The Board of County Commissioners of Brevard County, Florida, met in regular session on March 26, 1998, in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Helen Voltz, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs and Mark Cook, County Manager Tom Jenkins, County Attorney Scott Knox, and Assistant County Attorney Eden Bentley.

The Invocation was given by Commissioner Truman Scarborough, District 1.

Commissioner Helen Voltz led the assembly in the Pledge of Allegiance.

DISCUSSION, RE: SETTLEMENT WITH USTLER/FAGAN, INC. FOR DON OLSON TIRE STORE

County Attorney Scott Knox stated at the last meeting, the Board requested he contact Ustler/Fagan, Inc. concerning the Don Olson Tire Store to find out whether or not they had any figure they would settle for; and they have developed a list of costs which totaled $73,464, including a $30,000 development fee for overhead and vested time since July, 1997. He stated $138,218 is the profit figure they believe they will lose; and $45,990 is the real estate fee. He noted the total is approximately $257,000; they also mentioned a $2 million lost rental income over the period of the lease; and inquired what would the Board like to offer.

Chairman Voltz stated she is not sure if the Board wants to discuss the issue tonight due to the lengthy agenda. Attorney Knox stated they have to make a decision to terminate the lease, otherwise they will incur a $4,000 non-refundable deposit.

Commissioner Cook stated he thought the range was approximately $18,000 for engineering fees, etc.; and if a decision has to be made tonight, he would offer something in that range, but cannot support what is being requested. He stated hard costs are realistic, but not a real estate commission.

Attorney Knox stated if the Board wants to take time to think about the issue, he can send the information to each Commissioner and bring the item up at the next meeting. He noted at this time he has no data to support the bills they submitted, and he does not want to rush the Board into a decision it may not be ready to make.

The Board acknowledged the figures given to County Attorney Scott Knox regarding the Don Olson Tire Store, and postponed action to settle with Ustler/Fagan, Inc. to give Attorney Knox an opportunity to review invoices, etc. to determine their actual loss.

TRAVEL FOR COMMISSIONERS, RE: FLORIDA ASSOCIATION OF COUNTIES MEETINGS

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve travel for Commissioners to attend the Florida Association of Counties Meetings on June 17, 18, and 19, 1998, on Marco Island, Florida. Motion carried and ordered unanimously.

AMEND RENTAL AGREEMENT WITH COMMERCIAL INVESTMENT REAL ESTATE, INC., RE: SUNTREE/VIERA PUBLIC LIBRARY

Library Services Director Kathryn Stewart stated the Library has grown and is being used a lot by the residents of Suntree; in the Lease, the County has the right of first refusal; there is a vacant unit; and the Library Board would like to rent it for the Library, and the Friends would pay for it for the remainder of this year, if the County will pick up the cost for next year.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to authorize amendment to the Rental Agreement with Commercial Investment Real Estate, Inc. for Suntree/Viera Public Library to include an additional unit of 1,500 square feet, with the Friends of the Library paying the additional cost until the end of this fiscal year; authorize funds be set aside to rent the vacant unit beginning October 1, 1998; and authorize the Chairman to execute the Amendment. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3 AND DECEMBER 5, 1997, AND JANUARY 5 AND FEBRUARY 5, 1998

Chairman Voltz called for the public hearing to consider the Planning and Zoning (P&Z) Board recommendations of November 3 and December 5, 1997, and January 5 and February 5, 1998, as follows:

Z9801101. Franklin G. Buckoski's request for change from AU to RU-1-13 and CUP for bed and breakfast inn on 0.4287? acre located on the southwest corner of S.R. 46 and Singleton Avenue, which was approved by the P&Z Board on January 5, 1998 and the rezoning approved by the Board of County Commissioners and the CUP for bed and breakfast tabled to March 26, 1998.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve CUP for bed and breakfast for Item Z9801101 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Z9801303. David and Deborah LaDrew's request for CUP for single-family residential second kitchen facility in EU-2 zone on .34 acre located on the south side of River Walk Drive, west of S.R. A1A, which was approved by the P&Z Board.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3 AND DECEMBER 5, 1997, AND JANUARY 5 AND FEBRUARY 5, 1998

Motion by Commissioner Higgs, seconded by Commissioner Cook, to approve Item Z9801303 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 10. South Palm Bay Development Corporation's request for CUP for land alteration in AU zone on 46.276 acres located south of Micco Road, west of Bird Drive, which was approved by the P&Z Board on November 3, 1997.

Jack Kirschenbaum, representing the applicant, requested his witnesses be sworn in. The Board agreed to accept their statements.

Mr. Kirschenbaum stated they are requesting CUP's to alter land in AU zoning pursuant to Section 62-1936; the matter was before the P&Z Board and received approval by a 7:3 vote; and the rezoning review worksheet prepared by staff indicates the proposal is consistent with the Future Land Use designation. He noted such worksheet further indicated that the proposal is consistent with maximum allowable residential density and would maintain acceptable levels of service; and requested it be made part of the record as Exhibit 1. He requested Mr. Davis describe his Corporation and the land use that is proposed.

During a question and answer session, William A. Davis, Jr. stated he is the principal owner of the Corporation, and purchased the property on December 11, 1995; and his plan is to develop a high quality residential community on the 100-acre plot. He noted he has worked primarily in Washington, D.C. as a development consultant and manager for a number of organizations, churches and non-profit organizations; he has put up 800 apartment units for a university and a major child care center; he is currently working on a senior citizen apartment building for a church; and he is developing a health clinic for a charitable organization. He gave his educational background and how it relates to the development and planning aspect of his career.

Mr. Kirschenbaum presented and had Mr. Davis explain Exhibit 2 showing the property in question, the roads, other developments and agricultural enterprises around it, and Exhibit 3 showing the intent of how the property will be accessed from Micco Road. He stated it is his understanding County staff is not opposed to the granting of the CUP's; the proposed project complies with the Comprehensive Land Use Plan; and Mr. Davis has acquired all the necessary permits from the St. Johns River Water Management District in order to dig the proposed borrow pit which is a total of 32 acres. He noted there are no concurrency problems with regard to Micco Road and access from such Road; and there are setback requirements under Brevard County Code, Section 62-1936. Mr. Davis advised they exceed all the requirements. Mr. Kirschenbaum stated Exhibit 3 shows a 200-foot buffer between Micco Road and the borrow pit, but the distance between such Road and the northern limits of the borrow pit will be far in excess of that; the applicant will voluntarily impose conditions in order to acquire the CUP's and build out the borrow pit to the dimensions requested; and there are 11 conditions.

Mr. Davis advised it is his desire to produce a high quality development; once he has the plans for such development, he will share them with his neighbors; and he does not want to cause any nuisances on Micco Road.

Mr. Kirschenbaum stated each Commissioner should have a copy of the 11 conditions; with Chairman Voltz responding affirmatively.

Commissioner Higgs inquired when would the subdivision be completed; with Mr. Davis responding his goal is to have the residential project developed within five years. Commissioner Higgs stated one of the issues that has been raised is haul routes; it is not referenced anywhere in the proposed binding development plans; and inquired is the applicant ready to make any suggestion as to a commitment on haul routes. Mr. Kirschenbaum responded they are not ready to make any suggestions at this time for several reasons; there are other borrow pits in the general area; they have not been able to determine if they are bound by any routes; it would be very difficult to distinguish trucks that are using their borrow pit from other borrow pits; and they are concerned it could lead to some confusion. He noted his client wants to be treated like the other owners of borrow pits; there are no similar restrictions there; and they have agreed not to exceed travel in the daylight hours and the 80 round trips per day. Commissioner Higgs requested Mr. Kirschenbaum put on the record other 100-acre borrow pits in this section of road; with Mr. Kirschenbaum responding he does not know of any. Commissioner Higgs stated she wants it clarified there are no others of this size in the area to her knowledge.

Commissioner O'Brien inquired if the discussion includes both Items 10 and 11 together; with Chairman Voltz responding affirmatively. He stated when overlaying the paperwork of Item 10 with Item 11, there are two separate borrow pits.

Richard Kern, representing R.K. Engineering, stated they were required under the County regulations to limit the size of the application to 50 acres or less; and since it was a 100-acre site, they had to submit two applications to cover the size of the project. Mr. Kern advised the sketches Commissioner O'Brien is referring to are not quite correct. Mr. Kirschenbaum stated location maps are to show generally the location of the project; the document that has all the curves called out and the exact location of it on the property includes the 32 acres; and it is what the applicant would be bound by.

Commissioner Higgs inquired what would the applicant have to do to apply for a 100-acre borrow pit; with Zoning Official Rick Enos responding there is no commercial borrow pit or land alteration that exceeds 50 acres, and anything over 50 acres in the Zoning Regulations is a mining operation which requires an industrial classification.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3 AND DECEMBER 5, 1997, AND JANUARY 5 AND FEBRUARY 5, 1998

Chairman Voltz noted there is nothing within the County Code that would prohibit the applicant from doing exactly what he has done; with Mr. Enos responding that is correct.

Commissioner Higgs inquired in dealing with land alteration, does the County deal with the size of the pit or the size of the parcel; with Mr. Enos responding the CUP has the description of the land. Mr. Enos stated if the applicant had chosen to, he could have described an unusually shaped piece of property of the boundary of the proposed pit; but he chose to describe the land he holds. Commissioner Higgs noted in dealing with other land alteration in similar CUP's, the County has dealt with the size of the parcel; with Mr. Enos responding it has done both, but typically it is the parcel. Commissioner Higgs inquired does Mr. Enos recall having dealt with two parent parcels of 50 acres being submitted separately at the same time for a CUP; with Mr. Enos responding he does not recall it off hand, but he cannot say it has never happened.

Mr. Kirschenbaum stated what has been applied for, been approved by the P&Z Board, and has had no opposition from County staff should be approved by the Board of County Commissioners. He noted he would like a few minutes for rebuttal if issues come up.

Commissioner Higgs advised of meetings she had on February 20, 1998 with the area industrial and residential committee from Barefoot Bay, as well as individual residents and County staff, and described the discussion in detail. Chairman Voltz stated she looked at the borrow pit; her concern is the road going to and from the borrow pit which is very narrow and the trucks were going fast; and she also spoke with Attorney Phil Nohrr regarding the issue. Commissioner O'Brien stated he spoke with Mr. Kirschenbaum this afternoon by telephone concerning the project. Commissioner Cook stated he has been briefed by County staff concerning this issue and other items.

Attorney Michael Riemenschneider, representing Barefoot Bay Homeowners Association, advised of the Association's objection to the proposed zoning application as the project is inconsistent and incompatible with the surrounding neighborhood and really a mining operation. He showed Exhibits BB-1 and BB-2, the report of Rochelle W. Lawandales, and Ms. Lawandales resume; stated Exhibit BB-3 shows how the property was purchased under one Warranty Deed and it was not sectioned. He stated during the summer of 1997, the applicant requested a land alteration permit for a borrow pit for 4.91 acres; Exhibit BB-4 shows where the existing borrow pit is located; one week before the land alteration permit was issued, the applicant filed the two applications; and they are just under 50 acres. Attorney Riemenschneider stated he believes it was done intentionally; the reason it was broken up into two separate parcels below 50 acres each was because under the AU designation, over 50 acres is considered a mining operation. He stated Exhibit BB-6 shows the representation of the homesites of Barefoot Bay in relationship to the borrow pit; it is a large commercial operation; it abuts a residential neighborhood where 95% of the people are 55 years or older; and there is no way to reconcile the compatibility of the site and use to the residential subdivision.

Chairman Voltz stated she does not have a speaker card for Rochelle Lawandales.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3 AND DECEMBER 5, 1997, AND JANUARY 5 AND FEBRUARY 5, 1998

Motion by Commissioner Higgs, seconded by Commissioner Cook, to allow Rochelle Lawandales to speak. Motion carried and ordered unanimously.

Rochelle W. Lawandales, President of Lawandales Planning Affiliates, stated there are three major issues--the parcels being separated, compatibility, and setback requirements. She noted Exhibit BB-7 shows an aerial of the area, including the massive extent of residential development; the issues that concern her the most with this request is the size, which takes it out of the bounds of the County's Zoning Ordinance and Future Land Use Map; the AU district specifically is a residential district; the Future Land Use Map designates the Barefoot Bay area as urban fringe at four units to the acre; and it designates the lands in question as suburban at one unit to the acre. She stated the preamble of the AU district specifically expresses the philosophy of maintaining a residential area; a heavy commercial operation of a mine changes the whole character; there are presently four borrow pits in the area further to the west; and most of them are probably using I-95 as their access point as opposed to coming east to U.S. 1.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to allow Ms. Lawandales to speak for an additional five minutes. Motion carried and ordered unanimously.

Ms. Lawandales stated there is a severe conflict with the zoning and land use as depicted in the document submitted on behalf of Barefoot Bay; the factors that are dealt with in a land alteration permit are the specific factors that deal with environmental protection, surface water management, dust emissions, haul routes, traffic, etc.; those specifically relate to the issue of compatibility as stated in the County's Ordinance; and there are relevant factors peculiar to the proposed conditional use on surrounding property that she does not believe the Board of County Commissioners or the P&Z Board have enough information on to make an informed decision on the impact that this 100-acre mine will have, not only on the specific piece of property, but on the surrounding areas. Ms. Lawandales stated 96% of the residents in the area are age 55 or older; and reiterated her concern regarding compatibility. She noted it is her professional competent substantial evidentiary opinion that this use is an industrial use; it will have serious impacts on the adjacent surrounding residential community and on the adjacent agricultural areas which the County's plan seeks to protect; and there are other industrial areas throughout the County that would support and be able to incorporate this type of use.

Ben Graham, Richard Higgins, Clem Riesenbeck, Robert Smith, Jeanne Osborne, and Chris Riesenbeck expressed their opposition to the proposed request due to the health and public safety of the Barefoot Bay residents, truck traffic hazard on Micco Road, and incompatibility to the residential area.

Mr. Kirschenbaum stated the County's Ordinances permit what his applicant is requesting; the applicant is guaranteeing far in excess of what the setbacks are; Micco Road is not Barefoot Bay's private road; it is a County road; and there are other borrow pits using it presently. He stated the evidence before the Board indicates that the borrow pit is not part of the Barefoot Bay neighborhood; it is 3,200 feet directly east to the nearest residence; that is over ? mile; and it is 900 feet from the edge of the proposed borrow pit to the nearest residence to the northeast. He stated County staff found this to be in compliance with the Comprehensive Land Use Plan, no problem with concurrency, and compatible with the neighborhood in which it is in which is fully surrounded by agricultural uses. He noted the applicant is not seeking permission to do anything other than what is permitted in the County's Code; he wants to be treated like the other individuals on Micco Road and elsewhere that are operating borrow pits; the applicant will comply with every requirement the County imposes; and he will abide by the law.

The meeting recessed at 7:16 p.m. and reconvened at 7:33 p.m.

Commissioner Higgs inquired what was done and what the Public Works Director knows about the condition of Micco Road and the potential affect of this level of activity there.

Public Works Director Henry Minneboo stated he requested a structural analysis be done of Micco Road; the section the County took into account was from I-95 east to U.S. 1 which is approximately six miles; it did approximately six independent hand borings and in some locations all the way down to six feet; and the results as shown addresses those specific issues. He noted the first four miles beginning at I-95 and going east, there are only two to four inches of asphalt; and what that basically means is there is no base there whatsoever. He stated when such Road was built, it was built for residential movement and to accommodate minor citrus truck traffic that prevailed in that area; and it is very similar to a residential subdivision street. He stated the County went further which is the last two miles; and there are approximately five to six inches of asphalt in that area which is due to numerous overlays done in the past. Mr. Minneboo noted based on Micco Road's condition today, staff believes the Road's life expectancy is anywhere between five and 10 years; if it accelerates the process with the heavy trucks, it could deplete that by at least 20%; it could experience some failures almost immediately. He stated he is not sure that such Road is in a position to adequately address the residential traffic in the next five or 10 years; and it could be a very costly undertaking for the County. He commented on pursuing a bond requirement for borrow pits and what action could be taken to bring Micco road up to desirable structural integrity.

Commissioner Higgs stated the issues brought forth by some of the speakers in regard to the intent of the Ordinance, the 50-acre issue and mining are significant issues for the Board to consider; the intent of the zoning classifications is that anything over 50 acres becomes an industrial mining operation; and the combination of the two less than 50-acre parcels into one trips the requirement that it be an industrial mining operation. She noted the traffic issues that have been presented in terms of the impact are significant; it is in the Board's hands to address the compatibility issues and

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3 AND DECEMBER 5, 1997, AND JANUARY 5 AND FEBRUARY 5, 1998

the standard review; based on all the things that have been presented, the project does not meet the requirements as set forth; and she is prepared to make a motion.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to overrule the P&Z Board and deny Item 10. Motion carried and ordered unanimously.

Item 11. South Palm Bay Development Corporation's request for CUP for land alteration in AU zone on 49.719 acres located on the south side of Micco Road, west of Bird Drive, which was approved by the P&Z Board on November 3, 1997.

Commissioner Higgs stated she looks at this as a total project, but there are two separate applications.

Assistant County Attorney Eden Bentley stated the applicant's exhibits demonstrated it was being treated as a single parcel even though there are two separate applications; the presentation was for one borrow pit; but the Board can make two separate motions.

Mr. Kirschenbaum stated even though there is one borrow pit shown, the item came before the Board as two separate applications; it has denied one; what is before the Board is an application for one 16-acre borrow pit; and all of the comments that went toward the magnitude of the project are now cut in half.

Chairman Voltz inquired if they have to submit a new application; with Attorney Bentley responding the concept plan in the file encompasses both parcels; and if the Board wants to consider it, it should be tabled as they can submit a new concept plan.

Commissioner Higgs stated the evidence that has been presented applies to the compatibility of issues whether it is the 50-acre or the 100-acre, the traffic, and impacts on the roadway, and the essence of an industrial use, so she is prepared to make a motion.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to overrule the P&Z Board and deny Item 11. Motion carried and ordered unanimously.

DISCUSSION, RE: STRICT LAW ENFORCEMENT ON VEHICLES

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to request the Sheriff's Office strictly enforce the laws regarding trucks hauling sand from borrow pits, primarily on Micco Road, not using tarpaulins to cover the product and speeding, to protect the health, safety, and welfare of all citizens, including those who live in the Barefoot Bay area. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3 AND DECEMBER 5, 1997, AND JANUARY 5 AND FEBRUARY 5, 1998

Item 10. Michael D. and Sandra J. Douglas and C. Steve and Debra K. Douglas' request for CUP for towers and antennas in BU-2 zone on 6 acres located on the south side of Micco Road, on the east side of the FECRR right-of-way, which was approved by the P&Z Board on December 5, 1997.

Commissioner Higgs stated she met with Jack Kirschenbaum this morning regarding the issue, and read a report on their meeting into the record.

Jack Kirschenbaum, representing the applicant, presented a book of documents constituting all the evidence, and an appraisal report of Hansen Appraisal Service to the Clerk.

Commissioner Scarborough expressed concern of evidence being given to the Clerk; there is only one copy; it is supposed to be a part of the record; and the Board is supposed to make a decision based upon the record. Mr. Kirschenbaum advised he has copies for each Commissioner. Commissioner Scarborough inquired is he supposed to read it this evening before he makes a decision; with Mr. Kirschenbaum responding the Board does not have a procedure that he is aware of. Commissioner Scarborough stated Mr. Kirschenbaum could have distributed the information to each Commissioner's office prior to the public hearing; he finds it very difficult to indicate to anyone that the information is going to be a part of the record; but it is not a part of the record if the record indicates what the Board is supposed to make the decision on; and Mr. Kirschenbaum failed to give the information to the Commissioners in a timely manner. Mr. Kirschenbaum stated the documents are not evidentiary in the same manner in which someone presents evidence to the court; and almost all the documents offered tonight were previously submitted to the Board at the last opportunity it had to review this matter.

Chairman Voltz stated if Mr. Kirschenbaum wants the Board to make a decision based on just what he and the witnesses say, that is up to him; but if he wants the Board to base its judgment on what is in the report, then it should wait. She inquired if the Board directed staff to advise applicants to provide information to the Board two weeks in advance; with Mr. Enos responding yes, but he is not sure if Mr. Kirschenbaum was notified.

Discussion ensued on a procedure for submitting information to the Board and Clerk, County's appraisal not being done, and postponing action on the application.

Item 15. John G. Carey, M.D.'s request for CUP for alcoholic beverages for on-premises consumption in BU-1 zone on .34 acre located on the southeast corner of U.S. 1 and Belmont Avenue, which was denied by the P&Z Board.

James Haines, representing the applicant, stated he has signatures from individuals who live on Belmont Avenue in favor of the CUP request; and requested approval by the Board.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3 AND DECEMBER 5, 1997, AND JANUARY 5 AND FEBRUARY 5, 1998

Commissioner Scarborough stated it is his intention to make a motion for denial after all the speakers have been heard; and inquired if Mr. Haines has any further comment. Mr. Haines inquired why the motion is for denial; with Commissioner Scarborough responding it is an activity that should not be in this particular neighborhood. Mr. Haines stated the sale of alcohol is already in the area.

Pam Dow, Ray Dow, Ann Micklos, Sally Sheffield, and Deborah Hudak expressed their opposition to the proposed CUP due to the bar being too close to the neighborhood, the noise level, parking, and safety concerns of the residents.

Commissioner Scarborough stated the main concern is the residential atmosphere and close proximity to an elementary school.

Mr. Haines stated the school is well out of the legal range.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to deny Item 15 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 10. (Continued)

Attorney Jack Kirschenbaum advised they will proceed; and stated this is a request for a CUP for the erection of a cellular tower and antennae 150 feet. He showed an aerial photograph depicting the site location just south of Micco Road and east of the railroad tracks; and noted the site consists of sand pit and cement plant-type installation. He stated the request also is for waivers of the Code regarding setbacks. He stated he has several witnesses to testify this evening, two representatives of Sprint, an independent consultant to talk about the safety of the towers after huge windstorms such as Hurricane Andrew, and appraiser Bob Leichtenberg to testify regarding the previously expressed concern that the towers have some impact on neighboring property values.

During a question and answer session, Brian Borgiet, representing SprintCom, advised SprintCom tries to co-locate as much as possible to avoid intruding on neighborhoods and sensitive areas; right now it has a design for 30 sites in Brevard County; and it is co-locating 24 of them. He advised SprintCom is bound to provide a certain amount of coverage by its FCC licensing; after it gets all the co-locations, it has a modeling tool; it plugs in all the coordinates, builds a model and analyzes it; and based on that and its coverage criteria, it fills in with ground builds. He stated SprintCom has a neighboring market in Miami; it has to provide a seamless cover; he is not allowed to provide a signal level stronger than the negative 93dbm; and he is bound by that with the FCC licensing. He noted the Brevard County/Indian River County line is also SprintCom's MTA (Major Trading Area) boundary; and he has to provide coverage to hand off to the Miami site. Mr. Borgiet stated the proposed site is a cement plant in an industrial area; SprintCom is planning on putting in a stealth monopole which is a single pole with no guy wires; and it will use an accelerator antenna which is 22 inches in diameter and the same width as the pole. Mr. Kirschenbaum presented pictures

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3 AND DECEMBER 5, 1997, AND JANUARY 5 AND FEBRUARY 5, 1998

showing examples of what SprintCom is proposing for the site. Mr. Borgiet described the setbacks that would be in place if the CUP is approved; stated the alternate site located on A1A had various problems, including being under water.

Cheryl Pence, representing Sprint PCS, stated Sprint is seeking two waivers; the second one which is five times the tower height is 750 feet from any residentially zoned property or property that is primarily used for residential purposes. Commissioner Higgs inquired how close would the 750-foot setback be from other zoning uses; with Ms. Pence responding initially neither she nor County staff identified any in this area; but after a few days, they did identify a TR-1 zoned property to the northwest of the subject property; and it requires a waiver from 750 feet to 360 feet. She noted at a 73-foot fall zone radius, the existing TR-1 zoned property is five times the fall zone height away from the tower; and SprintCom is taking care of the public health and safety requirements that the County's Code requires. She noted the other waiver is from 200 feet to 100 feet from the railroad property; the fall zone of the tower is 72 feet, nine inches; and in the worst possible case scenario, if it falls it will not approach the railroad property. She advised by SprintCom providing the technical information, it has met the criteria of the County's Code. Commissioner Higgs stated her paperwork does not have the second waiver.

Robert Leichtenberg, representing Hansen Appraisal Services, stated he has looked at every conceivable scenario with regard to value; there has been no affect on sales in the area where towers are located; he has talked to other appraisers around the country; and the Brevard County Property Appraiser cannot find a reason to lower assessments around such towers. He noted the evidence is clear and conclusive that there is no affect on value. He identified several subdivisions and the sales after towers were installed; and noted they had no affect.

Mr. Kirschenbaum stated the County's Ordinance has two thrusts--make sure everyone is safe and care for the aesthetics; SprintCom meets both in this particular instance; and there is a technical requirement of the County Code to locate the tower where SprintCom is seeking.

E. M. Cunningham, advised of his support for the proposed CUP request.

Discussion ensued on vegetative buffer, stealth monopole, retaining natural vegetative buffer between the GU and BU-2 zones, landscaping regulations, and Brevard County Code requirements.

Ms. Pence stated Sprint will do what the County Code requires as long as the Code requires it.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3 AND DECEMBER 5, 1997, AND JANUARY 5 AND FEBRUARY 5, 1998

Z9801201. Gloria Godinez Garcia and William J. Hampton's request for change from AU to RR-1 on 10.4 acres located on the north side of Crisafulli Road, west of S.R. 3, which was approved by the P&Z Board on February 5, 1998.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to table Item Z9801201 until the April 30, 1998 Board of County Commissioners meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF MARCH 2, 1998

Item 1. 4G's of Brevard County, Inc.'s request for change from GU to ARR on 1 acre located on the south side of Bear Trail, west of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 1 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Item 2. Sara M. Hurtado and Maria L. Hurtado's request for change from GU to ARR on 1.15 acres located on the south side of Sharpie Avenue, east of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 2 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Item 3. Paul Achord or Olen D. Achord's request for change from AU to ARR on 1.64 acres located on the northwest corner of Airboat Avenue and Weatherly Place, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 3 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Item 4. Cary D. Pond's request for CUP for temporary living quarters as conditional use during construction of residence in TR-1 and RU-1-11 zones on 0.34? acre located east of Newfound Harbor Drive and south of Orris Avenue, which was approved by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to approve Item 4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF MARCH 2, 1998

Item 5. Supra Color Enterprises, Inc.'s request for CUP for alcoholic beverages for on-premises consumption in BU-2 zone on 0.61 acre located on the south side of S.R. 520, west of S. Banana River Drive, which was approved by the P&Z Board with maximum seating capacity of 84 seats, unless parking area is expanded pursuant to current Code requirements.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to approve Item 5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 6. City of Cocoa's request for change from GU to GML on 5.75 ? acres located on the north side of S.R. 520, east of Milford Point Drive, which was approved by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to approve Item 6 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 7. Nancy Louise Rauch Layton's request for change from RU-1-13 and RU-2-10 to all RU-1-13 on 1.06 acres located on the east side of U.S. 1, north of Coquina Ridge Drive, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 7 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 8. John P. and Ruthann Genoni's request for CUP for guesthouse in a PUD zone on 0.82 acre located on the west side of Glengarry Drive, 0.22 mile south of Shaker Heights Drive, which was approved by the P&Z Board, limited to a pool cabana.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 8 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 9. Brevard County Board of County Commissioners on its own motion authorized administrative rezoning on property on which a development order had been submitted initiating a consideration of a change in zoning classification from EU to RR-1 in accordance with the provisions of Future Land Use Element XIII, Policy 10.2, Brevard County Comprehensive Plan as adopted on September 8, 1988, on 4.65 acres located on both sides of S. Tropical Trail, north of Stockton Drive, which was approved as SEU by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item 9 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Chairman Voltz passed the gavel to Vice Chairman Scarborough.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF MARCH 2, 1998

Item 10. Estate of Raghu N. and Krishna R. Mehta's request for change from GU to AU on 4.68? acres located on the north side of Willow Brook Street, west of Babcock Street, which was approved by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Cook, to approve Item 10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Vice Chairman Scarborough passed the gavel to Chairman Voltz.

Item 11. Zoning Official's Report. No report.

Item 12. Ronald D. Levy's request for change from AU and GML to RU-2-8 on 9.332? acres located west of Wickham Road, north of Pine Branch Drive, which was approved by the P&Z Board with Binding Development Plan with a maximum of 42 units.

Attorney Joel Moss, representing Dr. Ronald Levy, stated they discussed the proposed request with their neighbors which is the Windsor Subdivision; Rick Enos has the Binding Development Plan (BDP); and he has a letter signed by Windsor Estate Homeowners Association stating it has reviewed the proposed BDP and approves of such Plan. He noted the applicant will put six duplexes along the north boundary of Windsor Subdivision and trees to buffer the boundary between the applicant's property and Windsor Park property; and the applicant has agreed to install a six-foot fence. Attorney Moss stated the property is approximately nine acres of which only about five acres will be developed as the rest is wetlands; and requested the Board follow the recommendations of the P&Z Board and agree to the zoning of low density.

Edgar Engberg advised of his opposition to the rezoning request and cypress fence, based on the life of the fence, parking problems, inadequate buffer, increased traffic, trespassing, and apartments decreasing his property value.

Jonathan Thomas opposed the request based on water runoff not being contained on site, and increased traffic hazards.

Mr. Moss stated he did not realize there were complaints, as he met with the homeowners many times and assumed they did not have quite the problem they would have with commercial use. He stated there is no reason to believe the residents of the duplex would be nuisances; the road will be built to County standards; and drainage improvements must be approved by County Departments. He described the proposed project and development in the area.

Commissioner Cook stated he viewed the site; there are compatibility problems; the areas is surrounded by single-family residential; and there will be significant impact to the wetland.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF MARCH 2, 1998

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to overrule the P&Z Board and deny Item 12. Motion carried and ordered; Commissioner Voltz voted nay.

Item 13. Power Play Properties, Inc.'s request for change from RU-2-10 and AU to all AU on 15.03 acres located on the east side of Adamson Road, north of S.R. 524, which was denied by the P&Z Board and withdrawn by the applicant by letter received March 3, 1998.

Item 14. 4G's of Brevard County, Inc.'s request for change from AU to ARR on 1.16 acres located on the north side of Breckinridge Avenue, east of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 14 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

The meeting recessed at 9:38 p.m. and reconvened at 9:51 p.m.

Item 15. Gary Coppola's request for CUP for substantial expansion of pre-existing use in TU-1/20 with pre-existing use and RU-2-4 on 3.9? acres located on the east side of A1A, directly opposite of Amber Place, which was approved by the P&Z Board.

John Brennan requested the loud music be toned down and the property be brought into compliance, including landscaping.

Gary Coppola stated he is trying to bring the property into compliance; there have been various designations in the South Beaches over the years; he has worked with Peggy Busacca to get this straightened out; and he is attempting to get his property brought into accordance with pre-existing use. He advised he has spent thousands of dollars planting flowers, grass and fixing berms; he continually cuts the shrubs; the water in the street is not only from his property, but all the property; and proper swales were not put in. He noted he has letters from neighbors stating they love his place and fully support what he is trying to do as far as the extra parking; and he has not had any Code problems with the noise.

Commissioner Higgs inquired what is the status of Mr. Coppola's Code Enforcement violations, and how does it relate to this application.

Zoning Official Rick Enos responded the applicant requested a building permit on the deck; in order to permit the deck, he needs additional parking; there is not enough parking on the site; and Mr. Coppola has requested expansion of the pre-existing use which, if approved, would allow the parking expansion.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF MARCH 2, 1998

Planner Tom Myers stated Mr. Coppola was cited for having built a deck without a permit, taken to Code Board, and a $50 a day fine began to accrue; he had a pre-application conference on a site plan to try and get a permit for the deck; at that point it was determined he would need additional parking to accommodate the area represented by the deck; and there were other deficiencies with the site plan. He noted that is why this application was made; and the $50 a day fine has continued to accrue from two years ago. Commissioner Higgs stated the special master finding said he was using property to the south for parking; with Mr. Myers responding that was a Code violation, but he agreed not to park there until the application was completed.

Commissioner Higgs stated the request is for a substantial expansion to the existing motel and night club for parking; the additional parking is located on adjacent property zoned RU-2-4; expansion to adjacent properties is permitted; and in order to approve the request the Code requires that the expansion be compatible with the character of the area within which the pre-existing use is located and contains uses and proposed site improvements that will enhance the existing use and will substantially elevate the existing site towards full compliance with all current applicable land development regulations and impacts on the existing infrastructure meet all concurrency guidelines. She noted the important thing is the issue of compatibility, as well as how and what are the previous conditions of the site. Commissioner Higgs showed a 1989 aerial photograph of the property; stated Mr. Coppola purchased the Sebastian Beach Inn (SBI) property in 1989 and the abutting properties later in 1989; he bought them as RU-2-4 zoning; and it is still the condition in terms of zoning today. She noted the aerial dated March, 1993, shows the Candlewood Pines area; and showed the expansion that has occurred on RU-2-4 property. She read letters she received in opposition to the CUP request; and advised of other letters she received opposing Mr. Coppola's request.

Mr. Coppola stated he has tried to be a good neighbor; he planted 102 palm trees on the property; most of them died; he has planted plants that are indigenous so they do live; and he is continually doing maintenance. He noted he does not think he is being treated fairly; he has been trying to come into compliance for two years; and he has been bounced back and forth. He mentioned comments made to him by the Building Department and Commissioner Higgs having a vendetta against him. He stated he spent thousands of dollars bringing his place up to Code, and trying to keep it beautiful and maintained; and he has no plans except to get the cars that come there off of the street. He noted he was told he was grandfathered in by people sitting in the Board Room before he purchased the SBI; the County has tried to down zone his property numerous times; he has attended meetings with other South Beach business members, all who feel they are being discriminated against, to try to come to some kind of terms to live together; and all he is trying to do is get some cars off the street. Mr. Coppola stated it is time the Board consider what he has done and what he has been trying to do.

Commissioner Higgs stated the problems with the SBI long proceeded her election; on September 12, 1990, an Emergency Ordinance was passed by the Board giving the power to the Sheriff's Department to tow in designated areas; those areas were A1A, Mullet Creek Drive, Carmen Street, Woody Circle, Camino Place, and Amber Place in the unincorporated; and she has a Code Enforcement report available. She noted there were a series of complaints through 1991; she has those also available; she has a list of action files going back to 1989 in regard to Code Enforcement activities at SBI; and they go through 1997. She stated what she wants the Board to understand is the issue of compatibility and the problems that have evolved; such problems are long-standing from January 1, 1992 through March 26, 1998; and there are five pages of instances where the Sheriff's Department was contacted regarding the SBI. Commissioner Higgs stated all the information she has presented is competent substantial evidence of the incompatibility; if the Board is to allow a substantial expansion of a pre-existing use, the Code says the Board needs to deal with the issue of compatibility; and it is her belief it is incompatible. She noted until the business can show it can co-exist with the area, the Board should not allow the expansion. She stated the Board has substantial competent evidence based on the Code Enforcement officers, the Sheriff's Department, the Emergency Ordinance, and letters before the Board to deny.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to overrule the P&Z Board and deny Item 15.

Mr. Coppola stated the SBI is being made out to sound like a raucous body nuisance to the neighborhood which it is not; and he would invite any of the Commissioners to come down there. He noted before the Board makes a determination, it needs to look into what the calls are all about; and described some of the calls for information, suspicious vehicles, and many from two people, one he barred from his place and Mr. Brennan.

Commissioner Scarborough stated once there is a motion and second, the Board should not open debate unless it votes to do it. Chairman Voltz advised there were serious charges brought up, and he has a right to defend himself. She stated if it is denied it will put him out of business; with Commissioner Higgs responding no, he has a motel, restaurant and bar with 40 parking places. Ms. Busacca explained that Mr. Coppola would not be permitted to have more parking than is on the site; he has to show the septic tank and drain field which appears to have parking on it; and there is no guarantee he will get additional parking spaces. Commissioner Higgs stated Mr. Coppola made an accusation about someone in the Building Department. Ms. Busacca responded she will check into it.

Chairman Voltz called for a vote on the motion. Motion carried and ordered; Commissioner Voltz voted nay.

Motion by Commissioner Scarborough, that the Board not take public comment after a motion and second is received unless the Board votes by motion and second and simple majority to reopen public discussion. Motion died for lack of a second.

Commissioner Cook stated he understands Commissioner Scarborough's concern, but perhaps a motion is not needed; this is the first time it has happened; and he believes the Chairman gets the

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF MARCH 2, 1998

point. Chairman Voltz stated there is no sense in making another rule. Commissioner Scarborough inquired when does the Board exhaust the process. Commissioner Higgs stated the last thing she wants to do is treat someone unfairly; she does not mind having someone ask her questions; but it is not proper procedure for the Board to get into constant debate with someone.

PUBLIC HEARING, RE: ORDINANCE AMENDING CONDITIONAL USE PERMIT FOR FARM ANIMALS AND FOWL

Chairman Voltz called for the public hearing to consider ordinance amending conditional use permit for farm animals and fowl.

Chairman Voltz stated she received a telephone call from Susan Canada expressing her support for the Ordinance.

Commissioner Cook stated in addition to a written statement from veterinarians, he would suggest receiving input from adjacent property owners.

Planner Tom Myers stated the County Attorney's office has discouraged staff in the past from doing that as it has been deemed an illegal delegation of the Board's authority. Zoning Official Rick Enos stated the County does it for administrative actions, but not for CUP's; and staff sends courtesy notices inviting them to the meetings.

Commissioner Scarborough expressed concern about vets providing written statements as evidence that approval will not cause harm to animals. Commissioner Cook stated the ordinance goes from 2 ? acres to one acre for farm animals and fowl; and expressed concern with it. He noted if the Board wants to grant a waiver for a medical condition that is documented by a doctor's statement or affidavit, it can look at that; but to change it from 2 ? acres to one acre may not be in the best interest of the County. Commissioner Cook stated he is not in favor of adopting the ordinance tonight and would like to see it re-worked.

Commissioner Scarborough stated he will meet with Tom Myers and Susan Canada regarding the issues raised.

Marilyn Bissell stated when she was here in November, 1997, the Board voted unanimously to change the law to one acre, and tonight it has turned around and gone the other way; and she thought it was a settled issue. She noted she was told that in January, 1998, the law would be changed and she would get a permit; and she is only asking for the few goats she has because she has to have a closed herd in order to be able to drink the raw milk.

Commissioner Scarborough stated the problem is the Board may solve Ms. Bissell's problem, someone may do something elsewhere, and the Board may have to come back and change it again. Tom Myers stated Code Enforcement on Ms. Bissell's situation has been held in abeyance until the Board is through this ordinance process. Commissioner Scarborough stated the Board is going to take care of Ms. Bissell's problem, but it does not want to take care of the problem so quickly that it creates other problems.

Commissioner Cook stated it is not simple; when the Board passes laws, it is for everyone; there are still significant questions with the proposed ordinance; the Board is trying to address Ms. Bissell's problem; and perhaps staff can re-work this to make sure if the Board is going to pass a law, it is something that is going to improve the situation and not create more problems.

There being no further comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Cook, to continue public hearing to consider ordinance amending Conditional Use Permit (CUP) for farm animals and fowl until the April 30, 1998 meeting; and direct staff to rework it to provide for waivers for medical conditions rather than reduce acreage to one acre. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CONDITIONAL USE PERMIT FOR WILD ANIMALS AND POISONOUS REPTILES

Chairman Voltz called for the public hearing to consider ordinance amending conditional use permit for wild animals and poisonous reptiles.

Commissioner Cook stated this is for temporary foster care of wild animals in the home under the direction of a veterinarian or licensed rehabilitator; and inquired if the Board wants to define temporary or put six months. Chairman Voltz suggested the language be less than one year.

Commissioner Scarborough stated he has not heard of any complaints; and it may create a problem to include the additional language. He suggested the Board adopt the ordinance without any time constraints.

Commissioner Cook stated temporary foster care in the home is the key; and he will support it.

There being no further comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Cook, to adopt Ordinance amending Chapter 62, "Land Development Regulations", Code of Ordinances of Brevard County, Florida; amending Article VI, Division 5, Subdivision III, "Conditional Uses"; specifically amending Sec. 62-1958, wild animals and poisonous reptiles; providing for conflicting provisions; providing for severability; and providing an effective date. Motion carried and ordered unanimously.

DISCUSSION, RE: COMMISSION SALARIES

Barbara Jagrowski, representing Space Coast Chapter of the League of Women Voters, stated she was a member and Vice Chairman of the Charter Commission; County Commissioners' compensation was an issue that was discussed at length during the writing of the Charter; the wording that appears in Section 2.6 was precisely worded and adopted; and the Charter Commission's intent was that the County Commissioners would receive compensation increases every two years. She noted the increase would be determined and adopted as part of the budget prior to October 1 of every even numbered year; the increase would go into effect on January 1 of the odd numbers years; if the increase was excessive, the County Commissioners up for re-election would have to defend their actions as an election issue; and if the increase was in line with accepted standard of living increases, this would not be an issue during the November General Election. Ms. Jagrowski stated there has been a misinterpretation by the County of the Charter Commission's intent; the League of Women Voters has a concern about it; as a temporary measure to correct the misunderstanding, she would request the Board review its recent action on the County Commissioners' compensation and act to bring it in line with the Charter Commission's intent; and as a permanent solution she recently spoke to the present Charter Review Commission and expressed a desire to have Section 2.6 reworded to eliminate any ambiguity. She noted the Charter Review Commission is now planning to review Section 2.6 for possible rewording and clarification; Gayle Cannon obtained a copy of the Florida Local Government Formation Manual, Fifth Edition which was written by the Florida House of Representatives Committee on Community Affairs chaired by Harry Goode; and two paragraphs are quoted as follows: "Charter counties may vary the number of members of their governing body, choose county officers by the manner specified in their charters and abolish any county office when its duties are transferred to another county office." "Other differences between charter and non-charter counties concern taxing powers, setting county officials' salaries, basic management systems, and citizen initiatives. Charter counties can levy any tax within its unincorporated areas that Florida's municipalities can levy. They may tax as a municipality. Non-charter counties do not have this authority. Charter counties have the authority to establish salaries for their county officials independently of State mandate. The salaries of non-charter county officials are set by Chapter 145 of the Florida Statutes. Charter counties may manage administrative functions under centralized control of the county governing board. Non-charter counties divide the administrative functions individually among various constitutional officers unless a special law approved by the vote of the electorate provide otherwise."

County Attorney Scott Knox stated the Constitution says the compensation of county officers has to be fixed by law; the Attorney General has said the county commission cannot pass an ordinance setting its own salary because it is delegation of authority to the county commission that it cannot get; because it is not the Legislature, it cannot prescribe a law; and the Attorney General has also said that the county charter itself is a law for the purposes of the Constitution. He noted if the Charter Commission were to come up with a schedule of salaries for county officers including the county commissioners, that would be okay, which is consistent with what Ms. Jagrowski just read in the book; and the charter itself could set out a schedule of salaries.

Ms. Jagrowski stated the Charter says that the County Commissioners can pass an ordinance setting their salary. Attorney Knox responded therein lies the problem because it constitutes a delegation of the authority to set the salary from the law to county commission ordinance; and an ordinance is not a law for the purposes of the Constitution. Ms. Jagrowski stated Al Galbrace said in his opinion the Attorney General stopped short of fully analyzing the issue; he did not take into consideration that compensation of county officials in charter counties is not set by General Law, except by reference to their county charters which are authorized by General Law; the General law gives the ability to write the charter; and in the charter, they can write what they want, which they did.

Attorney Knox stated the Attorney General has interpreted Mr. Galbrace's statement to mean that the charter itself has to have a schedule of salaries in it, and if that authority is delegated to the county commission, it is unconstitutional. He noted he found two cases prior to 1968 which interpret the fixed by law requirement in the previous Constitution which is exactly the same language as currently exists in the current Constitution to mean there has to be a Statute.

Ms. Jagrowski stated the County violated what the people consider to be the Charter; with Chairman Voltz responding not according to State law. Ms. Jagrowski stated the Charter Commission can fix the problem; with Commissioner Higgs responding the voters can fix it. Attorney Knox advised the Charter Commission can propose an amendment to the Charter which would say that County Commissioners should make "x" number of dollars; and if the voters approve it, that is what the County Commissioners are paid. He stated there are two choices--set it in the Charter or go by what State law says.

Commissioner Higgs stated everyone seems to agree that the Board can set a salary consistent with the non-charter counties; with Ms. Jagrowski responding affirmatively. Commissioner Higgs noted the disagreement is on the implementation; with Ms. Jagrowski responding the timing. Commissioner Higgs stated she is not sure there is an inconsistency there; the effective date of the Ordinance may have been in February but could not be implemented until January, 1999; the Board cannot do anything inconsistent with the Charter and has not done anything; and even though she did not support the motion, there was nothing done inconsistent with the Charter. Ms. Jagrowski stated where she has the problem is where it takes effect immediately; with Commissioner Higgs responding it was not effective immediately. Attorney Knox advised the 1995 Ordinance tied the Commission salaries to State law effective January 1, 1997 for two years, 1997 and 1998; in 1998, the County is required by the Charter to look at the Ordinance again and adopt it for the next two years, 1999 and 2000; and that is what happened.

Ms. Jagrowski reiterated her concern regarding immediate implementation; with Attorney Knox responding the effective date of the Ordinance is different from the effective date of the salaries affected by the Ordinance.

Commissioner Scarborough stated this is a very critical issue to the credibility of the Board; Ms. Jagrowski has put a lot of time on the Charter Commission and does not want to see it held unconstitutional; Attorney Knox is trying to give good legal opinions; and the Board needs to come to a head on this and understand where it is. Commissioner Cook stated the credibility of the Board and public trust is much more important than any raise; the Ordinance was confusing and poorly drafted; the effective date is what created the confusion; and such date should have been January 1, 1999. Commissioner Scarborough noted perhaps the Board should readdress the Ordinance so

DISCUSSION, RE: COMMISSION SALARIES

the record would show what it actually did; with Attorney Knox responding the Ordinance can be changed to make it more clear to everyone.

Ms. Jagrowski stated the Ordinance reads, "This Ordinance shall become effective upon filing within ten days of enactment a certified copy of the Ordinance with the Office of the Secretary of State. Done and adopted, this 24th day of February, 1998." Chairman Voltz stated the Ordinance is effective, but the pay raise does not come in until January 1, 1999.

Commissioner Scarborough stated Attorney Knox has raised a more profound question; it is all right for the Charter to direct the Commissioners' salaries, but the Board cannot delegate to itself even if there is a cap on it; and inquired is there any benefit in getting another Attorney General's opinion on this particular issue. Attorney Knox stated the County can do it for its particular Charter; it has been done for three other charters; and the only way the Board can adopt an Ordinance and be constitutional is to adopt the State salary structure. Commissioner Cook stated Attorney Knox is saying the Board has to adopt the State level in order to comply with the State; he wonders why the Constitutional Officers were left out of the equation; and announced the salaries of the Supervisor of Elections, Clerk of the Courts, Sheriff, Property Appraiser, and Tax Collector. Ms. Jagrowski stated the Charter Commission did put the Constitutional Officers under the Charter.

Commissioner Scarborough requested Attorney Knox come back with some thoughts on the advisability of proceeding with an Attorney General's Opinion; with Attorney Knox responding it would be a good idea.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to direct the County Attorney to proceed in obtaining an Attorney General's Opinion (AGO) concerning the Commission salaries. Motion carried and ordered unanimously.

Commissioner O'Brien stated he received information from Steve Burdett when he got to the meeting this evening concerning schedule of expenditures, compensation and travel for Commission offices; and inquired if any Commissioner said they wanted or needed all this information tonight. He stated the information has nothing to do with what was on the agenda. Commissioner Higgs stated she finds the information to be inaccurate. Commissioner O'Brien stated he would like to know who ordered the information and why it is inaccurate. Chairman Voltz requested Community Development Administrator Peggy Busacca find out who ordered the information.

Commissioner Higgs stated on Page 10, Section 1 (A), it says, "The salary provided for in this Section shall become effective during the first full pay period after the adoption of this Ordinance"; and the Ordinance needs to be altered. Attorney Knox stated his office will fix the Ordinance so that it reads the way it is supposed to. Commissioner Higgs stated the salary adjustment provided for by State law that the Legislature passes will become effective anyway; with Chairman Voltz responding yes, for fiscal year 1998. Commissioner Cook stated the Board should have received an increase in October, but it did not; with Chairman Voltz responding affirmatively.

DISCUSSION, RE: COMMISSION SALARIES

Commissioner O'Brien inquired if Ms. Jagrowski is satisfied with the answer this evening; with Ms. Jagrowski responding affirmatively.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to direct staff to bring the Ordinance back to the Board for necessary corrections. Motion carried and ordered unanimously.

DISCUSSION, RE: ISTEA FUNDING FOR U.S. 192

Chairman Voltz stated Congressman Dave Weldon was able to get Brevard County $25 million ISTEA funding for U.S. 192.

WARRANT LIST

Upon motion and vote, the meeting adjourned at 11:19 p.m.

HELEN VOLTZ, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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