

Chair Higgs instructed Mr. Jenkins to reschedule the item as the citizen is not present.

APPROVAL, RE: 2004 FEDERAL APPROPRIATIONS REQUESTS PACKAGE
(CONTINUED)

Commissioner Scarborough inquired if it would be possible to come a half-hour early on Thursday to handle the legislative issues. Commissioner Pritchard stated that would be fine. Commissioner Carlson inquired if it is advertised to do that; with County Manager Tom Jenkins advising the Board can continue this meeting to 5:00 p.m. County Attorney Scott Knox advised that would be all right.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to continue the March 2, 2004 Regular meeting to 5:00 p.m. on March 4, 2004. Motion carried and ordered unanimously.

CITIZEN REQUEST - ROBERT FROMER, RE: ENDORSE AND RAISE AWARENESS OF
AWARD-WINNING SOFTWARE

Robert Fromer stated he was saddened to see the legislation the Board took time to put forward get overwhelmingly defeated by the voters; it is sad that the residents do not have a realistic expectation; and everyone knows that improvements cost funds, so he figures there will probably be a tax increase. He stated he is present to open a line of communications with the Board; there is a vision and mission statement of the Board at the back of the room; and he is here to help the Board achieve its vision to create a cooperative partnership between business and government, promote the vision by providing education, and help with the vision to financially support a quality lifestyle. He stated he wonders if any of the Commissioners would be opposed if Brevard County became the wealthiest county in the nation; and he wonders if the
Commissioners would have a problem if, when they pass along the next tax increase, they pass along a tool that would eliminate ten years of mortgage payments for the residents of the County. He stated as a resident of the County, he would not be opposed to a rate increase if the Board also showed him how to eliminate ten years of mortgage payments; and he is here to provide the Board with that tool. He stated he is offering the Commissioners a gift; it is an award-winning piece of software called the Mortgage Manager; and it has been around since 1989, but at present only has a half-million people using it, which is less than 2% of all mortgage
holders in the country. He stated his solution is to use the software to automatically create wealth for the residents of the County; his goal is to raise awareness of the most powerful technique in the financial services industry; the software and service are free; and it teaches people how to pay the same amount differently and exposes the best kept secret of banking. He stated banks have people pay their mortgages twelve times a year, which is based on 48 weeks; but because there are 52 weeks in the year, they take an entire month or approximately 1,080 days over 30 years of pure interest. He stated that means if someone borrows $100,000, they are going to pay back two and one half times that amount, with a total payback of $253,000. He stated the software and service automatically creates 26 half payments or 13 full payments, which creates 20 extra payments over 20 years, thereby eliminating over 100 mortgage payments; and if an individual stayed within the discipline and paid himself as if he was still paying his mortgage, he would end up with close to $200,000 in his self-funded IRA account. He stated the choice is yours; you can either pay yourself or pay your banker; and hopefully people will wake up and realize that it is best to pay themselves. He stated New York Times best-selling author David Bach wrote The Automatic Millionaire; and he has three important rules. He stated the first rule is to pay yourself first; the second is to invest in home ownership; and the third one is about his software. He stated the software sets up a biweekly mortgage program automatically; and the program automatically creates a discipline for people.

Commissioner Colon inquired is this Mr. Fromer’s company or job because this sounds like a sales pitch. Mr. Fromer responded he is not selling anything. Commissioner Colon stated Mr. Fromer is talking about something she already does personally; and advised this forum is not supposed to be used to introduce someone’s company or things of that kind. Mr. Fromer advised he is not trying to introduce his company. Commissioner Colon inquired if he is selling the software; with Mr. Fromer responding no, it is free at no cost to the Board, and he is offering it as a gift. He stated it is a free service and free software to try and help the people in the County become the wealthiest county in the nation. He stated it is great that Commissioner Colon is part of the 2%; and he is happy to hear that because it is the most financially sound technique in the industry. He stated most banks and mortgage companies will offer this program at $350 to $500 or more; and his mission is to make the County financially strong, one family at a time through the distribution of the software. He stated he is sure Commissioner Colon is asking herself why he is here and how this fits in with the Board; and the answer is simply, if money comes out of tax dollars for parks, recreation, and the baseball stadium to better physical health, then why would the County not also want to strengthen financial health, especially if it is at no cost. He stated he can help the Board accomplish its mission and vision; perhaps the software can be offered on the County’s website or included in the URL when it
passes out the tax bill. He stated he would like to contact each Commissioner individually to
discuss how to form a cooperative partnership to try and make the County the wealthiest in the nation. He submitted paperwork; and advised he just gave $350 million in goods and services to the Brevard School Foundation.

Commissioner Carlson inquired if the software is on the Foundation website; with Mr. Fromer responding yes.

Chair Higgs inquired if someone wanted to contact the Brevard School Foundation, could they get in touch with Mr. Fromer through that website; with Mr. Fromer advising absolutely.

Chair Higgs stated she appreciates Mr. Fromer’s presentation; and she will look over the material.

WARRANT LISTS

Upon motion and vote, the meeting was recessed at 5:10 p.m.

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

_____________________
SCOTT ELLIS, CLERK

(S E A L)