The Board of County Commissioners of Brevard County, Florida, met in regular session on February 4, 1997, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Melbourne, Florida. Present were: Chairman Randy O'Brien, Commissioners Truman Scarborough, Mark Cook, Nancy Higgs, and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Commissioner Nancy Higgs, District 3.

Commissioner Randy O'Brien led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve the Minutes of July 23, 1996 Regular Meeting and July 29, 1996 Regular/Zoning Meeting. Motion carried and ordered unanimously.

REPORT, RE: ACCESS TO ENVIRONMENTALLY ENDANGERED LANDS

County Manager Tom Jenkins advised the Board expressed an interest in when the public will have access to properties purchased under the Environmentally Endangered Lands (EEL) Program; Dr. Duane DeFreese prepared a report which provides a time table for development of the sites for access; and each site will have a management plan.

Commissioner Cook inquired if each site will have public access; with EEL Program Coordinator Dr. Duane DeFreese responding yes, but it will vary according to cost.

REPORT, RE: EXECUTIVE SESSIONS

County Attorney Scott Knox advised the Board has an executive session at 1:30 p.m. County Manager Tom Jenkins advised Mr. Abbate also has an executive session with the Board.

Commissioner Higgs inquired if the Board moves through the items on the Agenda, can it do part of the executive session in advance; with Mr. Knox responding it could do the labor negotiations.

Commissioner Scarborough inquired if executive sessions could be scheduled at the conclusion of meetings as there is cost to the community when they leave their businesses to come and participate at Board meetings.

REPORT, RE: SALARY INCREASES FOR COMMISSIONERS

Commissioner Scarborough advised there was a letter to the Editor by Barbara Dillabaugh on increase of salaries for Commissioners; last year they did not get an increase to maintain equity with employees; and the Board could address it in ordinance form or a Charter amendment.

Chairman O'Brien stated the letter was misdirected; some Constitutional Officers make over $100,000 a year and do one-third of the work Commissioners do; his time has value; and if the Board wants parity and freeze on salaries, he wants the other officials to do the same.

REPORT, RE: POLICY ON LIBRARY FINES

Commissioner Cook advised he received several complaints about the policy change with library fines; the policy is not posted in the libraries; and people do not know they cannot check out books if they are behind in paying fines. Assistant County Manager Joan Madden advised it is posted at each library.

Chairman O'Brien advised unpaid library fines amount to $70,000 or $80,000 a year; the rules are strict now; and they have to pay the fine before they can check out a book. He stated the Libraries sent postcards in the past; and inquired if they still do; with Ms. Madden responding there is an attempt to track those and let people know they have overdue books.

Commissioner Cook recommended the County Manager look into larger posters because it is embarrassing for people.

REPORT, RE: LETTER SUPPORTING BREVARD COMMUNITY COLLEGE'S APPLICATION

Chairman O'Brien advised of a call from Joe Williams requesting a letter of support for Brevard Community College to apply for a grant; and inquired if the Board agrees with it.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve letter supporting Brevard Community College's application for a federal grant to fund its WBCC television station which broadcasts Board meetings. Motion carried and ordered unanimously.

EXEMPTION FROM PERMITTING FEES, RE: SPCA OF NORTH BREVARD, INC. AND CENTRAL AND SOUTH BREVARD HUMANE SOCIETIES

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to exempt The Society for The Prevention of Cruelty to Animals of North Brevard, Inc. (SPCA), and Central and South Brevard Humane Societies from the permitting fees for animal care facilities. Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF MELBOURNE, RE: RANCHWOOD COURT WATER MUNICIPAL SERVICE BENEFIT UNIT (MSBU) PROJECT

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Interlocal Agreement with the City of Melbourne for construction and installation of the potable water system in Ranchwood Court Water Municipal Service Benefit Unit. Motion carried and ordered unanimously.

THIRD ADDENDUM TO LEASE AGREEMENT WITH 11 RIVERSIDE CORPORATION, RE: OFFICE SPACE FOR STATE ATTORNEY AND PARKS AND RECREATION DEPARTMENT

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Third Addendum to Lease Agreement with 11 Riverside Corporation to provide office space for the State Attorney and Parks and Recreation Department at $10,500 monthly on a month-to-month basis. Motion carried and ordered unanimously.

EASEMENT TO FLORIDA POWER & LIGHT COMPANY, RE: ROADWAY IMPROVEMENTS FOR KELLY PARK EAST

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Easement in favor of Florida Power & Light Company for a portion of Kelly Park to relocate its poles for roadway improvements by the developer of Island Crossing. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE CREATING VALLY ROAD PAVING MUNICIPAL SERVICE BENEFIT UNIT (MSBU) II

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant permission to advertise a public hearing to consider an ordinance creating the Vally Road Paving Municipal Service Benefit Unit (MSBU) II. Motion carried and ordered unanimously.

AGREEMENT AND CHANGE ORDER NO. 1 WITH SATURN BUILDERS OF BREVARD, RE: FOX LAKE PAVILION COLUMN REPLACEMENT

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Agreement with Saturn Builders of Brevard for renovation of Fox Lake Park Pavilion, and approve Change Order No. 1 for replacement of 77 columns, roof repairs, upgrading of shingles and extension of time by 120 days at total cost of $95,775. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 TO AGREEMENT WITH HEARNDON CONSTRUCTION, RE: PALM BAY REGIONAL PARK, PHASE II

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Change Order No. 1 to Agreement with Hearndon Construction, for Palm Bay Regional Park, Phase II, increasing contract price by $1,237 to purchase and install a 750-gallon grease receptor in the restroom/concession building. Motion carried and ordered unanimously.

HOLD HARMLESS AGREEMENTS WITH THE SCHOOL BOARD, RE: USE OF PARKING LOTS FOR HOUSEHOLD HAZARDOUS WASTE ROUNDUP

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Hold Harmless Agreements with the School Board of Brevard County, for use of parking lots at Titusville High School and DeLaura Junior High School for the Spring 1997 Household Hazardous Waste Roundup. Motion carried and ordered unanimously.

AWARD OF BID #B-2-7-24 AND AGREEMENT WITH RKT CONSTRUCTORS, INC., RE: SR 405 SANITARY WASTEWATER PUMP STATION AND FORCE MAIN FOR TITUSVILLE TRANSFER STATION AND NORTH BREVARD MULCHING FACILITY

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to award Bid #B-2-7-24, SR 405 Sanitary Wastewater Pump Station and Force Main for Titusville Transfer Station and North Brevard Mulching Facility, to RKT Constructors, Inc. at $146,792.50; and authorize the Chairman to execute Agreement with the contractor.

TASK ORDER NO. 7 TO AGREEMENT WITH POST, BUCKLEY, SCHUH & JERNIGAN, RE: NORTH BREVARD WATER PLANT EXPANSION

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Task Order No. 7 to Agreement with Post, Buckley, Schuh & Jernigan, Inc. to provide professional engineering services associated with the North Brevard Water Plant Expansion, at $134,000. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: FLORIDA CITIES WATER COMPANY SERVICE AREA

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant permission to advertise a public hearing to consider Florida Cities Water Company's request for a service area boundary modification. Motion carried and ordered unanimously.

APPROVAL OF SELECTION COMMITTEE RECOMMENDATION AND APPOINTMENT OF NEGOTIATING COMMITTEE, RE: ENGINEERING SERVICES FOR SYKES CREEK WASTEWATER SYSTEM

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve the Selection Committee's recommendation of Montgomery Watson Americas, Inc. as the most qualified firm to provide engineering services for Sykes Creek Wastewater System; appoint the County Manager, County Attorney, and Public Works Director or their designees, Water Resources Director, and Water Resources Assistant Director to the Negotiating Committee; and authorize the Committee to negotiate the tasks, terms and compensation appropriate to complete the requirements imposed by Department of Environmental Protection. Motion carried and ordered unanimously.

AGREEMENT WITH TOWN OF MALABAR, RE: RESTROOM CONSTRUCTION AT MALABAR SCRUB SANCTUARY

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Interlocal Agreement with the Town of Malabar to provide an easement to the County for construction of a restroom facility at the Malabar Scrub Sanctuary; authorize EEL Program funds to the Town of Malabar for construction of a joint use restroom facility; and provide for maintenance and operation responsibility by the Town of Malabar in perpetuity. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS, RE: EMPLOYEE BENEFITS ENROLLMENT SERVICES

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant permission for the Employee Benefits Advisory Committee to advertise request for proposals for employee benefits enrollment services, and to recommend a vendor to the Board. Motion carried and ordered unanimously.

SATISFACTION OF MORTGAGE, RE: RENAISSANCE RETIREMENT CENTER

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to execute Satisfaction of Mortgage for bonds issued by the County for Renaissance Retirement Center in Titusville. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to appoint the following:

Meadowlane Community Library Board
Barbara C. Jeffers, 1900 S. Harbor City Boulevard, Suite 231, Melbourne, Florida 32901.

Planning and Zoning Board
Matt Sokoloski, 3930 Hammock Road, Mims 32754, with term expiring December 31, 1997.

Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET TRANSFERS

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve the bills and budget transfers as submitted. Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF ROCKLEDGE, RE: ADDITIONAL CROSSING GUARD AT HANS CHRISTIAN ANDERSON ELEMENTARY SCHOOL

Commissioner Voltz stated the Agenda Item gave three options; and inquired how will the Board make a decision on the options if the item is scheduled under Consent.

Assistant County Manager Joan Madden advised staff recommends renewal of the Agreement.

Motion by Commissioner Voltz, seconded by Commissioner Cook, to execute Agreement with City of Rockledge for an additional crossing guard at Hans Christian Anderson Elementary School. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE ESTABLISHING MORATORIUM ON PROCESSING OF DEVELOPMENT ORDERS FOR TELECOMMUNICATION TOWERS AND ANTENNAS

Chairman O'Brien called for the public hearing to consider an ordinance establishing a 60-day moratorium on processing of development orders for telecommunication towers and antennas.

Assistant to County Manager Peggy Busacca advised the Local Planning Agency met yesterday and reviewed the ordinance; the colored paper is its recommendations; and it was a 5-5 vote, so there is no formal recommendation. She stated the ordinance discusses the moratorium for applicants for conditional use permits (CUP's) only, and not the continued processing of site plans, subdivisions and building permits; and staff felt there was no need to include it in the Code.

Chairman O'Brien advised the ordinance does not concern permits for building a house and is only for towers. Ms. Busacca advised site planning is required for towers, but she is not aware if there are any CUP's for subdivisions, so they put it in there. Chairman O'Brien inquired if there are requests for CUP's other than antennas, how long will it take to get to the Board; with Ms. Busacca responding three months. She stated that language was deleted, and the ordinance only affects applications for CUP's.

Commissioner Cook inquired why were all the permits put in the ordinance; with County Attorney Scott Knox responding a CUP is required for all towers. Commissioner Cook inquired if deleting that section will have no effect on the moratorium; with Mr. Knox responding it would be consistent to insert "towers and antennas" on the first page, last Whereas, which indicates it applies to all CUP's. Ms. Busacca advised property owners can move forward through the site planning and development stages based on the interpretation of the County Attorney.

Commissioner Higgs inquired if a CUP is required for co-location on an existing tower; with Ms. Busacca responding Mr. Enos said if it exceeds the height, it would be required. Commissioner Cook inquired if they build another structure on the same site, would it require a CUP; with Ms. Busacca responding yes. Commissioner Cook inquired if they could add antennas as long as they do not exceed the height limitation; with Ms. Busacca responding yes.

Attorney Mary Doty, representing APT Tampa/Orlando, Inc., advised APT filed a CUP application on January 23, 1997, after the effective date of the ordinance, so they are not considered in the pipeline; and when they applied, they were given April 7 and 24, 1997 as hearing dates, but they are getting mixed reactions from staff since the ordinance was developed. She stated they are mindful of the Board's decision, but would like to proceed as expeditiously as possible and would like an indication of how quickly they can proceed. She stated their site is zoned GU now and they may be able to directly obtain a building permit, but they want assurances they will not be delayed more than 60 days. Commissioner Cook stated if they meet the conditions, they could proceed. Ms. Doty inquired if staff will process applications after March 15, 1997; with Commissioner Cook responding whatever the Board addresses, staff will follow. Mr. Knox advised it takes three months to review applications for CUP's before they come to the Board; and Ms. Doty wants assurance. Commissioner Cook responded the Board cannot give assurance on the final ordinance. Ms. Doty stated time is a precious commodity; they need to move quickly and hope to stick with the April hearing dates; however, with the moratorium, it will be five months instead of three months.

Discussion ensued on the effective date of the ordinance being January 14, 1997, preference for early applications, and number of towers in District 2.

B. B. Nelson presented a map showing every antenna in the County; stated 110 towers on 800,000 plus acres is not a lot; and noted there are more power poles than that in the County. He stated government by moratorium shows a lack of ability to govern; a retroactive date for a moratorium is not an appropriate way to do things; and it is ridiculous not to be able to get a permit for an antenna in a high-tech County. Mr. Nelson stated if government cannot keep up, it should get out of the way; the ordinance talks about health, safety, and welfare, but it is strictly about aesthetics; and cellular phones are happening, so the Board should get out of the way or come along with them. He stated the industry pays a lot of money for the right to have towers and antennas; the Board should not stop high-tech changes; and there was only one application for a tower approved in 1995, nine in 1996, and one for February 20, 1997 which the Board tabled, so there are not numerous requests.

Chairman O'Brien advised power poles are not 300 feet tall or have lights on all night; high-tech is satellite, not towers; and if they go with satellites, the towers may be obsolete and will rot. Discussion continued on the reasons for the moratorium, proliferation of towers in residential areas, co-location, height of antennas, and antennas on the sides of towers and high-rise structures.

Paul Kohut, representing FMHC Corporation, presented and explained pictures of flat panel antennas and their specifications.

Sheryl Denan, representing PrimeCo, advised most new ordinances allow 20 feet above the structure; they are relocating six antennas along the parameter of a structure; the alternative is to co-locate on water towers, condos, and high-rises; and the complaint is more about towers than antennas. She stated they have limited time to get their system up and running.

Commissioner Cook stated co-location should be addressed in the ordinance. Commissioner Scarborough stated it should be no more than 7 feet high and 10 inches in diameter. Commissioner Cook stated he wants to see what other communities are doing because he is not sure 7'10" is adequate. Commissioner Scarborough stated if the CUP was for 10'14" on top of the Radisson nobody would complain; however, towers are undesirable; so the Board could adopt the ordinance and relieve the pressure of the moratorium in Section 2 so it does not include antennas unless they exceed existing heights.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt Ordinance establishing a 60-day temporary moratorium on the issuance of development permits for towers and antennas in the unincorporated area of Brevard County; prohibiting the consideration of or approval of applications for amendments to the official zoning map of Brevard County, Florida, for towers and antennas; setting forth the purpose of the temporary moratorium; setting forth the extent of the temporary moratorium; providing for exemptions; providing for extensions and expiration of the temporary moratorium; providing for conflicting provisions; providing for severability; providing for area encompassed; and providing an effective date, as amended to exclude antennas that do not exceed the existing height of the structure; and that applications will be processed in order of receipt.

Commissioner Voltz advised she did not have time to go through everything, so she will not support the motion even though Ms. Busacca answered some of her questions. Commissioner Cook stated he cannot support the motion and adding things at the last moment.

Commissioner Higgs stated the change, as Commissioner Scarborough suggested, will allow antennas on existing buildings; the strikeouts are not significant, so she can support the ordinance because it encourages people in the business to use existing structures and towers which is a real incentive. She stated time is money, and they only have so much time to get their systems in place.

Chairman O'Brien stated he cannot support the motion because the Board asked for the ordinance to give it breathing room; and leaving towers in and taking out antennas do not make sense. He called for a vote on the motion. Motion did not carry; Commissioners Scarborough and Higgs voted aye; and Commissioners Cook, Voltz and O'Brien voted nay.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to adopt Ordinance establishing a 60-day temporary moratorium on the issuance of development permits for towers and antennas in the unincorporated area of Brevard County; prohibiting the consideration of or approval of applications for amendments to the official zoning map of Brevard County, Florida, for towers and antennas; setting forth the purpose of the temporary moratorium; providing for exemptions; providing for extensions and expiration of the temporary moratorium; providing for conflicting provisions; providing for severability; providing for area encompassed; and providing an effective date; and direct staff to give preference to those individuals who have applied for permits to be processed.

Commissioner Higgs inquired if the only difference is that it will not limit the antennas on existing structures to the height of the structure; with Ms. Busacca responding yes. Commissioner Higgs recommended the first page, third line of the last "Whereas" include towers and antennas.

Commissioner Cook amended the motion to include towers and antennas on the first page of the ordinance; and Commissioner Scarborough accepted the amendment.

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

The meeting recessed at 10:14 a.m. and reconvened at 10:30 a.m.

STIPULATED SETTLEMENT AGREEMENT WITH DEPARTMENT OF COMMUNITY AFFAIRS RE: WETLANDS AMENDMENT LANGUAGE

Assistant to County Manager Peggy Busacca advised in February, 1996, the Board adopted amendments to the Future Land Use and Conservation Elements regarding its policies on wetlands; after review by the Department of Community Affairs, it was found in noncompliance; and the Board directed staff to meet with representatives of Department of Community Affairs, as well as the interveners, to try and resolve the outstanding finding of noncompliance. She stated staff met with those parties, and is providing the Board with a draft stipulated settlement agreement as well as language for proposed amendments to the Conservation and Future Land Use Elements of the Comprehensive Plan. Ms. Busacca advised the agreement outlines what actions the County will take to resolve the issue by putting forward the proposed amendments; and Department of Community Affairs will then agree to find the County in compliance if that language or similar language is adopted. She stated Charlie Gauthier from Department of Community Affairs is here today to answer any questions or give a brief presentation. Ms. Busacca advised signing of the agreement does not amend the Comprehensive Plan; those policies must still go through the Comprehensive Plan amendment process and public hearing process, and must be found in compliance by Department of Community Affairs; and after the statutory time limits, the policies would become effective. She introduced Charlie Gauthier from Department of Community Affairs.

Chairman O'Brien inquired what happens after that; with Ms. Busacca responding it has to go through the usual process of two public hearings, transmittal, the objections, recommendations and comments report, two public hearings, adoption, and the finding of compliance. Chairman O'Brien inquired if that has already been done; with Ms. Busacca responding yes, but it was done with language that was significantly different in content, if not intent, to that which the Board has today. Chairman O'Brien asked Mr. Gauthier to advise the Board of Department of Community Affairs' comments.

Charles Gauthier, Growth Management Administrator with Department of Community Affairs, advised this amendment started at the end of 1995; it was found not in compliance in April, 1996; so it took ten months to get back to the Board. He stated the amendment package included several aspects, not just wetlands; there were land plan changes in the area of Valkaria Airport; and that issue is still outstanding and waiting for a legal interpretation from the Florida Department of Transportation on how to view Chapter 333, Florida Statutes. He stated there were issues that the Department of Community Affairs found in compliance, but interveners challenged; those are still outstanding and relate to duplicative policies that were eliminated; and the mediation effort has focused on the Airport and wetlands, and he is here today on the wetland issue. Mr. Gauthier advised there are three intervening parties on the wetland issue; the Department has tried to create opportunities for mediation as a pilot program; it is doing it in Broward, Dade and Brevard Counties; and it has been fairly successful, but they have not reached a final conclusion. Mr. Gauthier advised the amendment adopted by the Board was very confusing to the State; it interchanged terminologies between the land plan and development proposals; and they were unable to find it in compliance. He stated the statement of intent is their basis for legal action and for negotiations through mediation; they included three issues in their statement of intent; and the first issue related to lots of record. He stated the Board established a new 1996 date for lots of record that might be in wetlands; the State wanted the date to remain the date of the original Comprehensive Plan adoption so new lots created since the original Plan until 1996 would not be consistent with the Plan; and through mediation, County staff agreed to move the date back to the original Plan date which satisfied their statement of intent on that issue. Mr. Gauthier advised Department of Community Affairs was also concerned with language used in the planning interest as opposed to the public interest; they found that terminology vague; there is no court history or definition; and through mediation, they reverted back to planning interest. He stated there was another lack of clarity in the amendment language; he understood from staff the amendment was drafted during the course of the hearings, so the language was less than clear; and what they tried to create was a system where they have suitability criteria in the Plan. He stated as the Board entertains new Comprehensive Plan amendments, there will be factors to consider to know whether it should approve an amendment or not for industrial or commercial use; and they separated and put in the Conservation Element Policies that would govern areas already designated industrial/commercial after 1996, and how those areas would be treated. He noted that is where wetland impacts potentially could be allowed if a series of factors are met, including the public interest; they tried to separate the screening criteria aspect for new plan amendments from development proposal considerations when wetland impact may be considered unavoidable; now there is clarification and restructuring; and that satisfies the three issues in their statement of intent. Mr. Gauthier advised the settlement agreement is between the County and Department of Community Affairs; and it would be desirable to add the interveners as a party to the settlement agreement, as they may have an issue beyond the statement of intent. He stated they cannot block the settlement, but if they are displeased with the remedial amendment, they could realign and continue the litigation process; however, the County and State would be on the same side defending it, and it would be much more difficult to overcome the in-compliance determination. He noted the three statement of intent issues they identified will be satisfied by the amendment; the Valkaria Airport issue is still pending; and there are other intervener issues; however, the settlement agreement only addresses the wetland aspect and not the Valkaria Airport aspect. Mr. Gauthier advised there is a difference between planning and permitting; and their direction, through the Comprehensive Plan, is do not put land use categories where it is not suitable for development and where impacts become unavoidable. He stated there are also permitting processes; there is nothing in the law that says the County has to duplicate what the St. Johns River Water Management District does or what the Army Corps of Engineers does; so they tried to maintain a distinction between planning and permitting. He stated they are trying to guide the County's future land uses so they know they can be developed; the conflicts with growth around the State are where land plans may allow something that is not permittable or is not easily permittable; they talked about streamlining; and the best way to streamline is to direct the County's land uses in appropriate directions, which is what they have tried to accomplish.

Howard Wolf advised he lives in the South Beaches adjacent to functional wetlands and is concerned about wetland preservation which is the most cost-effective means of performing various necessary functions. He stated some land uses by their nature are not compatible with wetland preservation; those uses should be prohibited in the public interest; and the Florida Supreme Court has ruled similarly in a case last year. He stated his quarrel with the amendment is its fundamental thrust; it mouths platitudes and homilies of wetland preservation while constructing elaborate loopholes to secure specific development opportunities, namely commercial and industrial; and the effect, however unintended, is to protect and preserve the opportunities for a few selected landowners. He stated whatever may be said in the final analysis, there are four things the Board needs to do today: (1) resolve and clear up ambiguous language; (2) preserve natural functional wetlands because it is in the public interest to do so; (3) recognize there are certain land uses that are not compatible with preserving natural functional wetlands; and (4) direct a comprehensive land use planning study with no preconditions to determine how much commercial and industrial land use is really required in this County. Mr. Wolf advised a sounder policy than torturing wetlands criteria to accommodate inappropriate land uses would be, "no commercial or industrial development will be allowed in wetlands or contain wetlands"; and if a site specific landowner finds he has no reasonable land use available to him, he has several avenues for relief, i.e. the Zoning Board, Board of Adjustment, and Harris Act. He stated County staff is capable of articulating the words necessary to implement 1, 2 and 3 if they are given clear direction, such as eliminate all words in the amendment which do not support those issues; and if the Board would stop seeking this ill-conceived amendment and end the embarrassing commercial and industrial salvation, he will thank it, as will the Department of Community Affairs, the St. Johns River Water Management District, the interveners, and perhaps even staff.

Commissioner Cook inquired what specifically is in the amendment that Mr. Wolf considers to be loopholes; with Mr. Wolf responding the land use maps which include commercial and industrial uses that contain or are in wetlands. Mr. Wolf stated if the Board does a comprehensive study without any preconditions, and uses all the data available, it will find that it does not require commercial and industrial land uses to be in wetlands; and indicated the St. Johns River Water Management District agreed to do that for the County by 1996. He stated another is the Board changed the date that starts the clock on properties presently zoned commercial and industrial so they may retain their development rights commencing in February, 1996. Commissioner Cook stated the Board was flexible on the date, and when Department of Community Affairs objected, it changed that date; and requested Mr. Wolf be specific rather than give broad generalities. Mr. Wolf responded when the issue came up more than two years ago, he submitted to each Commissioner a recommendation on how the amendment should be phrased, in his opinion, so it would accomplish the overriding purpose which is to protect and preserve natural functioning wetlands; any language that does not support that view he would find objectionable because he has experienced that since 1971 in Brevard County; and if the Board wants to provide him with the time, he will address it issue-by- issue. He suggested delaying and consolidating the effort to change the Comprehensive Plan; and stated he objects to the effort to preserve commercial and industrial uses in the wetlands when it is not in the public interest to do so. Commissioner Cook suggested Mr. Wolf address specific amendments to justify his last statement. Mr. Wolf stated one amendment is advancing the clock to 1996 when commercial and industrial uses were prohibited in wetlands in 1988; and if the intent of the Board is to preserve natural functioning wetlands, that is the direction it should give to County staff. Commissioner Cook stated that is his objective; with Mr. Wolf suggesting Commissioner Cook make a motion to that effect so the Board will resolve to do it and give that direction to staff.

Margaret Hames explained a video taken after Hurricane Erin in 1995, of a neighborhood in Merritt Island between SR 520 and the Beeline west of SR 3 where homes have septic tanks to treat their wastewater which present health risks in flood situations; and stated the condition was prevalent throughout Brevard County. She stated the first-floor units of an apartment complex in West Melbourne near I-95 and Publix were flooded with ankle-deep water which ruined furniture and personal belongings in addition to affecting utilities; the intersection of Wickham and Sarno Roads was dangerous for driving because of flooding; and in Melbourne Village, which is 26 feet in elevation, there were 15 homes flooded due to poor past land use planning decisions. She stated the Comprehensive Plan's Conservation and Future Land Use Elements will be impacted by the amendment being proposed today; and urged the Board to think seriously before it makes those changes which will be detrimental and not be in the public interest.

Norma Savell stated the video tape is typical of what they hear and see from the environmentalists; and what was shown was not wetlands but flooding after a storm and Ms. Hames' mantra. She stated what the Board just saw was misinformation; what it is discussing is wetlands; and this amendment is only a baby step and not what they want, but they are willing to compromise on it. Ms. Savell stated the issue has dragged on too long; and requested the Board approve the amendment as proposed. She stated Martin County voted to significantly weaken its wetlands requirements under its Comprehensive Plan by allowing the wetlands to be impacted by public interest; and requested the Board choose Option 1; and stated if not, there will be other interveners.

Lillian Banks, President of CCPR, advised it is a far cry from what they wanted, but they are willing to compromise; and if it is approved and appealed, CCPR wants to be involved as an intervener.

Geri Lindner advised until she became a facilitator for Project Wild, a program developed by the Florida Game and Freshwater Fish Commission, she did not know much about wetlands; and demonstrated what wetlands do other than being wet places in the middle of proposed development sites, including serving as sources of food, resting places for people and migrating birds, mixing places that take water from the Indian River Lagoon into the salt marshes of Merritt Island National Wildlife Refuge and exchange nutrients that support aquatic life and birds, acting as sieves removing things that are not food particles from the food chain, and cleaning the environment. She stated wetlands are important; there are not as many in Brevard County as they could profit from; Brevard County is one of the most environmentally aware counties in the State; and she hopes it stays that way. She stated she is for preservation of as many wetlands as the County can preserve; there is lot of room for development; and it does not have to be in the wetlands.

Jody Rosier, Florida Audubon Society, inquired if Department of Community Affairs' legal staff reviewed the amendments; with Mr. Gauthier responding the legal staff has been briefed and provided no objections; however, once the settlement agreement is received, they will put it through a formal review. Ms. Rosier advised she was present at some of the mediation, but due to improper notices and conflicts with previous schedules, she was not at all of them; however, one of her main points was with the letter D in the Future Land Use Element's Objectives 4 and 5, which says, "Lands which are designated as commercial on the Future Land Use Map as of February 23, 1996, are deemed to be consistent with this Policy." She stated an analysis from their lawyer is if D is approved, it could preclude the County from denying commercial zoning on any parcel with a previous commercial designation, which defeats the purpose of Chapter 163. She stated since it is already on the map, and the Board is saying all those areas are okay, somebody can say it is commercial and it is his right to develop it. She noted that letter D is still there and could lead to future problems. Ms. Rosier advised Rule 9-J.5 says, "The basic format for the criteria for each element requires the identification of available data, analysis of such data, and preparation of goals, objectives, and policies supported by data and analysis to accomplish desired ends"; the data is still confusing; St. Johns River Water Management District is saying approximately 4,000 acres of wetlands will be impacted by this amendment, and the County had some other figures; and inquired how can they analyze the impacts of development if they do not have the accurate numbers. She stated if this amendment is approved, the Board will allow development in possibly 4,000 acres of wetlands and floodplain areas, so they need to see the data used to get the amendment approved and the analysis showing what it is going to do to the rest of the infrastructure in the area. She stated data and analysis is part of the Comprehensive Plan amendments, so that will be a good argument, from the interveners standpoint, to see whether that analysis is there and there are some facts to support those policies. Ms. Rosier stated the rains are coming, and the Board should do wise planning; permitting agencies are re-analyzing their rules because of all the flooding; there was a lot of development that happened before stormwater ponds were required; and the people now have to make up for that. She suggested the Board be consistent where it puts commercial uses, especially if it will impact 4,000 acres, and determine how it will impact people already living in Brevard County, not future developers who are going to come in, develop, and not suffer the consequences. She requested the Board be wise, get the data analysis so it will know what it is looking at, and do not rush into it.

Commissioner Cook inquired who in the Water Management District told Ms. Rosier the amendment will affect 4,000 acres of wetlands; with Ms. Rosier responding the analysis from Margaret Spontak's data which they discussed with Mel Scott. She stated it was 4,800 acres, but a few hundred acres were taken out for the landfill and Great Outdoors. Commissioner Cook stated he is not aware of any objections from the Water Management District; with Ms. Busacca responding the Board saw that information originally at the Workshop on wetlands; Carol Senne brought a map that the District used based upon their generalized land use map; and it did include numerous areas that staff feels were not completely fine tuned. She stated the Great Outdoors showed 2,000 acres of wetlands within a mixed use district which are under their development order and not permitted to be developed; so they are currently shown as wetlands, but are already left in the preserved state under the development order. She stated the Map also showed the entire County landfill as approximately 245 acres of wetlands. Commissioner Cook inquired if anyone said the amendment will impact all those wetlands; with Ms. Busacca responding no, staff provided the Board with how many acres it felt would go to permitting; that number was about 635 acres; and the way that was done is staff took the Property Appraiser's database, used existing commercial/industrial zoning and the wetlands inventory, and put those together, but that was not necessarily an impact, it was simply the acreage that is open for review by the permitting agencies. Commissioner Cook told Ms. Rosier he read her quote in the newspaper which did not square with the information he got; he discussed it with Ms. Senne and others at the District; and he feels she needs to correct that. Ms. Rosier stated it is the Board's responsibility to have accurate data and analysis when it goes through Comprehensive Plan amendments; and inquired if staff went through the whole County when it did its analysis; with Ms. Busacca responding they did it on the GIS System and utilized the entire County. Ms. Rosier stated that data has to be part of the packet submitted; in the contract it says the County provided the supporting documents for the amendment; and they want to be sure that data is open to the public and the District, and everybody agrees with it. She stated it should be clarified before the final amendment packet is sent to the State, because some of the questions that will be asked will be what is part of the amendment process, and what did the Board receive in its data and analysis.

Commissioner Higgs advised the County data shows 635 acres, and the District's data shows approximately 4,000 acres, but the District shows certain properties that need to be taken off; and inquired what is the number when those acres are taken off. Ms. Busacca advised the District brought very rough data, and used land designations which are different than the County's; they used an aggregate, and did it for a regional basis; and they tried to make the County's land use categories fit into a larger regional system to get a comparison between the different counties that they utilize. She stated when the number was brought forward, it was 4,820 acres shown on the Future Land Use Map of the St. Johns River Water Management District, but the County lands were delineated as industrial, high-intensity commercial, and low-intensity commercial. Ms. Busacca stated Margaret Spontak, who is the Planning and Policy Division Director of the District, provided a letter in November, 1996, which talked about the factors that could show the difference in the numbers; it stated, "We're using the latest land cover data which were translational aerial photographs taken in 1989; therefore, wetlands lost since 1989 would still appear on the map. In addition to that, the Water Management District's Future Land Use Map was based on map submitted to Department of Community Affairs by Brevard County during Comprehensive Plan adoption. Adjustments since then do not appear. Industrial designated as mixed use on the County Map was considered to be commercial although residential land uses are permitted. Due to a coding error, the proposed County landfill was indicated as commercial rather than public use. This landfill contains approximately 245 acres of wetlands. The largest acre difference relates to the DRI for the Great Outdoors approved in 1990 by Department of Community Affairs. It contains 2,924 acres." Ms. Busacca stated because the District used different databases and made different assumptions, the numbers are different.

Commissioner Cook stated the bottom line is the amendment in no way impacts that large an area; the impact is relatively small; and it can only be approved under specific conditions. Ms. Busacca stated if staff's estimate is incorrect by order of magnitude, and instead of being 635 acres it is double that, it is still less than 1% of all the wetlands within Brevard County that would be subject to permitting.

Commissioner Higgs inquired if the 635 acres are currently commercial/industrial and do not include future potential acres that could go forward to permitting; with Ms. Busacca responding that is correct. Commissioner Higgs stated the amendment redefines what is on the Future Land Use Map as commercial/industrial designations; it talks about those issues that would go forward to permitting; but it also defines the area where commercial/industrial could go in the future as the Board looks at new land use map changes. She stated the agreement establishes new criteria in the Comprehensive Plan, so it is inaccurate to say the only thing it does is send 635 acres forward to permitting. Commissioner Cook stated it is inaccurate to overstate the impact on future land use; and it was originally sent with a 5/0 vote to the Department of Community Affairs. Commissioner Higgs stated she did support it and was part of the effort to draft some language that future commercial/industrial land uses shall be prohibited in wetlands; but the language in the proposed draft amendment is different. She stated although some things should go forward to permitting, the future land use effort concerns her.

Chairman O'Brien inquired if Ms. Busacca said the District discussed the loss of wetlands and that acreage is about 600 acres; with Ms. Busacca responding to the best of staff's ability that is the number of acres currently within commercial or industrial zoning in the unincorporated area of Brevard County. Chairman O'Brien inquired if that is the number of acres that have wetlands on them; with Ms. Busacca responding no, that is the number of wetland acres. Chairman O'Brien stated the District said that Brevard County had a wetlands net gain since 1988 of approximately 28,000 acres of salt water wetlands and 14,000 acres of fresh water wetlands according to Ms. Senne who brought that to the Workshop. Commissioner Cook stated that was based on all the properties being acquired under EEL and Beach and Riverfront Programs which will be in preservation for perpetuity. Chairman O'Brien advised the County bought properties on North Merritt Island along the Barge Canal; the District put pipes through the seawall and started flushing it out for a net gain of salt water wetlands of about 1,000 acres; and other areas have done the same thing. He stated where wetlands were no longer viable, the County and District restored those wetlands; therefore, the County has a net gain and not a net loss of wetlands. Commissioner Cook stated the Policy always retained, even after the modification, that there will be no net loss of wetlands; and nothing the County submitted deleted that part. He stated they cannot develop anything with a net loss of wetlands; and it has been the Policy since 1988.

Kim Zarillo, representing Florida Native Plant Society, stated it may give a comfort level to say the acreage is very small and the District's data is incorrect, but the 4,000 acres is not 2,000 acres of wetlands in the Great Outdoors; and the letter from Margaret Spontak clarified that. She stated the 2,000 acres include the second phase which is now going through the DRI process and does not have 1,000 acres; so the Board is not talking about 635 acres. She stated they want to know exactly where the County Natural Resources' data came from and how it was collected, because they did not see that in the support documents when the Comprehensive Plan amendment went through. She stated the background information had 600 plus acres, but they understood that was incomplete data; the Property Appraiser's office has 21 of 32 quads matched for wetlands; the District has all but 7 quads matched for wetlands; so the Board is making a decision on incomplete information, but in a short time it will have that information. Ms. Zarillo stated increase in net wetlands is not possible unless the County is going to transform the land, because the basis for determining the acreage of wetlands is a combination of things; and if the soils map is used as the basis, it could be restored, but that would be in the original count; so the 4,000 acres is the amount that could be impacted. She stated there is a question on the data collection methods; the County's EAR brings into focus several questions about the data; the stipulated agreement cites some Statutes; and the requirements of those Statutes are in the EAR that the Board adopted, so it must believe it to be true. She noted one of the things the County is supposed to do and has never done is project the need and allocate areas for commercial; page 17 of the Future Land Use Element says that commercial acreage or allocation the Board comes to an agreement on with Department of Community Affairs has to have the raw data to complete an analysis of Brevard County's commercial allocation; that has not yet been submitted to the Growth Management Department by the Property Appraiser's Office; but that information will be brought to the Board and inserted into the EAR as an addendum. She stated the information necessary to complete an analysis of Brevard County's existing land use changes has not yet been submitted to the Growth Management Department by the Property Appraiser's Office, and will be inserted later. Ms. Zarillo advised the raw data received from the Property Appraiser's Office was produced from a spreadsheet program used to tie multiple abutting properties under common ownership to a key parcel; the key parcel became the billing address for tax purposes; the problem is the key parcel's land use designation is applied to all abutting properties under common ownership; and it is a big problem in trying to plan, determining how those properties are designated, and applying resource data. She stated the District has the most up-to-date and best data available and the ability to give that to the County in digitized form; and when she went to the Property Appraiser's Office to ask about the GIS data, they told her to go to the District because that is where they get their data from. She stated Natural Resources has a separate GIS system; they can use the District's data if they have a person who can use it; but the Board cut staff in Natural Resources and it is almost like shooting itself in the foot, because it could have planned and assessed the natural resources and avoided this complication. Ms. Zarillo stated they need to know if aerial photographs were used; they were told aerial photographs were used with Florida Natural Areas Inventory data; Ms. Busacca said they used the Property Appraiser's Office data, but the Property Appraiser's Office designates lands according to one ownership and then makes the adjacent properties the same; and inquired if it is by zoning, or was it done with aerial photographs, and why is the County not using the District's data taking the wetlands overlay with the Future Land Use map. She stated Conservation Element Policy 5.1deleted, "but shall not be limited by the threshold or connection requirements utilized by these agencies"; it is talking about the methodologies to be used by Florida DER and the Water Management District; but the definition of wetlands functionality in the settlement agreement is not a definition of wetlands. She advised the Comprehensive Plan says, "Wetlands as defined by FDER and St. Johns," then the second sentence says, "Threshold and connection requirements of FDER and St. Johns River Water Management District shall be used"; so in one area the County says it is going to follow how they delineated what is a wetland, and in another part it says that it shall not be; and they should be consistent.

Commissioner Cook asked Ms. Busacca to address if there is a conflict in the language; with Ms. Busacca responding that was an oversight which was pointed out by a gentleman who called her; and the change should be made to the Glossary to be consistent with the amendment in Policy 5.1. She stated at the time the Comprehensive Plan was adopted in 1988, the permitting agencies had thresholds, such as 40 acres, and would not look at a wetland that was in a project of less than 40 acres; and the Board wanted to come down to any size parcel to allow staff to be more rigorous in review. She noted at this time those thresholds do not exist for review, and that is why it was recommended by the Local Planning Agency. Commissioner Cook inquired why does Natural Resources have a GIS system separate from the Property Appraiser; with Assistant County Manager Stephen Peffer responding Natural Resources uses data from the Property Appraiser and uses information from the Water Management District; and they exist as a separate entity for a number of reasons. He stated they support the petroleum cleanup program; the equipment was funded through that program; and they are able to do projects in Natural Resources on the Board's schedule which they do not get when they go to the Property Appraiser. He stated a recent example is the work done on the scrub jays to supply information to the Board; and they were able to take that data and provide the maps, which the Board recently saw, on a relatively quick schedule rather than having to go to the Property Appraiser for that information.

Ms. Zarillo stated she would like to have her questions answered about where the number 635 acres came from; if it was the digitized data from the Property Appraiser's Office of the wetlands and zoning classifications or whatever; how do they reconcile that the whole County has not been mapped according to the Property Appraiser's Office and to the Water Management District; and if aerials were used.

Chairman O'Brien inquired if the 1988 Comprehensive Plan was a decision based upon incomplete information; with Ms. Zarillo responding the Statutes do not require the County to go out and collect data, but allow the use of the best data available; the County has the best and most up-to-date data available; but she received conflicting stories that they were not used. She stated instead of accepting the fact that it may impact 4,000 acres and not 635 acres, and instead of saying 4,000 acres out of 120,000 acres and trying to minimize it, if they used aerial photographs, the error margin in the data collection could actually be a magnitude of ten meaning 6,500 or 650. Chairman O'Brien advised the Board is looking at making changes to the Comprehensive Plan; it is close to eight and a half years later; and Ms. Zarillo is espousing that it should not make this decision based on incomplete information; however, the Plan may have been created with incomplete information, so the County has a Plan governing people's properties derived from lack of information. He stated the Board is considering a reasonable change to the Plan; and inquired why is it written in gold at the first writing where it can never be changed in the future to fit the times as the times change.

Ms. Zarillo stated she does not believe the Plan is written in stone or that it is golden; she does not disagree that improvements can be made; but she is suggesting that there are better data collection methods available today, and they should use them to make decisions. She stated she does not disagree that the Comprehensive Plan in general should not stay the same because things change and the County changes, but there is a difference in the information that can be used to consider those changes.

Commissioner Higgs inquired if staff used the Property Appraiser's records to get the 635 acres; with Ms. Busacca responding they asked the Property Appraiser to generate a map showing every commercial and industrial zoning in the County, and they overlaid that map with the map of the wetlands and delineated where those overlaps were. Commissioner Higgs inquired if the problem Ms. Zarillo referenced about the key parcel and surrounding parcels could occur; with Ms. Busacca responding she believes that is a different database; they did not ask for the land use or zoning designations as Ms. Zarillo was suggesting because that was not available at the time they asked those questions and is just now becoming available; so yes, they have that information in that form, but they used the actual database by which the Property Appraiser assesses value of properties. Ms. Busacca stated the Property Appraiser generates tax bills on a certain piece of property based on its zoning; and that is the information staff used; every parcel is encoded; if it is assessed as commercial, it has a certain code; and staff asked for those specific codes, and overlaid that with maps of the wetlands to come up with the acreage. Commissioner Cook stated that is a valid way to do it; and Department of Community Affairs would not buy off on the amendment if it was impacting 4,000 acres. He stated it is not having that sort of impact, and the information and what staff said substantiate that.

Charles Moehle, President of Modern, Inc., advised Modern Inc. manages and/or owns almost 5,000 acres in Brevard County, and of that almost 200 acres is commercial or industrial; and the real issue is to correct an injustice that was done by interpretation of the original Ordinance in 1988 by staff. He stated almost all the acreage Modern is involved with had zoning back in the early 1960's, and was properly designated on the land use map in 1988 as commercial/industrial; those people were assured they would not be prohibited from developing their lands; and it has since been interpreted by staff that they cannot do a thing with the land if there is a small wetland on it. He stated the people Modern represents have been waiting patiently and have lost substantial funds from the loss of use of their lands; they are waiting for this correction; and if the correction is not done, there will be lawsuits of over $30,000,000 for taking because it is an injustice that needs to be corrected for lands that were in place with proper use. Mr. Moehle advised Brevard County has been in the forefront of planning since planning was conceived; the land use map was developed with extensive studies and with the best available data; and the lands he represents had concurrency then and have it now. He stated they are on highways and have water and sewer available; and it is an injustice because it is being interpreted by staff as wetlands.

Rodney Honeycutt advised he is in favor of the changes to the Comprehensive Plan amendment; he believes in preserving wetlands, but also providing rights for people; and he does not want to see the County pay for property because it did not treat people fairly. He stated there are some mis-informed people and people who are NIMBYS (not in my backyard) who are using the wetlands issue; the County and District look after the wetlands and do a good job making sure they are protected; and on a recent project he worked on they actually restored acres of wetlands. Mr. Honeycutt advised they gave the State lands that were wetlands so they would not be developed in the future; and they included uplands which provide a buffer to the wetlands. He stated there may be changes in the future that could be considered depending on the situation and where the land is located. He advised he called Ms. Busacca and noted the wetland definition was inconsistent with the Comprehensive Plan; and the last sentence on page 6 of 6 should be deleted to be consistent with page 3 of 6.

Hank Hurley advised the amendment is very favorable, takes care of many issues, and helps industry which he strongly supports; the County needs industry; industry brings in wealth and new people, and helps with the tax base; and there is a lot of good information that needs to be considered. He stated the County needs to work with people who have property that is suitable for development; and with guidance and help from County staff, it can be accomplished and be a plus for the County. Mr. Hurley advised information from the Property Appraiser's Office indicates 53% of 800,000 acres is off the tax roll and only 19% of the County is developed. he stated there is not a wetland database that substantiates the County needs a certain amount of wetlands; he supports the amendment; and requested the Board use good sense and wisdom.

B. B. Nelson stated he supports the amendment and thinks other amendments should be looked into; he has suffered because of permits that were issued by the District and County that flooded his land which is now called wetlands and unusable; and his permit for property in CidCo Park is being held up because it has about 1/4th of an acre of marginal wetlands. He stated there is a complete study by the County of CidCo Park and the drainage problems he has pointed out for years; and they are finally doing something about it. Mr. Nelson advised he received Senate Bill 851 from Senator Connie Mack which has 82 pages redefining wetlands; and people are faced with federal, State and local governments dictating how they can use their property but they must pay taxes or lose it. He advised of a letter to Representative Randy Ball from the Water Management District regarding mitigation, and read, "The figures from DOT for mitigation costs is approximately $75,000 an acre"; so if they four lane 192 or SR 50 and disturb one acre, it will cost $75,000. He stated the Northwest Florida Water Management District has extorted from people; they call it mitigation, but it is extortion; and the St. Johns River Water Management District has extorted in excess of 4,000 acres for permits. He noted there are five Districts in the State, and the data he is collecting shows the difference in the way they are administered. Mr. Nelson advised they have problems and need help; this amendment is one small step forward; and mentioned the District issued permits to cause flooding and at the same time issued citations for wetland areas. He requested the Board adopt the amendment and spend time collecting factual data.

Martin Lamb advised everyone wants to see the environment protected because in the year 2050 the population will double; and they need to protect the environment for clean air, clean water and other things. He stated the people who work with the wetland policies have misconstrued the definition of wetlands to mean wetland plants, life and species; so if a person sees a maple tree on property to be permitted he can deem the property wetland because it is a wetland species. He stated he has seen those areas determined to be wetlands but were not functional wetlands; and the amendment is common sense, will not punish people to benefit others, but will allow people to develop. He stated clean industry will provide jobs for the area. Mr. Lamb stated he used the term "environmental imperialist" the last time; and explained why and how he derived the term. He stated the American people have been duped into doing restrictive things to landowners for what they say is to protect the environment.

Priscilla Griffith, League of Women Voters of the Space Coast Natural Resources Chair, asked two questions: (1) is the Board satisfied that the wording changes will preserve the natural resource base essential to providing a sustainable future for the development of Brevard County; and (2) is it satisfied that with the changes it will be insuring that Brevard County will be a truly livable place ten, twenty, thirty, and even more years in the future.

Diane Stees, representing Indian River Audubon Society, an intervener in the Comprehensive Plan amendment process, stated they oppose the post-mediation draft of the Comprehensive Plan amendment affecting development in wetlands because the Future Land Use Objectives 4 and 5 Criterion D allows all lands currently designated as commercial or industrial on the Future Land Use Map to go straight to the appropriate permitting agency. She stated the County will give up local control; it is local land use planning authority in favor of piecemeal permitting; and permitting of wetlands does not consider future growth or cumulative impacts. She stated a letter from Department of Community Affairs to Commissioner Cook dated February 22, 1996, states, "The Department views commercial and industrial uses as uses which are inappropriate for wetland areas. Allowing such uses within wetland areas is clearly inconsistent with requirements to protect wetlands and their natural functions by directing incompatible land uses away from wetlands. If these changes are to be adopted, a finding of noncompliance would be highly likely." Ms. Stees stated those comments come straight from Florida Administrative Code 9-J.5.2; the latest version of the amendment appears to have expanded the scope of the original amendment by exempting currently designated commercial/ industrial lands on the Future Land Use Map from the criteria in the Comprehensive Plan meaning they will go straight to permitting; and it includes floodplain and aquifer recharge areas in addition to wetlands. She stated they do not believe that was intended by the Department of Community Affairs and believe that only a thorough legal review and not just County legal review will give the true answers. Ms. Stees advised they have not seen adequate data and analysis to justify the policy change; they asked for it at past Board meetings and in mediation; the number of acres affected is not the only concern; and other concerns are what is adjacent to those areas, and will surrounding residential and other properties be affected by increased stormwater runoff. She stated they have a right to ask those questions and deserve clear answers; the government should be held accountable to all citizens on this issue; and the above objections are in addition to past oral and written objections stated by them on the record, and in addition to objections of the remaining interveners. Ms. Stees stated the Board has a duty under State law to protect the health, safety and welfare of the public and the public's natural resources; and Indian River Audubon Society is concerned not only about the effect that filling in more wetlands will have on residents and neo-tropical migratory bird species and impacts on the health of the Indian River Lagoon, but also about the financial burden to private property owners from poorly planned development, as the public will ultimately pay for increased stormwater runoff and flood control exacerbated by commercial and industrial development in wetlands. Ms. Stees stated the argument that the County is maintaining a no net loss of wetlands regarding commercial and industrial development of wetlands as stated in the Comprehensive Plan does not hold water; if there are 100 acres of wetlands and 50 acres are filled and mitigated by buying 50 acres elsewhere, the real net loss is 50 acres of wetlands; and State and regional audits indicate the mitigation efforts to create wetlands have failed miserably as documented in DER reports to the Florida Legislature in 1990 and 1992, and in a Water Management District's report dated 1993. She inquired if the policy change will move Brevard County in the direction of sustainable development, and is it a growth management decision that will enable the County to grow wisely and in a common sense balanced manner that protects the public, private property, and vital natural resources. She recommended the amendment be tabled until a thorough meaningful review of all available data is completed so that a better solution will become apparent.

Commissioner Cook stated Department of Community Affairs disagrees with Ms. Stees because they accepted the amendment. Ms. Stees stated they disagree with Department of Community Affairs.

Mary Todd, representing the Sierra Club Turtle Coast Group, advised the wording they do not want changed applies to wetland properties that will be given commercial or industrial land use designations in the future; Conservation Element Policy 5.2.f.2 gives restrictions on commercial and industrial development activities in wetlands; and they do not want the word "shall" to change to "should" as was suggested at the Board meeting of December 10, 1996. She stated Policy 5.2.f.2 makes some allowances for commercial and industrial development activities in wetlands; in the future they anticipate substantial pressure from development interests to grant exceptions; so the Board needs strong wording to protect wetlands. She stated the language they would like changed in D of the Future Land Use Objectives 4 and 5 is to make it apply only to wetland properties; the amendment was originally proposed only for wetlands and did not explicitly grandfather in all commercial and industrial lands on the Future Land Use Map as being consistent with site suitability criteria for environmental features; however, due to the placement of Criterion D, the new language does just that. She requested the Board answer the questions: (1) how does the acreage that will be grandfathered in by D compare to the acreage that will be affected if D were restricted to wetland properties; and (2) will the Board have a Comprehensive Plan inconsistency if it grandfathers in land with regard to aquifer protection. She stated page 02/21/95-I-35 of the Comprehensive Plan states, "The 1991 Comprehensive Plan contains standards for the protection of Type I and Type III, including Type II aquifer recharge areas, and including maximum impervious surface and density recommendations; however, these recommendations were utilized only in rezoning reviews, thus parcels which did not require rezoning were not reviewed against aquifer protection criteria." Ms. Todd advised Mr. Gauthier of the Department of Community Affairs questioned the broadening of the scope of D to include floodplain and aquifer protection policies in a letter to Ms. Busacca dated December 16, 1996; he said, "We agree that those areas designated on the Future Land Use Map as commercial or industrial as of February 23, 1996 would be deemed consistent with wetland protection policies. The concern is that by virtue of the policy structure, it appears that the consistency declaration would be extended to floodplain and aquifer protection policies as well. As I recall during the mediation, I suggested that the suitability considerations be broadened to encompass floodplain and aquifers. I do not recall any discussion to the effect that commercial or industrial future land use designations adopted prior to February 23, 1996 would receive revised treatment relative to Conservation Objectives 4 and 11. It appears that minor changes to the language would overcome this problem." Ms. Todd stated they want to know if the Board received a definite answer from Mr. Gauthier on the specific matter. She stated the Sierra Club requests the Board not change "shall" to "should" in Conservation Element Policy 5.2.f.2, and restrict Criterion D to wetland properties.

Chairman O'Brien stated the last time the Board discussed "shall" and "should" he was told "shall" means "should"; with Ms. Busacca responding Brevard County's definition of "should" is the same definition that the Department of Community Affairs uses for "shall"; and it allows exceptions in its definition of "shall" which are the same exceptions the County allows in its definition of "should". She stated "shall" says it is mandatory and then excepts and gives provisions of what is contained in the County's definition of the word "should"; so with the word "shall" plus those provisions, it is essentially equal to the definition of "should" found in the Glossary. Commissioner Higgs recommended the County Attorney clarify the legal meaning of "shall" and "should"; with County Attorney Scott Knox responding he does not have it in front of him so he would not be able to define what is set out in the definition; however, if someone would provide him copies, he will do that.

Commissioner Cook inquired if D is supposed to only apply to wetlands; with Ms. Busacca responding no, during mediation the Department of Community Affairs brought up the issue that suitability analysis was greater than an issue about wetlands; and it also included floodplain and aquifer recharge areas, as well as other environmental issues. She stated all lands which are currently designated on the Future Land Use Map or were designated as of February 23, 1996 have been found in compliance; that means they are automatically considered to be consistent with the Floodplain Policies and the Aquifer Protection Policies as they relate to land use; so that is a statement that repeats the current status. She stated the confusion comes because the Policies contained in those Objectives are not going to be applied to any development at the site plan stage; the Land Development Regulations are still in place and will be required to be met; and this amendment does not exempt anyone from going through any of the land development regulations. Mr. Gauthier advised their negotiation was based on their statement of intent which was limited to three issues; early on and before the ORC Report, they coordinated with Carol Senne of the Water Management District their objections and statement of intent that would allow the County to treat areas already designated commercial or industrial under a permitting approach; and they had a lot of discussion about exactly how many acres those are. He stated the amendment will do an excellent job of guiding future amendments that the Board considers; and should the amendment be approved, the Conservation Element Policies will do a good job of ensuring protection of wetlands for those areas that did get approved, and will allow impacts under very limited exceptions. He stated the language is satisfactory to the Department, and he has all the authorization he needs to make that statement. He stated the Board has interveners concerned about how existing designated industrial and commercial properties will be treated where there are wetlands; and those interveners can perpetuate a hearing process.

Commissioner Cook inquired if the opinion of Department of Community Affairs is that the amendment does not do violence to wetlands protection; with Mr. Gauthier responding there will be a certain amount of wetlands subjected to a permitting process instead of a land planning process; and that would be the Corps of Engineers and Water Management District's permits. Commissioner Cook inquired if development is sustainable in regard to protection of the environment; with Mr. Gauthier responding yes, they try to take a balanced approach; and economic development is a very important part of that approach. He stated the original Plan is imperfect in some regards; it allows commercial and industrial where there are wetlands because there was not good enough information at the time; so Department of Community Affairs is trying to take a balanced approach and be more flexible where the County currently has commercial and industrial, knowing it is not a huge amount of wetlands, and to strengthen the approach and how things are done from now on.

Commissioner Higgs advised Dade and Broward Counties fall under the regulations of Department of Community Affairs; and if they are good examples of land planning and good growth management, that is not her criteria. She stated the focus should be on the future land use and what the Board will do in the future; and she thought the Board did that when it agreed 5/0 to go forward with those commercial and industrial uses that were on the map for permitting and drafted language to protect the future. She stated her concern is with the future; she does not agree that the language is good planning for the future; and it opens the door as opposed to tightening it for commercial/industrial designations in the future. Commissioner Cook stated the problems in Dade and Broward Counties happened well in advance of Department of Community Affairs being established.

The meeting recessed at 12:19 p.m. and reconvened at 12:33 p.m.

Mr. Knox advised "shall" expresses a command and what is mandatory to be done at all times without deviation; and "should" expresses an obligation, and mandatory action is necessary unless it can be clearly demonstrated that: (a) strict application will be contrary to the public interest; (b) public values being protected are insignificant and strict application will result in an excessive hardship to the project; (c) strict application will place an excessive hardship on the project and an alternative action is available which is equal to or superior to the original requirements in reaching the Policy's objective; and (d) the activity is not financially feasible for a local government.

Chairman O'Brien stated there is a striking difference between "should" and "shall"; and inquired if Ms. Busacca has changed her opinion; with Ms. Busacca responding the criteria under Conservation Policy 5.2 is significantly different, but (a) the special need or reason to locate within a wetland, (b) overriding public interest, (c) no feasible alternative location, (d) minimum feasible wetland alteration, and (e) activity does not impair functionality of the wetland are similar in that there are mandatory actions required unless certain criteria are met.

Commissioner Cook advised the whole issue came up because of a technical modification to the interpretation of the amendment; the threshold issue was like the issue that came up behind Merritt Square Mall on a vacant parcel with a small nonfunctional wetland squeezed between very heavy commercial uses already developed; and under strict application of the Policy, the owner was told by the County he could not use the property. He stated the attempt here is not to lower wetland protection, but to make a technical modification to the Comprehensive Plan that would allow development in some circumstances. He stated they still have to go through the permitting process with environmental agencies if any portion of the property has wetlands; and the idea was to address the rare circumstances but not reduce standards or allow unrestrained growth and commercialization. Commissioner Cook advised the Board is compelled to address it; the Bird-Harris Act is the property rights legislation that the Florida Legislature passed which essentially says if someone is denied total use of his property, the government could be liable; and that is one of the issues the Board was trying to address with the amendment. He stated the confusion erupted because there were newspaper articles and editorials which did not understand the point; the fact is the Board is going to protect wetlands in the County; no net loss has always been in the Plan; it is trying to come to a resolution and address those issues that are very rare but occasionally come up; and County staff needs clarification on what the intent was of the Comprehensive Plan and this amendment. He stated the Board can modify the language to make it better, but there is no justification to indicate the Board is trying to open up the County to increased commercialization or development. He thanked staff and Department of Community Affairs for their efforts to address the original intent of the Board and at the same time protect the wetlands and environment, and allow a technical correction to the Comprehensive Plan. He stated Department of Community Affairs supports it, but there will always be people who will be skeptical of motives.

Commissioner Higgs advised the intent of the Board was to do several things, but the language before the Board does not do that; and the new language kicks into effect the Bird-Harris Act, but if the Board did nothing to the language, the Bird-Harris Act would not apply because it only applies to new laws. She stated the changes started in February were to address technical issues, but there were also broader issues in terms of the Comprehensive Plan addressing more permitting issues than planning issues in the future land use; the Board tried to separate those; and what it has done with the language in the Future Land Use Element is make it less clear that it is protecting wetlands from future commercial and industrial designations. Commissioner Higgs advised the language allows those properties that are currently designated commercial/industrial to rightfully go forward to permitting; she was willing to go forward with that as long as she could keep reasonable protections regarding future commercial and industrial development in wetlands; and she does not feel that is part of the amendment. She stated Objectives 4 and 5 of the Future Land Use Element need to be restructured to include language that was in the original Comprehensive Plan which clearly stated that "new commercial and industrial land use designations shall be prohibited. . ."; and under Objectives 4 and 5 D in the original draft was to allow lands designated commercial/industrial to go forward to permitting. She stated she is uncomfortable with the placement of D under Objectives 4 and 5 and the way that sentence is structured. Commissioner Higgs stated the Board started out to clarify technical issues and has gone beyond that; most of the Conservation Element changes are acceptable; but the Future Land Use Element Objectives 4 and 5 have language that does not give her a comfortable feeling that the Board is protecting wetlands from commercial and industrial development, so she cannot support it.

Commissioner Scarborough advised there will always be places in the Comprehensive Plan that are inadequate; it is impossible to paint every parcel and have everything work for it; so the Board is dealing with imperfection; and there are a lot of people who will argue that the Comprehensive Plan process is a failure because of its incapacity to deal with property on a one-to-one basis. He explained several situations that were brought to the Board involving wetlands that made properties unusable; and advised the Board considered withdrawing from the process and leaving it up to the permitting agencies, but it would be a mistake to remove itself from the planning process. He stated there is language he feels comfortable with that says, "These uses shall be directed to sites where there are sufficient uplands for the intended use"; it is mandatory with the word "shall"; so if there is not sufficient upland, then there is a failure to move forward. He stated it also says, "Brevard County shall ensure the site is suitable for the proposed use with regard to environmental features"; so the Board has to ensure there are no adverse environmental problems.

Commissioner Cook stated his concern is to make sure that future land use is directed away from wetlands; that is addressed because it says, "Brevard County shall direct new commercial land use designations to areas which are determined to be appropriate based upon a suitability analysis, character of the area, compatibility with surrounding land uses, and public facilities and services"; and it also says "shall be directed to sites where there are sufficient uplands for the intended use." He stated that addresses the concerns; it directs future land use away from wetlands; and the amendment accomplishes that and answers Ms. Griffith's two questions.

Chairman O'Brien inquired if the Board wants to insert "should" in Policy 5.2.f.2. Commissioner Voltz advised it does not make sense to have "shall" and "should"; "shall" with all the stipulations is like "should"; so the Board would be saying one thing and meaning another if it is not changed to "should". Commissioner Cook suggested leaving "shall".

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve changing "shall" to "should" in Policy 5.2.f.2.

Commissioner Cook stated if the Board makes changes in the language that Department of Community Affairs and staff worked hard on, it could start the whole process again; and recommended the amendment be approved as is. Ms. Busacca stated Mr. Gauthier may want to react to how he feels Department of Community Affairs will accept it since the intent is to move forward and try to settle the noncompliance.

Commissioner Scarborough stated there was an item that needed to be deleted also. Commissioner Voltz amended the motion to include the deletion.

Chairman O'Brien stated the motion is to change Policy 5.2.f.2 to "should," and correct the Glossary by deleting the last sentence on page 6 of 6.

Mr. Gauthier advised he does not have a reaction to "should" or "shall", but something during the public comments focused on Objectives 4 and 5; there is a screening criteria for new Future Land Use Map amendments; there was correspondence between the interveners, him, and Ms. Busacca on the subject; but the interveners remain concerned. He stated there is A, B, C and D; D modifies C, but as it is written, it seems to modify everything; and he is curious about Ms. Busacca's reaction. Mr. Gauthier stated when the stipulated settlement agreement is forwarded to Department of Community Affairs they will look at it and wonder about it; so his reaction is it would be better to have D actually be C-1 as it modifies only C; and it would say, "Areas already designated commercial as of that date are consistent with this Policy." He stated they are talking only about the wetland policy and not the aquifer or floodplain policies, and that issue applies to Objectives 4 and 5 on pages 1 and 2 of 6. Mel Scott stated it can be made as the second sentence under C. Mr. Gauthier advised it is a qualifier that only applies to the wetland issue and not to the floodplain or aquifer policies.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to amend the motion to eliminate D in Objectives 4 and 5, and add it to C.

Commissioner Higgs advised she can support the Conservation Element proposed language and agree to sending that forward to Department of Community Affairs, but there is more work that needs to be done on Objectives 4 and 5. She stated the language suggested makes it better, but it still needs some enhancement, so she cannot support the motion.

County Attorney Knox advised the Board changing "shall" to "should" where it is proposing to do it makes it more restrictive than what it currently reads because the definition of "should" has one criteria that is not included in the criteria specified in Subparagraph 2 where the change will be made. He stated "should" includes, "The activity is not financially feasible for local government," that is not one of the criteria that is in the Policy; so if a person comes in with a piece of property, the staff would have to look at whether or not it is financially feasible to local government in order to release it for development; and that may not be an issue as far as that property is concerned.

Commissioner Cook stated it should stay as "shall"; and Commissioner Voltz stated she has no problem leaving it as "shall".

Commissioner Voltz amended the motion to leave "shall" in Policy 5.2.f.2, delete D in Future Land Use Element Objectives 4 and 5 and make it a second sentence of C, delete the last sentence in the definition of wetlands, and execute the stipulated settlement agreement with those minor changes.

Commissioner Higgs recommended the Board pull out the Future Land Use changes, go back to mediation on the planning issue, and allow the other part to go forward to take care of the problems in addressing those people who have current commercial and industrial land use designations. Commissioner Cook stated the language addresses that; and since Department of Community Affairs is a player in this, he wants to know if Mr. Gauthier is comfortable with the agreement as proposed with a few changes. Mr. Gauthier responded yes.

Chairman O'Brien called for a vote on the motion as amended. Motion carried and ordered; Commissioner Higgs voted nay.

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS, RE: GROUP DENTAL INSURANCE

Commissioner O'Brien advised the item is about reviewing the make up of the Employees Benefits Advisory Committee and authorizing the Committee to publish a request for proposals for group and dental insurance and recommend a vendor or vendors to the Board.

Human Resources Director Frank Abbate advised the Board discussed the Dental Program and what it was looking for in an RFP; this is a request to the Board to approve issuance of that RFP utilizing the Employees Benefits Advisory Committee to develop the RFP, review it, and come back with a recommendation to the Board. He stated the Board should review the make-up of the Committee to see if it wants to make any adjustments, as there was a recommendation that the IAFF Local 6769 have the opportunity to appoint someone to the Committee to have some input into the process.

Chairman O'Brien recommended appointing private sector members as their appointees but not expand the membership, and allow a member of the Union.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to authorize Commissioners to appoint private sector members as their appointees to the Employee Benefits Advisory Committee, without expanding the membership, and authorize a member of the IAFF to be a member on the Committee. Motion carried and ordered unanimously.

WARRANT LISTS

The meeting adjourned at 1:07 p.m. to meet in executive session at 1:30 p.m.

RANDY O'BRIEN, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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