January 15, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on January 15, 2002, at 9:02 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox. Absent was: *Commissioner Jackie Colon.

ANNOUNCEMENT

Chairman Scarborough advised Commissioner Colon is caught in traffic, and will be late; but she has asked that the meeting begin without her.

The Invocation was given by Commissioner Susan Carlson.

Chairman Truman Scarborough led the assembly in the Pledge of Allegiance.

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APPROVAL OF MINUTES

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to approve the minutes of the October 2, 2001 Regular Meeting, October 18 and 31, 2001 Special Meetings, and November 13, 2001 Special/Workshop Meeting. Motion carried and ordered unanimously.

REPORT, RE: UNITED WAY

County Manager Tom Jenkins requested the Board allow Rob Rains, President of the United Way, to make a presentation.

Rob Rains stated he wants to share with the Board the success of the communitywide campaign; they surpassed their goal for the sixth straight year by raising $4.75 million, which is up 7%; and it is a tribute to the generosity of the people of the community, with the slowing economy and the tragedy of September 11. He stated a lot of people were concerned about the United Way campaign after seeing the results of the Orlando campaign, which was down 12%; and in the County collections were up 7%, over $300,000. He stated the campaign was a success because many organizations ran quality campaigns in the community; the two largest campaigns were Publix and Harris Corporation; and for the first time, both of those campaigns exceeded a half million dollars, and had huge increases. He stated another campaign that was important to the success was the Brevard County employees; it increased 26%; the County's employees raised over $106,000 for the community; nearly 1,000 County employees voluntarily contributed; and United Way is grateful for that. He stated over the last five years the County campaign has grown from approximately $25,000 to over $106,000, which is a 335% increase. He stated United Way will recognize all the companies and organizations at the annual meeting on March 14, 2002; but he wanted to let the Board know about the great job done by the community as a whole and by the employees in particular. He presented a United Way Achievement award to the County Manager; and advised the County Manager's office had 100% participation, as did Emergency Management.

*Commissioner Colon's presence was noted at this time.

REPORT, RE: SAMPLE OF THE ARTS PROGRAM

Commissioner Carlson stated there are representatives from the Sample of the Arts Program in the foyer; the display today is from the King Center for the Performing Arts Educational Theater Program, which presents live educational theater programs for youth at an affordable price utilizing professional touring companies from the local, national, and international level; and they are present to answer any questions.

REPORT, RE: PRESIDENTIAL CLASSROOM

Commissioner Carlson stated the Presidential Classroom is put on by the Chambers' Education Foundation; the Future World Leaders Summit will be held March 23 through 30, 2002; and the price for a student is $1,000. She stated the Presidential Classroom is a nonprofit, nonpartisan, education organization that provides top high school students with unprecedented access to the federal government and to those people who shape public policy; it provides students with the rare opportunity to explore international relations and diplomacy in the changing world economy; and anyone wanting more information about it may contact her office.

REPORT, RE: ACCUSATIONS OF WRONGDOING BY COUNTY EMPLOYEES

Commissioner Carlson stated there was a lot of input from various sources at the last meeting concerning one of the items on the Agenda of how the County's policies and procedures are carried out; from the employees perspective, the process did not leave a lot of opportunity for those being accused of wrongdoing to say their piece; and read aloud a letter from Patricia Doyle to the Board, as follows:

During all my years of employment working at the Pentagon, Department of Commerce, and two prestigious printing companies, I have never encountered an employer who did not support their employees when false accusations were being made against them. That is, until now. I'm ashamed to say that I work for this Board of County Commissioners who take a few disgruntled constituents' complaints as gospel, agree with them, and let these people say what they want about a County employee, and then change policies and procedures per their request. The members of this Board seem to forget that we as County employees and our friends and families are also voters and taxpayers in Brevard County. At both the December 4th and January 8th Board meetings, statements were made against Code Enforcement and employees of this Department including myself. These people have been allowed to go entirely too far in their accusations without getting any rebuttal from the people that they are making these accusations against. You, as our employer, should not let these people mention specific names on public television and stipulation should be made clear to any speaker who goes before the Board and is televised Countywide. When I came to work in Code Enforcement four years ago, I was warned that this was one of the most difficult Departments to work in but I was not discouraged because I thought that with my professional background I could help to make it better. I have received several awards for my work in this Department including Code Enforcement Employee of the Year for three of the four years that I have been here. In the past year, I have also received The Extra Mile Award, the Pulling Together Award, and just recently Brevard's Best Award. I've also received praise from respondents that I have helped through the Special Master process. To say that there is a conflict of interest in this process, is just not true. I have no verbal contact with the Special Master outside the hearing room. We have prepared hundreds of cases for the hearings and this is the first time that anyone has brought up these questions in the six years of Special Master process. Due to the unfortunate illness of Katherine Letosky, the previous recording secretary, I was forced into taking on the responsibility of the Special Master process and conducted two hearings per months for the entire year of 2000. In order to accomplish this, I had to work weekends, come in early, stay late, and do the menial tasks at home, but I did all of this without complaint because I was proud of what I was accomplishing. Needless to say, these false accusations made before the Board have caused personal turmoil and have upset our entire office. Mr. Bowen has done his best as the Manager of this Department, and I have done my best to do my job in a professional manner, as have my fellow employees in Code Enforcement. Do you realize that some of the accusations that were made were saying that we, as your employees, are doing something illegal, tampering with evidence? This is outrageous. I have never done anything dishonest in my life, and I am very saddened by this. Even though I know these people are wrong and that you are wrong in taking their word without further investigation, it is very disturbing. All of this is having a demoralizing effect on not only my professional and personal life, but also other fellow County employees.

Commissioner Carlson stated the Board did not give the opportunity to those who were being accused; apologized to those employees who took it personally; advised she does not think the Board's discussion was pointed at anyone; and the Board needs to take different actions than it did at the last meeting.

Chairman Scarborough stated he met with the County Attorney on this issue; and requested Mr. Knox address this. County Attorney Scott Knox stated the issue has caused some concern with employees; and what he and Chairman Scarborough talked about was coming up with a policy to address such situations in the future. He advised the people of the County have the right to criticize government; that is a First Amendment right, which is protected for everybody; however, by the same token, that right can be abused, and defamation and accusing people of criminal conduct is crossing that line. He stated there have been cases where local governments have enacted policies to put limits on things that can be said about people or accusations that can be made; some of those have been upheld by the courts; and suggested the Board look at doing something like that. He stated as far as the employees are concerned, they need to understand they are subject to criticism; however, they have a right to come back and make their own rebuttal to the criticisms, if they choose. He noted case law generally requires them to do that on their own time using annual leave; but the Board, by policy, may provide some mechanism to do that within the scope of their duties. He stated if the Board wants to enact a policy, it may; and the decision as far as the employees are concerned, is whether the Board wants to give them an opportunity to speak to the criticism during the course of the meeting, at the end of the meeting, or at some subsequent meeting.

Chairman Scarborough stated the Board should have Mr. Knox come back with this; if someone came forward and began defaming his or her neighbor, that would have nothing to do with what the Board is doing; and the Board can ask the County Attorney to define what is protected speech and what is not. He stated as a Commissioner he needs to know the truth; he does not want to hear just one side; he needs to be able to hear from the employees for the public good; and the public needs to know if they defame someone, it could be actionable. He stated freedom of speech does not mean someone can slander someone's good name; so there are several different issues involved; and Mr. Knox needs to put some things together.

Commissioner Carlson inquired if when accusations are made about an individual that are potentially illegal, would that be the point at which someone would advise this is something the State Attorney's office should be looking at, and needs to be put in factual content. Mr. Knox responded it would be helpful for the Board to have a policy saying something to that effect because if someone is going to be accused of wrongdoing, the place to do that is the State Attorney's office.

Commissioner O'Brien stated any time someone comes before the Board with a factual complaint, they have a right to do so; but the Board needs a policy. He stated if someone comes before the Board and says one of the employees has broken the law, the Board should stop that person from making public comment, and direct them to State Attorney Norm Wolfinger; and if they do not wish to do that, they should stop making comment because the meetings are televised, and it puts a black eye on good employees. He stated the Board, as the employer, should defend employees from small groups of people with an ax to grind; and he does not like the idea of people appearing before the Board without admitting they had a Code violation, such as occurred last week. He commented on individuals with Code violations besmirching employees.

Commissioner Higgs stated the Board should bring back a policy to clarify what is protected by free speech and what is otherwise; and as elected officials, the Commissioners face the situation where people can say almost anything about them, including accusations of violations of law, and perhaps are not as sensitive. Commissioner Higgs stated the Board does not want to inhibit freedom of speech, as that is a protected right; but it wants to allow people an opportunity to give both sides of the issue.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct the County Attorney and County Manager to prepare an Agenda item dealing with all issues involved, including how the Board can handle the issue in the future and when there are issues not directly related to the Board's action.

Commissioner O'Brien stated the Board is elected and open for criticism, but the employees are not; they work for the Board and County Manager; and he hopes in the policy there are ways to protect the employees from unjust criticisms, which they do not deserve. He stated the employees go home every day to their friends, neighbors, and families, and are embarrassed by the people on television; and that is not fair.

Commissioner Colon stated this discussion should have taken place immediately after what happened last week, because it is not possible to take back the hurt. She stated one thing that is important is not to have names mentioned; it is possible to tell what happened without giving names; a lot of City Councils do not allow people to get up and bash someone; and usually the Chairman is adamant about stopping people. She stated Commissioner O'Brien said as elected officials they are supposed to have thick skins; but it does hurt her; this is a sensitive issue; and she is glad it was brought up because it needs to be discussed. She stated the Board is heading in the right direction by taking action; and commented on the citizens of Palm Bay coming before the Board, being stopped when names were mentioned, and the Board having no jurisdiction over the City's issues. She stated from time to time people have come forward with municipal issues, and have not been told it is not within the Board's jurisdiction; and the Board needs to look at the fairness factor.

Commissioner O'Brien stated the people from Palm Bay came when he was Chairman, and he refused to let them speak about issues that were not the business of the Board; there have been people before the Board to talk about the City of Titusville and other areas that are not within the Board's jurisdiction; and there should be a policy to put an end to that. He stated people are using this forum, which is televised Countywide, to put forth their own personal agendas, etc; it is not fair because the other parties are not present to defend themselves; and the Board should not allow that to occur.

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

Chairman Scarborough directed the County Attorney to return with what the law is and where the options lie. Commissioner O'Brien requested Mr. Knox also include what he and Commissioner Colon mentioned about people speaking about other jurisdictions over which the Board has not power. Chairman Scarborough stated that will all be covered; anytime something comes up where there is an accusation of impropriety, the Board can ask the County Manager for a report; and commented on an incident involving the Public Works Director, where a report showed the allegations to be fallacious. He stated rather than having the burden shift to the employee, the Board can assure there is further analysis; and a motion would be in order for there to be a study of the allegations and a report back to the Board.

Commissioner O'Brien inquired if Chairman Scarborough wants a study or an investigation into allegations. Commissioner Carlson inquired if before that, the Chairman would request factual information from those making the allegations. Chairman Scarborough inquired if the Board wants to afford the accused individuals time to come before the Board, creating a forum where the persons on both sides would come forward, or does it just want to receive a report. He suggested taking it a step at a time, and if the person on the other side finds there to be a problem with the report, he or she can respond further. Commissioner Carlson recommended it be out of the public eye. Chairman Scarborough noted there are first amendment rights.

Commissioner O'Brien stated an investigation would mean the County Manager would go to the person and ask to see the evidence; then he could go to the employee privately or however he chooses to handle it to get the other side; he would put them both together to say this is factual and this is not; and the report would come back to the Board; with Commissioner Carlson advising that is good.

Commissioner Higgs stated she does not want to discount some of the concerns that were raised in regard to interpretations; and while the Board does not want to get personal, it is responsible for the way policies and procedures are implemented. She stated the proper way for the Board to monitor is what was requested through the Audit Committee so the Board can be assured what it is passing is being implemented; and that is the proper course of action. She stated where the Board is proceeding now is in terms of a report from the County Attorney and County Manager as to how to handle the first amendment rights without stomping on those rights is proper; but the Board is accountable to the people for things that go on, and people have a right to come to the Board with concerns. She stated the Board needs to be sure it is dealing with those in a proper way; and she does not think the way the Board decided to proceed regarding certain issues with the audit is an improper way to go. Chairman Scarborough stated that is a separate issue from the allegations against employees; and he would prefer to proceed separately on that. Commissioner Higgs stated she is trying to distinguish that; she does not think the Board erred in some of its steps; but it needs to refine the way it does things.

LETTER OF SUPPORT, RE: CIRCLES OF CARE GRANT APPLICATION

Commissioner Higgs stated she sent the Board a request she received from Circles of Care requesting support for a grant application; and it is a federal funding source.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to authorize a letter of support for the Circles of Care grant application. Motion carried and ordered unanimously.

Commissioner O'Brien stated Circles of Care does an important function for the County; and many groups, such as HEART, would be happy to back this up.

DISCUSSION, RE: CHANGE IN BOARD MEETING SCHEDULE

Commissioner O'Brien stated there is a zoning meeting on May 30, 2002; and requested it be moved to May 23, 2002. He stated there is a workshop scheduled for May 23, but there is no topic for the workshop; and he would appreciate the Board working with him on this.

Chairman Scarborough instructed the County Manager to contact the Commission offices to work out the schedule.

REPORT, RE: LOST BOY SCOUTS

Commissioner Colon stated this past weekend, approximately ten Palm Bay Boy Scouts were lost; she called the Palm Bay Police and the Sheriff's Department on Sunday morning to find out what could be done; and expressed thanks to Major Smith of the Sheriff's Office who kept her abreast of everything that was going on. She stated they were ready to step in and send helicopters and boats if needed, but the children were found safe on Sunday morning; and it was a terrible ordeal for the boys and the adults involved.

REPORT, RE: JUVENILE JUSTICE COUNCIL

Commissioner Colon stated the Juvenile Justice Council's new officers began their terms; and the Chair is now Paul Evans with Circles of Care. She stated there was a briefing on significant Department of Juvenile Justice cuts; 20 positions were lost in the Brevard/Seminole District; and the County needs to be careful because it is either going to pay now or pay later. She stated a subcommittee was formed to support Juvenile Justice Week, which is February 17 to 23, 2002; and the theme is Reducing Juvenile Crime in our Community. She stated with Together in Partnership (TIP), the three and five-year objectives to address the risk factors of family management problems, academic failure beginning in elementary school, and sanctions, were approved for submission before the Leadership Round Table on Friday, January 18, 2002. She stated the media plan to increase public awareness of issues surrounding priority risk factors was also approved for submission, as was the definition of best practices, including sample best practice programs. She stated the time for presentation of the final strategic plan is going to be at the beginning of April 2002; and a budget review subcommittee was also created to research the cost associated with the media campaign and continued staffing of TIP.

PERMISSION TO TRAVEL TO TALLAHASSEE, RE: RAILS TO TRAILS COMMITTEE
MEETING

Chairman Scarborough advised when the Board has its workshop on the elderly on January 17, 2002, the Committee that ranks the Rails to Trails projects is going to be meeting in Tallahassee; and requested permission for his Special Assistant Rene Davis to travel to Tallahassee to attend that meeting.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve travel for Rene Davis to Tallahassee, Florida, to attend the meeting of the Committee that ranks the Rails to Trails projects. Motion carried and ordered unanimously.

RESOLUTION, RE: RECOGNIZING EAGLE SCOUT BRANDON WEISS

Commissioner Carlson stated Brandon Weiss could not be present this morning as he is taking exams; but the presentation will be made at the Court of Honor ceremony next Sunday. She read aloud the resolution recognizing Eagle Scout Brandon Weiss.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution recognizing Brandon Weiss for his achievement of the rank of Eagle Scout. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL RE: ISLES OF BAYTREE, PHASE 2

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to grant final plat approval for Isles of Baytree, Phase 2, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH GEORGE REIS, RE: REIS PAVED ROAD

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to execute Unpaved Road Agreement with George Reis for construction of a road in existing County right-of-way. Motion carried and ordered unanimously.

APPROVAL OF POLICY, RE: FEE WAIVER

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, approve Policy for fee waivers concerning applications processed by the Planning and Zoning Office. Motion carried and ordered unanimously.

AMENDMENT NO. 1 TO AGREEMENT WITH MARINE RESOURCES COUNCIL, RE: INDIAN
RIVER LAGOON INITIATIVE

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to execute Amendment No. 1 to Agreement with Marine Resources Council for the Indian River Lagoon Initiative Shoreline Restoration Project, extending time for completion of Tasks II and III until January 23, 2003. Motion carried and ordered unanimously.

APPROVAL, RE: FY 2002 CERTIFICATIONS AND ASSURANCES FOR FEDERAL
TRANSIT ADMINISTRATION GRANTS

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to execute the Fiscal Year 2002 Certifications and Assurances for Federal Transit Administration Grants. Motion carried and ordered unanimously.

RESOLUTION, GRANT APPLICATION, AND AGREEMENT, RE: SCAT
SECTION 5311 RURAL TRANSIT GRANT

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to adopt Resolution and execute Grant Application for Federal Assistance of $50,000 from Section 5311 Rural Transit Operating Funds for FY 2003; and authorize the Chairman to sign standard follow-up Joint Participation Agreement, subject to approval by the County Attorney and Risk Management. Motion carried and ordered unanimously.

RESOLUTION AND JOINT PARTICIPATION AGREEMENT WITH FLORIDA DEPARTMENT
OF TRANSPORTATION, RE: COMMUTER ASSISTANCE GRANT

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to adopt Resolution and execute Joint Participation Agreement with Florida Department of Transportation for $250,845 to provide commuter assistance service from February 1, 2002 through January 31, 2004; and authorize the Chairman to execute the standard follow-up amendments or addenda, contingent upon County Attorney and Risk Management approval. Motion carried and ordered unanimously.

AMENDMENT TO AGREEMENT WITH SQUIRE, SANDERS & DEMPSEY, RE:
DISCLOSURE COUNSEL RETAINER

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to execute Amendment to Agreement with the law firm of Squire, Sanders & Dempsey to extend term of the Agreement for a two-year period. Motion carried and ordered unanimously.

AMENDMENT NO. 2 TO AGREEMENT WITH THE OFFICE OF TOURISM, TRADE, AND
ECONOMIC DEVELOPMENT, RE: LOCKHEED-MARTIN CORPORATION GRANT

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to execute Amendment No. 2 to Agreement with the Office of Tourism, Trade, and Economic Development for Lockheed-Martin Corporation Grant in the amount of $1,783,314; authorize the closeout of the Grant Project; and authorize final payment to be paid from the State Grant . Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: BREVARD WORKFORCE DEVELOPMENT BOARD'S
FINANCIAL STATEMENTS AND INDEPENDENT AUDITOR'S REPORT

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to acknowledge receipt of the Brevard Workforce Development Board's Financial Statements and Independent Auditor's Report for the year ended June 30, 2001. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZENS ADVISORY BOARDS

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to appoint Timothy Walker to the Community Development Block Grant Advisory Board, replacing Michael McDonald, with term to expire December 31, 2002; Michael McDonald to the Parks and Recreation Merritt Island/Beaches Service Sector Advisory Board, replacing Evon Jackson, with term to expire December 31, 2002; and Helen Dezendorf to the Port St. John Public Library Advisory Board, replacing Robert Mills, with term to expire on December 31, 2002. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

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

PUBLIC HEARING, RE: ORDINANCE CREATING MELISSA COURT WATERLINE
EXTENSION MSBU

Chairman Scarborough called for the public hearing to consider an ordinance creating Melissa Court Waterline Extension MSBU.

There being no comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Colon, to adopt an Ordinance of Brevard County, Florida; creating the Melissa Court Waterline Municipal Service Benefit Unit; incorporating the terms and provisions of Chapter 98, Article II, Code of Ordinances of Brevard County, entitled Municipal Service Benefit Units, to authorize the acquisition and construction of certain capital improvements within such improvement area and the imposition of non ad valorem assessments within such improvement area; and providing an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, SECTIONS 62-1953 AND
62-3203, TOWER REGULATIONS TO PROTECT MIGRATORY BIRDS

Chairman Scarborough called for the public hearing to consider an ordinance amending Chapter 62, Sections 62-1953 and 62-3203, Tower Regulations to Protect Migratory Birds.

Zoning Official Rick Enos stated several months ago, the Board heard a report from Marjorie Derrick expressing concerns about migratory birds; the U.S. Fish and Wildlife Service (USFW) estimates that as many as four to five million birds a year are killed by flying into very tall communications towers and other tall structures; USFW has published some guidelines on what can be done to reduce bird strikes; and the Board directed staff to incorporate those guidelines into the current regulations on towers. He stated the ordinance incorporates most of the guidelines; some could not be translated well into ordinance form; but the important ones dealing with limiting height of towers, limiting towers to monopole or lattice-type towers with no guy wires, limiting lights on towers, and shielding of tower lights are included. He stated at the bottom of page 1, going to page 2, there is a provision for extensions up to 20 feet; staff recommends clarifying that is just one extension of no more than 20 feet or some accumulation of extensions not exceeding 20 feet; and suggested the language, "no combination of extensions exceeding 20 feet above the height of the original structure shall be permitted." He inquired if the Board wishes to go through the changes in detail; with Chairman Scarborough responding yes. Mr. Enos stated at the bottom of page 2 is the standard that towers shall use construction techniques that do not require guy wires, which is lattice and monopole structures only. Chairman Scarborough inquired why is that change being recommended; with Mr. Enos responding in certain weather conditions, if it is overcast, migrating birds will become confused by lights on towers and be drawn to the lights; but they are unable to see the guy wires at night, and sometimes fly into the guy wires; and that causes some of the bird kills. Mr. Enos stated this provision would prohibit use of guy wires on towers. He stated on page 3, paragraph 5, it is required that all security lighting on the ground be down-shielded so those lights cannot be seen from the sky; and on page 4, paragraph 7, they are increasing the amount of space on the tower to be available for co-location; currently the Code requires one co-location spot; and this would increase it to two, with the goal being to reduce the number of towers in the future. He stated on page 4, paragraph 8, the provision says, "any tower exceeding 200 feet in height must use the minimum number of warning and obstruction lights required by the Federal Aviation Administration"; paragraph 9 addresses the duration and intensity of the flash; and the intent is to reduce the attractiveness of the tower lights to birds. He stated page 5, item 10 says, "on towers exceeding 1,000 feet in height, only white strobe lights shall be used at night where permissible by the FAA"; and there is some evidence that white strobe light is less attractive than red lights. He stated paragraph 11 says, "where lighting is required by Mosquito Control, on towers less than 200 feet in height, the frequency of the high intensity lighting shall not exceed 20 flashes per minute"; he worked closely with Mosquito Control, the Audubon Society, and others interested in the birds' perspective on this; and the goal is to reduce the intensity or number of flashes to reduce the attractiveness of the lights to birds, while maintaining adequate frequency for the Mosquito Control pilots to be able to see where the towers are at night. He stated number 12 says, "all lights on towers of any height shall be up-shielded such that the lights cannot be seen by local residents within two miles of the tower, and all existing towers shall comply with this provision within two years of the date of the adoption of this regulation." He stated one of the objections to towers is the lighting that is seen from the ground by the residents; and this would require that shielding be installed so anyone on the ground within two miles would not be able to see the lights. He stated number 13 says, "where permitted, guyed towers shall use daytime visual markers or bird devices to mark the guy wires to make them more visible to the birds." He stated at the bottom of page 5, paragraph K says, "third-party tower construction projects on federal or State lands are subject to the provisions of this Section and all other applicable regulations unless the third party is acting on behalf of the federal or State government." He stated a tower constructed by a third party on behalf of the federal or State government does not require local permits; however a tower constructed on federal or State property for a private sector endeavor shall comply with all local regulations; and this provision was added because there has been some question as to whether towers built by the private sector, but located on public land is subject to these regulations; and this clarifies the circumstances under which they are required to comply with local regulations. He stated page 7, number 8 says, "co-location of antennas and equipment on existing towers and tower sites, where there is no expansion of the lease area, no relocation of existing fencing, and no clearing of existing vegetation necessary, shall not require a site plan"; and this removes the site plan requirement on existing towers when a new user wants to add antenna equipment to an existing tower.

Commissioner O'Brien stated although USFW estimates there are four to five million birds killed annually by towers that are over 200 feet tall, he has yet to see the study, data, or anything else that backs up that statement; and he does not like making rules, regulations, laws, or codes without something in hand giving the facts. He stated this is no reflection on anyone; but there are people who come before the Board all the time to make claims of various kinds; and he does not know if the killing of birds around towers is really being affected by the towers in Florida or Wyoming or Denver. He stated he does not know what kind of birds are affected, or how many are killed in Florida versus California; it might be in places where the wind blows all the time, and there is a million-bird kill in one location; he does not know; and he does not like making regulations just to make regulations. He stated this sounds good; it is warm and fuzzy; but he needs more than fuzziness to make this decision today. He stated he is having a hard time going through this; he is not a proponent of towers as everyone well knows; but he is against putting white lights on the top of towers. He stated anyone who lives in a condominium or apartment along any of the rivers can count 30 to 40 towers from their patios at night; and the most offensive ones are the ones that blink white, especially a strobe with four or five lights on the tower. He stated he understands some are necessary, but he can count 36 towers from his patio; he cannot see the argument that more towers are needed because the towers he is counting are all within sight of each other; and commented on the use of amplifiers and other electronics.

Motion by Commissioner O'Brien, to continue the public hearing to consider an ordinance amending Chapter 62, Sections 62-1953 and 62-3203, Tower Regulations to Protect Migratory Birds, until such time as a study by U.S. Fish and Wildlife is presented to the Board, the Board reviews it, and has time to look for counter-arguments, if there are any. Motion died for lack of a second.

Commissioner Carlson stated this has been in the hopper for a long time; the Board received plenty of detail from Ms. Derrick; and she does not know if Commissioner O'Brien's office has that information, but hers does. Commissioner O'Brien stated he read that and found it woefully short, and the studies made by U.S. Fish and Wildlife to defend the wording were not there. Commissioner Carlson stated in the briefing she brought up an issue about a tower in her District, where an application came in for a new CUP on an existing tower that used guy wires; the applicant questioned the integrity of the tower he wanted to replace, but then withdrew the request, so she launched an investigation. She stated the County needs to check that tower to see if it needs to come down and what the County needs to do with it; but there is no provision applicable to all commercial towers to make sure that if there is an integrity problem, it is not ignored. She stated because the application was withdrawn, nothing was done. Mr. Enos stated the Building Official can look at any structure anywhere in the County to determine if it is structurally sound; the Board cannot do anything as part of the action today because that issue has not been properly advertised; however, staff can come back with another ordinance that would amend the provisions that deal with newly constructed towers to have an engineer's statement every two years; and it could be retroactive to all towers. Commissioner Carlson inquired if that would cover the case she mentioned; with Mr. Enos responding yes. Commissioner Carlson stated if someone came in and identified a problem with his tower, he would not be able to walk away from it; with Mr. Enos suggesting it would be whether someone comes in or not. Commissioner Carlson stated she agrees; but no one knew there was a problem until the applicant brought it forward in that particular case.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to direct staff to prepare a report for the Board on how to deal with the integrity of existing and new towers. Motion carried and ordered unanimously.

Commissioner Higgs stated number 12 talks about the up-shielding of lights, with the result being that residents within a radius of two miles will not see the light; and inquired if they will not see a glow even if they cannot see the actual light. Mr. Enos stated he does not think that can be avoided because the light would shine upwards on the structure of the tower, so there would be reflection off the tower such that it would be possible to see the structure; but it would not be possible to see the direct light, and that would reduce some of the glare from the lights. Commissioner Higgs stated it should make it less offensive to people; but it may be misinterpreted by people; and inquired if the provision should be removed, leaving "all the lights on a tower of any height shall be up-shielded." She stated the other part of the sentence may cause problems because the light can be seen, although the direct light cannot be seen; with Mr. Enos advising staff can do that.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to retain the words, "all the lights on a tower of any height shall be up-shielded"; and delete "such that the lights cannot be seen by local residents within two miles of the tower." Motion carried and ordered unanimously.

Commissioner O'Brien stated the lowest altitude airplanes can fly at is 500 feet until the actual approach to the runway, except for Mosquito Control, so the airplanes would always see the light; but the up-shielding will make sure people do not have the lights in their windows 24 hours a day.

Commissioner Carlson stated going back to the tower she spoke of before, there are obvious problems in that transmissions are being picked up by local homeowners through their computers, telephones, and televisions; it is a quality of life and nuisance issue; and inquired where is that covered in the Code; with Mr. Enos responding it is not represented in this part of the Code. Commissioner Carlson inquired where would it be appropriate for it to be represented. Commissioner Higgs suggested getting a report.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct staff to prepare a report for the Board on dealing with tower transmission problems.

Commissioner O'Brien stated there are FCC laws about that; with Commissioner Carlson advising they are not getting any input from the FCC. Commissioner O'Brien stated the County may need a paragraph or sentence adding something to reference that law. Chairman Scarborough stated there may be a lot of federal regulations that already protect because no one is supposed to be taking away someone's capacity to use his computer. Commissioner Carlson advised the problem has been occurring for a long time. Commissioner O'Brien advised he was driving through Rockledge last week listening to an AM radio station, and could hear Morse Code over the AM signal.

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

There being no further comments or objections, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 62, "Land Development Regulations", Code of Ordinances of Brevard County, Florida; amending Section 62-1953, "Towers and Antennas", by adding new restrictions on construction of towers to protect migratory birds; amending Section 62-3203, "Developments Requiring Site Development Plans", by deleting the site plan requirement for co-locating additional antennas on existing towers; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances. Motion carried and ordered; Commissioner O'Brien voted nay.

DISCUSSION, RE: TIME CERTAIN PERSONAL APPEARANCES

Commissioner O'Brien stated the 11:00 a.m. time certain is for a personal appearance; and he thought the Board did not allow that.

Chairman Scarborough stated he met with the County Attorney on this issue; when someone has evidence that he or she cannot sit through a meeting, the Board is required to allow the person a time certain; and the person has to either show some evidence or sign an affidavit that Mr. Knox has prepared. County Attorney Scott Knox stated this case is a disability issue. Chairman Scarborough requested Mr. Knox report to the Board by memo on the issue and share a copy of the affidavit.

PUBLIC HEARING, RE: ORDINANCE CREATING ARTICLE XVII, CHAPTER 62,
ESTABLISHING UNIFORM APPEALS PROCEDURE FOR LAND DEVELOPMENT

Chairman Scarborough called for the public hearing to consider an ordinance creating Article XVII, Chapter 62, Establishing Uniform Appeals Procedure for Land Development.

Commissioner Higgs stated the Board has been given a couple of options regarding notification; and the Board should require the applicant to notify the abutting property owners 30 days prior to the anticipated day of the issuance of the permit, which is Option 2.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Option 2, require the applicant to notify abutting owners 30 days prior to the anticipated date of issuance of the permit.

Commissioner O'Brien stated he would also like to see the thoughts of Option 3 included, require notice to abutting landowners at the time the permit is issued; the notice should be about the permit being issued; and inquired if there is a way to incorporate the two. Commissioner Higgs stated under Option 2, the abutting property owners are going to be notified 30 days prior to the issuance of the permit; with Commissioner O'Brien advising he misinterpreted it.

Chairman Scarborough stated when he and Mr. Moia spoke, Mr. Moia felt the greatest amount of time would be afforded as soon as the application came in. Land Development Director Bruce Moia stated that is correct; if formal application is made, the abutting property owners could be notified; that would afford them the most time to look at the Codes and for staff to work with the developer to insure that all Codes are implemented properly; and if there is any impact to the abutting property owners, they could be addressed during the review time. Chairman Scarborough stated the Board also needs to address the type of notification; and inquired if the Board is happy with 30 days. He stated the two things play together; and recommended discussing item 2. He stated he has yet to have anyone come to his office and say they were looking at the legal ads in the newspaper; and he has no problem with posting the property, but there are a number of people who are absentee owners who could be adversely affected. He stated what would bind someone who is an owner is if he was sent a letter with a return receipt requested; and that would show the notice had been received. He stated this could be something the County does or something the applicant does; and the applicant could then file an affidavit that he has noticed people pursuant to the County rules, and attach the return receipts. He stated that is similar to the way notice is done in administration of estates; and if there is a return receipt, there is not going to be any question and no one will be able to complain that he did not see the sign. County Attorney Scott Knox stated the only problem would be if certified mail was sent to a recipient who is not there, it would come back to the sender; it could be worded so that it would require an attempt to be made; and the posting and notification in the paper would be alternatives in case someone did not get the notice.

Commissioner O'Brien stated the only issue being driven is time; if someone has to notify three abutting property owners and one of them is in Europe for 45 days, he would have to wait until that owner could be notified; and that is not a problem other than just timeliness for the applicant. He stated the important part is the notice should be in plain English with a physical address and possibly a telephone number rather than just a legal description. Chairman Scarborough stated if someone has received a notice and signed a receipt for it, he is not going to have the right to come in later and claim that he has been denied notice; but there will still be some people who could claim the rules are not working fairly. Commissioner O'Brien stated that is why it should be done by certified mail rather than the newspaper, because the ordinary person does not read the public notices in the back of the newspaper. Chairman Scarborough agreed; and stated it costs money and is a waste of people's time. Commissioner O'Brien stated someone applying for a permit should notify abutting property owners and be given sufficient time that all abutting property owners have to at least sign a certified mail saying they received the notice.

Commissioner Carlson stated it is a good idea to have the applicant actually do the mailing of the letters of notification; but 200 feet is probably not enough. She stated when people come in to complain about an issue, it is usually a commercial or industrial site plan; but she does not know if the Board wants to include all site plans. She stated it would be fine if the applicant signed an affidavit saying he sent a letter; it could be a form letter with the legal description given in layman's terms so everyone can understand it; and if there is some process, it is to the applicant's benefit.

Chairman Scarborough agreed it is a good idea; and stated one of the problems is that if the County does that, more staff time is taken up, and that may end up increasing the cost of doing business. He stated all they would need is to sign an affidavit that they mailed notices to the abutting owners and the copies of the return receipts would be attached; and that could be put in the file.

Discussion ensued on return receipts and notification of property owners.

Commissioner Higgs stated it should be posted at whatever point the Board decides in addition to the letters to the property owners; the 200-foot radius is a minimum; and it should be notice for site plans and subdivisions, basically anything other than a single-family permit. Mr. Knox stated his question is whether the Board wants to extend this to building permits. Commissioner Higgs inquired if it can be defined as site plans and subdivisions; with Mr. Knox responding that is fine. Commissioner O'Brien agreed.

Commissioner Colon inquired in terms of how many feet to notify, why does 500 feet come to mind; with Assistant Public Works Director Ed Washburn responding Zoning notifies 500 feet with a courtesy notice, which is not a return receipt type of thing. Commissioner Colon stated 500 feet is enough. Commissioner Higgs inquired if Commissioner Colon is talking about a certified letter to all owners within 500 feet; with Commissioner Colon responding yes, and the applicant would be the one sending the notices. Commissioner Higgs noted that is stricter than what is done in Zoning, which mails out courtesy notices with no return receipt requested. Assistant County Manager Peggy Busacca stated 200 feet is used by the Board of Adjustment for courtesy notices; and what they have found with the courtesy notice is, if something is controversial, the neighbors will tell each other. Commissioner Higgs noted those are postcard courtesy notices, not return receipt requested, so there is a jump in terms of notification with the return receipt being requested. Ms. Busacca advised within 500 feet, occasionally staff will send out hundreds of notices; and at $4 per certified letter, that could be a substantial cost. Commissioner Higgs suggested a return receipt requested from abutting property owners and courtesy notices to the others within whatever radius the Board chooses. Commissioner Colon stated that sounds fair and inexpensive.

Commissioner Carlson inquired if it will be the application to begin permitting a subdivision or every permit that is required for development of the subdivision; and stated that needs to be clarified because the Board does not want to require the developer to send out notices for every single permit point. She inquired what would be reasonable. Mr. Moia recommended notifying people for development plans such as site plans; stated that would be full site plans as opposed to minor additions; and there are approximately 40 annually for subdivisions and approximately 80 of the full formal site plans, as opposed to approximately 120 where there are minor additions to existing properties.

Chairman Scarborough stated there has been a lot of discussion today; and he would prefer for this to go back and staff put the concepts together; he would prefer to go with Mr. Moia's suggestion of Option 1 rather than Option 2; and the Board can discuss that as part of the bigger picture.

Commissioner Higgs stated her thought was it made some sense for staff to work on the application with the applicant first; but she can go with what Chairman Scarborough is talking about in terms of the time of application, if that is the Board's desire. Commissioner Carlson stated she has no problem with that as long as people are given enough time to respond. Commissioner Higgs stated she thought 30 days at the intent to do it was adequate notice, but she could go that way; and staff would then have to establish a mechanism so concerned parties, other than the applicant, would be informed.

Commissioner O'Brien inquired if someone already has property zoned for 50 single-family homes, and they have a site plan laid out with the infrastructure, would that person be required to notify anyone around his site that he is going to build on his property.

Commissioner Colon stated the Board does not want the same thing that happened before; commented on problems created by developing property zoned years ago with no community notification; and reminded the Board of the case on A1A.

Permitting and Enforcement Director Ed Washburn advised when this was originally discussed, the Board was talking about notifying the property owners when there was an administrative interpretation or waiver; and if the Board is talking about notifying everyone when there is a site plan, it has been his experience if the applicant meets all the regulations and people have been notified, when people come to the Board to complain because it is vacant property that has never been developed, there is nothing the Board can do. He stated the incident Commissioner Colon referenced when there was an interpretation made that was inconsistent with what the neighborhood wanted. He stated staff can write it any way the Board wants; but if the County notifies all property owners for preliminary plats for subdivisions and site plans, people will be coming to the Board expecting it to do something it may not be able to do.

Commissioner Higgs stated the Board was trying to come up with a uniform way by which an applicant could initiate an appeal; that is where this started; and then the question became how is the public protected with a permit that they want to appeal, if they do not know when it was issued. She inquired if the public does not know, how does it initiate an appeal, and do they have two years to initiate an appeal; and that is something that needs to be defined. She stated in fairness to someone who is constructing something, he needs to have a limited period of time during which an appeal from an outside party could occur; so the County is protecting everyone in the process of notifying that this is happening and procedure for appeal. She stated she understands what Mr. Washburn is saying; but the public has the same right to appeal a permit or to have it considered; and the Board is trying to define at what point should the public be notified that something is underway and a permit is being considered.

Chairman Scarborough stated he agrees with Commissioner Higgs; the Board could have said the public has no rights; but someone brought forward a case in South Florida where the County did not follow the rules, and the courts required that a multimillion dollar condominium be razed. He stated the question is how to define those rights in a reasonable manner; and the Board is trying to determine when to notice because someone sitting at home has no idea what is happening in the Land Development Office.

Commissioner O'Brien stated Attorney Leonard Spielvogel is in the audience today; he often has some good thoughts; and invited Mr. Spielvogel to comment. He stated Mr. Spielvogel is the only person in the room who really gets involved with these kinds of things as an attorney; and this is something that will affect a lot of his clients as well as the public in general.

Attorney Leonard Spielvogel stated he has sent out a lot of certified letters that were never accepted; there are people who are frightened by certified mail because they think it brings no good news; and if someone is going to have to wait until the receipts come back, they may be sitting a long time waiting to find out if the person received the notice. He stated the Board undoubtedly wants to be even-handed about this, but it is doing a disservice to the applicants; when people receive a letter, they will assume they have some rights, and perhaps even challenge the permit; and that will stall the project, even though the applicant may have followed all the regulations. He stated the Board needs to distinguish between what is discretionary and what is written in the law; and if a property owner is not following the Ordinances and meeting the requirements, then the Board has recourse; but the Board is going to create a problem by suggesting to the public that they have rights that truly do not exist. He stated there may be some who will see this as a method whereby a project can be delayed; and a project delayed is frequently a project denied, which is not fair to those who are strictly following the rules and regulations of the Board.

Chairman Scarborough inquired if there is a process of appeal on one side, should there not be one for the other; stated there are times when the applicant comes forward and says this is not being interpreted fairly; so others should be able to raise the same issue. He stated the problem is how to give them notice so they can come forward in a timely manner and not hold up someone's application; and if it is not well-founded, that is going to be taken care of fairly rapidly.

Commissioner Carlson stated when the Board chooses Option 2, the individual, who may or may not have a concern, is notified to keep up with the process; staff is concerned that there may be several iterations on a site plan; and the question is when to give notification. She stated as long as there is intent, the County has notified them, and they know about it, a line needs to be drawn that says once the process has gotten to a certain point, discussion is not an issue any longer. She noted she does not know if the Board can do that legally; and requested advice from Mr. Knox. Mr. Knox stated the whole point of giving notice is to apprise them that there is intent to issue a permit; and if they want to do something about it, they can appeal it. He stated he understands Mr. Spielvogel's concerns about certified mail; and there may be another way it can be done in terms of registering mail with the post office so it is known that it was sent but not necessarily requiring a return receipt.

Chairman Scarborough stated the thing to do may be to go back to having staff do the mailing; and if staff does the mailing, he has less concern about doing the certification.

Commissioner Higgs inquired if the Board notices people when the applicant has submitted something, how will it define a period of time for the public to appeal in fairness to the applicant. Chairman Scarborough stated Commissioner Higgs and Commissioner Carlson make a good argument; and he is willing to go with Option 2. Commissioner Higgs stated she agrees with noticing people at the time the application is received; but the point at which there is intent to issue is the kicker at which the appeals process should go into effect; and that combines the two concepts.

Chairman Scarborough directed staff to taken something like what Commissioner Higgs summarized and bring it back to the Board to look at in final form. Mr. Moia inquired if Chairman Scarborough wants staff to bring it back for permission to advertise; with Commissioner Higgs responding no, the Board should continue this public hearing.

Assistant County Manager Peggy Busacca stated a separate ordinance will be needed because the additional language the Board is talking about will have to be put into the Site Plan and Subdivision Ordinance. Chairman Scarborough recommended getting permission to advertise to do it all at once rather than fragmenting the discussion. Ms. Busacca stated rather than continue this public hearing, staff would prefer to readvertise and bring it back at the same time as permission to advertise is requested for those ordinances, because she is not certain staff knows a date for this.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to direct staff to readvertise an ordinance establishing uniform appeals procedure for land development.

Commissioner O'Brien stated the application for the appeal is simply if any party aggrieved by an administrative decision or interpretation regarding the regulations contained in Chapter 62 desires to take an appeal to the Board; and the application for such appeal shall be filed with the County within 30 days; and inquired if the time has been changed, and what could an administrative decision be.

Mr. Knox stated he understood the Board wanted to limit the whole concept to site plans and subdivision plans, but Chapter 62 covers a lot of different things; with Commissioner O'Brien advising that is what he was afraid of. Commissioner Higgs stated she thought the Board was trying to have a uniform appeal that would kick in at a certain point; with Mr. Knox responding it is, and it would cover interpretations of Zoning Ordinances as well.

Discussion ensued on readvertising and need for additional briefings by staff.

Mr. Moia inquired when somebody formally submits a site plan, does staff then make notice to the abutting property owners; with Chairman Scarborough responding no, staff would post the property. Mr. Moia stated the property would be posted; and once the notice of intent is issued, there would be a time frame for the appeals to be filed; but once the permit is issued, then there can no longer be an appeal. Chairman Scarborough stated notice would be mailed when it is finalized; and the property would be posted when the application is received. He stated once the County gets the application, the notice goes out with the 30 days, with intent to issue; and inquired if that is okay. He stated there are other questions; and the best thing to do would be to visit with each of the Commissioners as there are other issues that will probably come out as this is discussed.

Commissioner O'Brien commented on the uniform appeal process; and inquired where does the Board want to go with this. Chairman Scarborough stated the Board has to make a decision whether it is going to have an appeal by the applicant, will the applicant be the only one with rights to appeal, and should other people in the community have a right to appeal. He stated if the Board wants the other people to have the right to appeal, there have to be some time parameters; the first question is does the public have any rights; and if they do, the Board has to define it. He stated Mr. Spielvogel's worst nightmare would be for this to be open-ended because there could be an appeal many years later; and inquired what would happen at that moment. Commissioner O'Brien stated this morning the Board has centered itself on notifying the public that someone has applied for a permit, even though the permit may be legitimate and the property is properly zoned; but now the person has to post the property and mail to abutting property owners. Chairman Scarborough stated he does not think that is where the Board is going; and recommended staff brief the Commissioners.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to direct staff to readvertise an ordinance establishing uniform appeals procedure for land development. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE REPEALING PROVISIONS IN VARIOUS SECTIONS
PROVIDING WAIVER PROCEDURES IN THE LAND DEVELOPMENT SECTION

Chairman Scarborough called for the public hearing to consider an ordinance repealing provisions in various sections providing waiver procedures in the Land Development Section.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to direct staff to readvertise an ordinance repealing provisions in various sections providing waiver procedures in the Land Development Section. Motion carried and ordered unanimously.

The meeting recessed at 10:35 a.m. and reconvened at 10:53 a.m.

PUBLIC HEARING, RE: ORDINANCE GRANTING ECONOMIC DEVELOPMENT AD
VALOREM EXEMPTION TO INTERSIL CORPORATION

Chairman Scarborough called for the public hearing to consider an ordinance granting economic development ad valorem exemption to Intersil Corporation.

Commissioner O'Brien stated Intersil Corporation is planning to hire 125 new employees averaging $24,000 per employee; the County needs jobs; and this is the part of economic development he likes.

There being no further comments or objections, motion was made by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt an Ordinance granting an economic development ad valorem exemption to Intersil Corporation, located at 2401 Palm Bay Road, Palm Bay, Florida; specifying the items exempted; providing the expiration date of the exemption; finding that the business meets the requirements of F.S. 196.012; providing for proof of eligibility for exemption; providing for an annual report by Intersil Corporation; providing an effective date. Motion carried and ordered; Commissioner Higgs voted nay.

PUBLIC HEARING, RE: REQUEST FOR VARIANCE TO BREVARD COUNTY COASTAL
SETBACK LINE FOR FLORIDRON LTD., INC.

Chairman Scarborough called for the public hearing to consider a request for variance to Brevard County Coastal Setback Line for Floridron Ltd., Inc.

Edward Fleis, representing the applicant Floridron South Shores Limited, Inc., stated Brian Sculthorp, Director of Floridron, is in the audience; and submitted paperwork to the Board, but not the Clerk. He stated the application is for approval of a variance from the Brevard County Setback Line; the subject parcel was developed in the 1940's with a triplex; and there is also a garage and other paved areas. He stated the existing structure is located over 26 feet east of the Coastal Construction Control Line, and a little over 51 feet east of the Brevard Setback Line; the site is .96 acre; and when the amendment was made to reduce density on the South Beaches, this parcel was vested at four units per acre, which gives it a vested density of three units. He stated the applicant is proposing that instead of developing the three units, to subdivide it into two parcels; and the request is for approval of a ten-foot variance on both parcels. He noted the application reflects a request for a ten-foot variance on the north parcel and a thirteen-foot variance on the south parcel; and the survey profiles and interpretations of the erosion report reflect the variance up to thirteen feet may be approved. He stated he is proposing to make a net improvement on the site; the mitigation they are proposing on the site, with Board approval, will include removal of the existing structures, restoration of the impacted area that is seaward of the new structures with native plants such as sea oats and other drought resistant salt tolerant plants, extension of the dune crossover or building of a new dune crossover that would extend to the ten feet beyond the vegetation line on the shoreline, and prohibition of armoring of the shoreline. He stated relative to the public interest, the approval of the variance would remove a building that is located primarily seaward of the Brevard County Setback Line; it would provide for relocation of the building as the proposed buildings would be located 37 feet landward on Parcel 1 and 41 feet landward on Parcel 2; and the proposed variance approval would not be injurious to the adjacent properties. He stated the structures designed on the site will meet the updated Codes, including the Turtle Protection Plan; the specifications on the buildings, as well as the windows and lights of the buildings will be to prevent glare on the shoreline; the dune area that is presently covered with asphalt or concrete will be restored with native vegetation; and they will provide for prohibition of armoring of the shoreline. He stated the variance is not contrary to public interest; and requested the Board's approval of the ten-foot variance on each of the parcels.

Commissioner Higgs inquired how will the applicant prohibit shoreline armoring; with Mr. Fleis responding through deed restrictions. Commissioner Higgs inquired what would it take to amend the deed restrictions; with Mr. Fleis responding when the land is conveyed to the purchasers, it will be placed into the deed restrictions. Commissioner Higgs inquired if they did not like the deed restrictions, what would it take to amend them; with Mr. Fleis responding he is not sure what language Commissioner Higgs is looking for. Commissioner Higgs stated she just wants some assurance; and inquired about amending the deed restrictions. County Attorney Scott Knox advised it would take a release from the person standing to enforce the deed restrictions. Commissioner Higgs inquired who would stand to enforce the deed restrictions; with Mr. Knox responding that depends on how the restriction is worded; and if the Board is given the authority to enforce the restriction, it would take a release of the Board of County Commissioners. Commissioner Higgs inquired if that language can be included; with Mr. Fleis agreeing. Mr. Knox advised they can work out the language; but basically it is something in the deed itself that says that the Board has the authority to enforce the restriction that is being imposed in the deed.

Commissioner Carlson inquired about removal of the block wall; and stated in her briefing it was suggested that removal of the block wall would make it consistent with what the Board has asked the other applicants to do in terms of mitigation. Mr. Fleis stated he does not have a problem with that; and the applicant will agree to remove the block wall.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the variance to the Brevard County Coastal Setback Line for Floridron Ltd., Inc., of ten feet on each parcel, subject to providing for mitigation factors specified, including removal of the existing triplex and reduction of density to two units, provision for relocation landward of the Setback Line, reestablishing sea oats and other plants, extension of building of a new crossover extending ten feet beyond the vegetation line, prohibition of armoring of the shoreline, meeting the updated Turtle Protection Code, removal of the block wall; and authorizing the Board of County Commissioners to enforce deed restrictions.

Assistant County Manager Stephen Peffer inquired if it is correct that the property has not been divided; with Mr. Fleis responding the property has not been divided yet. Mr. Peffer requested the Board clarify since the one piece is going to be divided into two, that the variance would apply to the two properties as specified in the exhibits supplied to the Board on this date; with Commissioner Higgs advising that is her intent. Commissioner Higgs stated the justification for approval is that there is a triplex building now; this would reduce it from three units to two units; the existing structure, which is almost totally seaward of the Coastal Construction Line, will be removed; and that is a betterment environmentally and also in terms of impact on the infrastructure.

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

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

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

Commissioner Higgs stated there have been no objections from the abutting property owners or the agencies; with Cynthia Streeter responding that is correct.

There being no further comments or objections, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution vacating public utility and drainage easement in Plat of Riverside Landing of South Brevard (Island Drive), as petitioned by Wallace Everest III. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - WALTER PINE, RE: MANATEE PROTECTION

Walter Pine, representing the Center for Civil Rights Advocacy, requested a resolution from the County supporting some of the amendments to 370.12, F.S., which has to do with manatee issues. He stated at present there is no requirement for the Florida Fish and Wildlife Conservation Commission (FWCC) to take public input on manatee regulations; and the change would establish a rule review committee to allow the County's input and require FWCC to include the outcomes of the rule review committee as part of the rule record. He advised the FWCC has delegated most of the authority for rulemaking for speed zones to the Executive Director; so there is one unelected individual, who is appointed or hired by an unelected commission, making the decisions over the resources, which could significantly impact the economy and quality of life in Brevard County. He stated it is imperative that the residents of the County have the opportunity to have input, and that the input have impact. He stated in the past there has been a lot of controversy over manatee protection; all the work of the County went for naught, not impacting the rules that were then made; and by amending Chapter 370.12, that input will be provided for and it will be insured that as a minimum, it will be made part of the record. He stated that will give people the opportunity for input; they are trying to require that the rulemaking for speed zones be done pursuant to Chapter 120, F.S.; at present the argument by the FWCC is that it does not have to; so there are no due process protections that would normally be available; and this amendment would provide that there are due process protections under Chapter 120, F.S., the Administrative Procedures Act. He stated another amendment included in the proposed resolution is that the fishery standards that were previously established in Florida Statute so that no one could gain complete control of the resource cannot be overridden; and the last and probably the most important amendment is that the rules that are being made to protect the manatee be subject to sound scientific knowledge. He stated the people are going to have to make sacrifices to save the animals; they need to be sure that the sacrifices they are making are aiding the animals; and that the rules are based on scientific knowledge and proper research and are not arbitrary. He stated one of the issues is it is not possible to make rules regulating the resource that are non-discriminatory; there will be disparate impact; and there needs to be a minimum standard for the information used. He noted typically the minimum standard that has been applied for persons with disabilities is intermediate scrutiny, which means showing a reasonable link between what is being done and furtherance of a governmental goal. He stated there are no controls within this process, no checks and balances; and the only check or balance the County and its residents will have is if there is a requirement for valid scientific knowledge. He stated everyone wants to protect the resources; but it is necessary to insure that what is being done not only complies with civil rights protections, but also protects the resource; and in order to balance those two requirements, they are trying to get the amendment requiring valid scientific knowledge to be used to found the rules. He advised Representative Needelman, who is on the House Natural Resources Committee, is working on this; they have been very compassionate toward the needs of the communities; and now he wants to get the counties to show their support for this.

Thelma Roper stated she has watched the County struggle over the manatee issue for a long time; everything the County went through and sent to the FWCC was ignored; and the purpose of the amendments are to provide County input from the proposed committee. She stated appointing members to the review committee would be the Board's responsibility; but the report would go directly to the FWCC for inclusion in its rulemaking record; and that way it cannot be ignored. She stated Representative Needelman has been supporting this; he made some good suggestions as to the representation on the committee; he worked on the original Manatee Committee; and he knows the problems. She requested the Board support the proposed amendments.

Patti Thompson, Director of Conservation for Save the Manatee Club, stated Sandra Clinger had another engagement and could not be present; but she is speaking for the nearly 400 Brevard members and 40,000 members internationally of the Save the Manatee Club. She stated they strongly support the public input process, but do not support the proposed resolution because the process as it exists allows for a considerable amount of public input. She stated as a member of the Brevard County Citizens Advisory Committee during the long process, she can attest to the fact that there was ample opportunity for public input through the committee process and through the subsequent Board meetings; and she does not understand people thinking there was not enough public input. She stated the resolution supports an amendment that would force the County to convene a committee, fund staff to administer such committee, and produce a report for the State; the County has been engaged in the committee process before; and it is hard to imagine the Board wanting to start that process again. She stated the existing rules in Chapter 120, F.S. require agencies to consider the least costly approach to meet the statutory objectives; the existing rules allow for variances, so anyone with a hardship as a result of the rules adopted by the State would have an opportunity to gain a permit as an exemption of the rules; and there is an existing process used by a FWCC committee to collect and analyze the best scientific data. She commented on incorporating public comments into the process, opportunities for public input to FWCC at workshops and hearings, meetings held with stakeholders, revision of rules based on scientific data and public input, better protection of the manatees in Brevard County, and not getting everything Save the Manatees wanted. She stated the proposed amendments to the manatee sanctuary act do not do anything more than force the counties to fix a process that is not broken.

Commissioner Colon stated the issue of scientific data has been brought up; there are two groups which are very passionate about their objectives; and requested elaboration on the scientific data, who gathered it, and where it came from. Ms. Thompson stated the data that was used by the Save the Manatee Club to come up with recommendations is provided by the State, which collects mortality information on causes of manatee deaths and where they died; the State provides aerial survey data, seagrass coverage, and telemetry data; and some of that information is collected by the Sirenia Project, which is a federal agency. She stated the majority of the data is collected by scientists; some are independent researchers from universities; and there are several different types of data, and several different data sets are layers upon each other to come up with recommendations. She stated for the largest part, everyone is relying on the State database.

Commissioner O'Brien stated the request this morning is to adopt a resolution asking Tallahassee to amend the bill to allow local input and insisting on valid scientific evidence or data; and it is not an unreasonable request. He stated the County has already committed a lot of resources to manatee protection, including boats from the Sheriff's Department; the County has made a financial investment; and the County should have a strong voice in what regulations may be promulgated upon it by the State. He stated the evidence in question has come under severe scrutiny; some of it has been disproved; and it is questionable how the data has been interpreted. He stated the committee process would be important for inclusion of those most affected; and the rulemaking will have a direct effect on the residents. He stated with Charter government, it is important to have home rule; and the Board should look forward to creation of a committee that voices its home rule back to Tallahassee and the FWCC. He stated the County needs more local intercession with controls, checks, and balances; an appointed commission makes the rules, laws, and regulations that are put upon the people of the County; and there is a public hearing process, but one of the hearings was in Orlando, although the rules affect Brevard County, not Orange County. He stated people should be participating in government, not fearing it; they should not have to fly or drive to Tallahassee to appear before a commission or board; and some of the hearings were further away than that. He stated the Board has always looked forward to having the public involved in decisions; and this is an opportunity for the Board to say the committee is a good idea because it allows the public to be involved. He stated he likes the concept; it does not mean the people in Tallahassee will pay attention; but the resolution does no harm, while doing the public a lot of good.

Motion by Commissioner O'Brien, to adopt resolution supporting formation of a rules review committee for proposed manatee regulations. Motion dies for lack of a second.

Commissioner Scarborough stated the Board has never tried harder, nor had more meetings on any subject than the manatees; and Commissioner O'Brien was involved in that. He stated it was not a matter of scientific data or public input; it went on and on; and in the end it was a waste of time for the Board. He stated if he believed the County could add to the scientific knowledge or the public's capacity to input, he would support the resolution; but at this juncture, everyone knows what it was like.

Commissioner O'Brien stated he did go through the process; and it went on and on because there were so many questions about what made the rule valid. He stated if the Board was going to say an area was going to be a no-wake zone, it sometimes lacked the data in question; and advised of a manatee hit by a boat near Cape Canaveral, swimming to Sykes Creek where it died, and therefore Sykes Creek being made a no-wake zone. He stated questions like that popped up all over the place; and some of the subjective reasoning being utilized by some well-meaning people with a scientific background also came into question as more data came forward and people started looking at it from a different point of view. He advised of a study done by Mr. McGill showing manatee deaths throughout the County; stated there is a definite pattern all the way from Port Canaveral to the power plants where most of the manatees were killed; and inquired if that is indicative that most of the manatees may have been killed by a barge or tug rather than by a recreational motor craft. He stated that makes a loud statement; such statement was not made while the manatee protection plan was being created; manatee deaths have been found in areas where there were no boats; and there are example after example of how data was interpreted.

Chairman Scarborough stated the Board heard the data from both sides; no one on the Board is a trained scientist; they do not do autopsies on manatees or know the particulars; and there are scientists who disagree. He inquired if the Board is going to be able to put together some methodology to reconcile and find the truth, and who would the Board hire to review the science; and stated if the Board could do that and make some sense of it to make this flow smoother, he would be the first to agree with Commissioner O'Brien; but he has been unable to see an answer to this at the County level. He stated sometimes when the Board tries to do things it cannot accomplish, it does a disservice to the other citizens because this will take staff time and Board time.

Commissioner O'Brien stated the request is simply to allow the creation of a committee that would hear the scientific data and evidence before making a recommendation back to the State; he sees nothing wrong with that; the State still makes the decision; but the people who are most affected live in the County; and at least they would have a stronger voice to be heard in Tallahassee about this issue that may affect their quality of life. He stated arguments can take place about the science and data; and finally some conclusions can be drawn. He stated to only hear at the County level may not be appropriate; the County should also have a strong voice about what happens in the County; and he sees nothing wrong with making sure any decision is based on strong science and proven points, and not just hearsay or subjective reasoning. He stated the results of the committee can be forwarded to the FWCC, which can make its decisions based on what was heard; the people of Brevard County want to have a voice; and it is unfair of the Board not to give them that voice. He commented on hearing things locally, giving the people a voice and ears, and making sure the reasoning is valid and correct.

Chairman Scarborough stated if the Board had the committee and had hearings like the Board heard for many years where there was scientific data, it would have to hire a super-scientist to look down and make decisions. He stated there is this data and that data; and inquired if it goes forward, is it not the same data that has already been heard and generated many times; with Commissioner O'Brien responding not necessarily. Chairman Scarborough inquired if there is new data; with Commissioner O'Brien responding new data and new arguments are coming out all the time, pro and con. Commissioner O'Brien stated there are always two sides to every piece depending on how the decision is made; but what the Board is discussing are rules that would affect the County and its residents. He stated the residents would like to have a voice in the rulemaking process; the Board says it wants people to participate in parks and recreation, transportation issues, etc.; and those are all local issues, but so is the livelihood of the rivers and the environment. He stated they are important issues; smart people who live in the County have questioned some of the data, and found their interpretation differs from that of someone who works for the State; and recommended letting the arguments begin.

Commissioner Higgs stated the State and federal government have made it clear that this decision regarding speed zones is not going to be made by the County; and to establish a committee would be fruitless. She stated if the State Legislature wants to name a local committee and administer it to the FWCC, it can go forward and do that; but the State has made it very clear that the County is not going to make this decision. She stated to the extent the FWCC change has been put into the Constitution by the people of Florida, they are going to make the decision; the public input process is preserved and protected by State law and practice; and it will go forward with the input process, but the County is not going to make the decision. She stated it is the job of the Legislative Delegation to determine what should be in State law and who should appoint a committee; but for the Board to do it is not proper
procedure. She stated if the FWCC needs a mechanism for public input, it should use its staff; the Delegation should name those people; and it can move forward that way; but the County has been removed from the process.

Commissioner Carlson stated she would agree with most of those statements; a little over two years ago, the Governor indicated he wanted closure; and his support for the manatee and its plight was evident with the manatee summit and his interest in expediting the process to make sure those communities that could not find closure on this issue send something forward. She stated the County sent forward all it could conclude as far as consensus building in the community; it was taken out of the County's hands; and now there are complaints that the County does not like what has happened; but that is nobody's fault but the County's. She stated the County sent forward its best effort; now it has to deal with what the State is going to provide; and the County may not like it, but it had many opportunities to solve the problem at home, and could not do it. She stated the County sent forward the rest of its manatee protection plan, aside from the speed zones, etc.; and inquired if it ever got communication back accepting those portions of the plan the Board could agree on. Assistant County Manager Stephen Peffer responded no, in spite of repeated efforts, they have not received a response from the State on the plan that the Board sent in October 2000. Commissioner Carlson inquired if the State is waiting for a resolution of the speed zones or other issues.

Commissioner O'Brien stated although the State may have taken this out of the County's hands, the County has submitted a manatee protection plan; at the same time there is a request for the Legislature to include the public committees, not only for Brevard County, but for other counties doing the same thing; and he does not know why the Board would fear having a committee to hear evidence, make conclusions, and then write a letter or whatever action is appropriate. He stated this is not about the Board of County Commissioners; it is about inclusion of the public in these kinds of activities that may affect the decision made by the State; it is not necessarily true that everything brought forth by the committee would be negative; and that will depend on the appointees and their personal agendas. He stated the Board has an obligation to the public to allow them to participate on a local level; and by denying this resolution, the Board is denying the public the right to participate in the decision-making process as a committee. He commented on the committee, Charter government, response at the local level, difficulty in getting to Tallahassee, and sending the resolution forward.

Chairman Scarborough stated in October 2000 there was an agreement by all sides to certain elements; it was sent to the State; these were non-controversial items; and yet the County has not heard from the State. He stated if the Board sends something, it will be controversial; and inquired if the Board cannot receive a response from the State in a year and a half on non-controversial items, when would it hear about a controversial item, and what exercise does this do for the community to proceed with this and have them expend valuable time discussing something which would be for naught. He stated he hears what Commissioner O'Brien is saying, but the Board has been there and it does not work.

Commissioner O'Brien stated if the State wants to make a rule, it will have to listen to input, but may not agree; the rulemaking process may take six months or a year; but at least the people will have a voice and a way of transmitting that concept on a local basis. He commented on the State not acknowledging the County's plan, the committee, and the rulemaking process.

Chairman Scarborough stated his concerns have not been alleviated; in many cases, he would agree; but in this particular one, he has not found it to work.

Commissioner O'Brien stated he would think the people would be more disappointed having no voice at all.

DISCUSSION, RE: BREVARD COMMUNITY COLLEGE ATHLETIC FACILITIES

County Manager Tom Jenkins stated on January 28, 2002, the Brevard Community College Board of Trustees is going to be discussing whether or not funding will be available to continue athletics; Mr. Rowe previously provided the Board with a copy of the resolution from the Chamber of Commerce regarding that; and the Board requested some additional information. He stated information was received from Rusty Buchanan who does the sports promotion marketing for amateur sports for the Tourism Development Council; and in that report, he advises that most important to their efforts is the continued use of the athletic facilities for the promotion of amateur sports and the tourism program, and that he has been advised that this will remain even if the varsity athletic program is eliminated. He stated in terms of the TDC, it appears that the facilities will still be available; and the Board has the option of deciding whether it wants to be involved with the BCC decision on college athletics and whether it wants to send a communication to the BCC Trustee asking for reassurance that the facilities will continue to be available for use by the local community.

Chairman Scarborough stated it would be good if one Commissioner would visit BCC President Tom Gamble; and inquired if Commissioner Carlson would do that. He stated he would hate to have the Board telling another entity too much without a one-on-one visit. Commissioner Carlson stated she has no problem doing that. Chairman Scarborough stated that would give the Board some perspective because everyone has budgetary issues; and this would be the polite thing to do. Commissioner Carlson stated she is sure BCC is aware the Board is discussing this; and the Board needs assurances based on Mr. Buchanan's perspective that the facilities are going to remain open. Chairman Scarborough stated it is a multifaceted issue in terms of how to have a viable community college, what role this plays, and what it means to the greater community.

Commissioner O'Brien reminded the Board that the Sports Commission from TDC is simply asking the Board to look at the potential effect of the loss of sports programs at BCC and carry that concept back to BCC; and stated the Board is not telling BCC what to do, but is giving a polite reminder of the economic effect of the discontinuance of the sports programs. He commented on events operating at a low margin of profitability or even at a deficit; economic benefits of visiting participants; potential loss of visiting teams and the money involved to the hotels, restaurants, and people with jobs in that industry; and marketing and promotional efforts. He stated this is part of the quality of the community; it has a detrimental effect to other economics such as trying to invite corporations to locate in the County; and recommended forwarding the information to BCC via resolution or simply requesting BCC look at the sports program in a stronger light than it had.

Motion by Commissioner O'Brien, to direct staff to prepare a resolution for the Board's consideration to forward to BCC stating the County's reasons why it feels the sports programs are very important.

Chairman Scarborough stated when Clarence Rowe appeared before the Board, he brought a resolution from the Cocoa Beach Area Chamber of Commerce; and inquired if Commissioner O'Brien wants staff to start with that; with Commissioner O'Brien responding affirmatively. Chairman Scarborough stated it would be fine to bring it back for further discussion.

Commissioner Higgs inquired why not go with the first idea; with Chairman Scarborough responding in the interim Commissioner Carlson can visit with Dr. Gamble; and commented on the budget process.

Commissioner Carlson stated the Board may also want to request Mr. Buchanan to see if he can be put on the agenda for the Board of Trustees meeting on January 28, 2002; and she will try to talk to Dr. Gamble prior to that.

Mr. Jenkins stated from Mr. Buchanan's perspective, the primary issue was the availability of the facilities; and he may have a personal interest in having the college athletics continue, but his biggest concern was availability of the facilities. He stated he does not know if Mr. Buchanan speaks specifically to whether the program should be continued; and that is a budgetary consideration for BCC to deal with.

Chairman Scarborough stated if the Board was cutting a single program because it was under severe restraints, it would appreciate someone visiting with the County Manager to discuss the implications.

Commissioner O'Brien stated Mr. Buchanan's letter said, "also important is the maintenance of the shot clocks, equipment, staffing, etc. We have been advised that this will remain even if the varsity athletic program is eliminated"; so there is assurance that everything will be maintained. He stated he is personally concerned about the elimination of varsity sports; sports are a valuable part of any schooling; they often draw the community together; and often some students remain in school because of sports. He stated he is hoping the Resolution can be worded to express the Board's concern; the Board cannot tell BCC what to do; but concern should be expressed.

Clarence Rowe stated in reference to the BCC proposal to close down the athletic projects, he and other committee members have done some things they hope will be fruitful; the Cities of Cocoa and Rockledge have adopted Resolutions; and he has requested the League of Cities consider this. Commissioner Carlson advised the League of Cities met last night. Mr. Rowe stated he asked that the issue be brought up; and he is trying to do whatever he can to make this a positive thing. He commented on a newspaper article concerning changing school times to coincide with the tourist season; and stated he called Representative Allen to ask he look into that. He stated he has not spoken to the Superintendent of Schools yet; his strong advocacy is partnerships; and if the school theory can be worked out, they will be on a positive roll because people would be able to stay out of school, visit the County, and spend tax dollars at the appropriate time rather than worrying about going back to school. He stated these are things that have to be studied, developed, and worked out to see how feasible it is. He stated the country took a hit on September 11, but there is a song that says, "we fall down, but we get back up"; and recommended keeping that in mind in a positive way.

Chairman Scarborough stated Commissioner Carlson will be visiting with Dr. Gamble and the Board will look at this next time. Commissioner O'Brien stated staff is going to put together a resolution for the Board's review.

Discussion ensued on improving on the Cocoa Beach Chamber Resolution, contacting Dr. Gamble, and bringing the issue back to a workshop before January 28, 2002.

INTERLOCAL JOINT PLANNING AGREEMENT WITH BREVARD COUNTY SCHOOL
BOARD, RE: EXCHANGE OF INFORMATION

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Interlocal Joint Planning Agreement with the Brevard County School Board for exchange of information. Motion carried and ordered unanimously.

CONSIDERATION OF CODE REVISIONS, RE: COASTAL SETBACK AND CONTROL
LINES

Natural Resources Management Director Conrad White stated at the last meeting, the Board considered a request for a variance to the setback line for Kevin and Gail Kenney; during discussion of the item, the Board directed staff to come back with proposed changes to the Coastal Ordinance; and they have been included for the Board's consideration. He stated minor changes include a change in definition on page 1 and two minor changes that would include cantilevering on page 9, under 62-4212 and 62-4313; and staff proposes including the following under 62-4212.A., "except unsupported cantilevered major structures which are elevated to a height sufficient to permit maintenance of dune stabilizing vegetation growing beneath the cantilevered major structure." He stated the second change is in 62-4213, where staff proposes to include those portions of a major structure that are elevated and cantilevered and that extend no more than six feet seaward of the Coastal Construction Setback Line; and minor structures which are pile-supported may be constructed seaward of the Coastal Setback Line provided, however, that all applicable federal and State regulations including the regulations of the State Department of Natural Resources and County Zoning, Building and Construction Codes and regulations are satisfied, and major and minor structures shall be elevated to a height sufficient to permit maintenance of dune stabilizing vegetation beneath the structures.

Assistant County Manager Steve Peffer stated in bringing this back to the Board, he wants to advise staff was trying to present a concept; it is not cast in stone; and the dimensions and other things are up to the Board's discretion. He stated regarding cantilevered structures, the Board has only had to consider this one other time; and it is not as if there are many coming along. He stated if the Board considers that in its normal deliberations over coastal variances, it takes into consideration the specifics of each project and provides the opportunity through the public hearing process to allow adjacent neighbors to speak to whether they have any considerations or objections, it may wish to consider whether any kind of blanket exemption or provision is consistent with the Board's reasoning. He stated the existing process is not being bogged down by a number of requests for cantilevered structures; but if the Ordinance is amended in this way, the Board will not have the opportunity necessarily to review them as they are presented, and they will be passed as part of the Ordinance.

Commissioner Carlson inquired if there is any provision when an applicant comes in wanting to go beyond the Coastal Line, that requires then to look at front and side setbacks to make sure they have done everything possible before asking for a variance. Mr. Peffer responded that is done through the Board's review; the way the Ordinance is established it sets criteria based on coastal erosion as to whether or not the Board has the discretion to grant the variance; variances are normally only appropriate when there is a hardship; and it is the Board's deliberation whether there is a hardship. He stated he has heard the Board request further information on many site specific considerations; it is difficult to try to write those into an ordinance; and the process seems to work in getting all that out as part of the public hearing process. Commissioner Carlson inquired if an applicant has to prove the hardship administratively before it is brought to the Board; with Mr. Peffer responding no, that is the Board's call. Commissioner Carlson stated if it was written into the ordinance, it would require that they would have gone through the process prior to coming to the Board. Mr. Peffer stated if someone comes in with a single-floor home, but says they cannot get the 1,500 square feet required, it could be suggested that they build two floors; the question is who would make the call that they would have to do that; and he does not think that should be staff's call. He stated there are many different ways that various setbacks can be met; individuals come in with their request based on what they think is best for the lot; and the Board decides whether they have made the right call. He stated he would be concerned about the Board putting that kind of variance deliberation process on staff; his experience with coastal setback situations is that there are many variables; it would be hard to write that into an administrative code; and that is why the Board gets to deliberate on the facts in the public hearing.

Commissioner Colon stated this is good as it gives the Board the opportunity to see it; and it is not fair to do this based on staff's recommendation. She inquired if there is a building where there is a possibility of the foundation coming apart, as proven by facts and professional opinions, what happens with something like that. She stated the Board is saying it has the authority to at least review it; staff is not going to be making that decision; and inquired if that is the kind of leeway Mr. White is referring to where the Board would actually be able to see the applicant's hardship and would make a determination regarding the variance. Mr. White responded if it was within the setback area between the Coastal Construction Line and the setback line, the Board would hear the variables associated with the project. Commissioner Colon inquired if the ordinance allows the Board to do that. Chairman Scarborough inquired which would give the Board more latitude, passing the ordinance or not; with Mr. Peffer responding if the Board passed the ordinance, it would have less review. Chairman Scarborough stated the Board has wanted to see these because there are a lot of diverse elements; but if it adopts the ordinance, it may be taking that away and making it a more mechanical thing for staff to deal with.

Commissioner Higgs stated she asked the Board to look at this because of the Kenney variance that the Board will consider next; but she is not moved to change the Ordinance at this time. She stated it was worthy to look at it and consider it; but everything she hears makes her more concerned about any construction investment on the beach and waterward of the Coastal Construction Line; and she has heard from a number of people who have beachfront property who are concerned about the impacts of additional building on the beach. She stated she is not ready to change the Ordinance, and is comfortable with what is in the Ordinance today.

Commissioner O'Brien stated he finds a positive note in the wording; in the first paragraph of Section 4212, it says it has to be elevated to a height sufficient to permit maintenance of dune stabilizing vegetation growing beneath the cantilevered major structure; that addresses why the ordinance was written in the first place; and by doing so, it alleviates the problem of people making a huge investment in beachfront property only to find that with all the setbacks, there is little left to build a nice home on. He stated the difference between a ten-foot by ten-foot bedroom and ten-foot by sixteen-foot bedroom is significant; so if the concern is the vegetation and the dunes, that has been addressed, and people should not be required to come in and show hardship. He stated this preserves the dunes and vegetation, while allowing a little more elasticity for those people who want to build or add to a structure; and the Board should not be keeping the major restrictions but should allow people to attain their goals when they buy a beachfront home. He stated the intent of the ordinance was dune preservation; that has been answered; and he cannot find anything wrong with the change to the regulation.

Commissioner Colon stated she wants to be clear on what the Board is doing; she thinks what the Board is doing is positive; and the ordinance spells out that it was developed to protect the coastal resources and help maintain the citizens' quality of life. She stated for future development, she is in favor of putting ordinances like this in place; and commented on the Villagers and the residents' need to meet with the Board. Commissioner Higgs stated the cantilevering of a porch or enclosed space does not apply in their situation.

Mr. Peffer stated the issue is not so much an environmental one; as Commissioner O'Brien said, it seems to cover some of the issues, but what is not easily addressed is the potential impact of a cantilevered building. He stated a bedroom, bathroom, or something like that would be stuck out toward the ocean from an existing structure; and that might have an impact on the adjacent property owners and what they perceive as their quality of life. He stated it might now obstruct a view or put a window into their backyard where there was not one; and it is difficult to write a regulation to cover all those eventualities, whereas if there is a public hearing process, it would allow adjacent property owners to come before the Board to express their concerns; and that is really the issue he wanted to make sure is addressed in the Board's deliberation.

Commissioner O'Brien stated he can understand the concept; but if it was taken word for word, the Board would have to say only those people who are adjacent property owners would be allowed to speak to the issue. He stated there are other people standing in line to say no, this should not be allowed, but they are neither adjacent nor abutting property owners; relaxation of the present Ordinance at least allows someone to build a bathroom or bedroom; and if the Board wants to say it is all right if abutting property owners say this has an adverse affect on their property, the Board can allow that; but if the Board does not start closing the door a little, it will have everyone and their uncle coming in to speak against it because of personal agendas. Mr. Peffer stated there is an item for cantilevering before the Board; it is a public hearing; and there is no one to speak against it. Commissioner O'Brien stated that is today; and the Board will not know until someone applies for a permit to do it. Mr. Peffer stated the Board does not take away anything by not adopting the proposed ordinance; and they still have a process to get that done. Commissioner O'Brien stated the Board is asking the person who built the house to go through one more step to build on his own property; there are enough roadblocks in the way; and inquired how many more roadblocks does the Board want to have. He stated this is easy; it meets the criteria of protecting the vegetation and the dunes; there is no environmental damage being done; and it allows someone to design a beautiful home or expand their home to be able to use their property to its maximum capacity. He noted some of the properties are not very large and are angled to the ocean; and he would rather see the public well served rather than saying no, that someone would have to appear before the Board, make their case, and fill out permit applications and show plans to St. Johns River Water Management District, Department of Environmental Protection, Corps of Engineers, and the Board. He stated some of those can be eliminated.

Motion by Commissioner O'Brien, to approve language to amend the Brevard County Land Development Regulations, Chapter 62, Article XII, Coastal Setback and Control lines; and grant staff permission to advertise a public hearing to consider such amendment. Motion died for lack of a second.

Mr. Peffer stated the item that brought this about was a cantilever request; there may be some confusion, but the Board's intent was to continue the discussion of that for one week to look at that and the Ordinance amendment together; and requested the Board consider Mr. Fleis' request made at the last meeting. He noted that is not clearly stated on the agenda; and the Board may want to confer with Mr. Knox as to whether the Board has the discretion to consider the item. Mr. Jenkins advised the waiver was advertised last week and continued to this week. Mr. Knox stated the issue that came up was whether or not the waiver should be granted individually case-by-case or whether there should be a generic provision; and as far as Mr. Fleis is concerned, the Board can still consider his original application without amending the Ordinance.

Commissioner Higgs inquired whether the Board can consider the application that Mr. Fleis brought last week that was continued to this week, but is not advertised. Mr. Jenkins noted it is advertised because it was continued from an advertised hearing, and just does not appear on the printed agenda. Mr. Knox stated the Board can add it to the agenda if it was continued to today's meeting as a date certain. Chairman Scarborough inquired if it was continued to a date certain; with Commissioner Higgs responding to the best of her recollection, it was continued to today. Chairman Scarborough stated the Board should consider the item today. Commissioner Higgs stated the Board does not have the information. Commissioner Carlson stated the Board can get the information and discuss this at the end of the meeting; the Board has already seen this once; and it was advertised to come to the Board today along with the ordinance. Mr. Peffer advised staff will have the information in less than five minutes.

APPROVAL OF GUARANTEED MAXIMUM PRICE, RE: DETENTION CENTER
RENOVATIONS

County Manager Tom Jenkins stated this item would normally have been on the Consent Agenda, but it was submitted after the deadline. He stated the project was funded in last year's budget; the proposal is to make improvements to the booking processing area in the jail as well as create additional bubble space to observe inmates, particularly those with mental health problems; this provides a way to use the day room and still be able to observe the inmates; and since it was a budgeted project, he would recommend it.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to authorize execution of Agreement with BRPH Construction, establishing Guaranteed Maximum Price, for construction of renovations at the Brevard County Detention Center.

Commissioner O'Brien stated he has no problem with the item because it is needed; and inquired if this is a capital improvement project; with Mr. Jenkins responding it is in the CIP, and a funding source was found in last year's budget to fund this. Commissioner O'Brien inquired if the Board denies this today, could the funds be put some place else as the Board starts to face the budget crunch that comes from Tallahassee. Mr. Jenkins advised they could; he held this up for a week or two to look at that issue; but based on more recent information relating to the insurance reserve fund surpluses that have just been identified, it is reasonable to proceed because this is a high priority project. Commissioner O'Brien stated he does not doubt that; but the question still remains what are the County's priorities in the budgetary process; and inquired is the priority doing something that was not there last year or the year before versus the money the County may need to pay for Medicare or Medicaid and other items. He stated the County is going to have to cut some place to meet the other demands; and inquired when and where is the Board going to start cutting and holding back to meet the demands without having to increase taxes or having to gut some other program. He stated he is concerned about how the Board is going to start counting its nuts and bolts next month when the budgetary process hits it. Mr. Jenkins stated that is a legitimate concern; it is similar to the question he was asking several weeks ago; and what swayed him is that the project deals with the safety of individuals who work at the jail as well as the safety of people at the jail who have serious mental health problems. He stated he does not know that it is discretionary in the sense of the potential consequences if it is not done; and although the Board knows it will be faced with budgetary problems next year, he felt this was of sufficient importance that it should come to the Board for consideration. Commissioner O'Brien stated he agrees it is needed; the deputies need a safer work environment; and suggested the Board look at other facilities maintenance projects that are planned for this year that perhaps the Board could hold off on starting immediately; with Mr. Jenkins responding staff can look at that. Commissioner O'Brien stated the work the Board starts cutting now will prevent it from being in the hole in June or July.

Commissioner Higgs inquired how much was figured there would be in the insurance reserve that would be General Fund or the Sheriff's MSTU. Mr. Jenkins responded the General Fund is in the area of $550,000 to $600,000; the Sheriff's MSTU for Law Enforcement is going to have several hundred thousand dollars, which can be used to offset overtime costs; and between the two it will be $800,000 to $900,000 in the insurance reserve that is surplus, so that should go a fairly long way in getting the County through the year. Commissioner Higgs inquired how much is going to be needed on the medical costs; with Mr. Jenkins responding he has not received anything official from the Sheriff's Department; but the last time he heard, it was in the area of a $600,000 increase. Mr. Jenkins advised he does not know if that was a nine-month or twelve-month figure; and because it is a nine-month contract, it may be a little less, but could be as much as $600,000. Commissioner Higgs stated if the Board is going to fund that, she assumes it would think about using the money that has been identified; and the budget is going to be pretty tight in regard to General Fund because the MSTU cannot be used for the jail. Mr. Jenkins agreed it cannot; stated there is a pending issue because of all the overtime incurred due to the homeland security issues; and the MSTU can be used to absorb a good portion of that. Commissioner Higgs stated they will still be left with the issue of the medical costs. Mr. Jenkins stated he is sure it will take all or close to all of the surplus that will be derived from the actuarial review of the insurance reserves. Commissioner Higgs inquired if there are sufficient funds to fund the increased medical and the construction; with Mr. Jenkins responding this particular capital project was funded in the prior year from a different one-time funding source, so this project has no direct impact on any of the insurance money that will be realized.

Commissioner O'Brien inquired about the MSTU surplus. Mr. Jenkins stated every several years the County hires an insurance actuary to look at the self insurance funds to assess that there is enough money or too much money in the reserve accounts based on claims and projected losses of claims; a report received about a week ago from the insurance actuary suggests that there is $1.8 million in reserves that can be removed; however, that money has to be returned to the accounts that paid it in. He stated each entity gets a portion of those reserves based on what it paid into the insurance fund; and the General Fund and Sheriff's MSTU will benefit. Commissioner O'Brien stated he would like a memorandum to be sent to all Commissioners defining what Mr. Jenkins is talking about, where the funds came from, where they are going, and how it will affect mid-year supplemental budgets. He stated some of those funds may be able to be directed again toward this kind of construction or toward paying the medical expenses. Mr. Jenkins advised a memo is being prepared.

Chairman Scarborough stated he is hearing the Commission wants a bigger picture before it votes on this; with Commissioners Higgs, Carlson, and Colon disagreeing. Chairman Scarborough stated there have been some very relevant questions.
Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously.

The meeting recessed at 12:22 p.m. and reconvened at 12:31 p.m.

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

Motion by Commissioner Higgs, seconded by Commissioner Colon, to put item IV.H., Public Hearing to consider a request for variance to Brevard County Coastal Setback Line for Kevin and Gail Kenney on the Agenda. Motion carried and ordered unanimously.

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

Ed Fleis stated the application is for approval to cantilever living space, a maximum of six feet from a structure that would be built at or landward of the Brevard Coastal Setback Line; within the present Zoning Code a permitted use would be a cantilevered deck that could be extended from the building six or eight feet the full width of the building; a wooden deck supported by post that could go further into the Setback Line could be approved; and approval of the proposed variance does not extend the footprint further toward the ocean. He stated from the data that has been reviewed, a variance of up to seven feet could be allowed; but typically when the data is being reviewed, it would be a variance of the footprint. He stated as far as mitigation, the owner would agree to a deed restriction that would prohibit hardening of the shoreline. He stated the Ordinance does not describe or define hardship such as it does in the variances from the Zoning Code that go before the Board of Adjustment; but it does have two items in addition to the application criteria. He stated the variance cannot be injurious to the adjacent property owners; and the property to the south is owned by the State, and to the north is undeveloped. He stated in granting the Ordinance, the granting cannot be contrary to the public interest; the Board has taken the position at times that it may not be in the public interest if a building is located more seaward of the Brevard County Setback Line; but this is only a cantilevering of a deck, that is already a permitted use; and it would not be contrary to the public interest. He stated it does not decrease the vegetated area seaward of the building or bring the footprint closer to the ocean.

Commissioner Higgs stated without a variance, it would be possible to build a house of approximately 3,600 square feet distributed over three floors. Mr. Fleis stated that is correct if one is going to build a three-story structure; they are defining the maximum buildable footprint; and the objective of coming to the Board for a variance is to provide flexibility of design. He stated they do not want to build a so-called bookcase, where there is no architectural design or relief; and what they are trying to do is provide for flexibility of design for interesting architectural exteriors to have a livable house. He stated it is not a hardship issue; but is to provide for flexibility of design.

Commissioner Carlson inquired if the previous cantilevering the Board looked at was a similar setup; with Natural Resources Management Director Conrad White responding that was an existing porch that was in the setback area; and the Board allowed it to be enclosed. Commissioner Carlson stated that was already cantilevered, but the Board allowed an enclosure to be put around it; whereas, this is talking about building a cantilever structure; with Mr. White advising that is correct.

Mr. Fleis stated he came before the Board on the Mejias request a couple of years ago; and the Board granted an eight-foot variance on that project as part of a new structure.

Commissioner O'Brien stated he agrees people have some great ideas on how to present their homes; he does not want a bookcase either; this meets the criteria for up to seven feet, but Mr. Fleis is only asking for six feet; and he would like to see the Board approve the request.

Motion by Commissioner O'Brien, to approve the request for variance to Brevard County Coastal Setback Line for Kevin and Gail Kenney. Motion died for lack of a second.

Commissioner Carlson stated if the Board approves such a variance, the house will be cantilevered out; if the neighbor comes in and sticks by the setback, but wants to build a two-story house, the cantilevered house will detract from their view; and inquired if this will create a domino effect.

Mr. Fleis stated in terms of view, when he was here last week, he handed out a layout of the two adjacent properties; a person can have a deck of six feet that the neighbor may be looking at, but the real view is the ocean; and a deck probably has an impact of less than one percent of the view angle the neighboring property has. He stated it provides some privacy; if there is an open deck, people can be at the open deck next to the neighbors; whereas in the proposal, there would be the separation of a physical structure between the neighbor and the open deck. He stated he does not see the obstruction of view as being that much of an issue; the site is totally vegetated as are the sites to the north and south; so even if someone is looking at the ocean they have a very obstructed view because of the height and extent of the vegetation.

Commissioner Carlson stated this is the prime area she would like to stick to the Coastal Setback Line because there is not more intrusion on it; since this is a new residence, there might be some flexibility in the site plan to move it toward the road so a variance is not required; and in an area where there is no development, the Board should try to keep the setback as established.

Mr. Fleis stated he is not proposing to change the setback of the building as it is only the cantilevered deck. Commissioner Carlson stated she understands, but she is talking about the whole line.

Commissioner Higgs stated she thought about this a good bit; she wanted to look at the option of approving all of them and at the option of saying no to all of them; the site the Board is looking at today has nothing on it; so what the Board does today will affect a sizable chunk of property. She pointed out the property on which the Board granted a variance in 1998; and stated the houses south of the area are well beyond the Coastal Construction Line. She stated there is a significant building envelope on the property to build a significant home with a good bit of flexibility.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to deny the request for variance to the Brevard County Coastal Setback Line as requested by Kevin and Gail Kenney. Motion carried and ordered; Commissioner O'Brien voted nay.

APPROVAL OF CHANGES, RE: REGULAR MEETING AND WORKSHOP DATES

County Manager Tom Jenkins stated there are three subjects the Board needed to cover in workshops; the first two he thought could be grouped together, the Wekiva River presentation and a workshop on air quality; and that would be the first workshop. He stated a second workshop for strategic planning is needed, which could include the current strategic planning process going on in the County, the County Commission Strategic Planning, and discussion of some community infrastructure needs. He stated they are continuing to work with the community to identify some of the community capital needs; and it might be a good idea to discuss some of those needs as part of the strategic plan.

Chairman Scarborough stated he brought up the Wekiva issue because he heard it over at the East Central Florida Regional Planning Council; and it is interesting, but not critical. He inquired if the Board went to Option 2, would it be possible to have Option 2 with strategic planning and some air quality. Mr. Jenkins responded that would work; and the Board could continue the strategic planning that was not done until the next meeting.

Commissioner Carlson stated the reason the Board wanted the Wekiva item was because of the floodplain issues; the County has a moratorium; and inquired if there is a time constraint. Chairman Scarborough stated in the strategic plan there could be a matrix of how things operate; the Board may see some of the things it could do from the presentation by the ECFRPC, but it is not going to answer all the questions; and inquired how long is the presentation. Assistant County Manager Peggy Busacca advised the Board also asked for some staff discussion about urban boundaries at the same time; and staff expected it to be an hour and a half.

Mr. Jenkins stated one option shows strategic planning on March 14, but that is only a half day, which is not enough; and he can find another date for the strategic planning possibly sooner than March. Chairman Scarborough inquired what date Commissioner O'Brien had difficulty with; with Commissioner O'Brien responding it was in May. Mr. Jenkins stated there is only a half day on February 14; the Board could do the Wekiva River presentation and air quality at that time; and he will find another date for strategic planning starting at 9:00 a.m. Chairman Scarborough stated having it in one session may be better because it would allow continuity.

Commissioner Carlson inquired if the February 14, 2002 workshop would include the growth boundary discussion as well as the Wekiva presentation; with Mr. Jenkins responding yes.

Commissioner O'Brien stated in the master schedule February 21, 2002 was set for a workshop; with Mr. Jenkins advising that was changed.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve the February 14, 2002 workshop at 1:00 p.m. to discuss the Wekiva River Decision Support Tools and Air Quality; and authorize the County Manager to find another date for a full-day workshop to discuss Strategic Planning. Motion carried and ordered unanimously.

APPROVAL OF EXECUTIVE SESSION, RE: LONZIE JEFFERSON AND ISABELLE DUKES
V. BREVARD COUNTY

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to authorize scheduling an executive session on January 29, 2002 at 5:00 p.m. or as soon thereafter as possible to discuss strategy related to Lonzie Jefferson and Isabelle Dukes v. Brevard County. Motion carried and ordered unanimously.

DISCUSSION, RE: PROCEDURE FOR DEVELOPMENT OF ORDINANCES

Commissioner Carlson stated she put this on the Agenda based on a comment from the public regarding legislative intent; Board Policy BCC-45 establishes procedures for any party to propose an ordinance or a substantive revision to an existing ordinance and expectation that staff will initiate recommendations for needed ordinances or revisions; but there is no mention of Board-initiated ordinances or revisions. She stated a significant number, if not most, new ordinances and revisions have their genesis in discussions between the Commissioners at regular meetings or workshops; the current procedure is often to proceed directly from the requirement to develop an ordinance to a public meeting to advertise; and there is often insufficient opportunity for staff or any affected party to completely understand the legislative intent of the Board in adopting or revising the ordinance. She stated this can lead to a loss of time if the staff drafts an ordinance believing the intent of the Board has been captured; it may leave interested affected citizens unclear as to exactly what the Board is trying to accomplish; and the Board may have an extended discussion on the need for a new ordinance or revisions, leaving individual Board members less than clear on the exact intent. She stated if the first step in development of an ordinance or a substantial revision was a statement of legislative intent, prepared by staff, and then approved or modified by the Board, any lack of certainty in drafting would be greatly reduced; and such a statement would also allow anyone desiring to comment on the ordinance or revision to understand what the Board intends to accomplish. She stated this will allow for a much better opportunity for affected parties to provide alternative means to an end and not just give negative comments. She stated this was brought up by Franck Kaiser of the Homebuilders Association concerning the Sign Ordinance, who questioned the real intent.

Chairman Scarborough stated it would be wise to get out the words of the rule in layman's language, advising what the Board is trying to do. Commissioner Carlson stated the Board requested cost/benefit analyses be done on certain ordinances, and staff is starting to do that; and suggested the next ordinance to come before the Board include some comment in terms of legislative intent.

Chairman Scarborough stated he would not want to see this create an addition burden on staff. Commissioner Carlson stated this would be for clarification so everyone would know what the intent is.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve modifying Board Policy BCC-45, Initiation and Development of New and Amended Ordinances, to require a Board-approved statement of legislative intent prior to the drafting of an ordinance. Motion carried and ordered unanimously.

Chairman Scarborough inquired if there would have to be a statement of intent before the Board proceeds with an ordinance. Commissioner Carlson suggested coming back when it is advertised with intent.

County Manager Tom Jenkins stated it could be done either way; one of the benefits of doing the intent is that sometimes the Board will come up with an idea, direct staff to draft an ordinance, and when it comes back, the Board has changed its mind; so if there were definition what the Board wanted and everyone could agree in advance what the Board wanted to achieve, it would probably be less work for staff and less disruptive to the community. He stated it would make it easier to draft the ordinance; it would cut out a step; once the intent is clearly defined, then drafting the ordinance would be quicker and easier; and it could go directly to advertising, if the Board was comfortable with the legislative intent.

Chairman Scarborough stated he still has a concern; sometimes there are multifaceted problems; things come together in many different ways; there were ordinances today that the Board voted to hold off; and there are times when he does not necessarily want to go to advertising because it raises red flags in the community. He stated even though the Board may have a general intent, it may need to wade into the water a little still. Mr. Jenkins stated the Board can do that on a case-by-case basis. Chairman Scarborough stated he still wants to have that option. Commissioner Carlson stated it would not be bulletproof, but would just provide clarification.

County Attorney Scott Knox stated as the one who is called upon from time to time to defend the Board's action on ordinances, he thinks this is a wonderful idea because it provides some ammunition to go into the courts and argue the case.

RESOLUTION, RE: HIGHWAY BEAUTIFICATION GRANT

Jim Egan, representing the Scenic Highway Program and the Marine Resources Council, stated the Board adopted a Resolution last year almost identical to the one today, so the Scenic Highway Program could put in an application to the Department of Transportation (DOT) to do native plantings along the DOT right-of-way, paid for by DOT. He stated after the Board adopted the Resolution, they submitted an application; it was ranked number four in the State and was approved; and they would already be planting, but DOT's contracting takes a while. He stated they got $146,000 from DOT; they have that much in terms of match from the Marine Resources Council, the City of Palm Bay, and other sources; when the freezes are past, things will be starting to happen in the right-of-way in Palm Bay, from the Palm Bay-Melbourne border, down to where the Scenic Highway Welcome Center will be in Palm Bay, and also from U.S. 1 onto Merritt Island on the Pineda Causeway; and that is Phase 1. He stated the subject today is Phase 2; it was thrown open to the 15 cities and two counties that have representatives on the Scenic Highway Coalition; and there was a lot of interest from NASA, Satellite Beach, FP&L, and the Port St. John area; but unfortunately NASA and Satellite Beach could not get all their materials together so the application is smaller. He stated he will be asking DOT for approximately $11,000; and FP&L will contribute almost $6,000, and the MRC will contribute almost $7,000 to create the image shown. He stated the site is a grassy lot that sits opposite the FP&L Cape Canaveral Power Plant; cars have a tendency to pull off U.S. 1 and park there, turning the site into a used car lot; and the idea is the site would have groupings of different kinds of native things such as native shrubs, trees, palms, butterfly garden, and wildflowers. He described the area, the roads, and the FP&L property. He commented on parking, walkways, plants identified by placards done by school groups, and contributions of the Sea Rocket Native Plant Society in terms of native plantings. He stated the point is to beautify the scenic highway; and FP&L will be using this opportunity to educate people about appropriate planting near power lines. He stated FP&L has been very supportive of the concept, and will be supporting with its dollars in terms of all the plantings that will be done on the FP&L side; DOT will be contributing to the funds for the planting to be done in the DOT right-of-way; and volunteers and MRC staff will be doing the installation. He presented the application; advised it is large; and displayed the draft showing the arrangement of the plantings.

Commissioner Carlson inquired who would maintain it; with Mr. Egan responding the staff of the MRC and the volunteers would maintain it; but DOT would like to see the jurisdiction, which is the County, backing them up so if the MRC disappeared from the County, the County would be willing to maintain the narrow portion on the right-of-way. He stated FP&L is responsible for maintaining the portion on its property; and he would like the Board to support by committing to take care of the maintenance in the near future. He stated if within the next three or four years, the plants are still doing well, that is pretty much all the responsibility they have; but if there is an immediate die-off, the MRC and the Scenic Highway Program would be working to replace them; and that would no longer be DOT's cost. Commissioner Carlson inquired what other projects are in Brevard County like this on; with Mr. Egan responding starting in the spring there will be four sites on U.S. 1 in Palm Bay; there will be four sites along the Pineda Causeway; and the sites they do that are not beautification are shoreline sites. Mr. Egan advised they focus a lot of efforts on the shoreline; they have removed almost three miles of invasive plants and done native plantings in those areas; and there are sites that have been maintained for over a decade, some almost two decades. He stated they removed all the pepper trees on U.S. 192 in 1993; and they have refused to let them come back. He stated they are working on the Pineda Causeway now; and commented on removal of pepper trees and planting of native species in that area, on U.S. 1, in Palm Shores, and in the City of Melbourne. He stated these things were done in part through an application the Board sponsored; the Legislature contributed $37,000; and the MRC put together over $150,000. He noted the County did not contribute money toward that, but did contribute staff time in terms of supervising the grant application and things of that nature, so it had an important role. Commissioner Carlson inquired if invasive eradication is being done in District 4 as a prototype for the County. Assistant County Manager Stephen Peffer responded yes, staff has done extensive mapping of problem areas and a pilot program. Commissioner Carlson stated she is looking forward to getting rid of those; but a lot of people do not know all the work done by the Marine Resources Council. She stated the Marine Resources Council covers five counties; and there are some major projects it has had success in getting State dollars for. Mr. Egan stated the MRC just put in an application for St. Lucie County for $2.5 million; Martin County just received $4 million as a result of a grant from the Florida Communities Trust on top of a million dollars from the federal government; and $3 million was raised by local citizens to purchase a piece of land on the barrier island connecting seven miles of greenway. He stated the MRC has its own land trust, and owns a spoil island off of Crane Creek and several wetlands; but primarily they do these efforts at the request of a county or city in terms of a site the county or city finds to be of interest. He stated right now the MRC is working on a site in Indian River County where the original warden who helped create the Pelican Island Sanctuary lived. Commissioner Carlson inquired what major issues is the MRC working on Brevard County other than the beautification things mentioned earlier; with Mr. Egan responding right now it does not have anything in terms of land acquisition in Brevard County, but he is open to suggestions.

Chairman Scarborough commented on the amount received by Martin County. Mr. Egan noted the MRC headquarters are in Brevard County. Commissioner Carlson stated it does not sound like the County is taking advantage of it. Mr. Egan stated the strategy is to let people know the resources it has; if a county does not take advantage of it, the MRC puts its efforts some place else; but if a county does take advantage, the MRC grabs the ball and tries to run as best it can. He stated if there is an opportunity the County would like the MRC to work toward, he would like to help. Chairman Scarborough requested Mr. Egan come back to the Board with ideas to consider.

Commissioner Carlson stated one that comes to mind is the extension of the Veterans Center in Merritt Island where there is a lot of shoreline, which they are interested in making into a passive area for the veterans, their families, and the public; and if the MRC could be involved, the County may be able to prosper by the MRC's clout. She suggested Parks and Recreation Director Chuck Nelson, Mr. Peffer, and Mr. Egan discuss that. Mr. Egan stated it would be a great idea; even in cases where the MRC does not get directly involved in the land acquisition, it collects funds to do shoreline restoration activities, native plantings, and things like that; they target the area, and all the money becomes match money; and they did bring in $146,000 of State dollars for the beautification, but it could be millions. Commissioner Carlson stated it should happen in Brevard County as well as the others; the MRC has done some great things; and she appreciates Mr. Egan coming to address the Board.

Commissioner Colon inquired if the MRC works on medians; with Mr. Egan responding yes. Mr. Egan commented on the size of the applications, DOT requirements, and the cost to create the applications; and stated the MRC covers those costs. He advised of DOT rules that make it almost impossible to plant trees on medians or along roadways, and the problems of Satellite Beach in attempting to plant trees along the roadway. He stated if there is a nine-foot wide median that is curbed, it leaves a foot in the center that can be planted; but if there are no trees to provide shade, it makes it harder on the other plantings. He stated the medians are perched; they have underfill beneath them with a little bit of soil; and the plants literally bake in the medians. He stated they have a proposal of an innovative way of doing a median so there will not be those problems; and if they could find a median that is nine feet or wider, they would be excited about being able to do some extra things there. Commissioner Colon stated she has been waiting six years; it has been a jurisdiction nightmare between Palm Bay and the County concerning Minton and Malabar Roads; and the citizens do not care about jurisdiction but just want it to be beautiful. Commissioner Carlson stated she knows the medians in her district are nine feet.

Mr. Egan stated one of the benefits of the Scenic Highway Program is that all cities are represented as well as Brevard and Indian River Counties; it is a cooperative type of thing; and this may have been the first application in which a county and city put together for a beautification effort. He stated even though the Scenic Highway Program put in the application, it has to be backed by the County and the City of Palm Bay; and at the State level, they love the idea of regional efforts. He stated they expect that Satellite Beach and NASA will be in the next cycle; and they would like to see South Brevard on A1A and U.S. 1 extending into Indian River County as a cooperative thing so they would connect and have the same theme. He stated that would be exciting; so far the pieces have not fallen together; but they are committed to keeping things moving with it.

Commissioner Carlson inquired when the Board requests Mr. Egan work with staff, what kind of time frame would there be; with Mr. Egan responding the Board can ask staff what is good. Mr. Peffer noted it was mentioned that he and Mr. Nelson would have to speak with Mr. Egan first. Commissioner Carlson requested it come back in a report.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution authorizing the Chairman to execute Highway Beautification Grant Agreement and Landscape Construction and Maintenance Memorandum of Agreement with Florida Department of Transportation. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - DAVE VAN GORP, RE: BUILDING IN FLOODPLAIN

George Harrison, speaking on behalf of Dave Van Gorp, advised Mr. Van Gorp is under the weather, and could not attend. He stated the request is to be able to build on the lot Mr. Van Gorp has in Canaveral Groves on Orleans Street; he has a plot plan and the house plan; and submitted the plans to the Board, but not the Clerk. He stated the elevation of the land is the same as the road; and he has not had any water on the property, but will have to build it up to set the house on it. He stated to the south of Mr. Van Gorp's property is another residence; and what they are trying to find out is what Mr. Van Gorp can build on his property. He stated he has a set of plans that the engineer signed and sealed and a survey; and Mr. Van Gorp wants to know if he can build or not.

Chairman Scarborough stated the Board needs to turn this over to staff.

Mr. Harrison reiterated the elevation of the lot is almost the same as the street.

Chairman Scarborough inquired if Mr. Van Gorp has talked to staff on this; with Mr. Harrison responding he talked to Bill Osborne.

Permitting and Enforcement Director Ed Washburn stated Mr. Van Gorp purchased the property on September 7, 2001; the Board adopted the 25-year riverine floodplain Ordinance on September 24, 2001; on December 21, 2001, Mr. Van Gorp applied for a permit; and on January 3, 2002, he was notified that the property was in the floodplain, at which time Mr. Van Gorp requested a personal appearance before the Board. He stated the property is in West Canaveral Groves on Orleans Street; and it is in the floodplain.

Chairman Scarborough stated on some items such as pool enclosures, the Board has been saying okay; and inquired if this falls within the parameters of anything the Board has acted on previously; with Assistant County Manager Peggy Busacca responding it does not. Chairman Scarborough inquired if there is any reason why it comes close to those that have been exempted from the provisions of the 25-year floodplain Ordinance; with Ms. Busacca responding it does not. Ms. Busacca advised the criteria that was established in the Ordinance says that it would have a minor impact on the floodplain or that if there were to be flooding occur, there would not be an unusual amount of damage to the structure or belongings within the structure.

Mr. Harrison stated Mr. Van Gorp will build the residence at least 11 inches above the crown of the road, as it is in Port St. John; that would help; and the untouched lot is at the same elevation as the road now.

Commissioner Colon inquired when will the moratorium end; with Ms. Busacca responding barring any changes, the six months will be up on March 19, 2002.

Chairman Scarborough stated the Board is in the process of having something permanently in place before them; with Ms. Busacca responding it has been to the LPA, which tabled a portion of it. Chairman Scarborough inquired what would be the impact to other properties, if the Board wants to keep consistency, if it granted this particular case. Ms. Busacca responded the integrity of the moratorium would be damaged and for single-family, it would set a precedent. Chairman Scarborough stated that is what he was afraid of; and inquired if anyone wishes to make a motion; with no response being heard.

PERSONAL APPEARANCE - MARGO MCKNIGHT, RE: BREVARD ZOO

Margo McKnight, representing the Brevard Zoo, stated she wanted to talk to the Board about some of the great things that have happened in the last six months, given the trying times the community has been through. She stated the Zoo had a couple of opportunities to get some great exposure, some of which the Board may have heard of or even seen; and one of the most exciting was that Jack Hanna's Animal Venture show came to the Zoo a second time and did half of the show on the Brevard Zoo. She stated the show is aired in 65 different countries; three million viewers see it weekly, and it penetrates 95% of the households with televisions. She showed a video clip of the show. She stated the first half of the show was on the Sanford Zoo; and the introduction to the Brevard Zoo was, "Now this is what zoos are becoming."

Commissioner Carlson inquired when does the show air; with Ms. McKnight responding it aired in October, but because it is syndicated, it will air many times; and there are copies of the show at the zoo.

Ms. McKnight stated the second exposure received was in the most recent Audubon Magazine; it was an article about zoos and conservation efforts; a lot of the big zoos were in the article; her friends at Animal Kingdom were unhappy because they were not mentioned; but there was a paragraph about the Brevard Zoo. She stated the magazine has a very wide distribution; and it is a way to get the Zoo's presence out there. She stated the Zoo is very proud of its part in the Wild Guide to the Space Coast, which is being distributed.

Chairman Scarborough stated Laurilee Thompson got prices to reproduce some pictures for the Guide that were copyrighted, and the cost was outrageous; and Ms. McKnight came forward and did the art work as a favor to the TDC. He stated the Guide depicts the wildlife within its habitat in the County; people are amazed at the diversity; and everyone who sees it thinks it is fantastic.

Ms. McKnight stated that was an effort of the Environmentally Endangered Lands Program; a lot of people put effort into it; the Zoo is happy to have been a part of it; and it goes out all over internationally. She noted the Guide is being translated into a couple of different languages; so with the TDC's help, it is getting out there. She stated BRPH donated all of the architecture and engineering for the Zoo's African Loop, which is probably a $300,000 gift; not only is it helping the Zoo, but BRPH is wonderful to work with; and she thinks they are having fun figuring out how to contain a white rhino or giraffes, which do not jump, but are 18 feet tall. She stated they have spent approximately eight months working on this, and are getting close to the final details where they can start the permitting process. She stated the Conservation Conference in November had approximately 200 people from 18 different countries; and she was invited as a representative from the Brevard Zoo, to participate in the North American Project, which mirrors the African megatrek. She stated the result from that is three covers and three articles in National Geographic as well as the television program in an 18-month span. She stated the Zoo's participation had nothing to do with its size, but because of its determination to participate and its energies being directed into the right areas. She stated Commissioner Colon mentioned something about a water element some time ago; they are determined to open that in June; and she will be coming to the Board with that soon. She stated they have the plans and a little bit of money; and they would like to get that rolling to give people a cool water element to go to in the summer instead of going to Orlando. She stated the groundbreaking for the education buildings will be on January 30, 2002; and invitations have been sent to the Commissioners. She stated the groundbreaking for the African loop will be at the beginning of April 2002.

Commissioner Carlson inquired what is the status of the linear park; with Ms. McKnight responding the last meeting was in November; there is a design and adjustments that need to be made; and that is where it was left.

PUBLIC COMMENT - MARCIE KINNEY, RE: FALSE PUBLIC COMMENTS

Marcie Kinney stated some bad things have been said about Brevard County that have bothered her as a citizen; and if a citizen says negative things about the County, it is the Board's duty to find out if what is said is true. She stated recently she had a problem with a citizen in her Valkaria neighborhood having to do with a complaint to Code Enforcement; she is sorry she had to do that because it has turned into a huge mess; and commended Code Enforcement staff. She stated she has a belligerent neighbor; staff has worked on this case for thousands of hours; and it goes before the Special Master on Thursday. She invited the Commissioners to attend the hearing; stated the individuals have been coming to the Board bad mouthing Code Enforcement just because there is a complaint against them; and this will be their third time before the Special Master. She stated this is over garbage; they have been putting their garbage in front of her property for more than five years; and she is tired of picking up the garbage that is spread around by animals. She stated she complained to the individuals; it ended up going to Code Enforcement; and all Code Enforcement has done is their job, so it bothers her that they have been bad mouthed. She stated if someone says something bad about staff members, the Board should allow the staff members the opportunity to defend themselves and find out what the truth is. She stated if someone says Code Enforcement changed documents, the Board has a duty to determine the truth; and inquired why the Board did not ask the staff members. She stated when the individuals came before the Special Master, the Special Master pinned them down, advised those were serious allegations, and inquired why they felt the documents were changed; the individuals advised they just thought they were changed; and the Special Master's finding was that staff did not change the documents. She reiterated the Board should give staff the opportunity to reply if there are negative allegations; and stated she hopes someone will come to the Special Master hearing to see what it is all about and what a good job the Special Master is doing. She stated this is the third time before the Special Master because the individuals keep dragging it out with document after document; but she is pleased with the efforts of Code Enforcement and the Special Master.

Commissioner Carlson stated she will have a staff member there to observe; and she will be interested to hear about it because of all the discussion.

Chairman Scarborough stated Ms. Kinney may not have been present at the beginning of the meeting when the Board took two actions; it asked the County Attorney to examine the rules and how things are handled; and it also asked the County Manager to report back because the

employees have rights to defend themselves. He stated when there is any impropriety alleged, the Board should not just leave it; and those reports will be available.

Ms. Kinney stated Brevard is a great county; and she does not want its reputation tarnished in any way.

Chairman Scarborough stated the problem is people do have a right to criticize their government; sometimes the government is individuals who are asked to do a job; and that person does not ask to be thrown into controversy. He advised it could be with individuals in Road and Bridge or Animal Control; there are a number of people who are disgruntled with County employees; and from time to time there is this problem; but the Board has the responsibility to not just let things sit in the public record.

ANNOUNCEMENT, RE: BIRTHDAY

Commissioner Colon stated today is Chairman Scarborough's birthday; and wished him happy birthday.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 1:34 p.m.

ATTEST: _____________________________________
TRUMAN G. SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
_____________________
SCOTT ELLIS, CLERK

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