The Board of County Commissioners of Brevard County, Florida, met in regular session on October 10, 2000, at 9:06 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Sue Carlson, and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Homer L. Murray of Calvary Baptist Church.

Commissioner Sue Carlson led the assembly in the Pledge of Allegiance.

REPORT, RE: CHARTER AMENDMENTS

County Attorney Scott Knox advised late last week, the Circuit Court passed a ruling in the Charter amendments case that the Commission's decision to withhold the Charter amendments pertaining to municipal service taxing units and borrowing, submitted by the Home Rule Charter Committee was upheld; so the Board acted properly in withholding those two. He stated the Judge ruled that the term limit amendment, as proposed by the Home Rule Charter Committee, should go on the ballot, and that the ballot language prepared by the Committee was not misleading. He stated given that determination by the Judge, it seems she implicitly decided the issue as to whether the term limit amendment is prospective or retroactive in application; by that he means since the ballot language does not say it is retroactive in application, it is his view that it would be prospective in application; however, the Judge did not say that, so he would like to request a rehearing from the Judge to see if she can elucidate that point.

Chairman Higgs inquired if Mr. Knox wants to file for a rehearing; with Mr. Knox responding it would be a motion for a rehearing; and he has ten days from the date of the order to do that. Chairman Higgs inquired if it would only be on that point; with Mr. Knox responding yes.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize the County Attorney to request a rehearing by the Judge on the proposed Charter amendment regarding term limits for Commissioners, to elucidate whether the terms would be prospective or retroactive in application. Motion carried and ordered unanimously.

REPORT, RE: SPACE COAST BIRDING AND WILDLIFE FESTIVAL

Commissioner Scarborough presented flyers on the Space Coast Birding and Wildlife Festival to each Commissioner, and noted the festival will be held on November 9 through 12, 2000, and flyers are also available in the back of the room for people who are interested. He stated it started a few years ago, and has become an international festival, which attracts people from all over the world; and congratulated those people who work hard to provide the opportunity for others to know more about their community.

REPORT, RE: LETTER TO CITIES ON BREVARD CROSSINGS MALL

Commissioner Scarborough advised some of the cities have been requested, through the Space Coast League of Cities, to get into the issue of the Brevard Crossings Regional Mall; some of the information being disseminated does not reflect what has occurred; he drafted a letter to be sent to the city councilpersons which was faxed to each Commissioner late yesterday; and he would like to read it into the record. He stated he sent the draft letter to the County Manager, Assistant County Manager, and County Attorney, and they did not make any changes, but the Board may want to make changes; it is to each council member who the Board appreciates as fellow government officials trying to do the best for the overall County; and he does not want any misunderstanding with them. He read the letter as follows:

"It has come to our attention that the City of Palm Bay has requested the Space Coast League of Cities to send a letter to the Commissioners indicating its displeasure with the County's interference with a regional mall in Cocoa. In anticipation of some of your questions, the Commission requested that I provide you with some preliminary information.

The Brevard County Commission cannot approve or disapprove this development. The property is in the City of Cocoa, and the City has this responsibility. As a part of its approval process, Cocoa was required to amend its Comprehensive Plan and submit these changes to the Department of Community Affairs (D.C.A.) D.C.A. requested that the County, as well as several State agencies, comment on these changes. The only issue was whether these amendments were consistent with Cocoa's own Comprehensive Plan.

At the September 26th Commission meeting, staff was asked to do a more extensive technical analysis on consistency and bring it back to the Board two days later. At a workshop on the 28th, Cocoa officials and the developer's attorney sat at the table with the Commission and participated in discussion of staff's comments. The 28th was the very last day for the County to submit its comments.

If D.C.A. does not find the proposed amendments consistent with Cocoa's Comprehensive Plan, Cocoa will have an opportunity to respond by explaining or amending. The item will not be reviewed again by the Commission. Further discussions on the amendments to the Cocoa Comprehensive Plan will be between Cocoa and D.C.A.

I have enclosed a copy of staff's comments to D.C.A. for your information. Please let me know if you would like any additional information."

Commissioner O'Brien suggested paragraph 2 be changed to say, "Important to this issue" at the beginning, and add, "questioned by the Board of County Commissioners" after "issue" in the last sentence of the paragraph, as that is the only issue questioned by the Board. Commissioner Scarborough stated the Board could not have gone to other issues; with Commissioner O'Brien responding it insinuates there were other issues it could have questioned, but his insertion specifies that is the only issue the Board questioned. Commissioner Scarborough stated a copy of each issue raised about the Cocoa Comprehensive Plan will be attached; and what it should say in paragraph 2 is there appears to be some misunderstanding.

Chairman Higgs advised paragraph 4 says the Board will not be reviewing the item again; however, it asked for an economic analysis which it may be reviewing; so it may be misleading to say it will not review the item again. Commissioner Scarborough stated he is not sure the Board will still be in the loop within the purview of submitting the information to Department of Community Affairs. Assistant County Manager Peggy Busacca advised comments were made to Department of Community Affairs; should Department of Community Affairs find the Comprehensive Plan amendment consistent and in compliance, and the Board chooses to intervene, it would have the opportunity to do that based on the comments. Commissioner Scarborough advised the other element is the DRI; he and Commissioner Higgs will be going to the East Central Florida Regional Planning Council and could use any information they get from the economic analysis; and that could be added to the letter. Chairman Higgs stated the Board should not send a letter saying it will never talk about the mall again because it will be getting an economic analysis and may give directions in regard to the DRI. Commissioner Scarborough suggested a subsequent paragraph saying, "However, the Board is hiring an economist to do an economic analysis, and through him and Commissioner Higgs, have an opportunity to input the DRI process at the East Central Florida Regional Planning Council. Chairman Higgs noted that is more accurate. Commissioner Carlson inquired if the economic analysis will be brought to the Board or only the East Central Florida Regional Planning Council; with Commissioner Scarborough responding the Board does not get involved in the DRI; the fact that it hired an economist could be discussed at the Board level on what his and Commissioner Higgs' comments should be when the Planning Council takes up the DRI. Ms. Busacca suggested changing Commissioners Scarborough and Higgs to County representatives, as the item will not go to the East Central Florida Regional Planning Council until January, 2001.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to authorize the Chairman to send a letter to the cities regarding Brevard Crossings Mall, amended to include "Important to this issue" and "questioned by the Board of County Commissioners" in paragraph 2, and a new paragraph 4 saying, "However, as part of the DRI process before the East Central Florida Regional Planning Council, County representatives will be considering the impact on the region. In anticipation of some of the questions that may be raised, the Board of County Commissioners hired an economist to do an economic analysis of regional impacts." Motion carried and ordered unanimously.

REPORT, RE: LETTER TO GUY SPEARMAN TO ASSIST ST. LUKES EPISCOPAL CHURCH

Commissioner O'Brien requested authorization for the Chairman to send a letter to Guy Spearman, County Lobbyist, to request his assistance to lobby for the historical restoration grant applied for by St. Luke's Episcopal Church.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to authorize the Chairman to send a letter to Lobbyist Guy Spearman requesting his assistance to lobby for approval of the St. Luke's Episcopal Church's application for a historical restoration grant. Motion carried and ordered unanimously.

REPORT, RE: WITHDRAWAL OF FRANK HUNTER'S PERSONAL APPEARANCE

Commissioner Carlson advised Frank Hunter requested his appearance be postponed to the next evening meeting; the next evening meeting is October 17, 2000, but he is not sure he can make that meeting; and the one after that would be in January, 2001; so she will work with him and schedule Mr. Hunter's appearance at an evening meeting.

REPORT, RE: STATUS OF PROJECT IMPACT

Commissioner Carlson stated she invited Emergency Management Coordinator Ron Burch to advise the Board of the status of Project Impact; she brought the issue up in the form of a resolution, and the Board wanted to know more about it; and she has documents to present to the Board. She stated no action is being requested at this time.

Emergency Management Coordinator Ron Burch advised he provided a narrative of Project Impact, and will contact each Commission office to set up appointments to provide further information or answer any questions. He stated on July 11, 2000, the Board submitted a letter of interest to Department of Community Affairs and FEMA regarding Project Impact; and on September 13, 2000, FEMA designated Brevard County along with Volusia, Duval and Miami-Dade as Project Impact communities in Florida. He stated subsequent to that designation, he attended a new communities workshop in Ashville, North Carolina, to see what other communities were doing; FEMA has about 250 designated communities and continues to develop and market the Project Impact program; and the benefits for Brevard County will be national attention as a lead agency in protecting its citizens, enhanced priority status relative to new funding sources on the State and federal levels, a better position to attract new businesses to the area, and ability to build a more disaster-resistant community. He stated the key emphasis under Project Impact is to protect the lives, buildings, and personal properties of citizens, develop programs, and educate citizens regarding their vulnerabilities to natural and manmade hazards, and to heighten communications among planners throughout the County. Mr. Burch advised the program is closely aligned with the Board's vision statement; some of the program resources that come with it will be through the National Flood Insurance Program, Residential Construction Mitigation Program, Florida Coastal Monitoring Program, Homeowners Incentive Team, and Project Impact Prevention Loan Program which offers unsecured loans up to $20,000 for certain types of mitigation issues, including building of safe rooms. He stated FEMA and the State developed a list of well-known and recognized private industries, such as Lowe's Home Improvement, State Farm Insurance, Barnes and Noble, Home Depot, Fanny Mae, which offer low-cost loans, and Institute for Business and Home Safety. He stated those are just a few of the national participants in the program. He stated some of the potential programs that could benefit Brevard County through those partnerships would be to help improve the community rating system, educate the private sector about the need for flood insurance and continuity planning, outreach mitigation programs in select communities, develop a multi-hazard curriculum for Grades 4 through 8, and distribute awareness literature throughout the community. He stated there is no start-up cost for Brevard County; there is a grant from FEMA for $75,000 intended to help new communities with start-up programs; the funds can be earmarked for hiring a coordinator and travel to various federal functions relative to Project Impact; and the only requirement is a 25% match from the County that can be in-kind. He noted anything they have done and any money expended towards Project Impact can be counted towards that in-kind match. He stated those are the highlights of the program; and he will meet with each Commissioner later in the year to answer any questions.

Commissioner Carlson stated it is a very important step for local mitigation strategy; and she will return with a resolution after the briefings occur.

RESOLUTION, RE: CONGRATULATING THE LEAGUE OF WOMEN VOTERS OF THE SPACE COAST

Commissioner Scarborough read aloud a resolution congratulating the League of Women Voters of the Space Coast on 50 years of service to the citizens of Brevard County.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to adopt Resolution congratulating the League of Women Voters of the Space Coast for its 50 years of service to the citizens of Brevard County, and wishing them well as they continue to support an open governmental system that is representative, accountable, and responsive. Motion carried and ordered unanimously.

Commissioner Scarborough presented the Resolution to Priscilla Griffith. Ms. Griffith introduced Emily Shoemaker who has been a member of the League of Women Voters since 1948; and advised that cookies and apple cider is available in the lobby.

RESOLUTION, RE: RECOGNIZING SUE REED

Commissioner Carlson read aloud a resolution commending Sue Reed for more than 30 years of outstanding service to Brevard County Parks and Recreation Department.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution commending Sue Reed for 30-1/2 years of service, and for her loyal and excellent performance. Motion carried and ordered unanimously.

Commissioner Carlson presented the Resolution to Ms. Reed; and Chairman Higgs thanked her for her work and dedication to the County.

RESOLUTOIN, RE: PROCLAIMING NATIONAL EPILEPSY AWARENESS MONTH

Commissioner Carlson read aloud a resolution proclaiming November, 2000 as National Epilepsy Awareness Month in Brevard County.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution proclaiming November, 2000 as National Epilepsy Awareness Month in Brevard County. Motion carried and ordered unanimously.

RESOLUTION, RE: PROCLAIMING DISABLED AMERICAN VETERANS FORGET-ME-NOT WEEK

Commissioner O'Brien read aloud a Resolution proclaiming October 19 through 21, 2000 as Disabled American Veterans Forget-me-not Week in Brevard County.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt Resolution proclaiming October 19 through 21, 2000 as Disabled American Veterans Forget-me-not Week in Brevard County, and urging the support of all citizens, businesses, and organizations in this worthy effort. Motion carried and ordered unanimously.

Commissioner O'Brien presented the Resolution to Commander John Haines, who thanked the Board for the Resolution and Commissioner O'Brien for his continued support, and advised of their efforts in the community. Commissioner O'Brien donated to the forget-me-not campaign.

PERMISSION TO FILE INJUNCTION, RE: CODE VIOLATION BY PETER G. JONES

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize the County Attorney to file an injunction on behalf of Code Enforcement against Peter G. Jones for a continuing and recurring violation of Brevard County Code Sections 114-28(b), Overgrowth, and 94-48, Care and Maintenance of Residential Property, which does not permit the outside storage of junk/inoperative vehicles. Motion carried and ordered unanimously.

PERMISSION TO FILE INJUNCTION, RE: CODE VIOLATION BY DAVID E. HILL

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize the County Attorney to file an injunction on behalf of Code Enforcement against David E. Hill for a continuing and recurring violation of Brevard County Code Section 114-28(b), Overgrowth. Motion carried and ordered unanimously.

PERMISSION TO CONDUCT CORRIDOR STUDY, RE: U.S. HIGHWAY 1

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize staff to complete a corridor study of U.S. Highway 1, between Aurora Road and the Pineda Causeway, which is scheduled for expansion in the next two to four years. Motion carried and ordered unanimously.

AGREEMENT WITH BUSSEN-MAYER ENGINEERING GROUP, INC., RE: PORT ST. JOHN PARKWAY WEST ROAD PROJECT

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Agreement with Bussen-Mayer Engineering Group, Inc. to provide engineering services for the Port St. John Parkway West Road project at a total cost of $413,825.01 for Phases I through IV. Motion carried and ordered unanimously.

ACCEPTANCE OF DRAINAGE EASEMENT FROM T. A. AND ROBERTA ALTMAN, RE: CONVEYANCE OF PUBLIC WATERS TO DRAINAGE CANAL

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to accept a Drainage Easement from T. A. and Roberta Altman on the south side of Aurora Road across Parcel 500 for conveyance of public waters to the drainage canal. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 WITH HEARD CONSTRUCTION, RE: SPESSARD HOLLAND GOLF COURSE 17TH TEE RESTROOM

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve Change Order No. 1 to Agreement with Heard Construction, for construction of Spessard Holland Golf Course 17th Tee Restroom, increasing contract price by $3,170 and time by 75 days to upgrade the roof and install tile instead of epoxy paint on walls and floors. Motion carried and ordered unanimously.

AGREEMENT WITH ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, RE: JOINT FUNDING FOR KENNEDY POINT WEIR STORMWATER PROJECT

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Agreement with St. Johns River Water Management District for joint funding of Kennedy Point Weir Stormwater Project; and authorize advertising for bids, award of bid to lowest qualified bidder, and execution of the Contract by the Chairman. Motion carried and ordered unanimously.

APPROVAL TO CARRY OVER UNEXPENDED FUNDS BY YMCA OF BREVARD AND ALCO-REST, INC., RE: FY 1999-2000 TO FY 2000-2001

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve the recommendation of the CBO Advisory Board to carry over $5,000 unexpended by YMCA of Brevard and establish a set-aside fund for the CBO Funding Program, and $10,738 unexpended by Alco-Rest, Inc. to be reallocated to Alco-Rest upon satisfactory compliance with State, federal, and local requirements; and authorize the Budget Office to complete all actions necessary to accomplish the transactions. Motion carried and ordered unanimously.

AGREEMENTS WITH FLORIDA DEPARTMENT OF STATE, DIVISION OF LIBRARY AND INFORMATION SERVICES, RE: GRANTS FOR SUNTREE/VIERA, MELBOURNE BEACH, AND PORT ST. JOHN LIBRARIES

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Agreements with Florida Department of State, Division of Library and Information Services, providing for library construction grants of $300,000 each for Suntree/Viera, Melbourne Beach, and Port St. John Libraries to be processed at intervals. Motion carried and ordered unanimously.

RESOLUTION, RE: AMENDING CIRCULATION OF LIBRARY MEDIA REQUIREMENTS

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution amending circulation requirements for library media to allow for a renewal of two days for non-instructional videos and to remove 16mm films which are no longer available for loan. Motion carried and ordered unanimously.

APPROVAL OF TEMPORARY CLOSING, RE: CENTRAL BREVARD LIBRARY FOR FIRST ANNUAL FOUNDATION GALA

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve temporary closing of Central Brevard Library on October 21, 2000, at 1:00 p.m. to allow the Foundation time to decorate and get the grounds ready for the First Annual Foundation Gala to be held from 6:30 p.m. to 10:00 p.m. Motion carried and ordered unanimously.

PERMISSION TO TERMINATE AGREEMENT WITH JAM CONSTRUCTION SERVICES, INC., ADVERTISE FOR BIDS, AWARD BID, AND EXECUTE CONTRACT, RE: BOARDWALK REPAIR AND SHORELINE STABILIZATION AT PARRISH PARK

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize termination of Agreement with JAM Construction Services, Inc. for boardwalk repair and shoreline stabilization at Parrish Park; and authorize staff to bid the project, award bid to the lowest qualified bidder, and authorize the Chairman to execute the Contract. Motion carried and ordered unanimously.

RESOLUTION AMENDING CAPITAL IMPROVEMENTS PLAN, RE: ROTARY PARK ON MERRITT ISLAND AND PONCE LANDING

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution amending the Capital Improvements and Programs Element of the Comprehensive Plan to include the development of Ponce Landing, and to apply for a Florida Department of Environmental Regulation Recreation Development Assistance Program Grant for development of the Park; authorize submittal of grant application to Department of Environmental Regulation for $112,500 FRDAP funds for Rotary Park on Merritt Island; authorize the Chairman to execute the Grant Agreements; approve Budget Change Requests; and approve temporary loans from the General Fund if the grants are approved. Motion carried and ordered unanimously.

AGREEMENTS WITH CENTRAL BREVARD HUMANE SOCIETY, RE: ANIMAL SHELTERING SERVICES FOR CENTRAL AND SOUTH BREVARD COUNTY

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Agreements with Central Brevard Humane Society to provide animal sheltering services for Central and South Brevard County at annual cost of $62,076 for Central Brevard and $126,535.20 for South Brevard. Motion carried and ordered unanimously.

AGREEMENT WITH JANCY PET BURIAL SERVICE, RE: PICK-UP AND DISPOSAL OF ANIMAL CARCASSES

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Agreement with Jancy Pet Burial Service to pick up and dispose of animal carcasses from the North and South Brevard Animal Shelters, Central Brevard Humane Society, Brevard County Animal Services and Enforcement Office in Rockledge, and Animal Emergency Clinic of South Brevard, from October 1, 2000 through September 30, 2001, at $43,800, with option to renew for an additional year. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, RE: DERELICT VESSEL REMOVAL GRANT

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Agreement with Florida Department of Environmental Regulation for a grant of $24,692.46 to remove eleven derelict vessels; grant permission to quote and award quote to the lowest qualified quoter; and authorize the Solid Waste Management Director to execute Change Orders to the County's Derelict Vessel Grant Agreement. Motion carried and ordered unanimously.

PERMIT AND RIGHT-OF-WAY ENTRY AGREEMENT WITH UNITED STATES ARMY CORPS OF ENGINEERS, RE: ATMOSPHERIC AND CLIMATIC TESTS ON COUNTY PROPERTY

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Permit and Right-of-way Entry Agreement with the United States Army Corps of Engineers to perform atmospheric and climatic tests on County property. Motion carried and ordered unanimously.

CONFIRMATION OF APPOINTMENT, RE: SOLID WASTE MANAGEMENT DIRECTOR

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to confirm the appointment of Euripides Rodriguez to the position of Solid Waste Management Director. Motion carried and ordered unanimously.

APPROVAL OF WORKERS' COMPENSATION SETTLEMENT, RE: JAMES HICKS

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve the Workers' Compensation Settlement with James Hicks in the amount of $58,250, including attorney's fee, a general release, and voluntary resignation of employment with Brevard County. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: SUNSET REVIEW REPORTS OF OFFICE OF NATURAL RESOURCES MANAGEMENT, AND WATER RESOURCES AND SOLID WASTE MANAGEMENT DEPARTMENTS

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to acknowledge receipt of Sunset Review Reports for programs and services provided by the Office of Natural Resources Management, Water Resources Department, and Solid Waste Management Department. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC SALE AND ACCEPT OR REJECT BIDS, RE: SURPLUS EQUIPMENT

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve removal of Cat D7 bulldozers, PR #s 4050033 and 4050034, from the County's inventory, and grant permission to bid and accept or reject high bids using experience from previous sales. Motion carried and ordered unanimously.

RESOLUTION, RE: PROCLAIMING LAURA SMITH HIOTT DAY

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution proclaiming October 15, 2000 as Laura Smith Hiott Day in Brevard County in honor of the 100th Birthday of Ms. Smith-Hiott. Motion carried and ordered unanimously.

GENERAL RELEASE, RE: BREVARD COUNTY v. OUTDOOR SYSTEMS, INC.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute General Release in the case of Brevard County v. Outdoor Systems, Inc. as an addition to the Settlement Agreement. Motion carried and ordered unanimously.

APPROVAL, RE: BAD DEBT WRITE-OFF

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve write-off of various uncollectible receivables identified by Departments, totaling $13,351.79. Motion carried and ordered unanimously.

APPROVAL, RE: AMBULANCE BAD DEBT WRITE-OFF

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve write-off of uncollectible ambulance accounts receivable as identified by Emergency Medical Services, totaling $1,206,854.33. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to reappoint Sheila Hutcheson to the Personnel Council, with term expiring December 31, 2001. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve bills and budget changes as submitted. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE EASEMENTS IN CAMBRIDGE PARK, PHASE 3 - LOIS A. MARCOTT

Chairman Higgs called for the public hearing to consider a resolution vacating public utility and drainage easements in Cambridge Park, Phase 3, as petitioned by Lois A. Marcott.

There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution vacating public utility and drainage easements in Cambridge Park, Phase 3, as petitioned by Lois A. Marcott. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENT IN FAIRFAX SUBDIVISION - DONALD AND JEAN CALVERT

Chairman Higgs called for the public hearing to consider a resolution vacating a public utility easement in Fairfax Subdivision, as petitioned by Donald and Jean Calvert.

Commissioner O'Brien explained what happened since the Calverts purchased the property 23 years ago and the title problems they encountered; and requested waiver of the fee as someone other than the Calverts were remiss.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to waive the $400 fee for Donald and Jean Calvert to petition for vacating of a public utility easement in Fairfax Subdivision. Motion did not carry; Commissioners O'Brien and Voltz voted aye; and Commissioners Scarborough, Carlson, and Higgs voted nay.

Chairman Higgs stated she understands the problem, but it would set a precedent to waive the fee.

There being no further comments or objections heard, motion was made by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt Resolution vacating public utility easement in Fairfax Subdivision, as petitioned by Donald and Jean Calvert. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE EASEMENTS IN WINDOVER FARMS OF MELBOURNE PUD - TIMOTHY N. SCOTT

Chairman Higgs called for the public hearing to consider a resolution vacating public utility and drainage easements in Windover Farms of Melbourne PUD, as petitioned by Timothy N. Scott.

Assistant Public Works Director Ed Washburn advised the petition was withdrawn by Timothy Scott.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to accept withdrawal of the petition by Timothy N. Scott, and approved a refund of $80 pursuant to Resolution No. 2000-021. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION CONFIRMING PRELIMINARY ASSESSMENT ROLL FOR WROBEL PLACE WATERLINE MSBU

Chairman Higgs called for the public hearing to consider a resolution confirming the preliminary assessment roll for Wrobel Place Waterline Municipal Service Benefit Unit (MSBU).

There being no objections heard, motion was made by Commissioner Voltz, seconded by Commissioner Scarborough, to adopt Resolution confirming the preliminary assessment roll for the Wrobel Place Waterline Municipal Service Benefit Unit and recording of the assessments in the Brevard County Clerk of Courts Official Record Book; and providing an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE GRANTING ECONOMIC DEVELOPMENT AD VALOREM EXEMPTION TO MSI OF CENTRAL FLORIDA, INC.

Chairman Higgs called for the public hearing to consider an ordinance granting economic development ad valorem exemption to MSI of Central Florida, Inc.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to continue the public hearing to consider an ordinance granting economic development ad valorem exemption to MSI of Central Florida, Inc. until October 31, 2000. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE VI, VARIOUS SECTIONS FOR PERFORMANCE OVERLAY DISTRICTS

Chairman Higgs called for the public hearing to consider an ordinance amending Chapter 62, Article VI, Sections 62-1151(d), 62-1482(3), 62-1483(3), 62-1102, 62-1941.5, 62-1540, and 62-2272 regarding performance overlay districts.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to continue the public hearing to consider an ordinance amending Chapter 52, Article VI, various sections as noted above, for performance overlay districts until October 31, 2000. Motion carried and ordered unanimously.

AUTHORIZATION TO SELECT ECONOMIST AND AWARD CONTRACT, RE: EVALUATION OF ECONOMIC IMPACTS OF BREVARD CROSSINGS MALL DRI

Assistant County Manager Peggy Busacca advised the Board requested staff to hire an economist to look at the effects of Brevard Crossings; and staff contacted several economists and received estimates up to $15,000. She requested authorization for the selection committee to review proposals, and the County Manager or Chairman to execute the contract with the selected individual because the time is short and it will take approximately six weeks for the economic study to be completed.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to appoint Peggy Busacca, Mel Scott, and County Attorney Scott Knox or his designee to the Selection/ Negotiating Committee for an economist to evaluate the economic impacts of Brevard Crossings Mall DRI; authorize the Committee to select the economist and negotiate a contract; and authorize the County Manager to execute the Contract if it does not exceed $15,000 and to issue a notice to proceed without having to return to the Board.

Commissioner Voltz inquired if Brevard Crossings developers are going to do an economic impact study so the County has something to compare its study to.

Commissioner Carlson advised there were questions that the Sierra Club provided, Question 10, Part 1.D.3.; she does not know if it came from the East Central Florida Regional Planning Council, but it says, "The questions provide an analysis that quantifies the impact of the project on retail centers on Merritt Island and on retail centers in the North and Central Brevard mainland." She stated feedback from the Crossings says, "This request is outside the scope of information required by Question 10. . ."; so she does not think they have any interest in doing a study based on those comments.

Commissioner O'Brien stated the comment made on Table 11.2 predicts the project will have annual retail sales of over $430 million; page 10.7 states that 22% of the sales will be derived from shoppers of Merritt Island and the beach communities; and those figures can infer that $95 million could be diverted from retail establishments in those communities. He stated the probability of economic blight in the retail areas of these communities seems high. Commissioner Voltz inquired who did the analysis; with Commissioner O'Brien responding the Sierra Club Turtle Coast group. Commissioner Voltz stated the group did not do an economic impact study; with Commissioner Carlson responding it did not come from them, but they were pointing it out; and she is trying to figure out exactly what document it came out of, but it does not show that. Ms. Busacca stated she believes it is a request for additional information as part of the DRI review.

Commissioner Scarborough stated there are several economic issues; how it impacts other malls may be the most remote because that is market driven; there is a question of infrastructure costs, how they will be borne, and impact on other road improvements in Brevard County; and there has been discussion of how it affects tax revenues. He stated the tax base of Cocoa will increase, so they will do an analysis strictly within those parameters; there will not be a decrease in the tax revenues to the County because it taxes across-the-board; but there could be negative impacts within other municipalities if the malls close because of reduced property values. He stated the economic analysis should touch on more than how much a mall will negatively impact areas; Brevard County is a growing community, so he does not know how many malls it can have someday; and how much money would be kept from going to Orlando is another issue. He stated if the malls close in Titusville, it would impact the City's tax base; so the Board needs to approach it in several different methodologies.

Chairman Higgs stated when retail sales shift to some other place, there is a shifting of revenues from sales tax; that kind of analysis is important to know; and when the Board talks about the effect of a new mall on other malls, is it being generic enough in saying what is the effect of Brevard Crossings on businesses outside of malls as well as in malls. She stated she does not want the definition of the study to be so narrow in its scope that it does not cover some of those issues. Commissioner Carlson stated they need to look at the positive and negative sides and not just the negative potential; with Chairman Higgs responding a good analysis will give both sides; and that is what the Board wants to know, what realistically is going to happen if Brevard Crossings is developed.

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

AUTHORIZATION, RE: USE OF COUNTY LOBBYIST

County Manager Tom Jenkins advised staff may or may not need the assistance of the County Lobbyist, but there are many projects the Board approved, and from time to time they may need to use him and will notify the Board after-the-fact, just to speed up the process. Commissioner Voltz inquired if it will be only for projects the Board approved; with Mr. Jenkins responding yes.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize a request to County Lobbyist Guy Spearman to assist with securing State/St. Johns River Water Management District assistance on Melbourne Shores drainage solution; and authorize the County Manager to use the County lobbyist on projects approved by the Board, and to notify the Board after-the-fact. Motion carried and ordered unanimously.

STATUS OF CEASE AND DESIST ORDER, RE: JOHN H. AND DIANE DAVIS

Commissioner Scarborough advised the last paragraph of the Cease and Desist Order says, "This correspondence will serve as official notification that the above stated violations must cease immediately, until such time as you have obtained the required land alteration permit for the borrow operation. Failure to immediately comply with this request will result in this office pursuing all civil remedies available, including fines and injunctive relief for ongoing violation." He stated he is not saying it should not have occurred, but if the philosophy of staff is to work things out with the property owner, it should not issue a cease and desist order that means to stop immediately. He noted staff may need to change the concept.

County Attorney Scott Knox advised the cease and desist order uses the threat of litigation to get the property owner to comply with the rules and regulations; it may be better in the future, if staff is going to try and work things out with the property owner, to indicate that and issue the cease and desist order, but reserve the litigation threat for a future event where the property owner decides not to cooperate.

Commissioner Scarborough stated if the County has a cease and desist order, it normally infers stopping the violation now; and whether there is a threat of injunctive relief or not, it should be treated as a cease and desist order. He stated if the County wants to move to a position of working it out, it should say the cease and desist order could be removed because of actions in working things through with staff. He stated if staff does not want a cease and desist order, it should not issue one because it would send mixed signals. He stated what staff wants to do is up to staff to work it out with the applicant, but a cease and desist order is just that.

Commissioner O'Brien stated he does not know what the Board is trying to do; with Chairman Higgs responding it is just clarifying procedural issues.

APPROVAL TO SCHEDULE EXECUTIVE SESSION, RE: PINTER v. BREVARD COUNTY

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to authorize advertising and scheduling an executive session to discuss strategies relating to the Pinter v. Brevard County case on October 17, 2000, before the regularly scheduled Board meeting, which begins at 5:30 p.m. Motion carried and ordered unanimously.

SELECTION, RE: FINANCIAL ADVISOR

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to select Public Financial Management of Orlando, Florida, as the County's financial advisor. Motion carried and ordered unanimously.

David Moore introduced his partner Virginia Rutledge, and advised they are looking forward to working with the County.

The meeting recessed at 9:59 a.m., and reconvened at 10:15 a.m.

PUBLIC HEARING, RE: APPEAL BY SIERRA CLUB, TURTLE COAST CHAPTER TO BREVARD COUNTY COMPREHENSIVE PLAN CONSERVATION ELEMENT WETLAND POLICY 5.2.F.2, RELATING TO OLEANDER POWER PLANT PROJECT SP#99-11-004

Chairman Higgs advised of the procedure to hear the appeal, with the applicant given ten minutes for a presentation and five minutes for rebuttal, and all other speakers given five minutes.

Commissioner Scarborough inquired if action should be taken on the motion to dismiss first.

County Attorney Scott Knox recommended the Board deny the motion to dismiss; and stated there are grounds for dismissal that may not necessarily be sufficient, but at this point, it is in the interest of everyone to go forward and make a decision.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to deny the motion from Oleander to dismiss the appeals.

Commissioner O'Brien recommended the County Attorney articulate why the motion should be denied; with Mr. Knox responding the site plan appeal is authorized by the Brevard County Code; the characterization of the administrative decision is accurate; and it is an appeal of approval of the site plan, so ground #1 does not measure up to any basis for dismissal. Mr. Knox stated regarding ground #2, Section 62-3207 applies to aggrieved parties as opposed to individuals, so they have standing to raise that issue; and ground #3, although it may be grounds to deny the appeal because it does not articulate the specific basis for it, it is not grounds to dismiss at this point.

Chairman Higgs advised the discussion is in reference to a motion to dismiss the appeals of the Port St. John Homeowners Association and Canaveral Groves Homeowners Association and Sierra Club Turtle Coast Group; and the motion is to deny the motion to dismiss. She called for a vote on the motion. Motion carried and ordered; Commissioner O'Brien voted nay.

Doug Sphar, representing the Sierra Club Turtle Coast Group, stated in accordance with Section 62-507, Brevard County Code, the Sierra Club Turtle Coast Group appeals the administrative decision applying Comprehensive Plan Policy 5.2.F.2 as of December 14, 1998 to the Oleander Power project. he stated Section 62-507, Subsection B, paragraph 1, states, "Any party aggrieved by the administrative decision or interpretation may take an appeal to the Board of County Commissioners"; the key words are, "aggrieved party"; the Turtle Coast Group, representing Sierra Club members in Brevard County is an aggrieved party; but they are not claiming abrogation of vested rights nor takings. Mr. Sphar advised the Agenda Report presents two options; and based on the Board's careful review of the material contained in the appeal, the Sierra Club asks the Board to adopt Option 2 which upholds the Sierra Club's appeal in dictating how the Comprehensive Plan was improperly interpreted, and to schedule a public interest determination regarding wetland impacts. He stated Option 1 is to deny the appeal for any of the three stated arguments; the arguments do not stand close scrutiny; the first reason is the Comprehensive Plan in effect in 1998 requires a public interest determination if wetlands are impacted by commercial and industrial development, and the approved site plan avoids wetlands impact. He stated the essence of the first argument is the public interest determination does not apply because the applicant ultimately avoided wetland impacts; the Sierra Club considers the County's reason invalid because the County applied Policy 5.2.F.2 to Oleander project outside the projects legal context; and the Stipulated Settlement Agreement (SSA) legally defines a site plan as a site development application submitted by the owner to the County on December 14, 1998. He stated the SSA also states in paragraph 14, "The site plan shall be reviewed by the County in accordance with procedures, rules and regulations in effect on December 14, 1998"; the legally defined site plan shows wetlands impacts; and the Sierra Club considers a public interest determination to be a logically implied requirement of the SSA. He stated they believe the SSA gives the County and the public a definite expectation of a forum which is conceivable that the project might be denied; and they feel any project review step, including the implied requirement for a public interest determination, cannot be bypassed unless Oleander and the Board agree to modify the SSA and the legal definitions of the referenced documents, if necessary. Mr. Sphar advised some people think the SSA gave Oleander approval to build the power plant; that line of thought confuses the purpose of the Agreement with the terms of the Agreement; they acknowledge that the stated purpose was to settle pending litigation and allow the facility to proceed; however, they believe the Agreement gave Oleander permission only if certain requirements were met; and the purpose of the Agreement must not be confused with the terms of the Agreement. He stated inclusion of a requirement of site plan review procedures implies that the site plan approval and thus development approval had not been granted; the SSA gave Oleander the right to proceed only under the enumerated terms of the Agreement, including all stated and logically implied requirements such as a public interest determination; and since the requirement for a public interest determination logically implied by paragraph 14 of the SSA has not been satisfied, the site plan approval should not have been granted. He stated the matter of public interest determination is therefore an unsettled issue at the heart of the Sierra Club's appeal; and the County's first reason for denial of the appeal is invalid. He stated the recognized wetland impact may be gone, but the SSA has not changed; and no modification of the SSA paragraph 14 or the legal definition of site plan has been legally executed by the parties to the SSA, one of which is the Board of County Commissioners. Mr. Sphar advised the implied requirement of a public interest determination and the legal definition of a site plan with wetland impacts remain unchanged; Policy 5.2.F.2 must be applied in the context of the SSA; and in the context of a public interest determination, the requirement does apply whether or not there are wetland impacts. He stated the second argument for denial claims the recently approved site plan complies with the wetland requirement of the new Comprehensive Plan; the Sierra Club has not received enough information to verify the site plan complies with the new wetland policy; and their question involves the .62 acre wetland ditch which is not exempt from consideration by the County under the new wetlands language due to the deletion of the phrase in Policy 5.1, "but shall not be bound by threshold or connection requirements utilized by these agencies." Mr. Sphar advised they have requested but have not received the flux code for other wetlands; all they have is the applicant's data supplied to Department of Environmental Regulation which states that 14.77 acres of wetlands are Flux Code 630 and exist on the site, and after development, only 12.87 acres of wetlands with Flux Code 630 would be left. He stated the new wetlands language prohibits industrial development in wetlands with Flux Code 630; in short, they do not have enough information to verify the site plan complies with the new wetland language; but even if it did comply, it would be irrelevant because SSA paragraph 14, explicitly states that the site plan shall be reviewed in accordance with the procedures, rules, and regulations in effect on December 14, 1998. He stated the County's final reason for denial of the appeal states the approved site plan complies with the wetland requirements of the SSA; the reason for denial is not the least bit compelling; the terms of the SSA merely address enhancements to any mitigation plan that might be required for a governmental agency approval; and mitigation is expected for wetland impacts, but is not one of the criteria stated in Policy 5.2.F.2 for approval of the development. Mr. Sphar stated more disturbing than the County's denial is the wording in parentheses, "wetland impacts are reduced/eliminated from those approved through the Agreement"; as they previously pointed out, no wetland impacts were approved by the SSA; instead, wetland impacts were to be approved or denied through a public interest determination by the Board of County Commissioners; therefore, they ask the Board to uphold their appeal and schedule a public interest determination. He stated the public has a right to the hearing, wetland impacts or no wetland impacts, since the requirement is implied in the SSA; the County should have expeditiously moved forward with a public interest determination after the moratorium expired; that is where the public was denied their right; and the Sierra Club is asking the Board to rectify that situation. He stated the correspondence attached to their written appeal present a sinuous trail of decision making and interpretations on the part of the County; to invoke an old expression from the aerospace industry, it appears that the County was working in "answerspace" throughout the process, starting with conclusions that would favorably accommodate the Oleander project and rationalizations crafted to support the supporting premises; and the Sierra Club witness will be attesting to that trail of events. He stated the Club's witness is Mary Todd, Turtle Coast Group Wetlands Chair; and thanked the Board for considering their appeal.

Mary Todd, representing the Sierra Club as a witness, advised the Board may wonder why the Sierra Club has gone through all the trouble with this appeal and risked annoying County staff they generally try to maintain a good working relationship with; and she hopes the Board will look at the history of events, and get an answer as to why they filed the appeal and why they believe it has merit. She stated there have been discussions for a long time on how a public interest determination might affect Oleander; the subject was broached with three Commissioners, Peggy Busacca, and Mel Scott during discussions of what the new wetlands language should look like; and on August 12, 1999, she and Doug Sphar were at the public hearing on the Oleander SSA where copies of the final document were given to the public in attendance. She stated she was surprised to spot paragraph 14 which was not in the earlier draft; she knew immediately it meant public interest determination; and she remembers thinking to herself they have "slit their own throats". She stated they live in a land of three votes; the Board has to judge whether certain events from that point on can be characterized as a series of maneuvers to avoid the public interest determination; starting in January, 2000, they noticed that the requirement for public interest determination was being questioned by different individuals; but more surprising was a variety of reasons given for why Oleander should not be compelled to submit to the determination. Ms. Todd advised they saw the reasons the County gave in their appeal document, and termed those reasons illogical rationalizations which favorably accommodate the Oleander power project, and gave arguments to substantiate their allegation. She stated she hopes the Board read all the material because she only has five minutes to speak; but she would be glad to answer any questions or review any case they have written about. She stated a question they had for a long time is what type of wetlands would be impacted; that concern started when Richard Zwolak called her and in the course of the discussion mentioned the wetland ditch he characterized as a wet flatwood; and to this day they still do not know if the ditch will be a problem under the new wetlands language even though it is a moot issue since the old language applies. Ms. Todd stated it is most frustrating to get the applicant's paper from Department of Environmental Regulation and then be told by the County that the official paperwork from which a permit was obtained contained erroneous statements; and it is also most unpleasant to have to ask staff questions they find difficult to answer; but which would have easy answers if written County wetlands procedures were in place. She stated special concern in this case was a lack of a documented procedure or readily available documented history of precedence for the application of Policy 5.1 to manmade wetlands; she hopes that situation will be corrected soon; most of the important conversations she had are referenced in the document; and she will be glad to answer any questions about them. She stated she believes Mr. Sphar's assessment that the County was operating in "answerspace" when it made the critical decision is correct; the Board must now judge if Oleander and County staff knew that the answer they wanted was no public interest determination; and if they justify that answer with illogical premises, the Board needs to uphold their appeal and schedule a public interest determination. She stated she is the last of the official Sierra Club representatives; there are only two of them; they had to identify themselves because this is a hearing in accordance with Section 62-507; and all the speaking parties for the applicant had to be identified.

Kelvin Scott advised he lives in Lost Lakes which is a community of about 300 people to the west of I-95; the shopping center and power plant will be in their backyards; he read the impact report on the shopping center and agree with a lot of things said on the impact to wetlands; but his question is why does the Oleander plant not have the same problems as the shopping center. He inquired if it has the same impact on wetlands as the shopping center; and requested the Board review that.

Elliott Loyless with Constellation Power, passed on his opportunity to speak.

Attorney Leonard Spielvogel, representing Oleander Power project, requested that the records of the proceedings, all the other hearings they've had over the last two years, the exhibits that have been admitted over those numerous hearings, and the records of the Land Development Section all be made a part of the record of this proceeding. Chairman Higgs inquired if there are any difficulties in having those documents as part of the record; with County Attorney Scott Knox responding it is nice of Mr. Spielvogel to ask, but there are reports and several items that have been submitted to the Board; and if Mr. Spielvogel has something he wants to submit to the Board, that is what he needs to do. Mr. Spielvogel stated a whole history of matters have already been part of the County's records; those being public records, he felt they could be incorporated by reference; he is not asking they be produced today; but should the matter go up on appeal, he would like to know they would be available at that time. Mr. Knox advised Mr. Spielvogel has preserved his right to raise that issue on an appeal if it has to go that way.

Mr. Spielvogel stated he is confused as to the position of the Sierra Club; he heard all the numbers given and sections cited; and maybe it goes beyond him; but there are some speakers to follow from Golder Associates who are used to the technical aspects and are better prepared to tell the Board about the property. He stated they have taken improvements out of the wetlands and improved the site plan that was originally introduced; he thought that is what the Sierra Club and environmentalism was all about; that was the message he got from the Board individually and as a group; the idea is to protect the wetlands; and that is what they strove to do. He stated they had the encouragement and sometimes arm twisting of the staff and the Board to do what was right; and they are at a point where they are out of the wetlands, and should be congratulated by the Sierra Club for having accomplished that because now they are not only preserving the wetland that is on site, but are going to be creating forested wetlands that did not previously exist on the property. He noted that is just one of the numerous things they are going to do to improve the site. Mr. Spielvogel stated if they had introduced the site plan originally and said they can either pull out of the wetlands or stay in the wetlands, what would the Sierra Club prefer; he would like to think they would say get out of the wetlands; but now he senses they are disappointed that his client was able to move out of the wetlands and remain on the upland. He stated because they were able to eliminate certain improvements on site, they were able to move the tanks out of the wetlands and preserve the wetlands; he does not know where the Sierra Club is coming from, but heard that old refrain that somehow staff and the Oleander people are working in some sort of cahoots, and decisions are being made in their favor; but nothing could be farther from the truth. Mr. Spielvogel stated when they negotiated the Stipulated Settlement Agreement with the Board and staff, they were obligated to do numerous things that were not part of the County Code, which Mr. Zwolak will speak to; it was what the Board was thinking about and part of the performance standards that were in the offing; those things were incorporated in the Stipulated Settlement Agreement; so on the contrary, somewhere maybe in the next lifetime, there will be some commendation for having done what the Sierra Club's mission and goal is to do, and that is to preserve the environment.

David Culver, environmental scientist with Golder Associates, consultants to the Oleander project, advised over the past five years his experience has been in natural resources; he does wetland delineation, threatened and endangered species surveys, and the like; and he would like to address the issues brought up this morning, particularly the flux code and the wetlands. He stated he has been associated with the site since 1996; he first set foot on the site in September, 1996, and did a preliminary assessment of the area; and he has been on the site numerous times since then, and have a good feel for the ecological make up of the site. He stated an issue raised earlier was that potentially there was a mixed forested wetland on the site which is a protected flux habitat; that was an error on their part; one of their documents in the environmental resources permit application included a table which indicated there was a mixed forested wetland on the site; and that table was provided to the Board by the Sierra Club as an attachment to their appeal; however, there are several pages of text in that same document that describe all the eco-systems present on the project site, and no where in that description does he use mixed forested wetland because it does not exist on that property, nor do any other County protected eco-systems or flux codes. Mr. Culver stated there was concern expressed about the large ditch, which will be impacted, and a flux code was not assigned to it; there is no flux code for ditches; and they were not trying to hide anything by not giving it a number. He stated he delineated the wetlands on site in April, 1998; subsequent to that, the U.S. Army Corps of Engineers and Department of Environmental Regulation had wetland scientists out to review the wetland delineation that he conducted; and in each case they agreed with the delineations and made no changes. He stated this year another Department of Environmental Regulation wetlands scientist has been on the site and had the opportunity to review the environmental resource permit application; they discussed the wetlands; and she made no changes to the wetlands or habitat types he described on the site. Mr. Culver advised Wetland Rapid Assessment Procedure (WRAP) is a weighted scoring procedure in which they use six different factors, including wildlife utilization, adjacent habitats, etc.; there is a section in the environmental resource application where they gave a qualitative value to wetlands on site; the Sierra Club had an issue with the fact that they gave the ditch a slightly higher score than a couple of smaller wetlands; the score for the ditch was 0.38 which is a low score, but it was higher than the wetlands because it has a pine flatwood adjacent to it; and that is why it has a higher WRAP score.

Chairman Higgs inquired if Mr. Culver said the Army Corps of Engineers and Department of Environmental Regulation were on site and agreed with his wetlands delineation; with Mr. Culver responding yes. Chairman Higgs inquired if he delineated the large ditch as a wetland; with Mr. Culver responding yes, it is a jurisdictional wetland by the State and Corps of Engineers because of its potential connection with other wetlands. He stated the difference between the County's jurisdictional review is that it has a stipulation in its rules that says, "Upland cut ditches, regardless of connection to other wetlands, are not jurisdictional by the County." Chairman Higgs inquired if Mr. Culver dealt with the County in any other regard to ditches of a similar nature; with Mr. Culver responding no. Chairman Higgs inquired what is Mr. Culver's understanding of the policy based on; with Mr. Culver responding he read the policy. Chairman Higgs inquired if his interpretation is that the County does not consider manmade cuts or ditches to be wetlands; with Mr. Culver responding that is correct, if the area was previously uplands.

Richard Zwolak with Golder Associates, advised he will supplement the discussion Mr. Culver just presented; but first he wants to make sure the Commissioners have a copy of the Exhibits he will refer to. He stated the Exhibits are in the document and verify some of the statements Mr. Culver just made; Exhibits 1 and 2 are the State and federal jurisdictional approvals for the Oleander site; by legal survey, they clearly delineate the wetlands that are located on the site; and explained the aerial photograph depicting the wetlands on the eastern portion taken in 1980 where the entire site was scraped of vegetation. He stated despite the fact there is still jurisdictional wetlands that could be claimed on site; they are functionally impaired wetlands because of the historical clearing on site; however, the State and federal agencies did claim jurisdiction. He stated Exhibits 1 and 2 also demonstrate and verifies that the forested portion of the project site is upland community. Mr. Zwolak stated Exhibit 3 includes sections of the ERP application Mr. Culver described; he indicated that there were no forested uplands on site in his analysis; and Exhibit 4 are additional tables that are found in the ERP application that did not come along with the appeal the Sierra Club provided to the Board; however, that is additional documentation in the State document that verifies there are no forested wetlands on site. He stated Exhibit 6 is a series of aerial photographs from the 1940's to 1996; they clearly show where the wetland jurisdiction would be on the site; from 1943 to 1980, before the site was impacted, there was a high degree of consistency amongst the three isolated wetlands; and they super-imposed the present ditch on the aerials which shows the area has always been an upland community. Mr. Zwolak advised Exhibit 7 is a reproduction of the County plat maps; those maps also roughly approximate wetland jurisdiction on the site; the wetlands that are apparent in the aerials continue to be depicted on the plat map; and the area where the ditch is located is in an upland location which is the eastern boundary of the western half of the site. He stated Exhibit 8 is the U.S. Department of Agriculture Soil Conservation Service soils map for the property; it also identifies the wetlands on site; and it is consistent with the County's plat map as well as the historical aerials for the site. He stated Exhibit 9 is the County's forested wetlands map for the Cocoa area; staff prepared that document as part of their effort to regulate certain forested wetland communities in the County; the bottom half of the map shows the green arrow that is the location of the site; and again there are no forested wetlands. Mr. Zwolak stated those documents should cumulatively and individually demonstrate the status of wetlands on the property; it is important to note that the County, State and federal government agencies did not disagree with respect to wetland jurisdiction; and the 1990 aerial clearly shows the ditch as a ditch and not a forested wetland.

Chairman Higgs advised according to the aerial photos, between 1975 and 1980, a ditch was constructed between the three identified wetlands and basically bisected the property. Mr. Zwolak stated that is correct, it is not apparent on the 1975 aerial, but it is on the 1980 aerial; so one can assume between 1975 and early 1980 that impact occurred. Chairman Higgs inquired if the Corps of Engineers and Department of Environmental Regulation claim jurisdiction over the ditch; with Mr. Zwolak responding affirmatively. He stated in the early 1970's, the State did not historically regulate isolated wetlands and would not claim any of the wetlands because they were isolated; the federal program did claim those; and eventually both the federal and State governments began to claim ditches as paths to connect wetlands, so they could claim more jurisdiction. He noted historically they claimed cattle paths that traverse through pastures as connectors between isolated wetlands so they could retain regulatory control over those. Chairman Higgs inquired if they claim regulatory control over the ditch; with Mr. Zwolak responding yes. Chairman Higgs stated based on the pictures, the ditch does not connect the wetlands; with Mr. Zwolak responding that is correct, and neither does it drain any wetlands that are off site. He stated the northern end of the ditch is an upland community, so whoever developed the eastern half of the site put a perimeter ditch on the west side of the property and excavated it down to the Townsend Road right-of-way; that was done to facilitate drainage of the site; and according to federal and State rules, those agencies can come in and regulate that. Mr. Zwolak advised he has a video tape that shows the ditch; it is full of debris and waste from businesses that historically occupied the site; there is no wetland vegetation in the ditch; but there are old tanks, a car hood, and various pieces of debris. Chairman Higgs inquired if Mr. Zwolak is familiar with the County's policy regarding manmade excavated ditches; with Mr. Zwolak responding yes, he talked to a number of staff members about that over the years. Chairman Higgs inquired if the County normally regulates and considers that type of ditch in his opinion; with Mr. Zwolak responding no, there has not been an instance, in his discussions with staff, where they ever claimed a portion of a ditch in an upland cut area. Chairman Higgs inquired if Mr. Zwolak is offering the tape to be shown, but it has not been reviewed by staff; with Mr. Zwolak responding yes, it is a video they did recently; and he would like to offer Mr. Culver's and his professional qualifications as witnesses also. Chairman Higgs advised Mr. Zwolak to give the video and documents to the Clerk.

Richard Wolfinger with Constellation Power, passed on his opportunity to speak.

Nelly Strickland advised she has been in Florida since she was 26, and has seen a lot of things go down the drain; the Kissimmee River is gone; Lake Apopka is shot; the St. Johns River was fiddled with; and nothing is like it used to be. She stated ultimately there will be water problems; the City of Titusville buys water from Cocoa with a Contract that says Cocoa can turn the water off at any time; and mentioned the sight of utility plants in Port St. John from I-95, noting they burn oil, but gas is not pure either. She stated she asked Mel Scott, when the Oleander Power Plant first came up, why the County has to have another plant; and he said it is good for the County and will advertise Brevard County as a good place because they will be exporting power. She inquired how is it good for the County when it interferes with wetlands and air quality and the power will not be used in Brevard County; and stated all the County will get is trouble; and there will be a great use of water to cool the turbines. She inquired why is it needed, why do they have to put it in Brevard County, is Brevard County easier to get along with than other counties, are they not allowed to do it elsewhere, why is the plant not in the area where the power will be going, and have they met with a lot of opposition elsewhere since there were three proposed sites. Ms. Strickland stated she heard Pasco County had a fit; maybe Brevard County should have the same fit; she gets told how good it is by whoever Mel Scott represents, so something is wrong; and requested the Board stop and think of what it is doing for future generations who will want a drink of water. She stated the wetlands should not be involved at all; the plant should be put on dry land; and if they cannot put it on dry land, then it is not needed. She stated the County needs its water; nobody is being protective of her needs, the County's needs, and the general public's needs; and requested the Board keep that in mind.

Marlene Waters presented a document to the Board and advised the public interest review that was required under the rules of December 14, 1998, were required during the preliminary review of August, 1999 before the Stipulated Settlement Agreement was entered into; it was required during each and every revision, and noted by the County staff; Oleander people knew the public interest review was required; and the County Attorney, in February, 2000, said the Stipulated Settlement Agreement was clear that a public interest review was required. She stated if it was a development agreement it may be different, but it is a contract; wrong or indifferent they impacted wetlands; the contract was linked to a site plan; and paragraph 14 of the Stipulated Settlement Agreement says, "The site plan as submitted December 14, 1998. . ." Ms. Waters stated the sheet she passed out is the revision before the approved site plan; none of those dates refer to the site plan of December 14, 1998; they knew it was required, and suddenly right before the scheduled public interest review, they pulled out and decided not to impact wetlands. She stated that does not tell her they are doing it because that is what the County wanted, that is telling her they did it to avoid the public interest review. She stated the whole thing is getting questionable; and inquired if the County should consider an appeal to the site plan that was not submitted on December 14, 1998 and noted in paragraph 15 of the SSA. She inquired if the County considers this, would it be validating the current site plan and changes to the contract.

Craig Bock advised he has followed the Oleander Power Plant project for a couple of years as has Mr. Spielvogel; and the only difference is Mr. Spielvogel is being paid along with his associates, whereas he is involved out of conviction. He stated there have been thoughts of conspiracy and misrepresentations; and if anything they said has been misrepresented, notify them, and they will take it back because he does not want to make a statement that is not fact. He stated there has been a court reporter every time they spoke, so Mr. Spielvogel should have a record of whether they spoke the truth or not. He stated he has a question that he would like Mr. Peffer to answer quickly, and that is, is the ditch on that property considered wetland by Department of Environmental Regulation.

Chairman Higgs advised Mr. Bock to give his questions to her, and she will allow staff to respond later. Mr. Bock stated he wants to address the answer and would like to have the question answered yes or no. Mr. Peffer advised the people from Oleander answered that question. Mr. Bock stated he is asking his public servant to answer it for him because he did not understand the lengthy presentation and is not as well adept at that specialty as Mr. Peffer is. Chairman Higgs inquired of Mr. Peffer, based on his understanding of what Department of Environmental Regulation regulates, if it considered the ditch a wetland, and if it is going to regulate the ditch. Mr. Peffer advised he understands Department of Environmental Regulation will regulate it as part of the ERP permitting process, but that does not necessarily say it considers the ditch a wetland.

Mr. Bock stated they were told that Department of Environmental Regulation considered it a wetland and that is why he wanted to verify it. He stated he agrees with what Ms. Waters said; it is important to understand the Agreement; many Commissioners have said they stand for the law; they should not be where they are if they do not stand for the law of the land and the law that represents the citizens; and if the Agreement states the site plan of that specific date, then the Board needs to go back to that site plan. He stated if the site plan is changed, it should come under the new regulations. He stated people representing the power plant stated it is not a polluter and other things, which they feel have been mis-truths. Mr. Bock stated when they speak, it does not seem like the Commissioners speak about anything they say; they just let it go, so it is not as though they are being heard and represented; it is as though the Commissioners are just letting it pass; but it has been two years of just passing, and it is time to make a stand, a stand on what he believes to be the Stipulated Agreement that the Board entered into. He stated he does not believe the Board has the interest of the public, but does have the interest of a lawsuit; the Agreement states the specific site plan; and inquired if the Board will ask Mr. Knox if the site plan rendered on that date is in the Agreement. He stated somehow he feels when he walks away that will not even be discussed; they have brought it up before; and that is disheartening. He stated he asked the Commissioners to obey the law and look at the heart of the people to see that they are here out of conviction and not being paid. Mr. Bock stated the last statement he wants to make addresses Mr. Spielvogel's statement that there is collusion between the County and Oleander; they do not believe that; but throughout the process, from their first meeting with Commissioner Voltz in her office, Mr. Loyless joined them unannounced to him when he called for the meeting. He stated most of staff has been supportive of the power plant, and even his personal Commissioner thought it was a horrible idea to start with and ended up saying they saw no downside to it; something has happened during the process; it is time to grab the reins; and inquired if it is the original site plan, or has there been many changes. Doug Sphar advised the Sierra Club has two officials represented today; and since the nature of the rebuttal involves the wetland issue, he would like to have the Wetlands Chair, Mary Todd, do the rebutting.

Mary Todd, representing the Sierra Club, advised this is an appeal to the application of Policy 5.2.F.2 of the Comprehensive Plan as of December 14, 1998; the Sierra Club put down two speakers to represent it; and she hopes the Board's decision regarding them and their appeal will factor in, to the greatest extent possible, the two recognized Sierra Club speakers identified in the appeal package, who are Douglas Sphar and herself from the Conservation Committee of the Sierra Club. She stated she is concerned that the big picture is not being seen on the appeal; and they are getting bogged down by details about Policy 5.1 and the clause, "but shall not be limited by the threshold and connection requirements utilized by these agencies," which was the basis for exclusion of the wetlands ditch. She stated they did not appeal Policy 5.1 because they do not have a preponderance of evidence, so they appealed Policy 5.2.F.2. She stated Mr. Spielvogel made a comment, "Isn't the Sierra Club pleased that the wetlands impacts have been eliminated"; they are pleased with that; but the issue is much larger because the public interest determination specified in Policy 5.2.F.2 involves a variety of issues and has historically involved comments on many aspects of projects. Ms. Todd advised they cannot separate the application of the Policy from the context of the Stipulated Settlement Agreement; and read the Policy they are appealing as follows: "Commercial and industrial land uses shall be prohibited unless the project has a special reason or need to locate within wetlands, and there is overriding public interest; the activity has no feasible alternative location; the activity will result in minimum feasible alteration; and the activity does not impair the functionality of the wetlands." She stated it says no feasible alternative location and there must be overriding public interest; they see the issue as much broader than wetlands; it is also an air quality issue for the Sierra Club; and they hope the Board will take into consideration their point of view which states that the Board must consider the application of this Policy within the legal context of the Stipulated Settlement Agreement. She stated the Sierra Club considers a public interest determination to be a logically implied requirement of the Agreement; they believe that paragraph 14 gives the County a definite expectation of a forum in which it is conceivable that the project might be denied; they feel any project review step, including the implied requirement for a public interest determination cannot be bypassed unless both Oleander and the Board agree to modify the Stipulated Settlement Agreement, and if necessary, the legal definitions of the referenced documents. Ms. Todd advised the Stipulated Settlement Agreement gave Oleander the right to proceed only under the enumerated terms of the Agreement; and the County should insist that the Oleander Power project comply with all stated and logically implied requirements of the Stipulated Settlement Agreement, including the public interest determination. She stated she hopes the Board will favorably vote on their appeal.

Chairman Higgs advised that concludes the speakers; and inquired if the Board wanted to allow staff to respond. Commissioner Voltz recommended Mr. Knox respond to some of the issues that were brought up.

County Attorney Scott Knox advised the Oleander project first came to the attention of everyone in the County when they applied for ad valorem tax exemption; subsequent to that, controversy arose, and Oleander withdrew the application. He stated after reviewing the zoning and land use regulations applicable to the property, it was determined by staff that Oleander's power plant was a permitted use under the County's regulations, meaning they could build the plant. He stated at that point, the Board enacted a moratorium and tried to prevent any further power plants in the County, pending its review of the regulations; and the moratorium resulted in a lawsuit with Oleander, which, at the time the moratorium was instituted, had submitted a site plan and was, in their view, entitled to go forward and build the power plant. Mr. Knox advised that is the process that led to the Stipulated Settlement Agreement; and subsequent to the filing of the lawsuit, the County and Oleander came to an agreement about what could and could not be done based on what the County thought it would pass in the future for wetlands regulations and performance standards which were also being considered at that time. He stated there is a Stipulated Settlement Agreement that incorporates additional requirements on Oleander that are not imposed on anyone else in Brevard County because the Board was anticipating adopting things that were not adopted at that time; so Oleander came in under a set of rules that allowed them to proceed; and the Board entered into the Stipulated Settlement Agreement to settle a lawsuit, which also imposed additional requirements on Oleander that were not required of any other similar operation. Mr. Knox advised during the process of the development proposal, the site plan was submitted to the County; it was subsequently revised which is authorized under the County's rules and regulations; the County often entertains site plans that are revised; to not allow Oleander to revise its site plan would be treating it differently than anybody else who submits a site plan to the County; so staff followed the same procedures they do for everyone else who submits a site plan. He advised one revision to the site plan eliminated all impacts on the wetlands on site; the focus the Board needs to take on this particular issue, is whether or not wetlands are somehow implicated by the development Oleander has proposed; and if the Board would review the Agenda Report dated October 10, 2000 with staff's analysis attached to it on the Sierra Club's appeal, it will see that every answer from staff basically says there are no wetlands involved that the County regulates. He stated the Board's decision today is to determine, as a threshold issue, if it is a situation where wetlands are implicated; if wetlands are involved in the development, then it would go to Step #2; and if there are no wetlands involved in the development, it would not have to be concerned about any of the other issues that were brought up.

Chairman Higgs inquired if the wetlands are not involved contingent on the changes made to the site plan; with Mr. Knox responding that is correct, the current version of the site plan does not implicate wetlands according to staff; so the question the Board has is if that is a correct determination by staff. Chairman Higgs inquired if Mr. Knox would argue that the ability to amend the site plan as Oleander has done is consistent with the way staff reviews all site plans, allowing changes to move different aspects of the plan around; with Mr. Knox responding that is correct. Mr. Knox advised if the Board looked at the Stipulated Settlement Agreement, it would note that appurtenances, which include some of the things that were moved around on the old Oleander site plan, were not even identified on the original site plan; and there was language in the Agreement which recognized they would be added later; so it was contemplated even by the Agreement that there would be changes.

Assistant County Manager Stephen Peffer advised this is an appeal of an administrative decision made by staff; he does not know if the Board wishes to hear from staff to explain what their decision was and how they got to that decision; however, staff has information to share, which has not come out in the proceedings so far. Chairman Higgs stated there seems to be a desire on the Board to hear the information. Mr. Peffer advised in reviewing the Oleander project, staff was in a situation it had never been placed in before; and that is, prior to seeing a site plan, they knew the Board entered into a Stipulated Settlement Agreement which set certain terms and conditions that would allow Oleander to build and proceed. He stated the issue as to which rules and regulations were in effect and which should be applied to review of that site plan were difficult to determine; the record shows staff consulted with the County Attorney to get clarification and direction in that matter; however, regardless of which regulations the Board feels staff should apply, the answer still comes out the same with regard to wetlands. Mr. Peffer stated Brevard County has consistently not placed manmade ditches as wetlands; a manmade ditch draining a borrow pit, which is what the ditch is on the Oleander site, has not been the type of wetland which staff has regulated; and that is the only area of impact of the project which was finally approved. He stated the final site plan, which was approved by staff, did not have any wetland impacts; there is the manmade ditch, but there are no other wetland impacts; whether the Board looks at the first Comprehensive Plan in effect in 1988 or the current regulations, there are no wetland impacts; therefore, no public interest determination is required. He stated the amended Comprehensive Plan addresses certain types of wetlands, which cannot be impacted; a manmade ditch does not fall into that category; therefore, a site plan can be approved under those conditions. Mr. Peffer advised, in looking at the Stipulated Settlement Agreement, the only changes are improvements regarding wetland impacts; so from all aspects and all the different ways to approach it, the revised site plan is more consistent with the County's requirements and more in compliance with those requirements; therefore, staff found no way to reject that site plan. He stated the Board has before it and will hear it in the next item, other site plan issues which staff will address; but from their point of view, in applying the same rules in the same way they have consistently done, they had no choice but to approve the site plan as finally submitted.

Chairman Higgs inquired, when staff receives a site plan, is the applicant allowed to amend the site plan during the review process; with Mr. Peffer responding absolutely, and in fact it is often necessary for the site plan to be amended to comply with County requirements. He noted often there are portions of the original site plan that do not meet Code; and staff works with the applicant to try and bring it into compliance so the plan can be approved if it meets the rules. Chairman Higgs stated so staff does not reject site plans under the normal course of the procedure if it finds some part inconsistent with the Code, and gives the applicant the opportunity to bring it into compliance; with Mr. Peffer responding it is a consultation process; staff advises the applicants of where they are out of compliance; and sometimes they give guidance as to what they can do to bring the project into compliance with the Code. He stated staff's roll is to review the site plan to make sure they are not approving something that does not meet Code. Chairman Higgs inquired, when staff reviewed the site plan and Stipulated Settlement Agreement, did they find anything that would preclude them from allowing the applicant to make amendments that would bring the site plan further into compliance with the Agreement and Code; with Mr. Peffer responding it is normal that staff have the applicant revise the site plan in a manner that makes it more consistent; and that is exactly what happened with the Oleander project. Chairman Higgs inquired if there was anything in the Agreement that said they do not have the opportunity to make amendments to the site plan; with Mr. Peffer responding that would be inconsistent with the way the County has always operated. Chairman Higgs inquired if the Board had any questions regarding the appeal.

Motion by Commissioner Voltz, to deny the appeal made by the Sierra Club Turtle Coast Chapter to the Brevard County Comprehensive Plan Conservation Element, Wetland Policy 5.2.F.2 as it pertains to the approval of the Oleander Power Plant Project Site Plan SP#99-11-004, because the approved site plan avoids wetland impacts, so a public interest determination required by the Comprehensive Plan in effect in 1998 is not required; the approved site plan complies with the wetland requirements of the Comprehensive Plan as amended in 2000; and the approved site plan complies with the wetland provisions of the Stipulated Settlement Agreement.

Commissioner Scarborough stated he would prefer to proceed with the next item as the discussion that will come up plays back into this item; and inquired if a decision on this item needs to be made prior to going to the next item; with Mr. Knox responding the Board can do it any way it wants to, but it is considering this issue separately, so it may be a good time to take care of it. Commissioner Scarborough stated the site plan continues to plague him because the pleadings from Oleander says, "Site plan approval of the Oleander Power Project is not an administrative decision of Brevard County staff, but an affirmative obligation of Brevard County pursuant to the Agreement which was entered into by the Board." He stated the Board has an obligation; there were changes not reviewed by the Board; therefore, the Board may need to follow the recommendations of Mr. Marks and look at it as an amendment to the Agreement. He stated that is going to be discussed next and plays back into the wetlands issue, so it may be advantageous to take all the discussion together.

Chairman Higgs stated the idea that the Board would not allow changes to the site plan is inconsistent with what has been the procedure by County staff in reviewing site plans; there seems to be a couple of critical issues in this review of the appeal by the Sierra Club; she has been an advocate of protecting wetlands for a number of years and consistently voted against commercial and industrial in wetlands under the Comprehensive Plan Policy in effect prior to the amendment; but the critical issues are whether or not the ditch is a wetland and whether or not the site plan can be amended. She stated that is what the Board has to grapple with today, and answers those questions to take care of the Sierra Club's appeal.

Commissioner Scarborough stated Mr. Marks, the Attorney for Oleander, said, "this is not an administrative decision but an agreement which was entered into by the Board"; and inquired why is the Board discussing administrative review, and should any changes to the site plan be in the purview of the Board. Chairman Higgs stated the Stipulated Settlement Agreement says the site plan would be reviewed under the policies and procedures in effect on December 14, 1998; and those in effect at that time has staff reviewing the site plan and allowing revisions to bring it into compliance with the County's rules and regulations. Commissioner Scarborough inquired if it is a normal procedure or a court-entered Stipulated Settlement Agreement, which is an obligation directly from the Board to Oleander that can only be addressed by the Board and not through its staff. Mr. Knox advised the Board can rule that the appeal is out of order because it is an administrative proceeding and a staff decision, not a decision of the Board because the Board has never reviewed site plans. He stated the fact that there is a lawsuit does not change that, especially if the Board has language in the Stipulated Settlement Agreement, which says it can follow the rules governing site plans. Chairman Higgs inquired if the procedures in effect at that time are the procedures the Board has taken; with Mr. Knox responding it has not changed and has been constantly the same.

Commissioner O'Brien stated the Board should never declare a drainage ditch a wetland; if it does, all the drainage ditches the County maintains that may have wetland foliage could not be maintained; and it will put itself in a terrible position in trying to implement flood control, water quality control, and everything else it has tried to do for the community.

Chairman Higgs stated there is no motion from the Board. Commissioner Voltz advised she made a motion to deny the appeal, but did not get a second. Commissioner Carlson stated if the Board does not want to hear the next item first, she will second the motion to deny.

Chairman Higgs advised the motion is to approve Option 1, which denies the appeal; it now has a second; and the Board can dispense with that or go forward and hear the second appeal. Commissioner Scarborough stated he wants to hear the other information. Commissioner Voltz inquired if this item is denied, is there a reason not to hear the second item; with Chairman Higgs responding the Board will hear the second appeal; and the only question is if it wants to take both motions at the end of the presentations or go forward with this motion.

Commissioner O'Brien stated there is a motion and second on the floor; the issue has returned to the Board with concerns about the Comprehensive Plan wetland components; Oleander came back to staff with a site plan which is better than the original site plan with no wetland impacts; and the argument is whether or not the site plan has come into compliance with the Comprehensive Plan wetland policies, and have they been properly addressed. He stated there has been no finding of wrongdoing by staff; the submitted plan today is in compliance; however, what has not been adequately addressed is the air pollution and number of trucks delivering diesel fuel. He stated hundreds of trucks will be clogging the roads and accelerating their deterioration, whether the route is SR 520, SR 524 or I-95; and they will impact the roads and abutting neighborhoods, health of nearby residents, and their quality of life. Commissioner O'Brien advised Brevard County enjoys some of the cleanest air on the East Coast of Florida; some of his concerns are traffic and the environment; they are his concerns on the Brevard Crossings project as well; and described a scenario of what could take place during Christmas shopping if the mall is built next to the power plant, with families mixed with hundreds of fuel laden and empty trucks all day and all night. He stated it will be a terrible situation if that occurs, and could cause anger and lack of confidence in representative government. He stated the impact will include Highway A1A in Cape Canaveral, SR 520 on Merritt Island and Cocoa, SR 520 to I-95, and SR 528 all the way to Grissom Road and up SR 524; and fuel trucks will mix with tourist buses from the ships and trucks carrying freight, and create a terrible situation. He stated those problems were not addressed; his concern about environmental impacts were answered today; but there are still questions on air quality and quality of life. He advised of his 84-year old mother who would not give up her right to drive and independence to do so even though she could not see very well; and noted there are a lot of people like her in Brevard County. He mentioned cars tangled up with trucks on the roads, fumes from the trucks causing problems; and stated his vote in opposition is in protest of the lack of planning and consideration of the real effect it will have on people he represents in District 2. He stated it will be a catastrophe if the plant and Brevard Crossings are approved and the infrastructure is not there to take care of the problem. Commissioner Scarborough advised page 55, paragraphs G and H of the Agreement address truck traffic, times of trucks, number of trucks, and routes; and it was extensively discussed during the process. Commissioner Voltz inquired if the Board can take into consideration air quality and the number of trucks in this appeal; with Mr. Knox responding no. Commissioner Carlson stated there was a lot of research done regarding traffic; it was determined that to allow Oleander to operate would require six trucks per hour; and that was passed by the Florida Department of Transportation and County Traffic Engineering group as being no problem on the current roadway system.

Chairman Higgs advised the Board has to follow the law; it has followed its procedures and Comprehensive Plan, and has consistently treated the application and applicant the way it does others; she is not excited about the Oleander plant and wishes there were other provisions in the Zoning Code and provisions of air quality that the State and federal governments have; but those are other regulatory agencies. She stated the Board has to treat this applicant within the County Ordinances and procedures consistently with the way it treated everyone else; the amendment to the site plan that brings it closer into compliance is fair and consistent with the way the County treats everyone else; and it does not treat manmade upland ditches as wetlands. She stated if the Board wants to change its policies and treat upland manmade ditches as wetlands, then it should change its procedures and policies; but that is the way others were treated, so she will support the motion, and unfortunately will need to vote for it.

Chairman Higgs called for a vote on the motion. Motion carried and ordered; Commissioners Carlson, Voltz and Higgs voted aye; and Commissioners Scarborough and O'Brien voted nay.

The meeting recessed at 11:40 a.m. and reconvened at 11:50 a.m.

PUBLIC HEARING, RE: APPEAL OF ADMINISTRATIVE APPROVAL OF OLEANDER POWER PLANT PROJECT SITE PLAN #99-11-004

Chairman Higgs called for the public hearing to consider appeals from the Port St. John Homeowners Association, Canaveral Groves Homeowners, Inc., and Sierra Club Turtle Coast Group to the administrative approval of the Oleander Power Project Site Plan #99-11-004.

Commissioner Voltz requested a clarification of what the issue is; with Chairman Higgs responding the applicants are the Port St. John Homeowners, and Canaveral Groves Homeowners. She stated each applicant will be allowed ten minutes for presentations and five minutes for rebuttals.

Nicki Kisner, representing Canaveral Groves Homeowners, Inc., advised she is the only person speaking for the Homeowners Association; apologized for the erroneous date inserted in her letter; and requested the Board overlook it. She stated they are not here to appeal the site plan in question, but rather to protest the proceedings of how a site plan that has been approved by staff is not referenced by the legal document to which the Commissioners affixed their signatures. She stated the parties to the Agreement agreed to certain stipulations, so any changes or amendments to any part of the original document are subject to reconsideration by all parties; it is a legal contract, not a binding development plan; therefore, it should not have been dealt with in a business as usual manner. She stated staff was directed by the Board to review the site plan submitted as part of the Stipulated Settlement Agreement and not to create a new one; so until the altered document is presented to the Board for review and a vote taken to amend the Agreement to reference the new site plan, there is nothing to appeal.

Doris Jean Olson, representing Port St. John Homeowners Association, advised they are unhappy with the way the proceedings have progressed to this point, and with all the changes that have taken place in the site plan; and inquired how can the original Agreement be valid because it is no longer the defined site plan, and how can County staff approve the site plan and bypass approval of the Board and input from the public. She stated staff's job is to aid and assist the Board and Brevard County residents in what is best for Brevard County as a whole; staff should be made accountable for any changes to the original intent of the Stipulated Settlement Agreement; and no changes to the original Agreement should be accepted. She stated the Board should go back to ground zero and start from scratch.

Chairman Higgs advised she has a card from Mr. Sphar who identifies himself as one of the appellants; and she did not realize the Sierra Club was one of the appellants.

Doug Sphar, representing the Sierra Club Turtle Coast Group, advised the County Attorney, in an August 16 letter, stated that the Stipulated Settlement Agreement is nothing more than a contract, and that as such is subject to interpretation and/or modification by the parties, which are Oleander/Constellation and Brevard County Commission; and if an act or issue of interpretation is still open, the Commission would be the ultimate authoritative party to determine the extent with regard to the meaning of any contract provisions. He stated the Stipulated Settlement Agreement, paragraph 14, explicitly states that the site plan shall be reviewed in accordance with procedures, rules and regulations in effect on December 14, 1998, and the Board of County Commissioners, one of the contract parties, is by extension, a party to any reviews conducted under paragraph 14. He stated they heard discussions about the normal way that site plans are reviewed and staff ordinarily does that; because of the Stipulated Settlement Agreement, it is not a normal site plan process; and the Board, as a contract party to the Stipulated Settlement Agreement, should handle the site plan review in an a-typical manner. Mr. Sphar stated many things happened with that site plan; revisions were filed; and because the site plan is part of the Stipulated Settlement Agreement, the Board should have been involved in the steps along the way to provide oversight as to what staff was doing. He stated given that the Board was absent from the various steps along the site plan approval process, the Sierra Club feels the Board should abrogate the approval, look at the process, and see if there is some point along the way that the Board should be involved in the process that happened with the site plan.

Chairman Higgs advised paragraph 14 of the Stipulated Settlement Agreement says, "The site plan shall be reviewed by the County in accordance with the procedures, rules, and regulations in effect on December 14, 1998." She stated the procedures, rules, and regulations in effect on that date would have staff reviewing the site plan; and inquired how would Mr. Sphar interpret that differently than for staff to move forward in the same way they always have. Mr. Sphar stated the County Attorney's letter says it is a contract, and the two parties are the Board and Oleander; and the site plan is an extension of the Stipulated Settlement Agreement. Chairman Higgs stated if the Board has the site plan before it today, what would Mr. Sphar want it not to approve; with Mr. Sphar responding the way business is done in the aerospace industry, there are specifications for missiles and a lot of little things; if someone changes a washer or the rocket fuel, there is a mechanism of higher-up people who are given an opportunity to say what type of change is taking place and to intervene and get involved in the change; and he sees no evidence with the site plan that anything was brought to the Board's attention. He stated they moved tanks and stuff around; and if fuel tanks on a missile are moved, the president of that company would want to be involved. Chairman Higgs advised the movement took structures or tanks out of the wetlands and lessened the impact on the natural resources; with Mr. Sphar responding he knows that, but he is commenting on the process and not the end result. Chairman Higgs inquired if the Board reviewed the site plan and said it is what it thought it was approving, would Mr. Sphar find that satisfactory; with Mr. Sphar responding if the Board had the opportunity to see what decisions were made and whether they were worthy of the Board's attention, it might decide everything they did is okay, and the site plan is fine the way it is.

Sharon Burridge advised she thinks of a scale with Oleander on one side and the public interest on the other, and what is good for the County in between; Oleander is going to pollute the air and use a lot of water; the citizens are going to breathe their pollution and face the possibility of water shortages; Oleander is going to provide 12 jobs and one project; and the public interest is shot in the lungs, so the balance is way off. She stated Oleander's ground ozone level is 64 tons per year; that is a proven carcinogen especially in little children; the Board is letting them build in the center of residential areas; and if they were further out, she could probably live with it, but they are not. Ms. Burridge stated the wind is going to blow and everyone will get the pollution; it is not in the public interest; she pays taxes and wants the Board to use it to fight Oleander and let them take their pollution some place else; and she hopes it will overrule the site plan approval and vote in the public interest. She stated the Board can require a new review in the public interest; she would like to have that meeting at night; everyone she talks to does not want Oleander's pollution; and they will not get a benefit from the project. Ms. Burridge read a letter from Jan Moody, who lives in Dalehurst Ranches, as follows: "The same people who keep coming to these meetings to plead against building the Oleander plant are not the only people interested. I can speak for over 200 people who live in the Dalehurst Ranches. Two questions we keep hearing is why can't they ever make it a night meeting, and why do they have them in the morning when we're working and can't attend. To date I believe there is only one meeting held at night. I asked the Commissioners to please set aside time to have another meeting in the evening concerning Oleander. This would be fair to all of us so that more of us can attend. Most homeowners need to make a living. The folks here for Oleander are making a living while they are here. We look to you for leadership and protection. Protection against mega-corporations who are taking advantage of local and State loopholes. We look for your protection against harm to our community and its residents. We look to you to make the right decisions, the right decisions that would benefit the people. We look to you to help us keep our neighborhood safe from harm. The Oleander plant will be spewing up to 4.2 million pounds a year on us, on our neighborhoods, sulfur dioxides, nitrogen dioxides, sulfuric acid mist, volatile organic compounds. We look to you to put a halt to this poisonous plant, Oleander Plant, whose electricity isn't even for Brevard. We look to you to make it right, to serve your residents, to protect us from the harm this plant will bring if built here. You see the trouble that Oleander has already brought. Just think what it will be like after they are built."

Elliot Loyless passed on his opportunity to speak.

Leonard Spielvogel, Attorney for Oleander, stated it is difficult to sit and listen to sincere people whose minds are closed to all the information that they tried to impart; it does not help to excite them and exacerbate the situation by giving bad information; Oleander has gone through a whole series of hearings before this Board; and it has applied for and obtained a number of permits. He stated the last time he was before the Board, he recited the number of agencies and departments before whom Oleander had to appear, make applications to, and be reviewed; the idea that they are going to spread contamination, burden the roads, and do a number of bad things is not true; and it is difficult to sit and allow those things to be said and spread over the airways to people who are also well meaning and who are frightened and intimidated by what they hear; so he wants to say it isn't so. He stated what is so, is that they are jeopardizing the respect for governmental bodies; if a government agency does not agree with their point of view, there is something wrong with that agency, they are not doing their job, and their integrity has been compromised; therefore, they cannot believe them and have to come to the Board and say protect them; if the Board does not agree with them, then it has been compromised; and what is left is anarchy which is a terrible thing. He stated he has been before the Board for about 40 years; and over those years, there has been less and less respect and belief in what is being said from this Board and other governments; and that is very sad. Mr. Spielvogel stated Oleander is a good project; it is going to be good for this County; it is not going to destroy it; it will generate electricity; and it is going to pay a lot of money in taxes, which will be a direct benefit to those in the County. He stated it is going to be part of the electrical supply for the State and County because the Contract with Seminole Cooperative serves a part of Brevard County; they have said it many times, so why is there nobody out there listening; and requested the Board listen to them, say what is right, and share that message with its constituents.

David Culver passed on his opportunity to speak.

Richard Zwolak with Golder Associates, advised in August, 1999, they signed the Stipulated Settlement Agreement; over the past 12 months, Oleander has sought and secured various federal, State and local permits and approvals for the project; the Stipulated Settlement Agreement requires them to manage air, water, ecological resources, and real estate in a very specific manner; and it requires them to seek and secure other permits and approvals. He stated the document he handed out earlier has an Exhibit SP-1, which is a letter he sent several months ago to George Ritchie, staff planner with the County; in that he provided copies of all the federal, State and local permits and approvals they obtained, and earmarked for the County staff the sections that pertain to some of the performance standards that the Stipulated Settlement Agreement required them to comply with; it took a year, but they were able to pull all the documentation together; so the Stipulated Settlement Agreement is consistent with all the other federal, State and local permit programs. Mr. Zwolak advised the Agreement is a very lengthy document that addresses 30 individual items; a number of those are procedural, but 19 of the 30 are specific site plan oriented or performance oriented conditions that Oleander is obligated to perform; and they have worked with the staff over the course of 12 months for site plan submittals and site plan modifications, and to put together a development that meets all the terms and conditions. He stated they are not asking for any revisions to the Stipulated Settlement Agreement and were able to demonstrate that they can comply with all the conditions. He stated what has changed with the site plan is moving of two well water tanks to the interior of the development; they did that because one of the Fire personnel who reviewed the site plan had a very good recommendation that they create a loop for a public water supply system in the area to enhance the fire fighting capability of the County and the City of Cocoa; so they removed equipment from the site that they were going to use for the facility, and created the loop system that enhanced not only the fire fighting capability of the site, but also for the neighborhood in general. He stated they realigned one access driveway and eliminated another; because of the site changes, they re-contoured the stormwater ponds and moved some inlets and outfalls; and they were not very significant items when considering the operation of the plant and what it entails in terms of day-to-day use. Mr. Zwolak advised all the changes have been beneficial; they have improved the site and made it more compact; they reduced impervious surface; and not only are they meeting the thresholds in the Stipulated Settlement Agreement, but are beating them, some times by significant amounts. He stated the overall issue, with respect to the Stipulated Settlement Agreement and site plan approval is that they have not changed the site plan significantly, particularly as it pertains to the Stipulated Settlement Agreement; paragraph 14 of the Stipulated Settlement Agreement makes it clear that the County can review according to its policies, procedures and rules, and as amended by the Stipulated Settlement Agreement; so there were expectations for changes to occur, and that is what happened.

Richard Wolfinger, Vice President of Constellation Power Development, Inc. and Vice President of Oleander 1, the General Partner of Oleander Power Project, Limited Partnership, advised he is the signatory to the Stipulated Settlement Agreement, and the Board is one of the parties; he believes they received the same type of consideration by the County staff that any other applicant would have in changing and modifying a site plan to improve the process; and he fully expected that would be part of the Stipulated Settlement Agreement entered into a year or so ago. He stated that is what has occurred to date, and he is pleased with it; Section 18 says, "The County shall, in the ordinary course, process applications and requests received from the owner during the development and operation of the property and facility"; that also was the spirit of continuing, not only up to date, but in the future, doing things in the normal course of business; that was his interpretation of the Agreement; and he believes the County, to this date, has continued to follow that.

Bob Waters advised everyone has to have a concurrency evaluation who is pursuing an approval of a site plan; and read excerpts from Ordinance No. 2000-32 as follows: "A finding of non-deficiency by a concurrency evaluation shall remain valid provided the application for development permit approval is submitted within six months after the date of the results of the concurrency evaluation. For applicants opting to vest a site development plan, the finding shall remain valid up to nine months from the date of the concurrency evaluation in order to allow the appropriate amount of time for review and completion of the site planning process. Upon approval of a site plan, the concurrency finding of non-deficiency shall remain in effect for a period not to exceed 12 months in order for the original vesting for the building permit to be pulled within 12 months. A three-month extension of a finding of non-deficiency for site plans and subdivisions that have been submitted to the Land Development Division for review may be approved by the Land Development Division Director." Mr. Waters stated after that is done, and the three months run out, the Board of County Commissioners has to approve any secondary extensions; the copy he has is dated December 7, 1998; it ran out on June 6, 1999; and inquired if during the contract, they were in compliance, was it valid when they entered into the contract, and did they have one that was valid during the site plan approval period when they approved the site plan. He stated Bruce Moia may have one that has the current date.

Chairman Higgs inquired if Mr. Waters wants to know if Oleander had a concurrency evaluation; with Mr. Waters responding that is right, because it ran out; the paperwork he has shows it ran out on June 7, 1999; and that means the first extension the Director can do, and any other extension the Board has to approve.

Nelly Strickland stated the Department of Environmental Regulation, Environmental Protection Agency, and the Army Corps of Engineers have all been known to be for sale; and related a story about two men in Oakhill who invented a car that could go 65 miles on one gallon of gas, but the EPA would not approve it, prompted by the oil companies. She stated the Oleander plant is going to use over 73 million gallons of water a year; the City of Titusville buys one million gallons a day; that is 365 million gallons a year; and inquired how many cities could be provided with water from the 73 million gallons Oleander is going to use. She stated it is extremely sinful because there will be problems with water; the aquifer is down; the aquifer in the center of the State sunk; and those things should give the Board fair warning and foresight, and make for better planning. She stated giving away 73 million gallons of water a year is not good planning; if it came back as reuse, it would be bad but okay; but it will evaporate and will be gone forever. She stated it will be 1,100 degrees at the top of five smoke stacks; and inquired if the Board is interested in representing the people. She stated she has a feeling the issue is over and done with and is a foregone conclusion; and inquired why the Zoning staff made a decision that was not a good decision, and is Oleander getting a tax abatement. Chairman Higgs advised Oleander has not applied for a tax abatement at this time. Ms. Strickland inquired if they will be applying; with Chairman Higgs responding she cannot answer that question. Ms. Strickland stated if the County is going to work a deal, it should include the developer putting in a desalination plant for the 73 million gallons of water a day; they are going to make money, which she is not opposed to because anyone in business should be able to make money; however, if they steal in the process they should be fined; and Oleander is stealing 73 million gallons of water a day which could provide a number of cities with sufficient drinking water. She stated the County cannot afford to give away the water, so Oleander should put in a desalination plant.

Marlene Waters stated she disagrees with the proceedings because on page 7 the site plan is legally defined; she does not know why the County Attorney does not stick with the law when he discusses this issue; he seems to skew it over to the way staff or whoever wants to approve the site plan; and that is the way it is determined. She distributed a handout including page 7 of the Fact Book; and stated she will talk about why the site plan should not have been approved even though she disagrees with the proceedings. She stated it says 90% of the site will be pervious which means it would be 10% impervious; and the Stipulated Settlement Agreement says they would be limited to 15% impervious. She stated the charts she presented show the site plan submitted on December 14, 1998, says impervious surface would be 11.5%; the chart on the right is the site plan submitted on August 18th; and Ms. Busacca missed that date in her list of time lines. She stated the final site plan was approved on August 18; and it was very quick. She stated the chart on the right shows 9.25% impervious, but then there is a semi-impervious number of 23.7%, dropping the pervious surface to 67% from 88.5%; she asked Bruce Moia about that, and he gave a response, which is shown on the next page of her handout and says, "because the Stipulated Settlement Agreement does not deal with pervious surface, we cannot assume that semi-impervious surface is limited by the Agreement." She stated she looked up the definition of impervious surface in Chapter 62, Article X, Division 3, Section 32-3661, under Definitions, which says, "A surface which has been compacted or covered with a layer of material so that it is highly resistant to infiltration by water." She stated they do not have a definition of semi-impervious, but it is included, and says, "This shall include but not be limited to semi-impervious surfaces such as compacted clay as well as most surface areas, roofs, sidewalks, etc." She advised according to Brevard County's definition of impervious surface, it does include semi-impervious surface, which would bring the total to 32.96% impervious; and the Stipulated Settlement Agreement limits it to 15%. Ms. Waters advised the next page is a chart showing the total square footage of the site plan that was approved; they do not define it in the Stipulated Settlement Agreement; Mr. Knox said there is language in there that points to structures and buildings; it does not really define it, as it did in the site plan or the proposed Codes, or any of the other things; but they do say that the three main buildings are identified on the original site plan. She stated she added the totals and came up with 12,500 square feet for the main buildings, not including the turbine generators; the Stipulated Settlement Agreement says those were enclosed in buildings as well, but she did not add those in, and just took the tanks because she did not know what else the storage tanks could be; and since they are not legally defined in the Stipulated Settlement Agreement, they would have to be considered accessory buildings in the Codes. She stated Chapter 62, Article VI, Section 62-1102 defines accessory building or use as "a building, structure, or use on the same lot and of a nature customarily incidental and subordinate to the principal use or structures." She stated at the bottom of that definition it says, "In no instance shall the total square footage of all accessory buildings exceed the square footage of the principal structure." She stated her handout clearly shows that the main buildings on the site plan that was approved is 12,500 square feet, and only counting the tanks as accessory buildings, even though there probably will be turbine buildings, generators, and stacks which should be considered as accessory buildings according to the Code, the tanks alone totaled 36,900 square feet which far exceeds the main buildings; so that is against the Code and should have a variance or whatever is necessary. Ms. Waters advised the Codes do not allow structures in buffers; she recognizes that buffers are not required in the Codes for industrial development; however, they were given in the Stipulated Settlement Agreement, so she is giving the Board the definition of buffers and pointing out it says there will be no structures in buffers. She stated the buffers in the Stipulated Settlement Agreement are not drawn on the site plan and are not even shown there.

Chairman Higgs asked the Board if it wish to provide additional time to Ms. Waters.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to allow Ms. Waters additional time. Motion carried and ordered unanimously.

Ms. Waters stated in the tables staff prepared for the Board, page 3, says, "Stipulated Settlement Agreement and approved Oleander site plan, 40-foot front setback"; and to the right it says, "storage tank structure is 140 feet from front setback"; she measured that out, and it is from the front property line and not the setback; so that makes the number a little different. She stated there are several numbers in there that are not exactly right; they say, "criteria complied with as depicted on approved site plan proposed lot coverage, 9.26%," but they do not address the 23.7% semi-impervious surface. She stated a lot of the numbers are definitely skewed, and the buffers are the same way; they say, facilities buildings on the property line are identified on the site development plan submitted; they are identified, but so are the other structures; and they are drawn in and listed in the legend. She stated in the approved site plan, there are things listed on the legend that are not drawn in the plan; and she was told by staff that those items are not going to be allowed, such as an outdoor chemical storage area that was on the original plan and listed in the legend, but is not in the plan of today. She stated a soft water tank is eliminated, but is still listed as plural like there are two of them; so there are a lot of problems.

Craig Bock advised Section 62-602, Concurrency Evaluation Procedure, says, "The concurrency evaluation system shall measure the potential impact of any development permit proposal upon the established minimum acceptable level of service for roadway, solid waste, potable water, drainage, sanitary sewer, or park facility or service. The most current available data regarding such public facilities and services operating levels of service shall be utilized for concurrency evaluation." He stated the most current would be within date and not something outdated; so he asked Commissioner Carlson if it is outdated, how can that be so. He stated further into the Agreement it states, "The applicant shall be responsible for requesting any extensions"; it is not the Board's fault or the staff's fault if it is not current; it is the responsibility of the applicant. He stated it also says, "shall also be required to show proof of eligibility for exemption by submitting to Land Development Division a copy of the application to a permitting agency for verification"; and requested Commissioner Carlson look into that. He stated he does not like to be ignored when he leaves; and requested Commissioner Scarborough, where it specifically states, "the site plan in the Stipulated Settlement Agreement as amended by the Agreement December 14, 1998," to get a determination from the County Attorney whether that is the site plan. Mr. Bock stated he appreciates what Commissioner Higgs was getting at; there is a normal process for changes; but it is not a normal process to go into a Stipulated Settlement Agreement and to agree upon the site plan as amended, so he would like to know that. He stated they went to see the plans; four plans were supposed to be turned in by the applicant; they could not find the plan; the original was gone; and finally one was found in the County Commission Office, so he would like that asked. He stated he liked the fact that Commissioner O'Brien brought up traffic; he would like the Board to go to page 5 of the Stipulated Settlement

Agreement where it says right turns only, yet Henry Minneboo and Department of Transportation are getting ready to put in a left turn decel lane for them to go into the plant; so the Board has a position to make a stand in a legal manner. He requested an outside attorney take a look at this, which would be tax money well spent; there were over 1,700 petitions against it; and he could have had everybody in the County, with the exception of 10%, sign those petitions. He stated it is well worth spending the money to get an outside opinion since in the end the Board will be held responsible; he will hold the Board responsible; and the citizens of Brevard County will hold the Board responsible. He stated when John Harris came before the Board representing Brevard Citizens Against Pollution (BCAP), he made the statement that it was illegal for the Board to enter into a contract during the moratorium, so the Stipulated Settlement Agreement was deemed illegal by Mr. Harris; and he would like Chairman Higgs to ask the County Attorney to re-examine that issue; and they are asking for an outside attorney because those are serious facts. Mr. Bock stated the County does not allow structures in buffers, but they have those; and inquired if the contract made the Board veer from the way it would normally do business. He stated if it did, perhaps it could be illegal; and he would like to have an outside attorney look at that. He inquired about the lapse in the option to purchase the property before the moratorium, between December 1998 and April 1999, which may have a legality issue; he is not paid to look at those things legally; and he wants to make sure the stenographer knows he is not a lawyer and just wants to look into that because it is an interesting subject that should be looked into as the latest copy they have shows it lapsed. He stated what inspires him the most is to know the Oleander Fact Book was not totally factual; they heard a bunch of rumors from people, but what they printed was not actually factual; and they found that out because the Stipulated Settlement Agreement had to make changes that were agreeable and different than some of the things in the Fact Book. Mr. Bock advised concurrency is an ongoing process; it is to say is there enough water for the project; they know it can be up to 1.9 million gallons per day if they operate 24 hours; and the applicant is responsible for that. He requested Commissioner Voltz look into permeable to see if it did break the contract, and if the less square footage of the main building breaks the Code also. He thanked the Board for looking into those things; said it was an interesting process and a tough two years; and stated he appreciates the Board's attention to that, and that it not ignore him when he leaves, as those questions are important to him and to the citizens of Brevard County.

Chairman Higgs advised the appellants will now have an opportunity for rebuttal, beginning with Ms. Kisner, then Ms. Olson and Mr. Sphar. Ms. Kisner and Ms. Olson gave up their opportunities for rebuttal.

Douglas Sphar advised he originally did not plan to offer a rebuttal, but just to comment on some of the things he heard about the site plan and how things got bigger, smaller, and moved around. He stated it gets back to the basic premise that the site plan should be treated differently because of the legal connection with the Stipulated Settlement Agreement; and again he refers back to the aerospace analogy that there are some things appropriate for staff to do like choose the color of paint, but there were some fundamental changes made to the site plan; and because of the special nature of the site plan, the parties to the Stipulated Settlement Agreement should have been involved in the loop. He stated Mr. Spielvogel mentioned Seminole Cooperative serving Brevard County; when they filed their appeal early this year, the one they later withdrew, they mentioned Seminole Cooperative having customers in Brevard County; and he got a service area map from Seminole Electric Cooperative of Tampa, which does not show any customer base in Brevard County. He stated he contacted Florida Power & Light, the utility that has a franchise in Brevard County, and asked that question; and in a couple of days Mr. Samson called him and said he contacted the operations people and they could identify no customer base in Brevard County served by Seminole Cooperative.

Chairman Higgs advised that concludes the speakers; there are a number of issues raised regarding the site plan; and there are a couple of other items for the Board to consider. She inquired if the Board wants to break for lunch and come back to conclude the process; with Commissioner Voltz responding no, she would like to get it over with. Chairman Higgs requested staff explain the procedure issue of whether or not the Board will review the site plan, and to respond to some of the specifics raised.

Assistant County Manager Peggy Busacca advised there was a question about the scheduling of meetings; the section of the Code under which the site plan is being appealed requires a 30-day turn around from the time the appeal is received until the meeting is scheduled, which required this date be chosen; and the next night meeting would not have met the 30-day requirement. She stated another issue is concurrency; the concurrency evaluation and discussion under Chapter 62-602 that talks about vesting a site development plan means that if a site development plan is vested, no additional concurrency review will be required at the building permit stage; and in this instance, the Oleander site plan was not asked to be vested for concurrency purposes; thus the evaluation that was done was adequate to allow the site plan to proceed. She stated an additional concurrency evaluation will be required before a building permit can be issued; so the vesting of the site plan for concurrency purposes was neither requested nor reviewed. She stated the next question dealt with percentages of pervious and impervious coverage; and Ms. Coles will respond to that.

Natural Resources Management Section Supervisor Debbie Coles advised the quote given to the Board about impervious surface came from Article X of the Code which is the environmental Ordinances; and the Codes in the Aquifer Recharge Ordinance and Surface Water Protection Ordinance refer to the definition that was read, which includes semi-impervious surface. She stated the Board recently heard an appeal regarding the 30% impervious surface limitation for properties that abut regulated surface water bodies; the definition was put into the Code to specifically refer to the impervious surface cap within the surface water buffer; the Oleander site plan does not abut a surface water body; therefore, it is not subject to that definition and interpretation because each one of the Codes specifically state, "for the purpose of administering this Ordinance the following definitions apply." Ms. Coles stated in the Aquifer Recharge Ordinance, they administer caps on impervious surface; and it specifically references the use of pervious concrete is an acceptable form to use in areas that need extra pervious surface. She stated both of those Ordinances say that; that is where the definition came from; but it is not in the Site Plan Code, and is not administered via the site plan review.

Chairman Higgs inquired if staff is representing that the established impervious lot coverage of no greater than 15% that is part of the Stipulated Settlement Agreement is met by the current site plan; with Mr. Moia responding staff agrees that the development of the property as stated in the Stipulated Settlement Agreement limiting the amount of impervious lot coverage of no greater than 15% has been met, because the way they implement impervious lot coverage is limited to things like pavement, buildings, structures, etc.; that are not pervious or semi-pervious. He stated semi-pervious can mean impervious in certain situations, for example in aquifer recharge areas. Ms. Coles advised there are no aquifer recharge areas on the site. Chairman Higgs stated the Stipulated Settlement Agreement says no greater than 15% impervious; and inquired if staff is representing that the site plan meets that requirement; with Mr. Moia responding that is correct.

Ms. Busacca advised the next issues are the storage areas and the legend on the site plan; and Mr. Moia will address that.

Mr. Moia advised there is a limit to the amount of outdoor storage area in the Stipulated Settlement Agreement which is 20% of the building coverage; the site plan does not have an area designated for outdoor storage; so staff concurs they have not exceeded the 20% and have not shown it on the site plan. He stated should they have outdoor storage, it would still be limited to that 20%, but there is not a designated area on the site plan for outdoor storage.

Ms. Busacca advised there was a question about turn lanes; and Mr. Moia will address that. Mr. Moia advised the route in the Stipulated Settlement Agreement was limited to SR 520 and U.S. 1 as primary corridors for vehicles or fuel trucks; there was a right turn lane shown on the approved site plan to be constructed; being it is a State road, the site plan shows a left turn lane; but that was a condition of the Florida Department of Transportation. He stated the plan shows they meet the intent of the Stipulated Settlement Agreement by providing the right turn lane to avoid interference of traffic and allow the right turn movement. Ms. Busacca stated in addition to that, paragraph H, page 5, last sentence, states, "Any alternative route must be approved by Brevard County Traffic Department"; and the current the site plan has been approved by the Brevard County Traffic Department. She stated there is also an issue about the options that were provided as part of the original submittal; and Mr. Moia can discuss that. Mr. Moia advised the way staff approved the site plan is basically in accordance with the Stipulated Settlement Agreement that states in #18, "The County shall, in the ordinary course, process such applications and requests received by the owner during the development"; and the ordinary course for approval of a site plan is, once they meet the requirements of the Code and all the Brevard County standards, it is approved at the administrative level; and staff has done that with the Oleander project.

Chairman Higgs stated one of the items raised talked about accessory buildings exceeding the square footage of the main building; and requested staff address that.

Planning and Zoning Director Mel Scott advised in this instance, the accessory building refers to a building, structure, or use; the square footage that shall not be exceeded refers to the buildings not exceeding the square footage of the principal structures; that provision of the Code has been tailored primarily in instances of single-family homes with sheds, carports, or structures on the site that are habitable; and in this instance, the site plan did not exceed that threshold and was not contrary to that provision. Chairman Higgs requested more information about the square footage of the building because people were citing 36,900 square feet on tanks and 12,500 square feet on the main building; with Mr. Scott responding the map they used is right; if they add up the square footage of the buildings as they are identified on the site and the generators, they will come up with 32,500 square feet, and the tanks at 36,900 square feet; but in applying the provision that talks about accessory buildings, staff applied the long standing interpretation, understanding that the definition cites a structure having half baths, guesthouses, and things of that nature. He stated that provision was intended to address habitable structures or structures a person can walk into and not an above-ground tank which is on site for the generation of power. Chairman Higgs inquired how staff applied the provision on accessory buildings when reviewing previous site plans on commercial and industrial properties. Ms. Busacca inquired if an above-ground storage tank or an LP storage tank at a gas station is included; with Mr. Scott responding it depends on the instances. He stated there are propane tanks that are accessory uses at convenience stores where people come in and fill up their propane tanks; however, in this instance, the tanks are on site for the purpose of providing fuel for the power generation; so staff applied a very narrow definition of accessory structures.

Ms. Busacca advised another issue that came up was structures in the buffers. Mr. Scott advised in the industrial zoning classification, the setbacks that are applied are 25-foot rear, 15-foot sides, and 40-foot front setbacks; and in this instance, the side setbacks range from 280 feet on the west side to 540 feet on the east side, and 172 feet on the frontage of the parcel. He stated tank No. 13 on the approved site plan encroaches slightly into the 172-foot front setback and the 540-foot east setback; and staff viewed that as being consistent with the Stipulated Settlement Agreement because those normal industrial setbacks were not encroached upon. He stated in the customized buffers, the Stipulated Settlement Agreement states that, "structures and operational equipment used to generate electrical power and otherwise support the facility as ancillary uses will occupy additional land on the property"; so staff believed that because the December 14, 1998 site plan showed those storage tanks within that buffer, they would allow them to stay in that position on the final site plan; and any movement that might occur to those tanks would be appropriate so long as they only moved interior to the parcel and not further encroach into the buffer as defined in the Stipulated Settlement Agreement.

Chairman Higgs inquired if the Board envisioned that it would review the final site plan in this Commission Room; with Commissioner Voltz responding no, the Board has never done that before. Commissioner Scarborough stated the Chair could ask that question that way or start with Mr. Marks' comments, which says, "The site plan approval of Oleander Power Project is not an administrative decision to be determined of Brevard County staff, but is an affirmative obligation of Brevard County pursuant to an Agreement which was entered into by the Board." Commissioner Voltz stated the Board rejected that.

Commissioner Scarborough stated he does not think that nullifies what Mr. Marks said; others have made that comment as well; and the question becomes if there is an amendment to a contract that is in the County's favor, does the Board review the contract. He stated many times things come to the Board that are reduction in prices; there is a clear dollar amount that accrues to the benefit of the County, yet it comes back to the Board as an amendment; and if it is a contract, it comes back to the Board, so it can get into differing views of the advantages and disadvantages of the changes. He stated if it was clearly accruing in the County's benefit, it could say its okay, but throughout the discussion, staff has interpreted this to be in the County's favor; and it is not always clear, by everything that has been said, that it is accruing to the public's benefit, so there has been a failure to bring this back to the Board. He stated it needs to come back to the Board for the Board, as Mr. Marks suggested, to consider all changes that have occurred.

Chairman Higgs stated she is willing to do that this afternoon if that is what Commissioner Scarborough really thinks; and if it seems to be an obligation, then the Board should break for lunch, put a table in the room, and sit there and go over the site plan. She stated she has an obligation to abive by the law and the Stipulated Settlement Agreement; staff tell the Board how they usually do it; and the Board can look at the site plan; but the Board needs to agree that is how it wants to go forward. She stated she is willing to nit-pick every piece of the site plan to determine if it is consistent with County Ordinances and the Stipulated Settlement Agreement, but she wants to do it today.

Commissioner Voltz stated she disagrees with doing that because she is not an engineer and would not know if the site plan is right or wrong unless staff says it is right or wrong; they are the ones who do it on a regular basis; and the only thing she would be doing is looking at it and asking staff what they would do. She stated there are mounds of paperwork; staff has gone through all of it; and for the Board to do that when it has never looked at a site plan before is ridiculous and not taking what staff has done, which is what the Board requested them to do. She stated staff has done what they have always done in the past; and for the Board to now look at it and say staff was wrong is not appropriate; she has never reviewed a site plan to determine what is right or wrong; so the Board should go with Option 2, deny the appeals, and approve the administrative decision to approve the site plan.

Commissioner Carlson inquired if that is a motion; with Commissioner Voltz responding yes. Commissioner Carlson seconded the motion to deny the appeals of Port St. John Homeowners Association, Canaveral Groves Homeowners, Inc., and the Sierra Club Turtle Coast Group, and approve the administrative decision to approve the site plan for Oleander Power Project.

Commissioner Carlson called a question on the motion. Chairman Higgs advised Commissioner O'Brien has his light on.

Commissioner O'Brien stated the Agreement talks about truck shipments; he is deeply concerned about the traffic; it starts out, "Commercial truck deliveries will comply with Florida Department of Transportation's weight and dimension limitations, and deliveries will be limited to no more than 40 trucks between 9:00 p.m. and 6:00 a.m. He stated that is 40 trucks in nine hours which is approximately five or six trucks per hour or one truck every ten minutes leaving the Port, going up SR 528, along Villa De Palmas on Merritt Island through High Point in Cocoa, decelerating, going down U.S. 1 to SR 520, turning right and going through neighborhoods every ten minutes all night long causing a lot of noise. He stated during the day 96 trucks are allowed between 6:00 a.m. and 9:00 p.m. which means one truck every 8.5 minutes coming and going; when they deliver the oil, they have to return to the Port, so there will be round trips tangling into all the traffic; and that is something the site plan does not address. Commissioner O'Brien stated a traffic management plan is required, and if they change the route, they have to talk to Traffic Engineering; when construction gets going on SR 3, all the cars that will be trying to get out of that mess will take SR 520, Banana River Drive, and SR 528; then the SR 520 bridge will be replaced, and that will divert traffic to U.S. 1 and SR 528; then they will reconstruct U.S. 1, and all the traffic will tangle up in that area; then the SR 528 bridge will be replaced; and I-95 will be six-laned, and it will get worst. He stated trucks every 8.5 minutes will put an incredible strain on all the roads that are not ready or adequate to receive such accelerated punishment; and the community is not prepared to pay for maintenance, repair, and expansion of the roads contributed by the demand the trucks will place on those roads. Commissioner O'Brien stated this issue is focused on the site plan and does not adequately address the community's concerns about traffic, increased air pollution, stench from diesel fuel in the neighborhoods, and other negative impacts on surrounding developments. He stated the public interest has not been served or addressed; he will vote against this item and protest the project because it does not adequately address critical issues and his concerns about the working class families along those routes and living nearby the project site.

Chairman Higgs stated she is willing to proceed this afternoon, in accordance with what the Canaveral Groves homeowners asked the Board to do, which is to take the responsibility to review the approved site plan and determine in her mind if the changes to the original site plan have been made to such a degree that the contract has been compromised. She stated if that is how the Board wants to proceed, she is willing to review the site plan and contract today to determine if staff has reviewed the site plan in accordance with the Stipulated Settlement Agreement and County Codes, and lawfully approved it within those contexts. Commissioner Scarborough stated his problem is determining whether or not staff has the authority to review the site plan because the Board cannot delegate certain contractual authority to staff; and if this is a contractual authority that cannot be delegated, then regardless if staff did right or wrong, it needs to come before the Board for affirmative action and not as an appeal to the Board. Commissioner Voltz suggested Mr. Knox answer that.

Mr. Knox advised had Oleander come to the Board before the Board heard about a stipulated settlement agreement, they would have had a permitted use and applied for site plan approval; staff would have reviewed it and said it complied or did not comply; and they would finally get it approved based on whatever changes staff forced upon them. He stated there could be an appeal to the Board; and the Board would sit in the same position it is today reviewing the staff's determination as to whether it complied with County regulations. He stated the only difference between that situation and this situation is the Stipulated Settlement Agreement which imposed additional standards and criteria on Oleander that they have to comply with; so what the Board has to consider is whether staff has correctly applied the rules and regulations in the County Ordinances and the standards set forth in the Stipulated Settlement Agreement. He stated the Board is limited as to what it can consider based upon what was brought up as the basis for the appeal; if it did not hear something that was considered wrong, he would have a real problem letting the Board decide that it is going to go through this and find something else wrong besides what was brought up; this is an appeal and not something where the Board has deniable review of what staff did; and he had to put that in context because some of the comments he heard from the audience need to be addressed. He stated this is not a situation where the Board is deciding public interest; this is not a situation where the Board is deciding that it does or does not like Oleander; Congress passed a law called the Civil Rights Act; and it protects private individuals and public companies as well as a lot of different entities. He stated he has been on both sides pursuing claims under that Act against local governments; the reason that law exists is because Congress decided when things got complicated in life, governments tend to be arbitrary or capricious and do not listen and do not follow their rules, regulations, and standards; and when that happens, the courts and juries do not like it. Mr. Knox advised in this case Seminole Electric has a contract with Oleander worth $25 million; there may be more contracts he is not aware of; but the Board can expect, if it is arbitrary and capricious that the people of Brevard County will be looking at it not because it ruled on Oleander, but because there will be damage claims the Board will be responsible to pay. He stated the Board has a right to review what staff did; it has the right to apply standards that are in the Ordinances and Stipulated Settlement Agreement; but it cannot recreate the Agreement and cannot change the standards because then it would be arbitrary and capricious.

Chairman Higgs stated the Board has to follow the law; this is not a determination of whether or not the Board likes Oleander; the law allows people to appeal to the Board; and the Board should make the final decision of approving or disapproving the decision or interpretation. She stated Commissioner Scarborough said the Board has an obligation to review the Agreement and if the site plan is consistent with it; and that is in the public interest. She stated staff should not have to take the heat, so she is willing to sit here all day and do whatever is necessary to follow the law.

Mr. Knox stated there may be a misconception in the audience of what the Board can do; and it is very limited in what it can do under this process. Chairman Higgs stated she understands that, but wants to follow the law and want people to feel satisfied that the Board did its job. She stated the Board cannot look at other factors or some of the things the public wants it to look at; but it can look at the issues and make a determination rather than rely on someone else's interpretation. She stated if the Board is willing to do that, she will vote no on the motion.

Commissioner Carlson withdrew the second to the motion.

Commissioner Voltz inquired if the Board will be looking at the Agreement or the site plan. She stated if the Board is going to look at the site plan, she has to ask when was the last time it looked at a site plan, and where would it have the knowledge that would hold up in court to determine whether it is correct or not. Chairman Higgs stated she will do the best job she can to review the information from staff and other people. Commissioner Voltz stated it is a total waste of time. Mr. Knox stated the Board has to consider what is in the Agreement because the Agreement is embedded in the site plan; and those are the conditions the Board has to look at.

Chairman Higgs suggested the Board take 30 minutes for lunch, and staff bring the site plan to the Board Room for review. Commissioner Carlson suggested returning at 2:00 p.m.

The meeting recessed at 1:12 p.m. and reconvened at 2:07 p.m.

Chairman Higgs advised the Board will proceed with discussion of the site plan for Oleander Power project.

Commissioner Scarborough advised the memorandum from County Attorney Scott Knox dated August 16, 2000, talked about certain things; one question was if the Stipulated Settlement Agreement can be modified without approval of the Board; and the answer was no. He inquired if Mr. Knox's interpretation is that the site plan changes are not contract modifications; with Mr. Knox responding in his view they are not. Commissioner Scarborough inquired what would amount to a modification; with Mr. Knox responding if the Board changes the terms of the Stipulated Settlement Agreement to modify the right turn lane only condition to allow for a left turn lane, that would be a modification. Commissioner Scarborough stated that was discussed. Mr. Knox stated whether it fits within the contract or is something that changed by virtue of an outside opinion depends on how the Board interprets the contract. Commissioner Scarborough stated #16 says, "It is a matter of contract interpretation since under Florida law the Stipulated Settlement Agreement is nothing more than a contract. Since the County Commission is the entity that approved the contract, the Commission is the party to the contract and the ultimate interpreter of intent behind the Agreement from the Commission point of view"; and requested Mr. Knox elaborate on that. Mr. Knox advised he gave his opinion of what he thought the contract meant; that does not mean it is what the Board thought when it signed the contract; it may have a different view than he does; so using the right turn lane as an example, there is a provision that says something about existing conditions changing or something to that effect. He stated if Department of Transportation (DOT) says they have to have a left turn lane, that is contemplated by the contract; but right turn only means right turn only, and no matter what DOT says, that is what they have to have. Commissioner Scarborough inquired if something is a modification or less than a modification is an interpretation the Board has to make; with Mr. Knox responding it is, within the context of what is in the Agreement. Mr. Knox stated the Agreement incorporates rules and regulations and goes beyond what the Board would normally look at; so when it gets into the rules and regulations, it would have to defer a little to staff.

Commissioner Scarborough stated the Board always defers to staff, but certain contractual matters come to the Board and cannot be handled by staff; and the question permeating the whole discussion is why is the Board reviewing the site plan if it cannot say no, it is not just a site plan process but a modification to the Agreement. Mr. Knox advised the Board is reviewing the site plan because there is a procedure in the Ordinance that allows it to do that if someone appeals it; the Contract is incorporated into the site plan; so it can interpret the provisions of the Contract and say the site plan does or does not comply with the terms of the Stipulated Settlement Agreement based on what it thought it did. He stated using the right turn only again, the Board may think it meant exactly what it says, or there may be language in that section that allows some flexibility, so a left turn lane is okay under certain circumstances; but that is a contract interpretation that the Board, as the entity that signed the contract, has to make; and staff cannot do that for it. He stated staff can tell the Board what they think it meant, but the Board has to decide what it means.

Chairman Higgs stated if the Board sees provisions it thinks should be amendments to the Stipulated Settlement Agreement, the majority of the Board and a representative from Oleander has to agree to a revision to the Stipulated Settlement Agreement and file that with the judge; and inquired if that is procedurally how it would occur if the Board decided something was significant and needed to amend the Stipulated Settlement Agreement; with Mr. Knox responding it would take both parties to agree with it. Chairman Higgs inquired if Mr. Wolfinger has the ability, on behalf of Oleander, to do that; with Mr. Knox responding yes.

Commissioner Voltz inquired how does the Board want to proceed; with Chairman Higgs responding she would like to ask staff, knowing the concerns raised about problems with the site plan, to point out to the Board, as it reviews the site plan, what those differences may be, what the changes were, and what the areas of dispute are, so the Board can feel comfortable that it fully entertained the appeal and that the site plan is consistent with the Stipulated Settlement Agreement or if there needs to be changes.

Ms. Busacca advised she has a list of the issues brought forth during the appeal process. She stated the first item is the concurrency evaluation; the issue was whether it was current and whether or not it was a vested concurrency analysis requested by the applicant; and Mr. Scott will respond to that.

Mel Scott advised the question had a faulty assumption; the provision provided by the citizen talked about time frames that are in place when an applicant seeks to vest a finding of non-deficiency; and that process was not instituted by the applicant. He stated the way concurrency works in the County is what the applicant followed; at the time of site plan submittal, they filed for a preliminary concurrency analysis; that analysis showed the subject roadways were far under maximum acceptable levels of service for those segments; and 99% of the time, the applicants, recognizing that, understand they would have to go for another concurrency analysis prior to pulling building permits. He stated what they have with this site plan is a preliminary concurrency analysis; the expiration is not relative because they assume at the time they pull a building permit, they would have to have another concurrency analysis; and the capacity has to be there for the project. He stated for the segment of SR 520, maximum acceptable volume is 35,700 trips a day; and the current volume done today is 20,488, which is 57.39% of that roadway's acceptable level of service. Chairman Higgs inquired why was it done today; with Mr. Scott responding staff can pull up and find out any time where the roadway is and the analysis that was done at site plan submittal. Chairman Higgs inquired at what location on SR 520 was the analysis done; with Mr. Scott responding at I-95 to Clearlake Road which is SR 501. He stated the level of service at that time, December 8, 1998, was 64% or 22,940 trips; and the potential volume with the proposal would bring it up to 23,196; so the capacity allotment the project would put on that road is 3,198 trips, leaving the roadway at the time of site plan submittal at 64.97% of capacity. Commissioner Voltz requested an explanation of what the public was talking about; with Mr. Scott responding it is a fairly complex procedure which has never been used in his tenure with the County. Mr. Scott stated there was a provision crafted at the time concurrency was being adopted by the Board, and there was a Statewide fear that the County would have a lot of moratoriums on roadways when concurrency came into being; so the County has a provision, which is very common to most local ordinances, that states if an applicant feels that a particular roadway which he/she needs capacity on will be coming up to its moratorium threshold, he/she can vest capacity at that time; and that vesting has a life. He stated the provisions and deadlines that were brought forth talked about the vesting of a preliminary concurrency analysis which was not done with the Oleander project largely because the roadway is only at half its capacity.

Ms. Busacca advised the next issue is the lapse in the option to purchase property.

Mr. Moia advised when staff received the application for normal site plan review, they had a lot of attachments that were required to be submitted in order to say it was a complete package; one of the attachments was the DD-4 and option purchase; when staff went through the package, they determined it was complete and accepted it; then they conducted their review. He stated based on that review and as pointed out by the public, one of the options had expired by a couple of days; however, there were clauses in there that gave an option to extend the option to purchase. He stated prior to approving the site plan, all the options were brought up to date; so the three parcels that they have on the site plan had a valid option purchase prior to approval of the site plan. Chairman Higgs inquired if staff would allow the site plan to proceed as long as the options were up to date; with Mr. Moia responding correct. Chairman Higgs inquired if staff had other instances where those were not up to date and they let someone bring something else back in; with Mr. Moia responding not to his knowledge. He stated staff would not approve the site plan if those options were not valid, but they would accept the package and may not determine, until they do their review, if those options were valid or not. He stated if they get them when they are submitted with the site plan, and they are part of the list, they may say it is complete and then review it for completeness and accuracy. Chairman Higgs inquired if something is wrong, does staff go back to the applicant and say they need something new; with Mr. Moia responding correct. Chairman Higgs inquired if that is what happened with this applicant; with Mr. Moia responding correct.

Commissioner Scarborough stated if the Board is going to do the review thoroughly, it should allow both sides to address item by item. Chairman Higgs advised the Board can do that or assume it had the presentations from the citizens and the applicant, and it is now reviewing the site plan with staff. Commissioner Scarborough stated the Board moved into a new hearing and format, and some of the people may have more things to say at this time than were said earlier. Chairman Higgs advised Commissioners can ask questions of the public. Commissioner Scarborough stated it is not a matter that he has a question, but that he would like to receive all the input possible in making decisions. Chairman Higgs inquired if Commissioner Scarborough wanted to recognize someone; with Commissioner Scarborough responding as the issues come up, the Board should make sure it fully explores them, and the only way to do that is to see where the objections are.

Marlene Waters stated when they presented their issues, they were limited to five minutes; but now the Board is sitting at a debate table with seven members of staff who have unlimited time. Chairman Higgs asked Ms. Waters to raise her issues; with Ms. Waters responding she does not know what they are now, but they should be able to speak issue by issue.

Chairman Higgs stated the issue is the expiration of the option; Mr. Moia explained that; and inquired if Ms. Waters wishes to raise another issue regarding the option. Ms. Waters stated they claimed they got their site plan in on December 14, 1998, before the effect of the moratorium; they did not own or have proof of ownership of a piece of property during the moratorium or before that moratorium went into effect; so the new laws that were initiated during the moratorium should apply to them. She stated the basis for the contract to settle a lawsuit was the fact that they thought they had the right to build under the old law; and everybody seems to be forgetting that.

Attorney Spielvogel advised the option never expired and was properly exercised; and presented a document to the Board. He stated what those folks have is the recorded memorandum of exercise of option which he has addressed at previous hearings; and it has nothing to do with the exercise of the option to purchase property. He presented the notice dated November 3, 1998, wherein the option to extend was exercised; and stated there were three options, which at all times were in good standing. He stated it is not an issue, never has been an issue, and should not be an issue today; that is known as a red herring; and there has been enough of that.

Ms. Busacca advised the next issue is the percentage of impervious coverage; and Mr. Moia will show what is on the site plan and explain Article X, Section 62-3661.

Mr. Moia advised the Stipulated Settlement Agreement is where the percentage of impervious was actually considered at no greater than 15%; impervious surfaces have different limits when they are applied under different Articles of the Code; Article X talks about aquifer recharge areas; the stormwater management criteria address different types of coverage; and when it comes to impervious lot coverage, it is how the property is developed. He stated in a normal fashion it would be considered roadways, buildings, structures, and those types of things; if they were considering how the aquifer would be recharged, they could claim some semi-impervious areas as being limiting in their ability to provide aquifer renourishment; so semi-impervious could be included in impervious calculation as they would in drainage; but when it comes to development, it is considered to be limited to impervious surfaces such as roads, structures, asphalt parking lots, and buildings; and that was limited to 15% per the Stipulated Settlement Agreement. He stated it did not limit the 85%, just the 15%; and staff believes the impervious surfaces as shown on the site plan do not exceed that 15% and is limited to 9.2%. Ms. Busacca inquired how would impervious surfaces be reviewed on a site plan in the normal course of review; with Mr. Moia responding if water cannot penetrate it, it is considered impervious. Ms. Busacca inquired if there are impervious surface limitations in the site plan review procedures; with Mr. Moia responding no. Ms. Busacca inquired where do impervious surface limitations occur in the Code; with Debbie Coles responding impervious surfaces are in Article X in two instances which she spoke to earlier; the definitions within those Ordinances are only applicable to aquifer recharge and surface water protection areas; and neither of those Codes are applicable to this site. Ms. Busacca inquired if, without the Stipulated Settlement Agreement, there would be no impervious surface limitations for the project; with Ms. Coles responding that is correct. Ms. Busacca inquired if staff is telling the Board the only requirements for impervious surface are what is in the Stipulated Settlement Agreement; with Mr. Moia responding correct. Commissioner Voltz inquired if no one else is bound by the 15% Oleander agreed to bind itself; with Mr. Moia responding correct.

Commissioner Carlson requested clarification of the definition of structure; with Mr. Scott responding structure means, "anything constructed or erected, the use of which requires rigid location on the ground or attachment to something having permanent location on the ground, including but not limited to supporting walls, signs, covered screen enclosures, and any other covered area; provided however, neither a fence or elevated boardwalk shall be considered a structure for the purpose of setbacks." He stated that is the definition in Article VI which is part of the Zoning Code.

Chairman Higgs advised Ms. Waters raised an issue on the calculation of impervious. Ms. Waters advised there is only one definition of impervious in the Codes and it is in Article X; it says clearly that it includes semi-impervious; it is not defined in the Stipulated Settlement Agreement any other way; so she assumes the Board would go by the Codes if it is so defined. She stated it started at 11.5% impervious, 88.5% pervious, and ended up 67% plus pervious; so something happened there. She stated the definition is clear in the Code; and that is what should be followed.

Commissioner O'Brien inquired where Articles VI and X are in the Code; with Ms. Busacca responding in Chapter 62, Land Development Regulations. Ms. Busacca read the definition, "For the purpose of this division, certain terms and words are defined"; and stated that division is separate and distinct from the site plan division. Chairman Higgs inquired if the definition that is being pulled out is from a different Chapter than what is used to review site plans; with Ms. Busacca responding it is the same Chapter, but a different Article. Chairman Higgs inquired if anywhere else in the Code defines impervious and pervious in the context of a site plan; with Mr. Moia responding no. Chairman Higgs inquired if staff used their own definition; with Mr. Moia responding they used a typical definition that they use for developments. Chairman Higgs inquired where is that definition found; with Mr. Moia responding it is how it is implemented and based on staff's interpretation. Ms. Busacca stated it is an engineering standard. Mr. Moia advised there is an engineering standard that there are three types of surfaces, impervious, semi-impervious, and pervious; and one does not encroach into the other.

Commissioner Carlson inquired if the definition Ms. Waters brought forward is out of context the way she tried to apply it; with Mr. Moia responding yes, because it is from Article X, which affects aquifer recharge; staff is not dealing with aquifer recharge issues with this site plan; and it is dealing with site development issues, which is implemented under Article VIII. Ms. Waters inquired if the County is not concerned with surface water protection when dealing with a site plan or development; with Ms. Coles responding the surface water protection Ordinance only affects properties that abut surface water bodies that are regulated by the Ordinance which are Class I, II and III water bodies, outstanding Florida waters, and aquatic preserves; this area does not abut any of those water bodies; so staff did not apply any provisions of the surface water protection Ordinance to the site plan because they did not apply. Ms. Waters inquired how can staff assume they are allowed 23.7% semi-impervious surface if it is not identified in the Agreement. She stated just because they do not deal with pervious, they also do not deal with semi-impervious; so it can be looked at both ways. Commissioner Voltz stated the staff said there is no limit, and the applicant is just limiting himself.

Mr. Scott stated there is a concept that is very important for Ms. Waters to understand; and that is when staff is in site plan review, they are the regulators and enforcers of the Code. He stated if they cannot identify a provision in the Code that substantiates denial, then they have to give permission because it is a permissive Code. He stated staff looks for areas of the Code which expressly say what must apply; so in the instance of the surface water protection Ordinance, if defined water bodies are not present on site, staff cannot pull it out and apply it to a site plan. Commissioner Carlson inquired if the definition of water body means it has to be adjacent to it; and how is it dealt with in terms of the St. Johns River basin; with Ms. Coles responding the waters north of Lake Washington are considered Class III, and the setback from that is 25 feet; but it does not apply to this site by virtue of the site being so far away from that water body.

Chairman Higgs stated since the surface water definition of pervious and impervious does not apply, and the definition in the aquifer recharge Ordinance does not apply to the property, there is no other definition that staff historically uses. She stated because it is in the Stipulated Settlement Agreement, the Board may find it inconsistent, and could pick out a definition of its own. She stated because the Board is the interpreting body of the Stipulated Settlement Agreement and Oleander is the other interpreting body, that may be an area of interpretation; and inquired if there were any more questions on the issue of pervious and impervious.

Mr. Bock stated if that is the only definition of pervious and impervious, is there a dictionary here, and why would that not fit. Ms. Busacca stated staff dealt with an engineering standard that they typically use in the regular course of site plan review; and Mr. Moia interpreted a portion of Chapter 62 based on the usual engineering standards that he uses as the County Development Engineer. Chairman Higgs inquired if the standard Mr. Moia used is the same standard used on every other site plan; with Mr. Moia responding correct. Mr. Bock inquired if Mr. Moia's statement that semi-impervious cannot be calculated is a true statement; with Mr. Moia responding depending on how it is used and on what function semi-impervious material is used, he might calculate how much of the semi-impervious material was impervious; but that is usually in an engineering environment such as drainage. Mr. Moia stated if a person wants to put in an underground storage basin and build a building on top of it and filled a big hole with gravel, he would calculate how much of that gravel bed is void, and the rest would be impervious strictly for drainage calculation purposes; but he would not take that same surface and call it 50% impervious because the standard does not apply that way. Mr. Bock inquired if Mr. Moia would not consider that semi-impervious; with Mr. Moia responding he would consider it semi-impervious, but would not consider it 50% impervious and 50% pervious. Mr. Bock inquired, since they brought the issue to Mr. Moia before approval of the site plan, which way did he calculate it; with Mr. Moia responding he calculated it as 100% semi-impervious which is 23% of the site; and he would not take a percentage of that and add it to impervious and the other percent to pervious. Mr. Bock advised Mr. Scott said they were accurate on the square footage calculations they did; and the only definition the County has for impervious is in Article X. Mr. Moia advised Article VIII allows staff to use good standard engineering practices; and that is what he applied to the site. He stated if they created a surface that can permeate water, it is considered semi-impervious; water cannot penetrate an impervious surface, so it cannot be considered impervious if it can permeate water. He noted the decision was based on engineering practice. Mr. Scott stated when he said the calculations were correct, he was talking about the building calculation, which is a completely different issue.

Chairman Higgs inquired if staff took the impervious surface, the hard asphalt, building, tanks, etc. and calculated the percentage of the site that is impervious by the standard in the Stipulated Settlement Agreement; with Mr. Moia responding correct.

Mr. Spielvogel stated the fact that it was not mentioned may mean it was not meant to be mentioned; the site is industrial property; semi-impervious may be something that is recognized as not being a problem; and applying contract law, when there is ambiguity in a contract, it is construed in favor of the party who did not draft the contract. He stated if there is an omission, it is not construed against the citizen, never mind that it is Oleander; the rules the Board is talking about applying now will apply to everybody; and it cannot lose sight of the fact that what it does to Oleander it will do to everybody because it is setting a precedent. He stated he is pleased it was brought to the floor; it is the most significant thing he heard today, that the County protects members of the public; government does not jump on the public and say it did not cover it so it is going to construe it against the public; it does not work that way; and if it is not covered, then it is construed in favor of the citizen. He stated that is the way government should be; and today Oleander stands before the Board as the citizen.

Ms. Waters stated the defined site plan that was submitted December 14, 1998, clearly says 11.5%; now they have added 23.7% semi-impervious to try and cover how they are not going to have 88.5% pervious; and that is a big change to the defined site plan and is still an issue which may never be resolved. Chairman Higgs asked staff to speak to that issue. Mr. Moia stated it is similar to the buffer issue Mr. Scott related; if someone came in with a site plan that had 12% impervious, and came back and said they are limiting it and only have 9%, staff would not consider that a significant change; it would be an improvement, and they would still meet the intent of the requirement; so staff would not be able to find a reason to deny the request. Mr. Scott stated the new site plans have a higher level of detail; the gravel yards were present on the December 14, 1998 site plan; and the applicant could have calculated the semi-impervious surface but chose not to do so.

Chairman Higgs stated the Stipulated Settlement Agreement called for a maximum of 15% impervious; the first plan submitted was 11.9% impervious; and the revised plan is 9.26% impervious; so if the Board wants to view the revised plan as an amendment to the Stipulated Settlement Agreement, that would be an area where it could have different thoughts.

Ms. Busacca advised there is a difference in the mind of staff during site plan review between revision and amendment; during normal site plan review, there are usually several iterations; she has never heard of a plan that came through without an iteration; and staff calls those revisions. She stated an amendment is after a site plan has been formally adopted and they come in and want to make a change; so the use today is generally revision and not amendment. Ms. Busacca advised the next issue is accessory structures.

Mr. Scott advised the concern was raised about accessory buildings, and the statement was highlighted that said, "In no instance shall the total square footage of all accessory buildings exceed the square footage of the principal structure." He stated that definition is in the Zoning Code, Section 62-1102; the definition shared with the Board was not the complete definition; and it is quite clear to the reader that accessory buildings is intended to be applied to residential areas such as guesthouses, carports, sheds, etc. He stated it is important in a residential community to maintain a certain scale; they would not want a garage to be larger than a house; the Zoning Codes are to make sure that does not occur; and that is the spirit in which the accessory building definition exists. He stated to further enforce the notion that accessory buildings are defined for residential areas, under the commercial zoning classification BU-1, it says, "An accessory building may exceed the size of the principal structure notwithstanding the requirements of the definition of the term accessory building in Section 62-1102." He stated that tells the reader that the spirit of the Code is to regulate accessory structures in residential areas; and in the IU zoning classification that caveat excluding accessory structures is not listed, but it has always been that way. Chairman Higgs inquired what Mr. Scott means by caveat; with Mr. Scott responding, the caveat that says there is a definition of accessory buildings, and in that definition it says they cannot exceed the square footage of the principal structure; yet in the commercial zoning category they go to great lengths to tell the reader that the caveat, meaning the accessory structures, cannot exceed the principal structure is nullified. He stated the reason is that accessory uses are in and of themselves commercial endeavors; a guardhouse on commercial property is part of the commercial entity; an accessory structure at a gas station could be the covering over the gas pumps; and in industrial areas, they take the same approach even though it is not expressly listed as a caveat or exemption, and always applied it as such. He stated industrial areas have lot coverage provisions; to think that a storage tank would have to be smaller than the principal structure by its shear magnitude would render the IU zoning classification unable to accommodate that type of use; and his local historian shared with him that is in fact the way they have always applied it for 20 to 30 years. Ms. Busacca stated as an example, wastewater treatment plant tanks would be very large yet the structures in which the operators stand would be very small; and that is similar to this situation.

Clarence Rowe stated he has sat here listening to the terminology being used such as supposed, sometimes, eventually, etc.; it appears the Board needs an attorney to assist it in doing what it needs to do because it keeps jumping from one Ordinance to another for whatever meets what it deems appropriate; it is not consistent; so the Board needs to put it together in such a way that it is consistent regardless when it is looked at and says specifically what it means. He stated if there are special circumstances in which the County needs to develop something else, then it needs to come up with something; but to sit here and listen to the Board jump from one creek to another creating definitions to suit whatever purpose it appears to meet and whatever needs it wants to meet is not right. He stated he has continuously said the Board needs someone with expertise in this line of work that can assist it. Mr. Rowe advised when the Board discussed the pipeline coming in, they went to another county and found out there were some things going on that they were not aware of; and now they want to get on that band wagon and be a part of that. He stated the Board needs to do positive and constructive things that are beneficial to the public and the County regarding safety, health, and water quality. Ms. Busacca advised the definitions discussed are all within the same Article; staff has not changed Articles; and it is all within the Zoning portion of the Code and are consistent.

Commissioner Voltz stated staff works on site plans on a daily basis; they know exactly what is going on and what applies to what; she does not know, looking at all the lines, what is right or wrong; and that is why they are in their positions and the Commissioners are in theirs. She stated the Board does not apply the rules on a regular basis, but staff does; so she does not know why the Board is doing it now.

Mr. Knox advised, for Mr. Rowe's information, attorneys do not interpret zoning codes; zoning officials interpret zoning codes; it is written into the Ordinance that way; and that is the way it is structured. He stated he would be glad to offer his opinion, but he is not the one who has the responsibility to interpret zoning codes. Mr. Scott stated staff does not create definitions; and those definitions are adopted by the Board in the Code.

Ms. Busacca advised the next issue is structures in buffers.

Mr. Scott advised the property is an IU zoned parcel; in IU zoning classification there are boundaries; the parcel would typically have a 40-foot front setback, 15-foot side setbacks, and 25-foot rear setback; in the Stipulated Settlement Agreement, the Board customized a buffer and said to the applicant it wants buffers above and beyond the traditional IU zoning classification buffers; and in doing so, they said the buffer would be 280 feet on the west, 540 feet on the east, and 172 feet to the south, which are above and beyond the 40, 15, and 25-foot buffers. He stated the Stipulated Settlement Agreement states the intent of those buffers were to buffer the facility's buildings from development along roads such as I-95, Cox Road, etc.; and it defines for the purposes of the Agreement, facility buildings on the property identified on the site development plan submitted by the owner to the County on December 14, 1998. Mr. Scott stated the biggest difference between the December 14 site plan and the one that was ultimately approved is that the two tanks that were in the wetlands area shifted interior to the site. He advised the 1998 site plan states, "Structures and operational equipment used to generate electrical power and that otherwise support the facility's ancillary uses will occupy additional land on the property," which means they had the same encroachment of the expanded buffer by tanks on the December 14 site plan; and two of the tanks shifted interior to the parcel. He stated staff made sure that, since certain structures were encroaching into the larger buffers, at the very least, any shifting of structures would all have to be interior to the property. He stated they would not allow an encroachment shown on the December 14 site plan to further encroach into the defined buffers; and if the two tanks had moved east, they would have denied it. Mr. Scott stated there is a sign shown in the front setback on the original site plan; the applicant wanted to convert it to a security building; and because that represented an introduction of a new structure not identified as an encroachment on the December 14 site plan, staff made them move it interior to the parcel; and they replaced it with an entrance sign, which is still behind the front setback. He noted in the Stipulated Settlement Agreement the front setback is 172 feet; and staff ensured nothing went within the standard 40-foot buffer area.

Mr. Bock stated their opinion on this matter is the County is doing whatever it needs to do to allow the project to go on and not change; there is a contract that defines the buffer zones; Brevard County's definition is, "no building or structures within buffers"; but the original setbacks do not matter, and it is the contract that counts. He stated in that contract the setbacks were to protect the people from the views and different things that a major project like the Oleander power plant would cause; they felt the larger buffers were improvements; those buffers were changed; it said 172 feet; and he does not understand how the Board can allow structures within that when the Code says they cannot have a building in a buffer. He stated the contract gives new buffer distances; the Board is allowing buildings in it; and in their opinion, the first review by Mr. Scott's Department should have rejected that site plan for having buildings in those buffers because all that counts is the contract. He stated what they see is the applicant's avoidance of a public hearing on wetlands; nothing was initiated by County staff for them to move the tanks; and that was done at their will.

Commissioner Voltz stated with all due respect, Mr. Bock's opinions so far have been wrong and staff's opinions have been correct, so she would like staff to address that issue. Mr. Bock stated he does not think he has been wrong and understands the lines on the paper very well. Mr. Knox inquired if the setbacks are measured to the building; with Mr. Scott responding yes, per the existing Code. Mr. Knox stated if that is the case, then Mr. Bock did not read the contract correctly; it says that the buffers are 540 feet, 280 feet, and 172 feet as they apply to the building; the contract also says that structures and operational equipment used to generate electrical power and otherwise support the facility's ancillary uses will occupy additional land on the property; and the only place that can be is in the buffer.

Mr. Bock stated the shed was moved to the interior; that is what they feel the definition is and not into the buffer; but the tanks were put back in a buffer. Mr. Scott stated the shed was not shown on the December 14 site plan. Mr. Bock inquired if, during staff's cursory review, there were structures in the buffer. Mr. Scott stated the buffer definition Mr. Bock is referring to is in the Zoning Code and applies to the 25-foot rear, 15-foot side, and 40-foot front setbacks that apply to IU property. Mr. Bock stated he is referring to the contractual Agreement. Mr. Scott stated Mr. Bock is referencing a definition in the Zoning Code that has been adhered to; and the Board of County Commissioners, through the Stipulated Settlement Agreement, increased the minimum buffers and defined that certain ancillary uses will occupy additional land on the property. He stated at no point has the integrity of the setbacks and the prohibition of structures per the IU zoning classification has been compromised. Ms. Busacca inquired if there is a definition in the Zoning Code for buffer; with Zoning Official Rick Enos responding no. Ms. Busacca stated so the definition is the setback definition of 40, 15 and 25 feet. Mr. Bock inquired if the buffer is not defined as being larger in the contract; with Ms. Busacca responding she asked if buffer is defined in the Zoning Code. Mr. Bock stated he is asking if the buffer was enlarged in the contract, and does not the County regulations say no buildings or structures in the buffer. Ms. Busacca inquired if there is a buffer requirement for IU zoning; with Mr. Scott responding no. Mr. Bock stated it is in the contract. Mr. Scott stated the contract says the buildings must not be in the buffer, and they are not; then it states certain structures will occupy additional land on the property, and they do and did on the December 14, 1998 site plan; and they were shifted interior to the project in the final site plan approved to avoid a wetland. He stated there is regulation that states they should not be in a wetland; that regulation has the effect of having structures moved to avoid it; that is an effective regulation; and staff encourages that kind of behavior as site plans go through their iterations. Mr. Bock stated the Stipulated Settlement Agreement has buffers, so the site plan should have been reviewed and denied at that time, and nothing moved around and measured to say it is the same distance. He stated they feel the contract and the original December 14, 1998 site plan is the deal; that is what the Board agreed to; but staff says they can keep changing it. He stated there was a statement made that it appears staff and the power plant people work together; there was a comment from the table of, "how well am I doing," to Mr. Spielvogel; and things were said to be misconstrued, but that is not true. He stated if the County is not going to stand on its definitions and is going back to the old Codes and new Codes, and changing different ways, and if it is not going to stand for the people, then it should just permit the plant and allow it to be built. He stated he appreciates the opportunity to discuss the issue; he probably will not have valid input from here, as he does not know a whole lot more than what he has shared with the Board; so if it finds that unimportant, of no help, or not significant, he will accept that ruling.

Ms. Busacca stated when she made that comment about how she was doing, what she meant is she felt like an attorney asking questions of witnesses; and that is what she intended.

Commissioner Voltz stated the process is so difficult and confusing that it is hard for the average person to understand it. Commissioner Carlson stated staff has done a good job trying to explain it in layman's terms.

Chairman Higgs stated she understands the issue of setbacks and what happened with moving the tanks inside for less intrusion on the wetlands, and the enhanced buffers the Board agreed to; the Board can call that a change to the first site plan that was submitted; but it is a positive thing that she would agree to. She stated if it is a change, the applicants had to agree to it because they submitted it; and if she was the determining authority on the site plan, she would want it out of the wetlands.

Mr. Spielvogel stated Mr. Bock was incorrect; the fact is the Agreement in the paragraph Mr. Scott referenced goes on to speak about the very thing that was accomplished; so it was not as though it was far out. He stated over the years he had occasion to participate in a number of site plans; most submittals are done through engineers, but once in a while they want a lawyer; and they never had an objection, when they made their site plans less intense. He stated they come in with a proposal, staff picks it apart and points out why it does not conform, and they make it conform; that is the process; so it is important to understand the process which has worked over the years and is being well explained now. He stated it is not a matter of being inconsistent; making a revision to a site plan which makes it more acceptable and more consistent with the Comprehensive Plan and less intense and less intrusive is not bad, it is good; and that is what it is all about .

Ms. Busacca advised the next issues are storage areas and the legend on the site plan.

Mr. Moia advised there is a statement in the Stipulated Settlement Agreement that says the outdoor storage at the facility cannot exceed 20% of the building area; the legend designates #25 as chemicals for generator; but the plan does not have #25, but has #26 which says chemical unloading. He stated the boxes do not say what they are, but there is chemical loading there; and as an operational standard for the facility, they are limited to 20% of outdoor storage subject to certain conditions that it be shielded from the right-of-way and some other things. He stated they do not propose any outdoor storage; so rather than have a defined place for outdoor storage, it would default to operational standards under the Stipulated Settlement Agreement. He stated in many cases the legend is something that plans processors will create that may go for more than one plan; there will be things in the legend that may not be found in the site plan; it is a general list of things found on a development plan; but they do not use every one of those; and his interpretation of what that means is they do not have a designated outdoor chemical storage area, so it defaults to the Stipulated Settlement Agreement.

Mr. Scott advised it states, "An exterior storage will be limited to less than 20% of the floor area and shall be enclosed by a visual barrier when viewed from any public road right-of-way or adjacent lot not industrially zoned; and generation of electrical power shall take place in buildings or structures as provided in Brevard County Code, Section 62." He stated even though it is not on the site plan, the site will still have to adhere to that standard and any sector that may go to that site over the course of the site's life. He stated if they decide they need exterior storage, it would be incumbent upon them to make sure that it does not exceed 20% and is enclosed by a visual barrier. He stated if they do that, then that is okay. Mr. Moia stated the floor area was limited in the Stipulated Settlement Agreement to 20,000 square feet; they proposed 12,500 square feet of floor area; so they will be limited to 20% of 12,500 which is about 6,200 square feet.

Commissioner O'Brien inquired if anyone asked what type of chemicals they would store; with Ms. Busacca responding the Fire Department will review that as part of the building permit application.

Ms. Busacca advised the last issue is turn lanes.

Mr. Moia explained the plan SP4 depicting Townsend Road, a right turn lane, SR 520, and an existing median cut; stated the Stipulated Settlement Agreement says a traffic management plan will be required; and based on the existing road design, it would require a right turn movement only from SR 520 to Townsend Road and from Townsend Road to SR 520. Commissioner O'Brien inquired how would they get to I-95; with Mr. Moia responding they would possibly have to make a U-turn and go eastbound on SR 520. Mr. Moia advised a traffic management plan will be required from each fuel oil vendor according to the Agreement; the plan will require utilization of U.S. 1 and SR 520 as the preferred primary routes, and identify alternate collector and arterial routes; and any alternate route must be approved by the Brevard County Traffic Department. Commissioner O'Brien stated there is no provision for turning; they would have to turn right and go under I-95 or on it because there is no place to turn around and come back. Mr. Moia stated it is a State road and is subject to Department of Transportation approval. Commissioner O'Brien talked about trucks on U.S. 1, SR 520, SR 524, SR 528, and I-95, empty trucks going to the Port, short deceleration lane, turning lane, and trucks going by subdivisions all day long every 8-1/2 minutes. Commissioner Voltz inquired about the left turn lane; with Mr. Moia responding he does not know if the Stipulated Settlement Agreement restricts them from providing a left turn lane; however, Department of Transportation required some type of movement that would allow it; and it is actually an entrance into the gas station. Chairman Higgs stated the left turn lane is not covered under the Stipulated Settlement Agreement; with Mr. Moia responding the Agreement requires them to build a right in and right out, but it does not prohibit a left turn lane. Chairman Higgs stated frequently another agency would require one thing and the County another; but they are not doing something that is forbidden by the Stipulated Settlement Agreement, and they did what they were required to do.

Commissioner Scarborough stated he understands the Board is going through the site process and doing technical things; but in listening to Commissioner O'Brien, it would require amendments to the Agreement. Mr. Knox stated it could require specificity. Commissioner Scarborough stated maybe the Board does not want to have right turn only, but have a curb cut so the trucks can come back out; that route would be contrary to what is in the Stipulated Settlement Agreement; and his question is at what level is the Board talking about a technical site plan analysis, and at what point does it hit a threshold where it says it is a modification and it has to come back to the Board because it is the contracting party. He stated that is what he is trying to weigh throughout the discussion of each element. Commissioner O'Brien mentioned the impact the truck traffic will have upon all the roads in the area.

Mr. Spielvogel stated it is his understanding that the purpose of this meeting is to determine whether or not his client acted in accordance with the Stipulated Settlement Agreement; and that compliance is reflected in the site plan; they designed it for right in and right out; and they felt, when they presented it that way, that they were complying with the Stipulated Settlement Agreement because it called for right in and right out. He stated some other agency more powerful than they said they wanted his client to do something else, which should not be visited on their heads; they are complying with another governing body; so the question he wants to come back to, because it is important to stay focused, is has Oleander done the right thing in presenting its site plan. He stated there may be other preferable ways to deal with the Department of Transportation or get a median cut; however, that should not be a consideration, but rather have they complied with the Stipulated Settlement Agreement in presenting to the County an improved site plan, and did somebody else come in and say do it a little differently. He stated if there is any disagreement, it is with the Department of Transportation. He stated they do not want to revisit the whole document on the last item and say they want to make changes, not because they are afraid of it, but because they want to get through this process and move on.

Mr. Knox stated he can give the Board an example of how it can interpret the document; it says, "the plan based on existing road design"; at the time the Board signed the Agreement, there was an existing road design for SR 520; it may or may not have included a left turn lane; that left turn lane came later, so the road design changed; and maybe the underlying assumption for right turn only movement on SR 520 has changed because of something the Department of Transportation did. He stated maybe now it is no longer a good idea to have right turn only; maybe now it is time to do something different; maybe Oleander would be happy to do something different; but if the Board wants to amend that, it would have to be a mutual thing in the form of an amendment to the Stipulated Settlement Agreement.

Commissioner O'Brien stated he hopes they will discuss with the Board traffic using U.S. 1 and SR 520 as a delivery routes be eliminated, and SR 528 and I-95 be the only ways in and out and be left and not all right turns to remove the impact on U.S. 1 and SR 520. He stated if they can come to a different traffic pattern conclusion, it may save a lot of heartache, because right only may not work.

Mr. Spielvogel stated along the process they may be glad to look at it, but coming from Port Canaveral over the Bennett Causeway down U.S. 1 to SR 520 and to the site is not going to burden or disturb single-family homes. He stated there was concern about coming down Cox Road where there are single-family homes; and that is what gave birth to the requirement to come down U.S. 1 and SR 520. He stated he does not know if it is not a preferable route because they can move into Townsend Road more readily than coming down I-95. Commissioner O'Brien stated he would prefer a left turn lane into Townsend Road because there are single-family homes along SR 520 starting pass the railroad tracks. He stated the neighborhoods are not exactly rich; however, people live in the area past the Baptist Church and down to Clearlake Road.

Commissioner Carlson stated she recalls a conversation, and it was brought up today, regarding the timing of the number of trucks and how many per hour and all that stuff; she thought the Board talked about the circulation of those trucks and that is why the right in and right out was a way to try and limit the number of trucks on the highway coming together at a given point; and inquired if anyone remembers that conversation.

Richard Zwolak stated he was involved in a number of meetings with County staff and Department of Transportation; the route that was agreed upon as part of the Stipulated Settlement Agreement did envision a right turn leaving the site and going to I-95 and SR 528; that was going to be the return route; and as Mr. Spielvogel mentioned, the intent of going down SR 520 was to avoid Cox Road and the residences there. He stated when they met with County staff, the plan for improvements on SR 520 was contingent upon sufficient right-of-way; they met with Department of Transportation, and there was sufficient right-of-way; so they put the two right turn lanes in, one onto Townsend Road and one off of Townsend Road onto SR 520. He stated DOT suggested they include a left turn lane on the eastbound lane of SR 520 because there were a number of trip movements eastbound on SR 520 that were conducting U-turns; and it was their feeling that if they put in a left turn lane, it would allow those U-turns to occur for the existing traffic and get the vehicles that were turning out of the through lane. Mr. Zwolak stated it was a safety enhancement DOT requested of the applicant; DOT was given a copy of the Stipulated Settlement Agreement indicating they were prohibited from making those turning movements; DOT acknowledged that the intersection was not inordinately safe; and they did an evaluation of traffic safety with respect to their traffic study and found there was not an inordinate amount of accidents; nevertheless, DOT maintained their position. He stated as a part of the overall improvement package, they need a permit from DOT to secure the right turn acceleration and deceleration lanes associated with Townsend Road because it sits on their right-of-way; so the applicant agreed to the left turn lane even though the project will not use it. He stated the truck traffic the facility will generate may be nonexistent in any given year; there is limitation for 1,000 hours on fuel oil; there is a potential to have between four and six trucks per hour; but day in and day out there will be no fuel oil trucks delivering fuel to the site. He stated it is an infrequent event, an event though that does need to be regulated; they agree to it because it has the possibility to occur; and they need to put those improvements in perspective.

Commissioner Carlson inquired if the applicant was required to do deceleration and acceleration lanes; with Mr. Zwolak responding yes. Commissioner Carlson stated she does not see an acceleration lane; with Mr. Zwolak responding it is a modest improvement compared to the right turn onto Townsend Road; that is 99% of the improvement; and the others are the stop sign and related grading improvements to clean up that section.

Commissioner O'Brien gave scenarios of a person wanting to show a time share at the Christian Time Share Center having traffic problems, a change in population of people who may be used to traffic patterns there, and a person wanting to build an independent living facility with a nursing home; and stated those citizens will be on the road to go shopping, etc. with the trucks pulling on at a slow rate of speed; and he can envision them running into the back of the trucks.

Chairman Higgs inquired if the Board views the left turn lane DOT is requiring in violation of the Stipulated Settlement Agreement; and does it wish to offer some flexibility in the Stipulated Settlement Agreement, which would require an amendment to allow something different. She inquired if there is something different the staff wants to recommend. Mr. Moia advised he would not recommend anything different for several reasons; and one is that being in the close proximity to an interchange, the possibility of getting a median cut to service Townsend Road is highly unlikely. He stated the DOT has eliminated their position on acceleration lanes because any vehicle will accelerate to merge into traffic; and if they find they cannot merge, they are forced to merge which is actually more dangerous than safe. He stated what DOT has gone to is an expanded radius onto the road to allow the trucks to be able to turn and maintain their lane rather than smaller radius where they encroach into the second lane to make their turning movement. He stated allowing the wide radius, the right turn only lane, and the movement from the existing vehicles is the ideal plan.

Chairman Higgs inquired if Mr. Moia would not recommend to the Board that it look at some other scenario other than the right turn that is part of the Stipulated Settlement Agreement; with Mr. Moia responding correct. Commissioner Carlson inquired if Traffic Engineering has to look at the transportation routes; with Mr. Moia responding yes, of each vendor. Commissioner Carlson inquired if staff is going to apply the Stipulated Settlement Agreement right in and right out requirement for each of the routes; with Mr. Moia responding correct.

Commissioner O'Brien stated there is a Stipulated Settlement Agreement with a traffic pattern which has been agreed upon where the trucks will go; and inquired if one vendor who owns seven trucks decides that going SR 528 is too far and takes SR 524, what is in the Agreement that says the Sheriff can issue a ticket if they find trucks using SR 524, or somehow enforce that part of the Stipulated Settlement Agreement. He stated if the cost of fuel goes over $3.00 a gallon, they are going to find the shortest route they can; and that is a major concern to him.

Mr. Spielvogel stated if they are looking for the shortest route, they are going to get on I-95 whether it is a truck or car; to get back to the Port, they will take the causeway because there are no traffic lights, homes, pedestrians, etc.; it is a limited access road; and that is the way most people would go whether they are driving a truck or a car. He stated the Board can write a regulation about it, but it seems to him that is the way it is going to happen whether they write a regulation or not; so they can obligate their vendors to do it or rely on that as the way it is going to happen. Commissioner O'Brien stated Mr. Spielvogel may be correct in that truckers would want to take SR 528; but 96 trucks that can save six miles per trip each would save about 600 gallons of fuel per day; and that is a lot of money. Mr. Spielvogel stated it is one thing to get on a road, achieve a speed and move along; if a person has to stop at traffic lights, he will lose gas stopping and starting with that kind of vehicle; so it could cancel out each other.

Mr. Spielvogel advised Mr. Zwolak made a statement that Oleander was prohibited by the Stipulated Settlement Agreement to go any where but right in and right out; he agrees with Mr. Knox's observation that there is a statement based on existing road design; so there may be a change in road design by DOT. He stated right in and right out made sense, and is probably how it is going to end up as a practical matter.

Douglas Sphar stated he attended the DOT traffic section meeting on Brevard Crossings Mall and has data; the mall proposed Townsend Road as a back entrance to its property; so that intersection is only going to get worse if that happens.

Chairman Higgs inquired if there were inconsistencies with the Stipulated Settlement Agreement, or if there are other issues; with Ms. Busacca responding none that were raised during the hearing. Chairman Higgs inquired if Ms. Todd wanted to speak to the traffic issue; with ms. Todd responding her issue is general.

Mary Todd stated the site plan has been modified; but what looks like a positive change that the Sierra Club generally would support, moving the tanks out of the wetlands, has profound side effects. She stated it was determined by the Board this morning to accept the site plan which accepted the movement of tanks out of the wetlands; by accepting that change and not saying the Board had to agree to the change, it is giving up its right to a public interest determination in which any issue on public interest can be brought to the floor; and the issue of no feasible alternative location for the project could have been brought to the floor. She stated what might look like an excellent move on the part of the developer has left the citizens without the chance to participate in a public interest determination. She stated she thought on August 12, the Board would have expected a public interest determination as it took its vote on whether or not to accept the Stipulated Settlement Agreement; when she saw paragraph 14, she knew exactly what it meant, and thought the Board knew there was a public interest determination required; and now, because of the site plan change, the public interest determination opportunity has been taken away from the citizens of Brevard County. She stated they gave the argument this morning that it was an implied requirement and should still be there, but that was rejected; however, she wanted to point that out, and appreciate the opportunity to say that.

Chairman Higgs inquired if the Board had any more questions regarding the site plan issues.

Commissioner O'Brien stated because the abutting property is the Brevard Crossings project, the Board may want to notify the City of Cocoa that it is aware of the deleterious effect this project will have upon that project. He stated he is sure they know about the Oleander project because they dealt with the water and sewer issues and infrastructure needs; but he is not sure anyone addressed traffic problems; and they should include it in any future traffic discussions, so it is part of the solution and not the problem. Commissioner Voltz inquired if that would be addressed in their concurrency review; with Commissioner O'Brien responding the trucks will go through Cocoa, so the City should be notified.

Doug Sphar stated he was at the traffic session for Brevard Crossings; they were talking about the traffic at the power plant and possible effects; and someone said there are only 12 people working there. He stated he pointed out about the truck problems and the Stipulated Settlement Agreement, and they wrote down that there were more than 12 people involved.

Commissioner Voltz stated it is always dangerous to have a little bit of information and not really have it all because sometimes someone thinks they know what is going on; and that is what has happened here. She stated it is unfortunate that citizens had a little bit of information taken out of context and make statements that staff was in cahoots with the developer when that was not the case at all. She stated she wants to be sure that the general public knows the Board has sat here and talked about this whole project; there was nobody in cahoots with anybody; staff did what they were supposed to do; and they were all in line.

Commissioner Scarborough stated the Board has already voted on what Mary Todd and Doug Sphar brought up; but her point is, by moving the tanks, while it may not amount to that much in a technical sense, it was substantial in that the public interest determination was not conducted. He stated that was a part of a conceived procedure that some people looked forward to; and he cannot concur that it is not a modification of the substance of what the Board agreed to.

Commissioner Carlson stated the Board exercised the right in the Stipulated Settlement Agreement that said it can apply additional rules and things that would come up through the process as long as it would not hinder the applicant from developing the property; the Board applied new regulations for wetlands which was advantageous for everybody; and that forced the applicant to move the tanks out of the wetlands. She stated the Board should pat itself on the back and staff should pat themselves on the back because stricter regulations were applied to make the project more conforming to the Board's train of thought; and in that case, it is more positive than negative. She stated regarding the public interest determination, perhaps it would be beneficial to those at home and the audience to know that the Board looked at health, safety, and environmental issues when it had public hearings on the Oleander project; and it may be beneficial if Mr. Knox could reflect back on the entire discussion over those hearings which had a lot of public input throughout that process.

Chairman Higgs advised the determination of public interest applies to wetlands; if the wetlands were impacted and it was commercial/industrial under the Comprehensive Plan in place on December 14, 1998, the Board had to determine if the project was in the public interest; but she cannot say those tanks should not have been moved out of the wetlands. She stated that has worked to protect the wetlands; and given that, the Board does not have to go into the public interest determination hearing prescribed under the Comprehensive Plan because there were no wetland impacts. Commissioner Voltz stated the public thinks the applicant moved the tanks out of the wetlands to avoid a public interest determination hearing. Commissioner Carlson stated the public feels the public interest determination would have brought up issues aside from wetland impacts, but the Board has covered a lot of the ancillary issues such as air quality, traffic, etc., throughout the proceedings; it did a decent job getting everybody's input throughout the process; and to go back and revisit all of that is not productive or constructive. Commissioner O'Brien stated if they moved the tanks to avoid a public interest determination, it shows they are smart and not stupid; and that is what he would have done. Commissioner Voltz stated the County benefited by the move.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve Option 2, deny the appeals from Port St. John Homeowners Association, Canaveral Groves Homeowners, Inc., and Sierra Club Turtle Coast Group of the administrative approval of Site Plan #99-11-004 for Oleander Power Plant project, and approve the administrative decision to approve the site plan.

Commissioner Scarborough stated Nicki Kisner said in the beginning she did not think it was appropriate because the issue should be whether this should have been reviewed by staff as opposed to being considered a modification. He stated that seems to be the thrust of the discussion; he is confused on how to vote because Oleander requested it be dismissed; and he thinks the issue is moot. Chairman Higgs stated the Board has to take some action in regard to the appeals. Commissioner Voltz stated all the questions were answered.

Chairman Higgs stated the Board thoroughly reviewed the site plan to the fullest extent that anyone could conceive; and there can be no criticism that the Board did not review the site plan. She stated she looked at the changes and find them in compliance with the Stipulated Settlement Agreement which is the contract the Board has with the applicant; to the best of her ability she finds that staff, in recommending approval of the site plan, followed the law, Ordinances, and established procedures; and given that, it is in the public interest that the Board follow the law and its contract, and be consistent in treating this project as it would all others. She stated if the Board believes air quality is an issue, it should move forward to adopt a better air quality standard; if it is concerned about water, it should adopt more protective measures; but at this time, it needs to approve what it agreed to do, as the site plan is in compliance with the Stipulated Settlement Agreement and the laws.

Chairman Higgs called for a vote on the motion. Motion carried and ordered; Commissioners Carlson, Voltz and Higgs voted aye; and Commissioners Scarborough and O'Brien voted nay.

Commissioner Carlson stated there was a question regarding the transmission connection for natural gas; it was answered by Mr. Moia in regard to the site plan which shows that connection; and no certificate of occupancy will be issued unless that connection occurs. She stated there has been a lot of questions about using a fuel backup; they cannot do that; they have to have that transmission connection; and maybe Mr. Moia can explain it further. Mr. Moia advised the connection to the gas transmission main in the I-95 right-of-way is a condition of the approval of the site plan; being part of the site plan, the certificate of occupancy cannot be issued until that connection is made; so that is a required improvement of the site. Commissioner Carlson inquired if concurrency issues have to be re-evaluated when the building permit is requested; with Mr. Moia responding correct.

APPROVAL, RE: WORKSHOP DATES

Commissioner O'Brien advised he has a conflict with the November 9, 2000 date and will not be able to attend the workshop. Chairman Higgs instructed the County Manager to work on that schedule again.

Commissioner Voltz inquired about the noise and vibration issues; with County Manager Tom Jenkins responding it is scheduled on the same day as the courthouse options. Chairman Higgs stated if the Board needs to take care of the vibrations issue, it could be part of a regular agenda if a separate workshop cannot be scheduled. Commissioner O'Brien supported putting the vibrations issue on a regular agenda for October 19, 2000. Chairman Higgs recommended Mr. Jenkins schedule the issue. Commissioner Voltz stated the letter from the Palm Bay City Manager says the County has not gone ahead with a workshop; and the Mayor is saying the people in Palm Bay who are affected by the Black Hawk Quarry had not been able to get a workshop with the Board. She stated that is not true, because the Board had the workshop set up for a long time. Chairman Higgs recommended it be moved up and put in the loop as soon as possible. Mr. Jenkins inquired if the Board will approve the November 30, 2000 workshop.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to schedule a workshop on November 30, 2000, at 9:00 a.m. to discuss scrub jays, CBO/CDBG, and Coalition for the Hungry and the Homeless. Motion carried and ordered unanimously.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 4:01 p.m.

ATTEST:

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

SANDY CRAWFORD, CLERK
(S E A L)