The Board of County Commissioners of Brevard County, Florida, met in special session on September 28, 2000, at 10:00 a.m. in the Government Center Florida Room, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Sue Carlson and Helen Voltz, Assistant County Managers *Peggy Busacca and Stephen Peffer, and County Attorney Scott Knox. Absent was: County Manager Tom Jenkins.

REQUEST BY SIERRA CLUB TURTLE COAST GROUP, RE: WAIVER OF APPEAL FEE

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve request of Sierra Club Turtle Coast Group for waiver of $1,000 fee for appeal of administrative interpretation regarding the implementation of Conservation Policy 5.2.F.2 for the Oleander Power Project. Motion carried and ordered unanimously.

DISCUSSION, RE: BREVARD CROSSINGS DEVELOPMENT OF REGIONAL IMPACT (DRI)

Chairman Higgs stated the Board needs to determine how it wants to proceed; there are some people present to discuss Brevard Crossings, including representatives from the City of Cocoa as well as individuals who wish to speak to the item; and there is a staff letter in regard to Brevard Crossings.

Commissioner Scarborough stated he has talked to representatives on both sides of the issue; they would like an opportunity to review the letter; and perhaps staff can be available to discuss the issues after the Manatee Protection Plan discussion. Chairman Higgs stated the Board will proceed with discussion on the Manatee Protection Plan and then discuss the issues in the letter concerning Brevard Crossings.

*Assistant County Manager Peggy Busacca's absence was noted at this time.

STAFF REPORT, RE: MANATEE PROTECTION PLAN

Assistant County Manager Stephen Peffer stated since the last time the Board met in April, 2000, to discuss manatees, staff has received a number of different communications from the State; staff has provided the Board with a lot of different information; and such information is available in a notebook which staff will provide to the Board members. He noted all the information has been compiled since the Board's last workshop; last April, 2000, the County was advised by the State Fish and Wildlife Conservation Commission that it was no longer

STAFF REPORT, RE: MANATEE PROTECTION PLAN

necessary to try to mutually agree upon a comprehensive manatee protection plan; the Conservation Commission recommended the efforts be focused on the items both agencies could best implement; and on April 27, 2000, the Board held a manatee protection workshop to re-focus the County's activities in response to the new direction. He advised numerous tasks were assigned to staff; it has provided a package of information to the Board; on August 24 2000, Governor Jeb Bush announced a plan to provide increased protection for Florida manatees; that plan included a campaign to increase boater awareness, increase manatee protection signage, increase enforcement of speed zones, increase fines for speed zone violators, a Statewide Manatee Protection Summit to explore ways to reduce manatee mortality, and new call for the key coastal counties, including Brevard, to complete their manatee protection plans, preferably in time for the Manatee Summit which is scheduled for October 19, 2000. Mr. Peffer stated on September 6, 2000, the State Fish and Wildlife Conservation Commission determined it would review speed zones throughout the State and would begin the work in Brevard County; public workshops will probably start in November, 2000 to address speed zones; on September 7, 2000, the United States Fish and Wildlife Service held a workshop to discuss expanding manatee sanctuaries in Florida generally and several Brevard County sites specifically; and Brevard County's coastal waters are designated as critical habitat for manatees. He advised on September 7, 2000, Brevard County received a copy of a letter from the U.S. Fish and Wildlife Service, the federal agency charged with protecting endangered species, stating the counties should also seek federal approval of their manatee protection plans; and to the best of his knowledge that is the first time that request had ever been presented to the County. He stated all of those items will enter into the Board's decisions today as to how to put together a manatee protection plan, should it decide to present one in time for the Governor's Summit. Mr. Peffer stated during the last Board meeting, there seemed to be a general consensus dealing with four of the major items in the manatee plan; they are habitat protection, speed zones, law enforcement, and education; suggested the Board allow the public to speak at this point; and at the appropriate time, the Board can discuss how it will handle each of the items and proceed from there.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve allowing the State to handle the speed zones. Motion carried and ordered unanimously.

PUBLIC COMMENT, RE: MANATEE PROTECTION PLAN

Ron Pritchard, representing Citizens for Florida Waterways (CFW), stated he provided information on what CFW and its ad hoc committee have come up with in terms of recommendations; in addition to the recommendations, CFW has been speaking to Bradley Hartman and Buddy Powell at the Marine Research Institute; Mr. Powell performs the animal necropsies and is in charge of that facility; and there has been a lot of good dialogue and interesting conversation based on real scientific fact and evidence. He stated the programs

PUBLIC COMMENT, RE: MANATEE PROTECTION PLAN

advocated fall more in line with the fact and evidence at issue and not from the emotional heart-rendering stories the Board may hear from some that advocate extreme manatee protection; the CFW held a meeting last night and the guest speaker was one of the manatee coordinators from the Law Enforcement Division of Florida Fish and Wildlife Conservation Commission; one of the comments he made was that as law enforcement increases, so does manatee mortality; and the CFW is going to pursue it and find out exactly what the guest speaker was talking about. Mr. Pritchard advised there are nine recommendations; he went over them briefly at the last meeting; CFW is still involved very heavily with developing the scientific and data-oriented approach toward manatee protection; the CFW will be having a meeting on Saturday with other boating organizations; and it is forming a coalition and estimates it will have many thousands of members in the new organization that is going to represent Florida boaters. He noted the CFW will be providing additional information, as it becomes available, to the Board so it will be able to make informed decisions.

Tom McGill, Director of the CFW, stated in the past there have been a lot of discussions about the database, mortality of manatees, how many of them were killed, where they were killed, how they were recovered, etc.; CFW has established a committee to review that data in conjunction with the people who conduct the necropsies; one of the CFW's recommendations is to conduct an audit using outside board-certified veterinarian pathologists to evaluate the conduct and reporting of necropsies at the Marine Mammal Pathobiology Laboratory, as well as field necropsies, and identify problems and suggest corrective actions; and he has talked to the President of Florida Veterinarian Association and other people in Gainesville, and to Buddy Powell, Director of Research at the Laboratory, who is in concurrence with it. He stated Dr. Powell believes a good audit is in order; people tend to lump all manatees that are involved with watercraft in one category; there is a capability to differentiate; and it is important to know what the causes are. Mr. McGill stated this can be a win-win situation where more data can be obtained that the people in the research area, as well as the people who trying to use the data, can use to be able to better define what the specific causes are and then determine what the best corrective actions are; it is a cooperative effort; and they expect to meet in St. Petersburg within the next 60 days concerning this subject.

Diane Whitley, representing Whitley Marine, stated she has not had much sleep for about a year now; the federal government has decided that it also must approve Brevard County's manatee protection plan; in the last 11 months, it has been brought home in a very close and personal manner how important it is to have local governance of local problems; and begged the Board not to hand its ability to control and work with its local businesses and local citizens over to big government, whether it is on the State level or the federal level because they are not capable of dealing with the up-close and personal problems of everyday Brevard County, Cocoa, Whitley Marine, or any other citizen or business. She noted at the end of the day when everybody is through talking about marina siting, speed zones, and everything else, everybody goes home and everybody gets paid on Friday; she is one of the individuals who cannot sleep at night and continues to be directly affected by unprecedented and unwarranted attacks and lies in the press; they are beginning to feel like a piece of road kill with a pack of dogs fighting over it; and there does not seem to be any resolution for them. Ms. Whitley urged the Board not to give up its right to govern locally.

Mr. Peffer stated in the previous workshops and discussions, the Board has made a number of recommended changes to the 1997 draft; those are provided in the handout on page 70; the Board has taken action on the items; and suggested the Board acknowledge that the 1997 draft would be changed in these various manners. He advised staff has incorporated the changes summarized on page 70 into the actual text of the manatee protection plan.

Commissioner Scarborough stated he talked to Conrad White concerning references to speed zones; and inquired if the Board needs to take any additional action on speed zones.

Section Supervisor Conrad White advised staff created draft language to include under speed zones. Mr. Peffer stated the motion made earlier would delete the various speed zone language from the manatee protection plan; and staff has suggested in its place a statement to the effect that Brevard County would work with the State agencies, participate in the workshops as speed zones were being visited in their process, and let the State take the lead, but would continue to participate and cooperate with the State.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve including language in Section D, Manatee Protection, Boat Speed Zones, "Brevard County Board of County Commissioners acknowledges the Florida Fish and Wildlife Conservation Commission's initiation of rule-making procedures for the development of manatee protection speed zones, beginning in Brevard County, including conducting public workshops, gathering additional scientific data, and other information; and expresses its intent to participate in the State's process." Motion carried and ordered unanimously.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve including language that public hearings shall be held in Brevard County for all future proposed speed zones in the County; and notification of the hearings be published in a Brevard County newspaper. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt the habitat protection, law enforcement, education elements, and everything on the list, except the marina siting issues; request the State fund a Brevard County employee for educational assistance; and if it is not willing to fund same, it provide a State employee in Brevard County. Motion carried and ordered unanimously.

BOARD DISCUSSION AND DIRECTION, RE: MANATEE PROTECTION

Commissioner O'Brien stated page 70 says language has been inserted on page 42, under development of manatee information kiosks displays at high use boat ramps, stating that Brevard County is presently developing and constructing educational kiosks; but page 42 does not mention kiosks anywhere. Mr. Peffer stated it is on page 42 of the manatee protection plan. Mr. White advised it is on page 82 at the top. Commissioner O'Brien stated Brevard County is paying for kiosks and has not asked Department of Environmental Protection (DEP) or Fish and Wildlife Commission to come up with the money to pay for the educational format; and it is not that Brevard County does not care about the manatee, but it is a Statewide problem that requires State participation. Mr. White stated kiosks are being done with a grant from the State; with Chairman Higgs advising Brevard County is funded through the State.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to include everything on the list, except for the marina siting issues. Motion carried and ordered unanimously.

Chairman Higgs stated as she was reviewing the materials, one of the things that was left out that needs to be included is language in the Coastal and Conservation Elements in regard to marinas; it is already law and approved by the State; it needs to be included in the plan; and it tells the County specifically where and when it can have marinas. She noted it needs to be included in the manatee protection plan so the State, in reviewing the County's plan, has the full knowledge of what is in effect already in Brevard County.

Commissioner O'Brien stated Zone D as submitted by Jerry Sansom and representatives of the Cities of Titusville and Cocoa was the right way to go concerning marina siting; and the language the County had for marina siting was terrible in some cases and not the right approach.

Commissioner Scarborough stated the State said it would do marina sitings; and Commissioner O'Brien's point at the Board's last meeting was if the State was going to do it, perhaps Brevard County did not need to get involved. He inquired if Commissioner O'Brien has changed his mind; with Commissioner O'Brien responding affirmatively.

Chairman Higgs stated she has information from Save The Manatee Club that indicates if the County proceeds with some of the Zone D issues, it will affect a considerably higher number of marinas than she thought were affected when the Board looked at it; one of the other issues the Board may need to consider is that it cannot regulate marina and marina siting unless it wants to adopt an ordinance that covers the entire County; she doubts it can do that as it would be determining zoning within a municipality; and while it has tried to work with the cities and to come up with something that would apply universally, perhaps it is not able to come up with a universal statement that would apply to the unincorporated and incorporated areas. She advised the County has in place a Comprehensive Plan that has specific information on marinas in unincorporated Brevard County; maybe it is going beyond the scope of what the Board can do; and its reference in the manatee plan should acknowledge that the cities have considerable sway and authority through the Constitution of the State of Florida in regard to zoning.

Mr. Peffer stated page 85 of the handout outlines several different approaches the Board could consider concerning manatees; Option A would be to forward the 1997 draft with changes the Board has made, which is the Zone D changes that refer to municipal marinas; Option B is to go back to the 1997 draft which would not include Zone D changes and would require Board action; Option C is a different approach and regardless of what the Board puts in its manatee protection plan, the State and federal agencies are going to be involved in the permitting of marinas and will ultimately make a decision as to the size and number of boat slips, amount of coverage of submerged bottom, and physical and environmental issues when they make the deliberation; and such Option acknowledges that that is going to occur and provides for the Board an opportunity to take into consideration some of those features when it makes its land use decisions. He stated Option D includes looking at the manatee features, not in terms of making a calculation, but in a less structured way, and the Board would be able to review and get information in its deliberations about such things as manatee mortality, water quality classifications, and other features that would be incorporated in the Conditional Use Permit (CUP) review for new marinas or marina expansions. Mr. Peffer stated the Board requested staff to make a modification to the Comprehensive Plan which would require that someone coming in for CUP demonstrate that they have obtained the necessary permits; the County would assure that the environmental issues that are incorporated into the marina siting options are included; and it is another way of making sure it has addressed them.

Discussion ensued concerning upland issues, the CUP process, criteria specific to marinas, Conservation and Coastal Elements, manatee abundance and mortality, formalized methodology, U. S. Fish and Wildlife Service, Corps of Engineers, DEP, Florida Game and Fish Commission, competent and substantial evidence, Class II waters, Barge Canal, Zone D, and Bert Harris Act issues.

Chairman Higgs inquired does the Board need to include additional language in the ordinance that further gives it the ability in the CUP process to evaluate criteria outlined by staff. County Attorney Scott Knox responded the Comprehensive Plan policies governing marinas are built into the County's ordinance and the CUP process; and there is also a general provision of the CUP conditions which says one needs to comply with all applicable Comprehensive Plan policies; and the Board can put more specific criteria to make it clearer, but once it does that it steps into the Bert Harris Act area. Chairman Higgs stated that is a call the Board has to make if it believes the resources to be protected are worth the risks involved with potentially a Bert Harris Act issue.

Mr. Peffer stated one option is that the Board could include as its marina siting basically the way it does it now which is to include the way the County approaches marinas, this is how they get

BOARD DISCUSSION AND DIRECTION, RE: MANATEE PROTECTION

their permits, these are the CUP's and sections of the Comprehensive Plan that apply, and this is how it will proceed to review marinas in Brevard County; it is different than what is in the plan; it is almost what would exist if the Board were to say it would take the whole marina section out as it is the default of how it does it now; and it states the current status.

Commissioner Carlson stated on page 3, number 3, one of the directives from the Board in the June 28, 2000 memorandum says, "The County Attorney will recommend changes to the Comprehensive Plan and local ordinances that require applicants who apply for a marina CUP to first obtain State and federal permits before applying for County permits"; and inquired is attachment 4 included. Mr. White responded such attachment is on page 42.

Commissioner Scarborough stated the County has been allowed to implement its suggested ideas that are going to be used at a different level through the manatee plan; it does not have the jurisdiction, but it has been given the window to exercise some discretion; and the issue he sees is whether or not the County wants to get back into the dialogue with the State or not.

Commissioner O'Brien inquired can a city opt out of this plan and submit its own plan for approval. Mr. Peffer responded all the municipalities were invited to participate in the manatee protection plan; most of them participated actively in development of the draft; the State's concept would be that the counties would sponsor that process and organize it; and it would provide direction for how certain permitting decisions would be made by the State in that county. He noted it provided local input as to how the decisions would be made; the cities are not going to necessarily be bound by this; and it is a cooperative agreement between the County and the State as to how they are approaching these types of issues in Brevard County. Commissioner O'Brien stated if the County removes the marina siting element out of its plan, the Cities of Titusville and Cocoa could write their own ordinances or codes that would accomplish the same task.

Jerry Sansom stated the State believes that the unincorporated areas, as well as the municipalities, comprise Brevard County; it does not look at Brevard County as only being unincorporated; the manatee plan went to all the municipalities and there was positive feedback from almost all of them, saying they either agreed with the Cities of Titusville and Cocoa's proposal or they suggested changes, some of which the Board included; and at one of the earlier workshops, one of the questions was does the County want to have a marina siting element in the plan that relates to the municipalities, and the cities said they did not want to be thrown adrift and have to each go through the same process as the Board. He noted the cities wanted to do it as a cooperative effort between them and Brevard County to develop a manatee protection program that everybody could live with; the cities have been supporting it and continue to ask Brevard County, as part of its manatee protection plan, to submit to the State the things it has already agreed to, including the parts relative to marina sitings, municipalities, and redevelopment areas; and the cities want to be part of the plan. Mr. Sansom stated these

BOARD DISCUSSION AND DIRECTION, RE: MANATEE PROTECTION

are things that have been reviewed during several workshops; the details have been hashed out and improvements have been made; and it appears the Board has come to terms with what it wants in the unincorporated areas. He reiterated his request that the Board not cast the municipalities adrift with those things they have come together on and agreed to do; stated the manatee protection plan is a good one; Brevard County is making great strides; and the cities want to continue to cooperate.

Discussion continued concerning law enforcement on the water, enhanced manatee features, concepts and criteria for manatees, establishing manatee speed zones in areas of marinas, local control, and redevelopment areas.

Commissioner Carlson stated she is uncomfortable, based on all that has gone on, with the State and its communications with Brevard County on including marina sitings; and inquired if the County could take those areas where it designates marina siting in the current manatee protection plan, exclude them under a separate addendum cover, and ask the State to refer specifically to it as a piece the County is not including. She noted the County can take marina siting out of the manatee protection plan and include what it is currently doing in terms of the ordinance, etc.; and as a special addendum with the plan, the County can request the State give special consideration to the zones the Board has already acknowledged and attach with it the new information for the State to make the call on and give Brevard County feedback. Commissioner Carlson stated she would like to get the State's perspective on it and have it provide its input. Commissioner O'Brien stated the Board has worked hard on the plan for approximately seven years; this one part of the plan has become a sticky point; and it is the methodology that a group six or seven years ago chose to use of how to site marinas. Chairman Higgs stated it was in the Manatee Protection Plan passed in 1997 with all the features. Commissioner O'Brien noted it became questionable whether that was the route to take; and one can easily create it through zoning and not this convoluted methodology.

Chairman Higgs suggested sending the manatee protection plan forward with the amendment including Zones A, B, and C, which also includes the criteria, and the marina siting as specified; and include the County's Comprehensive Plan as part of what the State sees. She stated she is willing to consider Zone D and the criteria as it has been drafted and given to the municipalities on numerous occasions.

Motion by Commissioner Carlson, to extract the marina siting detail from the manatee protection plan and send the plan forward without marina siting; include an addendum that would expressly discuss where the Board has gone regarding marina siting; make sure it has the status quo in the plan; and include the information given to Chairman Higgs by Save The Manatee Club for the State to review.

BOARD DISCUSSION AND DIRECTION, RE: MANATEE PROTECTION

Commissioner O'Brien advised he cannot support the motion as he does not know if the information is accurate or not. Commissioner Carlson stated she does not have to include it in the motion. Chairman Higgs stated she was simply providing the information to the Board.

Commissioner Scarborough stated rather than an addendum he would like to have a separate letter from the Chairman; with Commissioner Carlson responding that is fine. Commissioner Scarborough advised he will second the motion.

Chairman Higgs stated she will not support the motion; what the County has in the plan, including the amendment suggested by Mr. Sansom, is a compromise that moves Brevard County forward; it includes the siting issues; and the County has a decent siting criteria with the amendment. Commissioner O'Brien stated such amendment is an important one; the County is talking about boat facility siting zones; he believes it is as far as the Board wants to go; and if it leaves page 77 in the plan, it is saying it has designated zones, including Zones A through D. He noted Brevard County is helping the State in its contemplations to see that the County has zoned out certain areas; by taking page 78 out or adding it as an addendum, such as Commissioner Carlson has recommended, the County is saying this is how it thought it would look at the powerboat to shoreline ratios and facility siting criteria; the State may not agree with Brevard County's criteria when it shows the State how it did it; and it may come up with a different methodology altogether. He noted he believes the State will do that because it will make one rule that it going to fit all; and the County has accomplished the task by leaving in the boat facility siting zones, removing page 78, and putting it as an addendum in the back.

Commissioner Scarborough withdrew his second to the motion.

Mr. Peffer stated when the State is looking at impacts to manatees throughout Brevard County, it is going to need to look at marina and boat facility siting in its whole; the County cannot pull out one piece of it and have the State review it; the State will need to know if the County is opening things up in municipalities and existing marinas, that it is also restricting them in other areas; and if it throws the one piece out there that it is opening it up in municipalities and they do not have any offset, he does not believe it would be looked at favorably. Commissioner O'Brien stated the State will also make its own methodology and criteria for marina siting; and the County is not going to be the one to determine that.

Commissioner Voltz stated the powerboat to shoreline ratios is a major issue, along with some of the limiting features of the five or more manatees observed and the 5% or more present on the project site; those are the issues that are important and the ones she has a problem with; she can support the rest of the plan; and expressed concern with the references in the zone areas.

BOARD DISCUSSION AND DIRECTION, RE: MANATEE PROTECTION

Motion by Commissioner O'Brien, to eliminate boat facility siting zones, Figure 2, through the end of page 78 and replace one paragraph that references urban siting/marina siting; and take out all Zone D criteria that says, "Urban locations with existing public marinas located within incorporated municipal boundaries." Motion died for lack of a second.

Chairman Higgs passed the gavel to Vice Chairman O'Brien.

Motion by Commissioner Higgs, to include pages 77 and 78 with the amendment suggested as to Zones A, B and C under the description of the urban locations.

Commissioner Carlson inquired can Commissioner Higgs be more explicit about what the language is, and what is the actual language under Zone D.

Commissioner Higgs stated under Zone D, it would read "Urban locations, specifically not including areas designated as Zones A, B, and C . . ."

Commissioner Carlson stated she will second the motion.

Commissioner Scarborough stated if the Board sends this as part of the manatee protection plan and anybody wants to object or comment, it is throwing the whole plan under the cloud of coming back to the County; and he likes Commissioner Carlson's methodology better. Commissioner Higgs stated this particular siting scenario has been a part of the plan since the original one; the County came back with the cities recommendation in 1998/1999; it has taken that into account with protective provisions; with the further amendments today, the County has moved from the ad hoc committee's recommendation and with some amendments by the cities to considerable public hearing by the Board of these provisions; and she supports the motion. Commissioner Scarborough stated the County is jeopardizing the rest of the manatee protection plan; it is going into a Statewide review of it; he does not want to put anything that is the least bit questionable on the table simultaneously with going to the Governor's Conference; and this needs to be submitted separately as something that the community can discuss further. Commissioner Voltz stated she is not going to support the motion.

Vice Chairman O'Brien called for a vote on the motion. Motion did not carry; Commissioners Higgs and Carlson voted aye, Commissioners Scarborough, O'Brien and Voltz voted nay.

Vice Chairman O'Brien passed the gavel to Chairman Higgs.

BOARD DISCUSSION AND DIRECTION, RE: MANATEE PROTECTION

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve extracting the marina siting information under separate letter from the Chairman, giving the history of the particular marina siting issue, and include in the Manatee Protection Plan the status quo of what Brevard County is currently doing and referencing the cover letter; direct that the MPP as a whole be sent to the State advising it what the Board agrees with; include not only Brevard County's Comprehensive Plan and zoning in regard to the CUP's for marinas, but the various municipalities. Motion carried and ordered; Commissioner Higgs voted nay.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve the Manatee Protection Plan, as amended.

Mr. Peffer stated the County is going to extract the marina siting element and put it under separate letter; the Board talked about making the clarification of Zones A, B, and C; and inquired if it is what the Board would like to see there.

The Board reached consensus to include in the letter the clarification of Zones A, B, and C on Page 77, Zone D, as requested by Jerry Sansom.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to approve language on Page 42, Permitting, that any CUP the Board issues would be contingent upon approval of the permits. Motion carried and ordered unanimously.

Chairman Higgs passed the gavel to Vice Chairman O'Brien.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve including the MPP information to the State that Brevard County's CUP for marinas would include the items listed in Options C and D, and the Board would consider amendments to the CUP for marinas for final consideration in an ordinance.

Commissioner Voltz stated she is not going to support the motion. Commissioner O'Brien stated the CUP process, in general, can be based upon the Future Land Use Map (FLUM), the Comprehensive Plan, and a series of other things that are with the zoning request; to add more detail to the list is making the public go through hoops, which they have to go through contingent upon approval of the CUP anyway; the Board should not be here trying to fight the fight of turning it down before it begins; and inquired if somebody meets the criteria for the Comprehensive Plan and the Future Land Use Plan, what else does the County want. He noted

BOARD DISCUSSION AND DIRECTION, RE: MANATEE PROTECTION

for anybody to get the permits, it is going to be a horrendous process; and suggested the County wait until after the State. Commissioner Scarborough stated the CUP process has been identified as something that is the County's responsibility; and to say the CUP process does not exist and the County should not be looking at it is saying it does not have such a process and somebody needs to get State permits. Commissioner O'Brien stated the County has a CUP process, and it is through zoning. Commissioner Carlson stated the County is only trying to clarify, and it gives someone additional guidance to see where the County is. Commissioner Higgs reiterated it is additional guidance because it talks about preserving, protecting, enhancing, regional, nearby, adjacent or onsite biological resources or protective habitat; all the County is doing is enumerating so that people will have a clue what they are going to be asked; and it is only fair to add those things that give people an idea what they are going to be evaluated by. Commissioner O'Brien stated the County is mainly involved with the upland issue; it is getting into the issues that are already covered by the federal and State agencies that have strict criteria; when the plan comes back, he believes there is going to be strict criteria; and inquired why does Brevard County want to continue to make more laws and make it harder for anyone to try to get something done or go forth in life.

Commissioner Scarborough stated he may agree with Commissioner O'Brien on everything he says at the ordinance hearing; the Board may not find it prudent because it is handled through other permitting; but at this juncture, he cannot vote against considering an ordinance as a part of a thorough CUP process because if the County does not put things down in the CUP process, it loses in court; and it is prudent for the Board to analyze the CUP process. Commissioner Carlson stated the County is trying to save the property owner some grief by giving them up-front information on the more explicit details in the current ordinance.

Vice Chairman O'Brien called for a vote on the motion. Motion carried and ordered; Commissioners O'Brien and Voltz voted nay.

Vice Chairman O'Brien passed the gavel to Chairman Higgs.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve the Manatee Protection Plan, as amended. Motion carried and ordered unanimously.

The meeting recessed at 12:20 p.m. and reconvened at 12:30 p.m.

Commissioner Scarborough stated staff has done a great deal of analysis; if someone comes in for CUP and there is criteria listed, they will not even pay their fee because staff is going to have

BOARD DISCUSSION AND DIRECTION, RE: MANATEE PROTECTION

all of the data prepared; it is going to be fairly easy for a person to walk into Brevard County and know whether it is worth running the gamut with agencies or not if the County does this right; and expressed appreciation to staff for its good work. He stated the applicant, through the process, is essentially able to have Brevard County do a tremendous amount of work for them; they walk in and are able to say it is not going to work because the data has already been prepared; and information the government has is the friend of the public. Commissioner O'Brien stated the flip side of that statement is that government can also be the enemy of the people by having heavy rules and regulations.

Commissioner O'Brien requested a letter be submitted with the MPP that requests an audit be conducted using outside board-certified veterinarian pathobiologists to evaluate the conduct of necropsies at the Marine Mammal Pathobiology Laboratory, as well as field necropsies, and identify problems and suggest corrective actions. He stated there was a 120 hearing by Captain Tom McGill; in the process of that hearing, some of the manatees that had been declared as being boat collision deaths, the end result was that it was reversed and the cause of death for the manatee was changed to be something else. Chairman Higgs stated she read the judge's ruling. Commissioner O'Brien stated the testimony on the stand by the pathologist was that they had ruled at first it was a boat collision manatee mortality, but under further inspection or questioning at the hearing, they said they could not hold to that.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to direct that a letter be sent with the MPP that requests an audit be conducted using outside board-certified veterinarian pathobiologists to evaluate the conduct of necropsies at the Marine Mammal Pathobiology Laboratory, as well as field necropsies, and identify problems and suggest corrective actions.

Commissioner Scarborough stated he has nothing against what Commissioner O'Brien is suggesting, but he does not know enough about it. Commissioner Carlson inquired if CFW can take the information to the Governor's Summit and bring up the issues. Chairman Higgs stated she is not going to support the motion; and the information she has is that the evidence presented and the results of the case do not indicate that an audit needs to be done.

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

Mr. Peffer stated staff will compile a 2000 draft of the MPP to submit to the State; it should have it completed in time for the Governor's Summit; and inquired if the Board wishes to provide any direction on attendance at the Summit.

BOARD DISCUSSION AND DIRECTION, RE: MANATEE PROTECTION

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to grant permission for the Chairman and appropriate staff to travel to attend the Governor's Summit. Motion carried and ordered unanimously.

DISCUSSION, RE: BREVARD CROSSINGS DEVELOPMENT OF REGIONAL IMPACT (DRI)

Chairman Higgs stated the Board has information before it from the planning staff, and inquired if there are any questions in regard to the letter. Commissioner Scarborough requested the Board hear from the public.

Mayor Judy Parrish, City of Cocoa, stated representatives of the City are present to make a request to the Board to allow the process to work; the City is early in the process regarding the Brevard Crossings Mall; the City is requesting the Board to keep an open mind and keep the lines of communication open; and there was a feeling of surprise and bewilderment when the City read in the paper the Board's decision. She noted being that it is early in the process, the City was hoping the Board has not already made up its mind; through the Development of Regional Impact (DRI) process, a lot of the concerns will be addressed and answered; and encouraged the Board to raise the issues and concerns it has and let them be addressed before rendering an opinion on the mall.

Aleck Greenwood, representing City of Cocoa, expressed appreciation to the Board for its past support to the City; stated the City is adding another goal to continue the growth pattern of Cocoa; and that is for the proposed mall. He noted the staff report is going to be addressed; the developer that is interested in putting the mall in the Cocoa area has looked at all the issues; such issues can all be addressed; and the developer would not be interested in developing the property unless it was possible to do so. He stated the developer has assured staff and the City that there are answers for all the concerns.

Douglas Sphar, representing the Sierra Club Turtle Coast Group, commended staff for its hard work and well thought out letter; stated the Sierra Club recognizes this is a first step in a long process; as Mr. Evans has stated repeatedly, the State Department of Community Affairs (DCA) is the ultimate arbiter of Cocoa's Plan amendment; it is mandated by Rule 9J-5 that input be solicited from everybody, including citizens; and the DCA considers the County to be an important commenter on the amendment. He noted the Board has a responsibility for the economic well-being and quality of life for all Brevard citizens, which includes economic, as well as environmental and other aspects; the County would be remiss if it did not bring forward the issues for DCA's consideration; it is not a final determination, and the County is only giving input to DCA, along with the City, Sierra Club, and everybody else's input; and the DCA will put the appropriate weight as it sees fit. Mr. Sphar stated the Sierra Club has reviewed in detail the Brevard Crossings application, reviewing agency's sufficiency comments, and Cocoa's plan amendments; it has come to the same conclusion as County staff that more analysis and data are warranted; Cocoa's supporting analysis must be supported by independent third party analysis chartered by the DCA; and he has a letter from the applicant to the City which gave it the substance of its Comprehensive Plan amendment. He noted there has been little additional analysis by Cocoa; an independent third party validation of the data analysis is warranted; the project has a potential of shifting Central Brevard's business center to the extreme west of the County while leaving a trail of economic blight in established business areas; and it should be conclusively established that this project will not harm the greater economy and environment of Brevard County. Mr. Sphar stated the Sierra Club requests the letter be sent to DCA, including Cocoa's supporting comments, as all of it will be valuable information that DCA will use in weighing the merits of the amendment and the project.

Kenneth Koch, Community Development Director for City of Cocoa, stated when the City annexed the property, the majority of the property was already designated commercial and industrial in the County; the Future Land Use Map (FLUM) amendment would not be necessary, except for that portion that was in the City that was residential; it was designated commercial and industrial in the County, which would have allowed for commercial development of this intensity; and the reason the City is pursuing the activity center designation, which is provided for in the City's Comprehensive Plan, is it believes it fits the criteria for a mixed use development under the DRI rules and regulations. He noted the City felt the activity center designation was more appropriate than just a general commercial or industrial designation; the response to the DCA from various agencies when it sends out for its reviews is handled by staff; this was the case, as the City understands it; it received a copy of the first letter that was prepared a few days ago; and it is the City's understanding that the County has some informal policy wherein certain Comprehensive Plan amendments of a certain size are placed on the County's Agenda, which is typically not the case in his experience, and it is usually an administrative function. Mr. Koch stated the City was caught by surprise by the fact that the item was on the Board's Agenda; by the time the City found out, it had already hit the newspapers that there was opposition to the mall; it was eventually withdrawn from the Board's Consent Agenda and was discussed on Tuesday; and County staff has already issued an apology for not contacting the City, and the City accepts that. He noted one of the other issues there seems to be some confusion on was the response in the ADA; in the past, DCA has taken a position that both the FLUM amendment and the DRI amendment occur simultaneously; typically, the Future Land Use amendment is to occur first and then the DRI application; and DCA allows cross referencing to the DRI to fulfill the analysis requirements. Mr. Koch noted there is quite extensive data analysis that occurs as part of the DRI review; there seems to be confusion as to whether or not that information is allowable as a response to consistency and data analysis; the City believes it is; and the City would prefer some things not be included to the DCA. He stated the City is not recommending that the County drop any of its analysis of the City's Comprehensive Plan consistency statements; and requested the County drop the comments that are highlighted in yellow.

DISCUSSION, RE: BREVARD CROSSINGS DEVELOPMENT OF REGIONAL IMPACT (DRI)

Chairman Higgs inquired before the City annexed the property that was in Brevard County, did it notify the Board of all of its action in regard to annexation; with Mr. Koch responding he was not here at the time, but assumes there is a procedure in place for notification of annexations. Chairman Higgs stated Mr. Koch was complaining that the County had not notified the City; she wants to be sure that the communication process is clear; the City moved forward to annex, which is under State law what it can do; and then it notifies the County that this is what it has done. Mayor Parrish advised there are advertising requirements. Chairman Higgs responded she is aware of such requirements; the County advertises its Commission agenda and the cities receive copies; and she wants it to be clear to everyone who might be listening that communication works two ways. Commissioner Voltz stated if the County is going to pull something off its Agenda that is going to affect any of the cities, especially a magnitude like this where they may not have an opportunity to respond, it is incumbent upon the County to let them know; it does not mean that by law it has to be done; and it is in the spirit of cooperation that the County would do that. Chairman Higgs stated the item was on the Agenda; it was pulled in a timely manner; and it was a part of the package at all times. Mr. Koch stated the City is not here to cast aspersions, and it wants to keep the lines of communication open.

Mary Todd stated she commented on the letter on Tuesday, but has comments about wording, grammar, etc.; No. 1 says, "Protective wildlife habitats will be eliminated on site and protective plant species will be destroyed during proposed site development"; it is part of a quote and should remain with the quote above which starts with, "99.9 acres . . ."; so probably that correction started prematurely. Commissioner Carlson noted it does not make sense if it is taken out. Ms. Todd stated Nos. 4 and 6 include the word "not"; No. 4 reads, "project would not allow compliance with these policy requirements"; requested staff review it to see if it actually wants the word "not" included; and stated she does not believe it belongs in there. She stated paragraphs 7, 8, 9 and 10 include conservation easement on 103.3 acres of wetlands; by Policy 4.3.6.6 of the Cocoa Comprehensive Plan, it is required to set the buffer areas and they have certain functions; and the language should read, ". . . requiring conveyance of a conservation easement on the 103.3 acres of wetlands and the upland buffers required by Policy 4.3.6.6"; and by reading Policy 4.3.6.6, the conservation easement is required and definitely appropriate on the buffer areas as well. She stated that particular phrase is repeated in paragraphs 7, 8, 9 and 10; and requested the Board review it. Ms. Todd suggested paragraph 11 be rephrased by replacing "conservation easement" with "Comprehensive Plan element goals, objectives, and policies relating to natural resources and cited in the staff report in findings 1 through 4, 6 through 10, and 12"; suggested No. 14 be split into two sentences and begin the second sentence with "The activity center or the high intensity urban development . . ."; and stated there appears to be a word missing in the second to last paragraph.

DISCUSSION, RE: BREVARD CROSSINGS DEVELOPMENT OF REGIONAL IMPACT (DRI)

Attorney John Evans, representing Brevard Crossings, stated the procedure for the amendment is that County staff reviews the proposal and makes their comments on it from a planning point of view; staff did that and it was a page and a half letter; only when it became political did staff get redirected to reanalyze the project with intent to kill it; and the City can demonstrate that its project meets the land use requirements that it is required to meet. He advised the project is in the City of Cocoa; the applicant has been before the City on numerous occasions at public hearings; at every single public hearing the project was approved; the Board directed its staff to issue a memo to kill the project without any public hearing whatsoever; and it is a project that is significant to the City of Titusville, North Brevard, Central Brevard, and Cocoa. He noted there are many people in the community who feel the project offers extreme positive benefits to the community; the applicant has not been given the opportunity to present those arguments to the Board because there has been no public hearing; it is not fair for the Board to kill the project; and the applicant objects to not being given an opportunity to have a public hearing on the project. Attorney Evans stated the report contains editorial comments and includes comments such as, "The City should demonstrate compliance with this policy requirement by reducing the magnitude of the development proposal and requiring conveyance of a conservation easement on 103.3 acres of wetlands on the subject property"; the County is imposing development requirements on the project that is not in its jurisdiction; and reiterated there has been no public hearing on the issues. He stated the County is dictating to the municipality how to run its business without any hearing whatsoever on the matter; requested the Board take the letter and delete the editorializations in it; stated if it wants to submit on planning issues, the applicant has no problems with it; and if the County has a concern regarding the wetlands, it is appropriate to bring it up. He noted if the Board has a concern whether there will be empty businesses in other parts of the County because of the mall, certainly it is something that should be addressed; but to say "kill the project" when the applicant has not had an opportunity to defend it is unfair.

Commissioner Scarborough stated Brevard County was invited by DCA to make comments; that is basically where the County is; the relationship is between DCA and Cocoa; and DCA will have an opportunity to make amendments. He noted staff was prudent in a project of this nature by putting it on the Agenda; there will be people from Osceola, Seminole, and Lake Counties voting on the project; it is not the Board's prerogative to approve or disapprove the project; and there is a misconception that that is the Board's role. He stated he received staff's letter this morning; staff finished it about midnight last night; he does not know the merits of eliminating or adding certain points; and perhaps staff can go item by item and make comments.

Chairman Higgs inquired if the County wants to comment on the proposed eliminated provisions the City has requested. Commissioner Scarborough responded it would be good if staff described each of the things it commented on. Commissioner O'Brien stated it would only be fair, due to the lack of previous public hearing, that the City planner, Mayor of Cocoa, and the developer be granted an opportunity to sit with the Board in a discussion format and not be locked out of the process.

Commissioner Voltz noted this is not a public hearing; with Commissioner Scarborough commenting the Board can recognize the City if it needs to. Commissioner O'Brien requested the Board invite the Mayor, City Manager, and the developer's representative to the table to join in the conversation. Commissioner Voltz inquired when is the deadline and can the Board set up a public meeting; with Commissioner O'Brien responding the deadline is today. Commissioner Scarborough stated the County could get it in next week, but it does not have a meeting then; and it could call a special meeting if it desires. Chairman Higgs suggested the Board proceed to hear what the comments are, and if it needs to take additional information, it can get it.

Motion by Commissioner O'Brien, to invite the Mayor, City Manager, and representative of the developer to the table.

Commissioner Scarborough noted the representatives can just come to the table. Commissioner O'Brien commented this is more a give and take conversation than a formal format.

Planner Steve Swanke stated on No. 1, staff's comment was that the proposed amendment did not demonstrate consistency with the City of Cocoa's Comprehensive Plan Future Land Use Element Policy 1.4, subsection 3; staff did not see in the supporting documentation a suitability analysis that was conducted; there was language that says the applicant would direct commercial and industrial development to suitable locations where there are sufficient uplands for the intended use; and the fact that the applicant acknowledged that 100 acres of wetlands would need to be removed from the site was an indication to staff that the site itself did not contain suitable or adequate uplands for the proposed development. He stated No. 2 is a different subsection of the same policy; staff felt there may be data available in the application for development approval that was not made a part of the plan amendment package; most of staff's comments are direct quotes from the City's staff report; and the fact that the City has asked for deletion of the final sentence relates to the fact that it includes the statement that the wildlife habitats will be eliminated, and is a compelling demonstration that it is not meeting its policy which prevents it from impairing the functionality of the wetlands. Mr. Swanke stated he does not see in the City's Comprehensive Plan amendment anything that suggests it has complied with the specific requirements of its own policy in that regard.

Commissioner Voltz inquired should the DCA make the determination; with Mr. Swanke responding affirmatively. Mr. Swanke noted it is a comment to the DCA for its review; the DCA will ask the City to address those comments it deems are important and need to be discussed; the DCA will review the additional information the City submits; it will make a determination as to whether or not it is in compliance; and the Growth Management Act sets forth the process.

Commissioner Voltz reiterated it should be DCA's determination and not Brevard County's; with Mr. Swanke responding the County is providing comment. Commissioner Voltz noted it appears that the County is determining it is a compelling demonstration.

Planning and Zoning Director Mel Scott stated the County is putting this forward and it is DCA's job to give it comment standing or not; staff wanted to highlight all the potential inconsistencies that might be there for the Board's consideration, so the Chairman could sign it; and it is the Board's letter to tailor at this point. He noted the policy is similar to a wetland policy the County has in its Comprehensive Plan and simply asks that consideration be given to whether or not there is a special reason or need to locate within the wetlands and there is no overriding public interest; and staff is simply pointing out that it was not able to identify discussion on that point.

Mr. Evans stated staff went on to say there are compelling demonstrations; that is the one problem the City has; the items marked by the City scream out the Board is opposed to the project; and that is what the City would like to eliminate. He noted the City does not mind the Board saying it has concerns and would like the City to look at it carefully; for the County to send a document that requests DCA deny the project bothers the City; the City is requesting the Board take those things out that are extremely objectionable; and the City is asking for the project to be looked at fairly.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to revise Section 2, last sentence, to read, "The protected wildlife habitats will be eliminated on site, and protected plant species will be destroyed during proposed site development. The proposed activity will impair the functionality of the wetland and may not be consistent with the cited Future Land Use Element policy." Motion carried and ordered unanimously.

Assistant County Manager Peggy Busacca stated paragraph 3 reads, "The proposed amendment does not demonstrate consistency with Policy 1.5.5 which states that development activities to be undertaken in wetland and floodplains will be subject to Comprehensive Plan review and should be consistent"; staff stated the additional policies that the City apparently did not demonstrate consistency on based on data analysis; and the City made no suggestions about changing the paragraph.

Attorney Evans stated no comment on paragraph 3 does not necessarily mean the developer or the City deems it is a correct statement.

Mr. Scott stated No. 4 is a policy that requests the City demonstrate consistency; the recommended deletion is another one of those sentiments that uses the word "compelling"; and the language, "Staff review of the proposed and supporting documentation found the City did not address specifically this policy", would identify to DCA that it may deem it necessary to prompt that information from the City before the DCA adopts this.

Commissioner O'Brien stated the paragraph can be toned down slightly and read, "The acknowledgement that the proposed development will clear, excavate, and fill 99.9 acres of the 103.3 acres of wetlands on site gives the appearance required buffer zones are not being implemented as required by this policy"; "at a minimum" could be stricken; the language could read, "The City should demonstrate by clear, convincing data analysis that reduction of the magnitude of this project would not allow compliance with these policy requirements"; the DRI process will enter into that part of the paragraph anyway; and the language could include, "gives the appearance" and take out "compelling evidence." Chairman Higgs stated she does not mind taking out "at a minimum" and "compelling", but it is evidence to her that the buffers are not being implemented as required by the policy.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to revise Section 4, last two sentences, to read, "The acknowledgement that the proposed development will clear, excavate, and fill 99.9 acres of the 103.3 acres of wetlands on site gives the appearance that the required buffer zones are not being implemented as required by this policy. The City should demonstrate by clear and convincing data and analysis that reduction of the magnitude of this project would not allow compliance with these policy requirements." Motion carried and ordered unanimously.

Mr. Scott stated the next policy is intended to allow the City to investigate multi-modal opportunities, and staff could not find that this policy was addressed or that multi-modal opportunities were investigated.

Commissioner O'Brien inquired did the City look at this at all; with Mayor Parrish responding affirmatively. Commissioner O'Brien stated the City's policy says, "New development shall be designed to accommodate and encourage alternative modes of transportation to the maximum extent practical." Mayor Parrish advised it is for the DRI portion of it. Attorney Evans stated the County has not looked at the entire package, but is making statements; and the County will find that most of its concerns are addressed. Commissioner Carlson stated what the County takes issue with is that it is not included in the amendment; and if it is in the DRI, it should have said it and pointed to the DRI and the amendment.

Mr. Scott stated No. 6 talks about the development approval being identified for providing suitable habitat, contingent upon the formulation of a management plan which would, to the greatest extent possible, eliminate adverse effects; and in reviewing what was submitted, staff did not identify that there was data and analysis provided that is specifically tailored to addressing the requirement in the policy. He noted the recommended deletion by the City on staff's comment is at the top of page 4, "At a minimum, the City should withhold approval until it does, in fact, demonstrate that reduction."

Commissioner Voltz suggested the language say, "it should demonstrate" rather than "at a minimum."

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to revise Section 6, last sentence, to read, "The City should demonstrate that a reduction in the magnitude of the development proposal would not allow the formulation of a management plan for listed species that would be located on site and would allow the elimination of adverse affects to a greater extent than off-site extra-jurisdictional mitigation." Motion carried and ordered unanimously.

Ms. Busacca stated No. 7 refers to a conservation element which discusses reducing adverse consequence to floodplain and encouraging conservation of natural habitat; staff's comment was that there was no supporting documentation to specifically address this policy; the City has requested the last sentence be removed that says, "The City should demonstrate compliance with this policy requirement by requiring a reduction in the magnitude of the development proposal"; and the City would prefer that the County simply say to address this rather than make a recommendation.

Commissioner O'Brien stated the County should eliminate, "requiring a reduction in the magnitude of the development proposal"; and the language would read, "The City should demonstrate compliance with this policy requirement by conveyance of a conservation easement on the 103.3 acres."

Attorney Evans stated the County has just killed the project because there is no way in the world that can happen. Mayor Parrish advised it is also the Corps of Engineers and other agencies' jurisdiction.

Commissioner Scarborough inquired is it all right to say, "The City should demonstrate compliance with the policy requirements"; with Commissioner Voltz responding affirmatively.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to revise Section 7 last sentence, to read, "The City should demonstrate compliance with this policy requirement." Motion carried and ordered; Commissioner Higgs voted nay.

Mr. Scott stated No. 8 is similar to No. 7; the policy encourages the protection of natural vegetated communities and wildlife through a number of mechanisms, possibly public purchase programs, donations, etc.; staff did not find any data analysis addressing that policy; and the objection of the City is that the County is going further and demonstrating an opportunity to convey the wetlands. He noted as in No. 7, staff is offering a remedy.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to revise Section 8, last two sentences, to read, "The City should demonstrate compliance with this policy requirement"; and delete the last sentence. Motion carried and ordered; Commissioner Higgs voted nay.

Ms. Busacca stated No. 9 talks about a policy concerning destruction of natural vegetative communities; staff comment was that there was no supporting documentation to specifically address the policy; the language does not include the same sentence that the City requested the County exempt in Nos. 7 and 8; and it may have been missed. Mr. Koch noted the City missed it.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to revise Section 9, last three sentences, to read, "The City should demonstrate compliance with this policy requirement. Brevard County believes that preservation of the wildlife habitat onsite will eliminate adverse impacts on listed species to a greater extent than off-site extra-jurisdictional mitigation"; and delete the last sentence. Motion carried and ordered; Commissioner Higgs voted nay.

Ms. Busacca stated No. 10 talks about development that would adversely alter ecological functions; the staff comment is that there is no supporting documentation; and the City has requested the County delete essentially the same language that has been in the last three paragraphs.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to revise Section 10, last three sentences, to read, "The City should demonstrate compliance with this policy requirement. Brevard County believes that preservation of the wildlife habitat onsite will eliminate adverse impacts on listed species to a greater extent than off-site extra-jurisdictional mitigation"; and delete the last sentence. Motion carried and ordered; Commissioner Higgs voted nay.

Commissioner Scarborough stated No. 11 included suggestions from Ms. Todd; and she indicated it does not apply only to the Conservation Element, but to the full Comprehensive Plan.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to revise Section 11, to replace language, "Conservation Element Policy 6.4.9 . . . " with "Goals, Objectives, and Policies relating to natural resources and cited in this staff report in findings 1 through 4, 6 through 10, and 12." Motion carried and ordered unanimously.

Ms. Busacca stated in No. 12, the proposed amendment does not demonstrate consistency with the policy that talks about evaluating development projects to include an assessment of impacts on the Comprehensive Plan; the top of page 6 says, "The City must include data analysis"; the second paragraph begins, "The City must consider alternative development scenarios"; and the third paragraph that says, "The City must include data and analysis" has been proposed for removal.

Commissioner O'Brien suggested deleting the word "must" and replacing it with "should", to read, "The City should include data and analysis in the proposed plan amendment that identifies impacts to the Merritt Island Redevelopment Agency's (MIRA) programs."

Mr. Koch suggested the word "could"; with Chairman Higgs responding it should read "should." Attorney Evans inquired how can one analyze what impact the mall is going to have on the Merritt Island Redevelopment Agency in five, ten, or fifteen years from now; and stated any report like that is going to be pure hocus-pocus. Chairman Higgs stated the City is asking for fairness, and people impacted by the project fairly should look at what the impacts are on them. Commissioner Voltz stated if the County is going to look at the impacts to MIRA, it should look at impacts to Brevard County; with Commissioner Carlson responding it is. Commissioner Carlson inquired is it included in here somewhere where it is discussed more globally. Mr. Swanke responded page 5 says, "Pursuant to these requirements, the City must identify specific project-related impacts with regard to the adopted goals, objectives, and policies of the listed Comprehensive Plan elements." Commissioner Scarborough stated Mr. Swanke had mentioned to him that the County does not have the capacity to do the economic analysis; there are several things being said economically; one is the shifting of some of the purchasing from existing malls, and the other is capturing business that is going outside of the area; and the two things are difficult and complex. He noted to talk only about the Merritt Island Redevelopment District causes some confusion as to the net gain/net loss economically. Commissioner Carlson stated she thought there was an economic impact study required as part of the DRI study; with Mr. Swanke responding that is correct. Attorney Evans noted it is in the DRI report already. Mr. Koch stated the Comprehensive Plan, Cocoa's Comprehensive Plan, and Chapter 163 are general and deal with consistency with all the elements, but the recommendations are specific; the areas the City is objecting to are impacts that will be discussed in the DRI; and one of the reasons the City suggested this be eliminated is because that opportunity will exist during the DRI process.

Chairman Higgs stated Chapter 163.3177, Florida Statutes, states, "The element of the local Comprehensive Plan shall demonstrate consideration of the particular effects of the local plan on development of adjacent municipalities"; this is quite appropriate; and Brevard County wants to know, as it is affected. Commissioner Carlson inquired if the paragraph needs to be broadened. Mr. Koch stated it is talking about the whole Comprehensive Plan and not a specific land use; the County is taking a large, broad policy and making it apply; and he believes the DCA will ignore it. Chairman Higgs stated she does not believe anybody can deny that there will be economic impact on businesses in adjacent jurisdictions; the Comprehensive Plan that deals with that is written there; the City staff will evaluate development projects to include an assessment of impacts on the Comprehensive Plans of adjacent jurisdictions; and there will be impact. She noted the City should include data analysis in the plan amendment that identifies the impacts on adjacent jurisdictions and fiscal resources.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to revise Section 12, first paragraph on Page 6, to read, "The City should include data analysis in the plan amendment that identifies the impacts on adjacent jurisdictions and fiscal resources." Motion carried and ordered unanimously.

Commissioner Voltz stated the next sentence reads, "The City must consider alternative development scenarios for the subject property . . ."; and it is not any of government's business to tell the City what it should consider or reconsider on a piece of property.

Motion by Commissioner O'Brien, to eliminate "The City must consider alternative scenarios for subject property that establish . . ." and include, "The highest priority should be avoiding impact to wetlands . . ."

Commissioner Voltz stated it says basically the same thing without telling the City is has to consider development scenarios.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to revise Section 12, first sentence in second paragraph on Page 6, to read, "The County suggests alternative development scenarios be considered that establish the highest priority on avoiding impacts to wetlands, the next highest priority on minimizing impacts on wetlands, and a lower priority on mitigation for impacts on wetlands." Motion carried and ordered; Commissioners O'Brien and Voltz voted nay.

Commissioner Scarborough inquired is it Mr. Swanke's thought that at some juncture Brevard County should hire an economist to assist it in economic analysis; with Mr. Swanke responding yes, if it is the Board's decision to challenge the City of Cocoa's interpretation regarding the economic analysis that is prepared. Commissioner Scarborough stated what may be totally beneficial to Cocoa could be detrimental to Titusville and Merritt Island because there is a loss of retail sales; he does not expect Cocoa to be as concerned about the closing of a mall in Titusville as the Board or somebody else; certainly it is going to impact Brevard County; and inquired can Brevard County be assured that without it becoming directly involved in the economic analysis that it will have the answers to whether this is a net gain or a net loss for the benefit of the County. Mr. Swanke stated the County does not have the staff resources to provide that data; and if it wants such data, it is probably going to have to retain a consultant.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to include in Section 12, that the Board of County Commissioners has directed staff to pursue an independent economic analysis. Motion carried and ordered unanimously.

Ms. Busacca stated No. 13 is a Rule 9J-5 provision that talks about the analysis to show a need for the amount of commercial development; staff did not find that documentation within the amendment; and the last paragraph in finding 13 has trade area including an established regional mall.

Chairman Higgs stated the trade area for the project depends upon who defines the trade area; and suggested the trade area and impacts would include Melbourne Square Mall. Commissioner Scarborough stated the County can ask its economist to do the same analysis. Commissioner Voltz stated it is not within the County's purview as government to determine whether or not there is a need; and the market has to do that. Chairman Higgs stated Rule 9-J5, Florida Administrative Code, says an analysis must be provided; staff review does not document that there was an analysis for additional commercial land acreage for the projected Brevard County population; and that needs to be stated.

Motion by Commissioner Scarborough, to include in Section 13, that the County can request its economist to fully analyze the negative impacts to fully understand where the County is going to be.

Commissioner Scarborough stated the study will include the fiscal economic impact; people will not say the County is killing the project; nobody has done the study that needs to be done; and the study needs to include the entire County. Commissioner Voltz inquired is it in lieu of the entire paragraph; with Commissioner Scarborough responding that would be his suggestion as it incorporates the whole concept.

Commissioner Voltz stated she will second the motion.

Chairman Higgs suggested language that Brevard County has serious concerns about the need for additional regional malls and space, and the impact on existing business, and it will be securing a professional to do its analysis. Commissioner Voltz stated she does not have a problem with such language. Commissioner Scarborough advised he has received telephone calls from people in Titusville saying that two malls in Titusville are going to close.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to revise Section 13, to replace last paragraph to read, "Since Brevard County has concerns about the need for additional commercial space and is concerned about negative economic impact on existing malls and commercial establishments, it will be securing an independent economic analysis which it will forward to DCA as quickly as possible." Motion carried and ordered unanimously.

Ms. Busacca stated the last paragraph also deals with Rule 9J-5 and gets to the issue of urban sprawl; staff makes comments about the impact the development may have on the area; and the paragraph the City would like deleted is the second to the last paragraph that states, "In the event the Brevard Crossings project is developed at this location, the likely result will be to accelerate the pace of development in the surrounding areas, particularly to the west of I-95."

Commissioner Voltz stated that is a no-brainer; and for the County to say that is irrelevant.

Motion by Commissioner Voltz, to eliminate language, "In the event the Brevard Crossing project is developed at this location, the likely result will be to accelerate the pace of development in the surrounding areas, particularly to the west of I-95."

Chairman Higgs stated she does not see any reason to take the language out.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve the letter, as amended. Motion carried and ordered; Commissioner Voltz voted nay.

Commissioner Scarborough stated the County needs to expedite hiring an economist so it will be back in a timely manner. Ms. Busacca advised staff has not identified any funding for it.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct staff to pursue an independent economic analysis to be funded from Contingency, and bring back names of economists and costs for the Board's consideration. Motion carried and ordered unanimously.

Attorney Evans expressed appreciation to the Board for its consideration. Chairman Higgs stated the County appreciates the City coming today; everybody needs to do better in communication; the City has certain rights in regard to annexation, but it was in the County's area; and it felt compelled to comment on the effects.

Upon motion and vote, the meeting adjourned at 2:10 p.m.

ATTEST:

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

SANDY CRAWFORD, CLERK
(S E A L)