October 16, 2001

The Board of County Commissioners of Brevard County, Florida, met in regular session on October 16, 2001, at 9:06 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Susan Carlson, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Kenny Delgado of House of Prayer in Palm Bay, Florida.

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

APPROVAL OF MINUTES

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve the Minutes of April 2, 2001 Zoning Meeting, August 14, 2001 Regular Meeting, and August 22, 2001 Special Meeting. Motion carried and ordered unanimously.

REPORT, RE: CHANGE OF LEGISLATIVE WORKSHOP DATE

County Manager Tom Jenkins advised the Legislature has been called in for a special session; and recommended the Legislative Delegation Workshop of October 31, 2001 be moved to November 13, 2001, and the Floodplain Workshop be scheduled for October 31, 2001.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to change the Workshop Schedule due to the special session of the Legislature, and reschedule the Legislative Workshop for November 13, 2001 at 12:00 noon and the Floodplain Workshop to October 31, 2001 at 1:00 p.m. Motion carried and ordered unanimously.

Chairman Carlson advised the Sterling Process will be sending someone to Tallahassee; and inquired if that would be a problem.

Commissioner Colon withdrew the second to the motion, and Commissioner Scarborough withdrew the motion.

REPORT, RE: MAIL SCREENING

County Manager Tom Jenkins advised last week the Emergency Management Office sent out instructions and guidelines to all County agencies on how to screen letters and parcels they may receive in their offices as a precautionary measure.

REPORT, RE: APPOINTMENT TO REGIONAL DOMESTIC SECURITY TASK FORCE

County Manager Tom Jenkins advised Bob Lay, Director of Emergency Management, has been appointed by Florida Department of Law Enforcement and Division of Emergency Management to serve on the Regional Domestic Security Task Force. He stated the Task Force is being headed up by the Sheriff of Orange County; there will be several representatives from Brevard County on the Task Force; and Mr. Lay will be representing County government. He stated it is a positive thing that they are breaking it down to a regional issue.

REPORT, RE: ITEMS REMOVED FROM AGENDA

County Manager Tom Jenkins recommended Item III.D. 5, Written Notification of Contract Renewals with CleanNet of Central Florida, Inc. for Countywide Janitorial Service, be removed from the Consent Agenda for additional information. He stated rather than make it a permanent renewal, he would like to have a 45-day renewal to give staff more time to get additional information and answer some of the questions.

Mr. Jenkins advised the TDC requested Item VI.A.6, Reconsideration, Re: Billboard Advertising Limitation Placed on TDC Disaster Fund, be removed from the Agenda as there is no longer a need to have discussion on that item.

REPORT, RE: BIRDING FESTIVAL

Commissioner Scarborough advised Laurilee Thompson with the Space Coast Birding and Wildlife Festival, is here to make a presentation.

Laurilee Thompson advised the Space Coast Birding and Wildlife Festival is an eco-tourism festival; this is the fifth year, and it has gotten bigger and better each year; and workshops were added for anyone wanting to improve their birding skills.

Chairman Carlson inquired about the birding contest; and Ms. Thompson advised of the regulations for teams, expanded parameters to include all contiguous counties, and prizes to be awarded for the birding competition, including binoculars and a trip to the Dry Tortugas. Chairman Carlson advised of her husband's participation in the festival.

The Board acknowledged the presentation and receipt of the brochure for the festival, which will begin November 7 and end November 11, 2001.

REPORT, RE: HURRICANE PREDICTIONS

Commissioner O'Brien advised a number of hurricane predictions are made by someone in Denver, Colorado; Florida TODAY' s headline says Central Florida is likely to be chillier this winter; and State Climatologist James O'Brien is predicting Florida's weather will be back to normal this year and especially chilly in the middle regions of the State, where it will be three times more likely to freeze compared to the last three winters. He stated over the past four years, El Nino and La Nina have kept freezes at a minimum; El Nino blocked cold air from Canada from reaching the State in 1997 and 1998; and La Nina brought warm winter and spring seasons. Commissioner O'Brien stated El Nino is the product of higher temperatures along the equator in the Pacific Ocean, while La Nina is caused by cold temperatures there. He stated a cold winter is not good news for hoteliers; and recommended people wear warm clothing and cover their plants.

REPORT, RE: PROJECT IMPACT SIGNING

Commissioner O'Brien advised Commissioner Scarborough gave a wonderful speech at the Project Impact signing, which impressed him; and inquired why was he there; with Commissioner Scarborough responding he will defer to Chairman Carlson because she put the time in and could not be there, so he signed it for her.

Chairman Carlson advised the gathering was the Project Impact signing, which is an important step for the community because it paves the way for communication with cities, the County, and the private sector to do different types of things relating to storm prevention and protection of facilities and other things. She stated she was not able to attend the gathering and asked Commissioner Scarborough to sign off on it. Chairman Carlson stated it goes with the Local Mitigation Strategic Planning effort she has been working on since she has been on the Board; Mary Boland is the new Project Impact Coordinator and is working with the private sector to make sure the community is ready for anything; it was primarily storms back then, and it has been broadened; and it is a great project. She stated Brevard County is one of very few communities in the United States to get the Project Impact designation. Commissioner O'Brien suggested Mary Boland give the Board a report; with Chairman Carlson responding she will mention it to Ms. Boland to come and give the Board an update. Chairman Carlson stated there was concern whether there was going to be a Project Impact at all, but the President signed off on it, so it is going ahead with everything they were hoping for.

RESOLUTION, RE: RECOGNIZING 9TH ANNUAL BREVARD COUNTY SHERIFF'S
OFFICE HALLOWEEN FUN NIGHT

Commissioner Higgs read a resolution recognizing the 9th annual Brevard County Sheriff's Office Halloween Fun Night on Wednesday, October 31, 2001, from 5:30 p.m. until 10:00 p.m.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to adopt Resolution recognizing the 9th annual Brevard County Sheriff's Office Halloween Fun Night, and expressing appreciation to all the volunteers and sponsors who have made the event a success. Motion carried and ordered unanimously. Commissioner Higgs presented the Resolution to a representative of the Sheriff's Office, who stated it is a partnership with everyone in the County working for a safe Halloween for children; and thanked the Board for the Resolution on behalf of Sheriff Williams.

Chairman Carlson inquired about the New York Police Department badge; with the representative responding someone made it up to remember the members of the NYPD.

REPORT, RE: EXECUTIVE SESSION ON BIPPA v. BREVARD COUNTY

Commissioner Higgs requested an executive session because there have been new filings in the BIPPA v. Brevard County case.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to authorize the County Attorney to schedule an executive session on October 18, 2001, at noon, to discuss the BIPPA v. Brevard County case. Motion carried and ordered unanimously.

REPORT, RE: POTENTIAL CONFLICT

Commissioner Higgs advised she has a potential conflict with Item III.E.1, Appointments to the Brevard Workforce Development Board, and will abstain from voting on that item.

REPORT, RE: TOWN MEETING

Commissioner Colon advised at her town meeting Saturday morning at Melbourne Library, residents were interested in what the County's part will be in educating the public on what is going to be on the ballot with Charter Amendments, and if it is going to be on the Internet.

REPORT, RE: RED RIBBON WEEK

Commissioner Colon advised next week is Red Ribbon Week; it happens at the schools where they celebrate drug-free life; alcohol, tobacco, and other drug abuses and related violence are a great threat for the future of our friends, families, schools, and communities; and young people between 15 and 24 years of age are a group that is dying faster than any other group in the United States. She stated Red Ribbon Week celebrates a commitment to a drug-free healthy lifestyle in communities across the country; and a lot of the schools are participating. She noted Prevent, Inc. is putting it together in Brevard County.

REPORT, RE: COUNTY LINE SALOON VIOLATIONS

Commissioner Colon advised in March, 2001, the Board approved a CUP for the County Line Saloon to hold a monthly bull riding event; since that permit was issued, Code Enforcement has been called out to the activity on three separate occasions; and on September 5, 2001, the Special Master ruled that the County Line Saloon was in violation of the Code for failure to comply with its CUP. She stated according to the County Attorney, Section 62-1901 authorizes the Board to modify or revoke the CUP once the owner has violated conditions of the permit and has been provided due process; and the applicant has shown a pattern of noncompliance.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to authorize the County Attorney to advertise and schedule a public hearing for the Board to reconsider the CUP for the County Line Saloon, and to send proper notice to the property owners. Motion carried and ordered unanimously.

County Attorney Scott Knox advised that is typically done through the Zoning staff; and he will coordinate with them.

REPORT, RE: APPRECIATION TO TAX COLLECTOR ROD NORTHCUTT

Chairman Carlson advised Tax Collector Rod Northcutt presented the Board with unspent revenues in the amount of $2,089,448.12; each year he provides unspent revenue to the Board; and this year it is especially important since the Board is looking at potential shortfalls in the budget and the State's budget, which it will feel directly or indirectly. She thanked Mr. Northcutt for the much-needed revenues.

REPORT, RE: DEVELOPMENT ORDERS

Chairman Carlson advised recently the Board has heard a number of rezoning applications on behalf of The Viera Company to align development order approved items with the zoning; and instead of trying to shoehorn the development order conditions into one or another traditional zoning classification, staff should try to devise a DRI zoning classification that would merge the Zoning Code with the development order and eliminate the need for amendments. She recommended staff be directed to investigate creation of a DRI zoning classification if possible, and return with an example of the concept using the Viera DRI. She noted there seems to be a lot of red tape; and there may be ways to streamline the process.

REPORT, RE: WETLANDS PRESERVATION

Chairman Carlson advised in her District there has been a scenario where a wetland is owned by two property owners; the first owner decided to preserve his wetland portion; and the second owner mitigated his portion, through the St. Johns River Water Management District.

Chairman Carlson stated developing one portion of the wetland resulted in the neighboring property wetland dying; and suggested staff research if it is possible to send St. Johns River Water Management District copies of the BDP or site plans that preserve wetlands so it has the ability to prevent this sort of thing from happening again. She stated any other information in report form will be appreciated, in the event the Board needs to come back and discuss this issue as a new policy. She noted it makes no sense to have one property owner preserve a wetland and be a part of a system that is then destroyed.

REPORT, RE: STERLING PROGRAM AND TOUR OF JACKSONVILLE'S MODEL

Chairman Carlson advised the Sterling Program criteria in Florida mirrors the Baldridge Management System; it allows organizations to gain insight into all operations critical to success, including leadership, strategic planning, customer service, process management, etc.; and the Cities of Coral Springs and Jacksonville have applied the Sterling principles to local government and have been extremely successful in improving performance and citizen support. She stated she talked to Mayor Delaney of Jacksonville at length about the successes of the City that earned the Sterling award; and Mayor Delaney said the biggest plus in getting the award was the boost in morale because the idea of the Sterling award is for all employees to understand what their purposes and positions are from the top to the bottom in making the organization more effective, more efficient, and more proactive in terms of customer support. Chairman Carlson advised Jacksonville is having a Sterling open house on October 31, 2001; Mr. Jenkins will be sending some employees for the day to learn about the City's successful model; and Mr. Jenkins sent invitations to cities and received great support. She noted Indialantic, Melbourne, Palm Bay, Rockledge, and Titusville are sending representatives; and they are all going by bus.

County Manager Tom Jenkins advised staff became aware of the all-day event that is going to occur in Jacksonville, so they scheduled a SCAT bus to take as many managers as they could make available to go and observe the program. He stated it will be a tour and exchange of information and opportunity to ask questions about the process; and since the County staff was going, he thought they should afford the City Managers the opportunity to send people as well, so they invited the cities to ride along on the bus with them. Chairman Carlson stated Titusville is sending seven people and Melbourne is sending six employees. Mr. Jenkins stated there should be a fairly large contingent going from Brevard County. Chairman Carlson requested a report from staff on what they thought about the whole process.

REPORT, RE: DISTRICT 4 TOWN MEETINGS

Chairman Carlson advised every year in October, her office has two town meetings two weeks apart; she will be hosting another meeting on Thursday evening at 6:00 p.m. in the Commission Room for any interested residents, to give them an update on what has been going on this year and results of last year. She invited anyone who wants to attend the meeting to attend.

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

Commissioner O'Brien read aloud a resolution proclaiming October 25 through 27, 2001 as Disabled American Veterans Forget-Me-Not Week in Brevard County.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to adopt Resolution proclaiming October 25 through 27, 2001 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 Frank Martin, who thanked the Board and Commissioner O'Brien and advised they help veterans in several ways including a pantry at Patrick Air Force Base and Stand Down in Cocoa.

FINAL ENGINEERING APPROVAL, RE: SUNSET LAKES, PHASE XI

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to grant final engineering approval for Sunset Lakes, Phase XI, subject to minor engineering changes as applicable, and developer responsible for obtaining all required jurisdictional permits. Motion carried and ordered unanimously.

RESOLUTION RELEASING CONTRACT WITH CRAIG PUTNAM, RE: TOBY AVENUE,
EXTENSION C

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution releasing Contract with Craig Putnam dated July 24, 2001, as all improvements to Toby Avenue Extension C has been completed. Motion carried and ordered unanimously.

INFRASTRUCTURE CONTRACT WITH BAYTREE DEVELOPMENT JOINT VENTURE,
RE: BAYTREE, PHASE 3 (BALMORAL SUBDIVISION)

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Infrastructure Contract with Baytree Development Joint Venture, guaranteeing infrastructure improvements in Baytree, Phase 3, (Balmoral Subdivision). Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH SAMY AND FATEN HANNA, RE:
MORNINGSIDE DRIVE

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Unpaved Road Agreement with Samy and Faten Hanna for a building permit off Morningside Drive, constructed to the standards of the Unpaved Road Ordinance, Section 62-102. Motion carried and ordered unanimously.

ADDENDUM TO AGREEMENT WITH HANSON ENGINEERS, INC., RE:
TELECOMMUNICATION TOWER ZONING REQUESTS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Addendum to Agreement with Hanson Engineers, Inc. to provide technical consulting services for telecommunication tower zoning requests. Motion carried and ordered unanimously.

APPROVAL, RE: 2002 ZONING MEETING SCHEDULE

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve the 2002 Zoning Meeting Schedule. Motion carried and ordered unanimously.

BUDGET CHANGE REQUEST, RE: LANDSCAPE OPERATIONS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Budget Change Request for a Service Worker III position and pickup truck for Landscape Operations funded by District 1 Road and Bridge MSTU. Motion carried and ordered unanimously.

OPEN PURCHASE ORDER WITH BREVARD CULTURAL ALLIANCE, RE: TDC
CULTURAL EVENTS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve an open Purchase Order with Brevard Cultural Alliance in the amount of $179,750 for expenditures and tourism arts and cultural events. Motion carried and ordered unanimously.

AGREEMENT WITH ST. JOHNS RIVER WATER MANAGEMENT DISTRICT,
RE: CHAIN-OF-LAKES PROJECT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with the Governing Board of the St. Johns River Water Management District for County management or properties owned by the District within the Chain-of-Lakes Regional
Stormwater Park. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA DEPARTMENT OF HEALTH, RE: OPERATION OF
BREVARD COUNTY HEALTH DEPARTMENT FOR FY 2001-02

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with Florida Department of Health for funding to provide human service programs through the operation of the Brevard County Health Department for FY 2001-02. Motion carried and ordered unanimously.

RESOLUTION, RE: CIRCULATION REQUIREMENTS FOR LIBRARY MEDIA
AND AUDIO VISUAL EQUIPMENT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution amending the Circulation Requirements Resolution clarifying a one-week loan for nonfiction (instructional) videos, adding keyboard instructors to the one-week loan period, and removing computer software. Motion carried and ordered unanimously.

PERMISSION TO ENTER INTO NATIONWIDE CLASS ACTION SETTLEMENT,
RE: BEAZER PHENOLIC FOAM ROOF INSULATION

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to authorize Library Services Department to enter into a nationwide class action settlement with the manufacturer of Beazer phenolic foam roof insulation. Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF TITUSVILLE AND BUDGET CHANGE REQUEST, RE: CDBG
GRANT FOR BLANTON PARK IMPROVEMENTS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with City of Titusville and approve Budget Change Request establishing a project budget of $21,286 CDBG grant funds from the City for construction of a sidewalk and replacement of fencing and gates at Blanton Park. Motion carried and ordered unanimously.

AGREEMENT WITH FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES SERVICES,
SCAT SERVICE FOR DEVELOPMENTALLY-DISABLED CITIZENS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with Florida Department of Children and Families Services, for SCAT to provide transportation services to the developmentally-disabled citizens from November 1, 2001 through June 26, 2004, at $12.36 per day per client. Motion carried and ordered unanimously.

ADOPTION, RE: 2001 UPDATE TO TRANSIT DEVELOPMENT PLAN FOR SCAT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt the 2001 Update to the Transit Development Plan for Space Coast Area Transit (SCAT). Motion carried and ordered unanimously.

PERMISSION TO BID, AWARD BID, AND EXECUTE CONTRACT, RE: ELECTRICAL
POWER INSTALLATION TO IMPOUNDMENT PUMP AT MOSQUITO LAGOON

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to grant permission to bid Electrical Power Installation to Impoundment Pump at Mosquito Lagoon, award bid to the lowest responsible bidder, and authorize the Chairman to execute the Contract with the successful bidder. Motion carried and ordered unanimously.

PERMISSION TO SOLICIT REQUEST FOR PROPOSALS, AWARD PROPOSAL, AND
STANDARDIZE PURCHASES, RE: HELICOPTER WITH SPECIAL EQUIPMENT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to grant permission to solicit Request for Proposals for new helicopter with specified electronic, fire attack, and pesticide distribution systems; appoint Scott Linkenhoker, Jeff Sabine, and Craig Helpling to the Selection Committee; authorize award of the proposal to the best-ranked company; and approve standardization of future like purchases. Motion carried and ordered unanimously.

GRANT AGREEMENT WITH FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION, RE: AQUATIC WEED CONTROL

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Grant Agreement with Florida Department of Environmental Protection for aquatic weed and undesirable plant control in various lakes and canals, allowing for reimbursement of cost of approximately $62,524. Motion carried and ordered unanimously.

RESOLUTION, RE: EXTENDING TIME FOR MANDATORY SEWER CONNECTION
FOR MERRITT PARK PLACE, PHASE II SEWER AND STORMWATER PROJECT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution extending the time for mandatory sewer connection to five years for properties in Merritt Park Place, Phase II Sewer and Stormwater Installation Project Area. Motion carried and ordered unanimously.

AGREEMENT WITH MICHAEL SHARPE, RE: TEMPORARY WATER SERVICE

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with Michael C. Sharpe for temporary water service at 2685 Tammy Drive, Mims. Motion carried and ordered unanimously.

AGREEMENT WITH DANA AND JACK HOFFMAN, RE: CONSTRUCTION OF SHED
IN UTILITY EASEMENT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Easement Encroachment Agreement with Dana and Jack Hoffman for permitting and construction of a shed in a utility easement. Motion carried and ordered unanimously.

REQUEST FOR PAYMENT PLAN, RE: MERRITT PARK PLACE, PHASE II SEWER
CONNECTION FEES

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to authorize the County Manager's designee to accept sanitary sewer connection fee installment plans from owners of existing businesses in Merritt Park Place, Phase II Sewer and Stormwater Installation Project Area. Motion carried and ordered unanimously.

AWARD OF PROPOSAL #P-2-01-24, RE: TROLLEY BUSES FOR SCAT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to award Proposal #P-2-01-24, Trolley Buses for SCAT, to Dupont Industries, for three trolley buses at $292,000 each for total of $876,000. Motion carried and ordered unanimously.

AWARD OF PROPOSAL #P-4-01-33 AND CONTRACT, RE: TELECOMMUNICATIONS
EQUIPMENT MAINTENANCE

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to award Proposal #P-4-01-33, Telecommunications Equipment Maintenance, to BellSouth Business Communications, LLC; execute Contract with BellSouth for a period of two years with three one-year renewals; and designate the County Manager or his designee the authority to execute renewal options. Motion carried and ordered unanimously.

AGREEMENT WITH BRPH CONSTRUCTION SERVICES, INC., RE: SCHOOL BOARD
EMERGENCY GENERATORS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Agreement with BRPH Construction Services, Inc. establishing guaranteed maximum price for installation of emergency generators at Jupiter, Discovery, and Riviera Elementary Schools. Motion carried and ordered unanimously.

AWARD OF PROPOSAL, RE: ASBESTOS ABATEMENT AT COUNTY SERVICE COMPLEX
MELBOURNE, BUILDING A

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to award sole source proposal for asbestos abatement at County Service Complex-Melbourne, Building A, to Sunrise Systems of Brevard, Inc. at estimated cost of $114,000. Motion carried and ordered unanimously.

APPOINTMENTS, RE: BREVARD WORKFORCE DEVELOPMENT BOARD

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to appoint Debra Green to the Brevard Workforce Development Board, to replace Carol Delaney, with term expiring June 30, 2002, and Liz Harris to the Brevard Workforce Development Boar, to replace Lisa Rice, with term expiring June 30, 2003. Motion carried and ordered; Commissioner Higgs abstained.

CONFIRM APPOINTMENT, RE: GAY WILLIAMS AS HOUSING AND HUMAN SERVICES
DEPARTMENT DIRECTOR

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to confirm appointment of Gay Williams as the Housing and Human Services Department Director for Brevard County. Motion carried and ordered unanimously.

Chairman Carlson extended congratulations to Ms. Williams.

SUPPLEMENT TO ARBITRAGE CERTIFICATE, RE: SOUTH BREVARD RECREATION
SPECIAL DISTRICT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to execute Supplement to Arbitrage Certificate for South Brevard Recreation Special District concerning its $45,000,000 Brevard County, Florida South Brevard Recreation Special District Limited Ad Valorem Tax Bonds (Parks and Recreation Program), Series 2001. Motion carried and ordered unanimously.

WRITE-OFF OF BAD DEBTS, RE: BOARD DEPARTMENTS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve write-off of bad debts from Housing and Human Services, Court Administration, Wickham Park, Parks and Recreation Districts 1, 3, and 4, Library Services, Solid Waste Management, Water Resources, Barefoot Bay Water District, and Spessard Holland Golf Course, totaling $22,838.93. Motion carried and ordered unanimously.

WRITE-OFF OF BAD DEBTS, RE: AMBULANCE ACCOUNTS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve write-off of bad debts for ambulance service at a total of $2,466,874.90, including accounts referred to a collection agency, billed to Medicare, Medicaid, or Champus, and other write-offs. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY B OARDS

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to appoint Jim Ball to replace Brooks Humphrys on the Historical Commission, with term expiring December 31, 2002. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGE

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve bills and budget change as submitted. Motion carried and ordered unanimously.

FINDING OF PROTEST COMMITTEE, RE: PROPOSAL #P-4-01-34, SAFETY SHOES

Ted Kiraly, representing Lehigh Safety Shoe Company, advised on behalf of Mattco Safety Shoes, they submitted a bid; and Perry Strickland, owner and president of Mattco, asked him to attend the meeting and express his concern with regard to the protest, particularly meeting the requirements set forth by the County. He stated at the pre-bid meeting, an extension was requested by the protesting company; and there was discussion regarding the proposal bond. He stated it is only fair to adhere to the rules for everybody who met the requirements.

Ms. Dobie Stanton, District Manager for Red Wing Shoes, agreed with the statements of Mr. Kiraly; and stated there was a standard set in the invitation to bid; all who bid were required to have a bond or $2,500 cashiers check; and they all met the standards and were allowed to enter into the bid process. She stated Safety Shoes Distributors failed to do that; and on behalf of the Red Wing Shoe Company, she wants the Board to know they upheld the terms of the bid, and others need to do that as well.

Mr. Robin Reiser, representing Safety Shoe Distributors, advised it is the company requesting to be considered on the bid; they had a check done up the day before the bid was due; he has a copy with him; but through human error, it was not put in the bid package. He stated everything else was completed; they were well aware the bond was needed; and once they found the error, they immediately sent it to the Purchasing Agency of the County, and told them it was omitted in error. He stated they had no problem with the bid; by having enough people bid, the County will get a better product and more satisfaction; the bid process has not been completed, as far as awarding of the bid; and all they are looking for is to be included in this bid. Mr. Reiser stated the date of the check shows it was done in time for the bid; they had another meeting on this issue before; three gentlemen were on the Committee, Mr. Lusk, Mr. Peffer, and Bill Osborne; when they presented their case, they asked for a vote; the first gentleman to vote said he thought the idea was to get the best product and not go by technicality; and it was going in that direction until Purchasing said they should adhere to the rules as set up. He stated they stopped the voting and started again; and at that point, it was unanimous against them because of the bond. He stated they understand that, but would like to be reconsidered on a technicality.

Vinnie Occhiogrosso, representing Iron Age Safety Shoes, stated they feel they provide exceptional service to their customers, were diligent in applying for the bid, and the standards should be upheld.

Chairman Carlson requested an update from staff.

Central Services Director Steve Stultz advised it was not a bid but a request for proposals; there were four responses; three were deemed responsive; and the fourth, Safety Shoe Distributors, was immediately determined to be non-responsive for failure to submit a proposal bond as required. He stated upon notification to the vendor, they faxed a copy of the cashiers check, but it was after the closing time and date; and the normal procurement practice is to determine any bids or proposals requiring a bond non-responsive if they fail to submit the bonds on time.

Chairman Carlson stated there are four protesters; with Mr. Stultz responding the other three speakers are from the other companies that submitted proper proposals.

Commissioner Scarborough inquired if the County Attorney wanted to say anything; with County Attorney Scott Knox responding it is up to the Board to uphold it or turn it down; it is entitled to waive minor irregularities; and if the Board considers this to be one, it can waive the requirements. Chairman Carlson inquired if the Board waives the requirements, would the proposal go back and be looked at with the rest; with Mr. Knox responding yes.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to uphold the determination of the Protest Committee that the proposal submitted by Safety Shoe Distributors, Inc. was non-responsive for failing to provide a required proposal bond with its proposal. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENTS IN THE VILLAS AT NEWFOUND HARBOR - RODOLFO AND MABEL
BARRIAL

Chairman Carlson called for the public hearing to consider a resolution vacating public utility and drainage easements in The Villas at New found Harbor as petitioned by Rodolfo and Mabel Barrial.

Attorney Luis Carreja, representing Rodolfo and Mable Barrial, advised the request is for partial vacation of an easement at the rear of the home because an addition to the house encroaches over six feet into the easement, leaving a little over three feet remaining.

Commissioner O'Brien inquired what is the encroachment; with Mr. Carreja responding a room addition, as Mrs. Barrial's mother-in-law has an affliction which requires her to have daily routine of exercises, and the addition to the house is for her exercises with a stationary bike and treadmill. Commissioner O'Brien inquired what is the garage used for; with Mr. Carreja responding there is no garage. Chairman Carlson inquired about the woodshed; with Mr. Carreja responding that will be removed on Sunday. Commissioner O'Brien expressed concern about not keeping the right-of-way, which runs along the back of the entire cul-de-sac, because it is an older neighborhood that may or may not face flooding problems in the future. He stated giving up the right-of-way gives up solutions to the problems for the entire neighborhood; staff says it may be difficult to have the addition removed when conditions change; no one else along the easement has been granted a vacation; and requested staff's thoughts on it.

Assistant Public Works Director Ed Washburn advised there were no objections from Road and Bridge; it may be difficult to enforce an encroachment agreement because they would have to determine when the medical necessity expired; and there will be three feet of the easement remaining at the rear of the property.

Commissioner O'Brien inquired if there are other agreements with a similar situation, and if the County had to use the easement, would it have the right to remove what is in the way; with Mr. Washburn responding they try not to do that with structures; and he does not know of anywhere the Board removed a structure or portion of a structure. Commissioner O'Brien inquired if the structure is built; with Mr. Carreja responding yes. Commissioner O'Brien inquired if a survey was made; with Mr. Carreja responding a survey was done after they built the room when Mr. Barrial was made aware of the encroachment. Commissioner O'Brien inquired if he obtained a permit; with Mr. Carreja responding no, he does not speak well and was not aware of the process.

Motion by Commissioner O'Brien, to adopt the Resolution vacating public utility and drainage easements in The Villas at Newfound Harbor as petitioned by Rodolfo and Mabel Barrial.

Chairman Carlson inquired if there is enough room for drainage equipment; with Mr. Washburn responding there is probably an easement on the other side, but staff has no intention of using it because it is strictly for the lot drainage and not road drainage.

Commissioner Colon inquired what is in the easement; with Commissioner O'Brien responding it is an empty lot, but runoff from Newfound Harbor Drive goes down the road in front of Mr. Barrial's house and other parts run towards Newfound Harbor. He stated the homes were not built a foot above the road. Commissioner Colon inquired if Florida Power & Light Company has lines there; with Mr. Washburn responding there are no utilities in it. Commissioner O'Brien stated his concern is the easement may be needed later if construction takes place behind The Villas at Newfound Harbor; Summer's Creek is back there and will have three feet left of a ten-foot easement; and inquired if they met the setback; with Mr. Carreja responding the setback is ten feet and on October 21, 2001, Mr. Barrial has a hearing with the Board of Adjustment to handle that.

Commissioner Colon questioned Mr. Barrial in Spanish, and he responded in Spanish. Commissioner Colon advised she was trying to inform Mr. Barrial if the County did a contract, it may have to completely remove the encroachment once the necessity is not there; and he said the house would be destroyed if that happened. She stated she asked him if someone told him he needed a permit; and he responded he and his 12 brothers built it for his mother; and that is where the dilemma is.

Commissioner Scarborough stated the agreement has two provisions, one is non-emergency where notice is given, and if it is not removed, the County has the ability to remove it and the lot owner would be responsible for the cost. He stated under emergencies, the County can remove it at its sole discretion without notice; but if it vacates the easement, it is lost. He stated he does not have a problem with the agreement, but the Board needs to be careful that it does not destroy the house if it takes those actions. Commissioner Colon stated she does not know if they are knowledgeable about how to build a room; and if it is taken apart, it will destroy the home. Commissioner O'Brien stated he does not believe it will destroy the home; it may destroy the back end where the addition was put on illegally, but the supporting structure of the house will not be affected. Mr. Carreja suggested a clause in the agreement where they would abate Code Enforcement problems as a better solution. Commissioner O'Brien stated with staff's guidance, perhaps there is no other solution but the agreement, which will maintain the easement, and if the County must use it, it can use it; so he will change his motion to approve Option 2.

Motion by Commissioner O'Brien, to enter into encroachment agreement with Rodolfo and Mabel Barrial to retain the easement, and when medical necessity terminates, require removal of the structure.

Mr. Carreja requested the public hearing be continued so they can work out the details of the agreement. Commissioner Colon noted that would be fair. Commissioner Scarborough stated he would rather work out the agreement before the Board acts on it.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to continue the public hearing to consider a resolution vacating public utility and drainage easements in The Villas at Newfound Harbor as petitioned by Rodolfo and Mabel Barrial until October 30, 2001. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENTS IN
BAREFOOT BAY UNIT ONE - ABBOTT MANUFACTURED HOUSING, INC.

Chairman Carlson called for the public hearing to consider a resolution vacating public utility easements in Barefoot Bay, Unit One, as petitioned by Abbott Manufactured Housing, Inc.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Colon, to adopt Resolution vacating public utility easements in Barefoot Bay, Unit One, as petitioned by Abbott Manufactured Housing, Inc. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENTS IN THE WILLOWS - TIMOTHY AND KIMBERLY JELUS

Chairman Carlson called for the public hearing to consider a resolution vacating public utility and drainage easements in The Willows as petitioned by Timothy C. and Kimberly J. C. Jelus.

There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Colon, to adopt Resolution vacating public utility and drainage easements in The Willows as petitioned by Timothy C. and Kimberly J. C. Jelus. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING SECTION 62-1151, WETLAND
DELINEATION FOR REZONING APPLICATIONS

Chairman Carlson called for the public hearing to consider an ordinance amending Section 62-1151, relating to wetland delineations for rezoning applications.

Planning and Zoning Director Mel Scott advised the intent of the ordinance is to codify an existing Board policy; and because the Comprehensive Plan zoning policies prohibit the destruction of wetlands for commercial and industrial purposes, it became wise to receive that information via a wetlands determination with a commercial or industrial rezoning application. He stated staff felt it would be in the County's best interest to add that provision in the Zoning Code in the section that outlines the items that represent a complete application; so that is the intent of the language.

Commissioner O'Brien inquired if there is any regulation regarding the size of the property involved in the rezoning application; and if a person requests rezoning of one acre to commercial, will he have to get a wetland survey done; with Mr. Scott responding that is what the policy means. Mr. Scott stated the information provided to Commissioners in their zoning packages was obtained from a very small-scale map where one inch could represent 2,000 feet, so it was a best guess by staff of how much of the property may be wetlands; it may be 10% or 90%; and the risk of it being 90% moved the Board to get the increased detail up front and so the applicant is not led to believe there is a buildable envelope only to find out there is not. He stated when they come to the Planning and Zoning counter to receive a briefing on what materials they have to provide, if it is a commercial or industrial application, they are sent to the Office of Natural Resources Management; and if staff determines there is potential for a wetland on the property, they are notified they need to obtain a wetlands delineation.

Commissioner Higgs advised the suggested language is two years of experience in wetland delineations, which concerns her; and inquired if there is any enhancement in terms of professional experience or qualifications that may be added other than two years experience; with Assistant County Manager Stephen Peffer responding there is no specific certification for what they are looking for, so the two years was their best effort to ensure an individual has some qualifications and experience. He stated it would be preferable if there was some minimum certification to prove proficiency in identifying wetlands, but that does not exist. Commissioner Higgs inquired if two years experience in permitting before the St. Johns River Water Management District or Corps of Engineers as opposed to just two years experience be a better description; with Mr. Peffer responding that would improve the language; and if there are other suggestions that would improve it, staff would try to incorporate those. He noted it is difficult to put a specific definition to it at this time because it is not like a professional engineering degree where there is an established standard.

Chairman Carlson inquired if the County went out for wetland delineations, who would they use; with Mr. Peffer responding staff has that training, and typically the County has consultants who could provide some form of expertise in that area.

Commissioner O'Brien recommended against more than two years experience; and stated it is a buyer beware situation rather than the County setting up a roadblock for someone applying for rezoning and making it more difficult even when wetlands are non-existent. He stated there are Ordinances on the books that say no net loss to wetlands; and the County does not need further regulation beyond that, which would increase the cost of rezoning any kind of commercial or industrial property. Chairman Carlson stated her intent is to have no doubt if there are wetlands on the property identified so the applicant is not led down the path of thinking it will go through, then find out it will not; and this will save them money upfront by not going through the entire process if they get a delineation that is accurate. Commissioner O'Brien stated he agrees with the ordinance but opposes going beyond two years experience. Chairman Carlson stated she wants to be sure it does not cause staff additional man-hours to go out and double check the property; and the idea was to help the applicant also.

Discussion ensued on the cost of wetland delineations, inspections, the improved zoning process with better information, types of experience as opposed to years of experience, other regulations preventing construction in wetlands, and road blocks in the way of a person who just wants to accomplish a project.

Mr. Scott suggested adding "An individual with at least two years experience in describing onsite environmental conditions and habitat types. Said individual shall provide proof of completing a USCOE wetlands delineations course or equivalent that the Corps of Engineers provides."

There being no further comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; Division 2, Subdivision I, specifically amending Section 62-1151 as it relates to the information and documents related to delineation of wetlands required to accompany an application for amending the official zoning map; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida, as amended to add "An individual with at least two years of experience in describing onsite environmental conditions and habitat types. Said individual shall also provide proof of completion of a USCOE wetlands delineation or equivalent course." Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING SECTION 62-4062, REQUIREMENTS
FOR FLOOD PROTECTION

Chairman Carlson called for the public hearing to consider an ordinance amending Section 62-4062, requirements for flood protection.

There being no comments or objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt an Ordinance of Brevard County, Florida, amending Chapter 62, Article XI, Code of Ordinances of Brevard County, Florida; specifically amending Section 62-4062, entitled specific standards, requiring lowest horizontal structural member to be elevated to or above the base flood elevation level; providing applicability in unincorporated areas; providing interpretation of conflicting provisions; providing severability; providing an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE CREATING ARTICLE X, CHAPTER 62, UNIFORM
APPEALS PROCEDURE FOR DECISIONS INVOLVING INTERPRETATION OR
IMPLEMENTATION OF LAND DEVELOPMENT REGULATIONS

Chairman Carlson called for the public hearing to consider an ordinance creating Article X, Chapter 62, Uniform Appeals Procedure for decisions involving interpretation or implementation of Land Development Regulations.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Colon, to continue the public hearing on an ordinance of Brevard County, Florida, creating a new Article X, Chapter 62, creating a uniform appeals procedure for decisions involving interpretation or implementation of Chapter 62, Land Development Regulations; providing for conflicting provisions; providing for severability; providing for area encompassed; providing for inclusion in Code; providing for an effective date, until December 4, 2001. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING VARIOUS SECTIONS TO PROVIDE
WAIVER PROCEDURES IN LAND DEVELOPMENT SECTION

Chairman Carlson called for the public hearing to consider an ordinance amending various sections to provide waiver procedures in land development section.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Colon, to continue the public hearing on an ordinance of Brevard County, Florida, repealing appeals provisions in Sections 61-102()(2)e; 62-102(d); 62-301; 62-302; 62-303; 62-304; 62-819; 62-737; 62-777; 62-1153(d); 62-1154(d); 62-2132(c); 62-2132(d); 62-2133(c); 62-2133(e); 62-2849(c); 62-2956(a)(8); 62-3204(f)(5); 62-3206(e)(9); 62-3207; 62-3319; 62-3665; 62-4034(a); 62-4034(b); 62-4426; and 62-4806, Code of Ordinances of Brevard County, Florida; providing for severability; providing for area encompassed; providing for inclusion in Code; providing for effective date, until December 4, 2001. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: VESTED RIGHTS DETERMINATION FOR GLEN BROWN

Chairman Carlson called for the public hearing to consider a request from Glen Brown for determination of vested rights to place a mobile home on property zoned ARR that does not have access to a County-maintained and accepted road.

Commissioner Scarborough advised there are several elements in this; Mr. Brown was led to believe something by the County; and requested Mr. Brown explain what he did in reliance on that information.

Glen Brown advised he applied for a building permit and was told he fell in the time frame and that he could get it done; he started the permitting process and got the surveys and everything else; as it went further, he was given the permit number; and at that time, he assumed he would be able to get it done. Mr. Brown stated he had a chance to get a trailer, and had to move it out of the park; and he moved it at that time assuming he could get through with the permitting. He stated part of why the time frame was so short is because his mother was sick the year before and died of cancer on October 10, 2000.

Commissioner Scarborough stated it has come to the Board as a vested rights issue, but it is also an issue of when the Ordinance took effect; so there is a dual factor involved. Mr. Brown stated he came to the Board meeting when the Ordinance was passed and understood it was July, 2001, but apparently he was mistaken because from what he heard since then, it was July, 2000 that it had to be started and finished by July, 2001.

Commissioner Higgs advised the applicant did everything in terms of getting the building permit except pay the fee, but the fee is not required by the County until the permit is actually issued; however, he did everything in reliance on the information given him and completed everything other than paying the fee. Mr. Brown stated when he called about picking up the permits, he was told they were put on hold and he could not pay or pick them up until this issue was resolved. Commissioner Higgs stated when everything in the building permit process has been completed other than the fee, there is a standard to work with.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to determine that Glen Brown has vested rights to place a mobile home on property zoned ARR that does not have access to a County-maintained and accepted road, as there may have been an act or omission of the County regarding his building permit, and Mr. Brown acted in good faith reliance on the County's act or omission. Motion carried and ordered unanimously.

Commissioner Colon inquired how many more requests are in the pipeline of a similar nature; with Mr. Scott responding staff has identified five or six that potentially could have been caught in the same situation as Mr. Brown, where they moved forward in good faith, completed the application process to get a building permit, but because the Ordinance states the grandfathering clause would only come into effect if the fees were paid and applications made with the building permit process, they are caught in this situation. He inquired if it is the intent of the Board to have the grandfathering provision represent complete application.

Commissioner Scarborough inquired why have the people come in for vested rights when the Board could give staff authority today to administratively review those in the concept of the effective date of the Ordinance. Commissioner Higgs stated it is a matter of interpretation of the building permit process being completed; and if the Board is in agreement that it is done when all the things are in place other than the actual payment of the permit fee and issuance of the permit, then staff could proceed with that understanding.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to clarify the intent of the Board and authorize staff to interpret the building permit process as being complete if they agree all things are done and in place except the actual payment of the fee and issuance of the permit. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FROM WILFRED E. AND SANDRA LUMB FOR
VARIANCE TO BREVARD COUNTY COASTAL SETBACK LINE

Chairman Carlson called for the public hearing to consider a request from Wilfred E. and Sandra Lumb for a variance to the Brevard County Coastal Setback Line.

Ed Fleis, representing Wilfred E. and Sandra Lumb, presented a handout to the Board but not to the Clerk, of a survey of the property, proposed improvements, and a series of pictures of the property with a front view and views from the building to the ocean and from the ocean to the building. He stated the house was built in 1959 before there was a Coastal Construction Control Line (CCCL), which was done in 1980; it is about 1,350 square feet; the Lumbs bought it in 1998 or 1999; it is a small house; and the house was built about five feet seaward of what is now the CCCL. He stated the Lumbs want to make a major addition to the house; at the one story level, they would not have a good view of the ocean; they are proposing a three-story building addition, which would be connected by a one-story building; and in order for the house to remain qualified as a single-family house, it has to be physically attached. He stated to be physically attached they have to go between the existing house, which is about eight feet seaward of the setback line; and the remaining structure would take place on the landward side of the setback line. Mr. Fleis stated the site qualifies for at least an 11-foot variance; there is very little evidence of erosion; as depicted in the photographs, the site is very heavily vegetated with sea grapes and sea oats; and there is no evidence of erosion; however, the most current survey done on the profile indicates there was as much as 14 feet of erosion. He stated that does not totally surprise him because there is always a question of where the profile was made by the surveyor versus where the profile was made by the State. He stated from that data, it would appear up to 14 feet of beach erosion occurred since 1972; the data from the 1970 profiles indicate there could have been 10 to 35 feet of accretion in the area; and they are requesting approval of the variance for eight feet. He stated it will not be injurious to adjacent properties nor contrary to the public interest; the existing building is not on pilings, but all of the additions will be on piling and designed for the 140-mph wind loads; the ocean side lighting will comply with the Department of Environmental Protection turtle protection criteria; and the site is heavily vegetated on the seaward side of the building.

Commissioner Higgs advised the existing structure goes over the side setback on the south side and encroaches on the abutting property; and inquired if any adjustments will be made to that; with Mr. Fleis responding they are not planning on making adjustments; it may be an issue they have to talk to County staff about; and there have been some issues about where the lot line really is. He stated he does not know the entire story about the surveying problems they had in the area; but the fence lines are not consistent with the lot lines; and there are different angles with the fence lines and with the lot lines. Commissioner Higgs inquired if they have no plans to do anything with the encroachment on the south end of the side setback; with Mr. Fleis responding at this time the owner does not. Commissioner Higgs stated it does not seem to be in compliance with current breezeway requirements; with Mr. Fleis responding the County deleted the breezeway requirements for single-family homes several years ago; and the existing house would not be in compliance with the side setbacks. Commissioner Higgs stated the State has a breezeway requirement; with Mr. Fleis responding the State has a policy of no more than 60% impacted area as measured at right angles to the CCCL; and the existing building has much more than 60%. Commissioner Higgs stated she was able to support requests for coastal construction variances where there were existing structures that were brought into greater compliance or came off the CCCL significantly; in this situation, there is not only the CCCL noncompliance issues, but also a side issue and breezeway issue; and there is nothing being done to mitigate any of it for the variance. She stated in the past, when the Board approved variances from the setback line, it saw a movement towards greater compliance; and in this case there are no mitigating factors that would compel the Board to approve it.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to deny the request of Wilfred E. and Sandra Lumb for a variance to the Brevard County Coastal Setback Line, as the best interest of the public would not be served, no factors support what is being asked for, the impact to abutting properties would not be mitigated, and there is no movement to greater compliance. Motion carried and ordered unanimously.

Mr. Fleis requested reconsideration so they can go back and review what mitigation may be appropriate. He stated it is an existing building that was purchased by the Lumbs; they are trying to make improvements to the property; and he does not know what form of mitigation would be satisfactory to address the issues.

Commissioner Higgs stated in the past, when Mr. Fleis came to the Board asking for variances where there was an existing structure, the Board had seen the structure moved or removed and gave a couple of feet as a reasonable way to make the situation better; in this case the structure that has been there is still there; it is attached to the proposed structure that his client is asking for; the Board and citizens are left with the same encroachment on the CCCL; the impact to abutting properties in terms of their views are still there; the impact to the public in terms of best interest of not building seaward of the CCCL is not mitigated; and there are no factors that would support what is being requested unless there is some dramatic change to the existing structure to bring the noncompliance issues into compliance. Mr. Fleis inquired what would it take to bring something like that into compliance; the structure was built in 1959 and preceded zoning; and inquired what would be considered mitigating factors; with Commissioner Higgs responding probably removal, but Mr. Fleis is the engineer with creative abilities to make those suggestions that the Board may wish to consider; however, as the proposal exists today, she cannot see why the Board would approve it.

The meeting recessed at 10:37 a.m. and reconvened at 10:49 a.m.

DISCUSSION, RE: REZONING AND SCHOOL CAPACITY

Planning and Zoning Director Mel Scott advised the Board instructed staff to place this item on the agenda as a precursor to Item IV.J., which is four rezoning items that were tabled because they represent increases in residential density in areas that are also experiencing overcrowded schools. He stated the item is laid out for the Board to consider review thresholds to use in determining which items it would receive information on regarding school capacity from the School Board. Mr. Scott stated the first option is all residential rezoning requests that would increase the density by one or more; the second option is excluding one and two-unit requests; the third option is to establish a diminimous threshold, which the School Board recommended might be at 20 students because it is at that point that a portable is utilized; and the fourth option is the cumulative impacts. He stated the second part of the Agenda item enables the Board to determine how it will define capacity; the first is permanent school capacity that would not include relocatables; the second is total school capacity including relocatables; and the third is programmed capacity, which would include those capacity improvements which the School Board has identified in its five-year improvement plan.

Commissioner Scarborough requested Mr. Scott explain the letter from School Board Assistant Superintendent for Facilities Ed Curry dated September 27, 2001. Mr. Scott advised Mr. Curry responded to the Agenda item and identified Option 3 as far as review threshold for those items they would return school capacity information in; and that is any request that would result in 20 or more students using their calculation per household, which is roughly 60 units. He stated the second recommendation is that permanent school capacity be used for the definition of what school capacity is.

Chairman Carlson inquired if the Board has to consider future use of the property and not only the current use when dealing with rezoning; with Mr. Scott responding that is correct, unless there is a binding concept plan placed on the property which limits the permitted uses. Chairman Carlson inquired if there is a particular position that would give the Board a stronger stance if it chose a particular threshold over another.

County Attorney Scott Knox advised he did a memo telling the Board at the joint meeting of the School Board and the Board of County Commissioners that any rezoning application is a development order that has to be consistent with the Comprehensive Plan; the extent that the Board applies the school capacity criteria in its Comprehensive Plan to any rezoning application has to be consistent; and they have to demonstrate compliance with those policies in order to qualify for rezoning. He stated to be legally precise, the Board has to treat every application the same way; it cannot distinguish between applications for one, two, three, twenty, or two hundred units because they all have to be consistent; and that is what the law requires. He stated there may be ways to handle individual applications based upon the evidence the Board hears that relates to the particular application; and the four applications it has today have some differences. Mr. Knox advised one has an existing mobile home; that is not going to be the case in every instance; but that may have a bearing on whether the Board approves or disapproves the application. He stated the Board has another application where there is an elderly couple being considered for the home; it may be able to put some type of restrictions on the property or they may offer some restrictions that would make it acceptable under the particular type of rezoning application being applied for; but the Board has to treat each one individually. He stated the dilemma is if the Board does not apply the same standards to every residential rezoning application, someone in the community who feels he or she was adversely impacted by the decision not to pursue the school capacity as applied to a particular zoning application can come in and say the Board was inconsistent with the Comprehensive Plan and take it to task. He stated for example, if the Board says Sawgrass has to comply with school capacity policies, but individual property owners do not, it may have to face an equal protection issue, if they claim the Board did not apply it the same to everybody. He noted if that happens, there will be a lot more at stake than the rezoning application.

Commissioner Colon advised it is important to have policies regarding school capacity in place; the School Board has advised for approximately every three homes built, one school-aged child is generated; however, unless a more sizable community is being proposed for evaluation, it is difficult for the School Board staff to determine the age of the child; therefore it is difficult to identify whether elementary, middle, or high school capacity should be analyzed. She stated the three children per household is the average found in the County, but it is not relied upon by the School Board to determine a school's population; so it is a complex issue. Commissioner Colon stated her interpretation of the previous action was to have flexibility for whatever situation confronts the Board and taking one situation at a time; one was just an idea of a number since the Board had to come up with a number; twenty seems too high; and requested feedback from the Board if it feels comfortable with three. She noted if it is not, she will reconsider, but she would not consider anything from one up.

Commissioner Scarborough advised one application is to have an elderly parent that will not impact a school; there are other data around it; there are many units that could be built and a slow rate of build out; and the significance of the Board's action as related to schools is not really highly related; and inquired is the Board taking a policy and saying it is for quality education and is something the Board thinks is important. He stated the Superintendent apparently views the capacity for freedom of choice as part of quality education, which adds another dimension; the School Board is not willing to step forward and define quality of education; and if the Board takes away a person's rights and there is no proven benefit obtained, that causes him problems, not in a legal sense but in a policy sense that somehow the Board should be accomplishing something for the greater good when it takes away a person's rights to do something that normally that person would have the right to do. He stated Mr. Knox said the Board can handle it on a case-by-case basis; and so it can go ahead, even though it has a rule, and grant the rezoning. Mr. Knox stated that is exactly what he is saying; if someone comes before the Board and says they are going to build a house, represents that their parents are going to live in it, and they will limit the use to putting their parents in that house; then that is something the Board can consider and say based on that evidence and what the applicant presented, it does not seem to violate the school capacity policies, especially if they offer to put a cap on the number of people living in the house if that is needed to make it work. Commissioner Scarborough inquired if Mr. Knox is saying without changing the policy the Board can approve some of the applications that were before it the other night; with Mr. Knox responding that is what he is saying, but the Board has to decide that, based on the evidence presented to it.

Chairman Carlson stated the Board has to be consistent; with Mr. Knox responding it has to be consistent, but each case will be different. Chairman Carlson inquired if it would be more prudent to have certain criteria laid out prior to making a decision; with Mr. Knox responding the criteria is laid out in the Comprehensive Plan; and that is what the applicant has to prove consistency with. He stated if the applicant cannot prove consistency, then the Board has an issue of whether it should approve the application or not; but if the applicant can show the policies do not apply to him or her because of circumstances that are peculiar to the application, then the Board can consider approving it.

Commissioner Higgs stated in an example not before the Board today, if it had a school situation where the school in the area was overcrowded; and the applicant was asking for a seniors only complex, that would have no negative impact on the school capacity; however, they would have to meet all the rest of the Comprehensive Plan criteria. Mr. Knox stated that is right, and that is a good example.

Chairman Carlson inquired how would the change of use be monitored if someone buys the property and has five children; with Mr. Knox responding if it is offered as a condition of approval and is part of a binding development plan that is recorded, it is part of the restrictions that affect the property; and if someone wanted to put a family in the house, that person would have to come back to the Board; and maybe by that time there may be a new school built and they would not need that restriction.

Commissioner O'Brien stated he is confused because it says the School Board staff informed the County for every three homes built, approximately one school-age child is generated; but the last sentence says the three children per household figure is the average found in the County. Mr. Scott stated that number is one-third instead of three. Commissioner O'Brien advised of a property owner who converted his garage into an apartment and expanded the number of people in the house from four to ten, and all the consternation that surrounded that issue, including Code Enforcement having to return several times and what the property owner did to avoid being cited. He stated the Board may approve the house an applicant wants to build behind his house for senior citizens; however, the day will come when those senior citizens will no longer be there; and inquired who is going to live there if they still own the house. He stated if he owned the property, he would not want to have an $85,000 secondary structure collecting dust with no one living in it; but at the same time, the son or daughter may fall on hard times and move into the house; so enforcement is practically impossible. He inquired if the property is sold, is the buyer informed by title that the back structure is only for senior citizens; and suggested those problems be solved before getting into it and not after.

Commissioner Colon stated the policy could remain as voted on before, which she has difficulty with because she was under the impression it was based on evidence presented; but the Board wants to stay consistent with the policy; and it is confusing not knowing if the Board would be consistent or not. She stated the County Attorney said the Board has that discretion; if that is the case, she is willing to hear how Commissioner Scarborough feels, and if the Board should leave the policy alone. She stated if that means she can still consider allowing those people to build a home for their parents based on the evidence that it does not affect school capacity, then the Board needs to go ahead and look at the situation before it and not concentrate on what happens in the future after every rezoning issue. She stated if the Board has the flexibility, it would allow her not to go against the Commissioners and not be inconsistent; and that is where she had a dilemma. Commissioner Scarborough stated the Board can proceed on a case-by- case basis and that is fine with him; but it needs to have finding of fact with each case. Commissioner Colon stated she does not want to go into a zoning meeting and have a hard time every time the issue comes before the Board; so she would like to have feedback from the Commissioners. Commissioner Scarborough stated he made his comments.

County Manager Tom Jenkins advised the school situation is a dynamic fluctuating issue; and while there may be school capacity issues today, five or six years from now there may be a new high school and elementary school in Viera; so there may not be a problem then.

Commissioner O'Brien stated there is a certain unfairness in saying the Board is not going to rezone a property to allow a house behind a house when people who have ten parcels that are properly zoned can build without going through the process. He stated the Board is looking at school capacity as an issue for rezoning, but building permits can be issued; there are at least three projects on the agenda for approval that have a good total of new homes to be built that the Board will not discuss or approach as causing the problem; and in fairness, the Board would be out of balance if it tried to look at one house at a time. He stated 20 is too many and one is too few; and three or four may be where the Board should start to make that count, if it wants to go the school capacity route. Commissioner O'Brien stated Commissioner Scarborough and the County Attorney agree it can be done on a case-by-case basis; but his concern is whether the policy the Board instituted is necessary at all; he does not like the idea of denying a rezoning when next door there may be RU-1-13 property already zoned that can get building permits to build 35 houses or 100 houses and the Board does nothing about that.

Commissioner Higgs stated the issue is consistency with the Comprehensive Plan; all of the rezonings must be consistent with the Comprehensive Plan based on evidence presented at the hearing; and it is the applicant's responsibility to present the evidence that says they are consistent with the Comprehensive Plan, or someone else's testimony to prove they are not consistent with the Comprehensive Plan. She stated it is not a question of concurrency or some other requirement; at the zoning stage, the Board is not dealing with building permits, although there are some issues there; but it is the Board's job to listen to the evidence, proceed, and be consistent with applying the Comprehensive Plan policies.

Commissioner Colon inquired if Commissioner Higgs feels the Board is not being consistent if it allows that home to be built; with Commissioner Higgs responding unless there is evidence that shows it is not going to impact school overcrowding, it would be inconsistent, whether it is one home or 201 houses. Commissioner Higgs stated the Board needs to apply the same standards to one as it would to 200; but if the 200 can demonstrate by competent substantial evidence that the development is not going to be out of compliance with the Comprehensive Plan in terms of consistency, then the 200 houses and the one house have to be dealt with in the same way. Commissioner Colon stated Commissioner Higgs wants to be able to be consistent; that is where the gray area is; and she is not sure whether Mr. Knox helped her or made it more confusing, because she does not know whether the Board would be consistent or not if it approved a rezoning involving the school capacity issue. Commissioner Higgs stated Mr. Knox clarified the issue that the Board has to be consistent with the Comprehensive Plan in every case whether it is 1 house or 220 houses; the applicant with evidence may demonstrate he is consistent with the Comprehensive Plan, whether it is one or 200 houses; and in the case of an adult only community that would have no impact on schools, they may be able to demonstrate to the Board the consistency with the Comprehensive Plan. Commissioner Colon inquired in a case where the person has no children, would Commissioner Higgs feel it is not consistent with the Comprehensive Plan; with Commissioner Higgs responding the applicant must demonstrate with substantial evidence that the rezoning is consistent with the Comprehensive Plan. Commissioner Colon inquired if they would have to do a contract or verbally tell the Board they do not have children; with Commissioner Higgs responding the Board should have more than a verbal understanding and should have a binding agreement of some sort. Commissioner Colon inquired if that would be the way to protect the Board; with Mr. Knox responding if the applicant says he is going to restrict the use of the property being rezoned to a residence, restrict the occupancy to his parents, and limit the number of people in the home to two, and that is included in a binding development plan and recorded, he could defend the Board on the grounds it is consistent with the Comprehensive Plan.

Mr. Jenkins inquired if a time limit could be placed on the condition rather than forever, as at some point there may be school capacity in the area; with Mr. Knox responding they can tie it to some eventuality if the issue was school capacity; and if the capacity becomes available in the future, the binding development plan can be modified to eliminate that requirement. Commissioner O'Brien recommended the plan state the occupants have to be family members, as otherwise it would create a secondary lot without making a lot. Commissioner Scarborough stated that is not what the Board has to worry about with this particular issue; it is school capacity that it is worried about and the creation of a senior citizen house; and there may be other issues that would drive those decisions; but today the issue is school capacity.

Commissioner Colon inquired if Commissioner Higgs would feel comfortable with a binding development plan stating the things that were said; with Commissioner Higgs responding if the applicant demonstrates consistency with the Comprehensive Plan, then she could approve the rezoning; but she would have to look at the evidence regarding every policy in the Comprehensive Plan, whether it is schools, compatibility with surrounding neighborhood, road capacity, etc.; and those issues will come into the decision making process.

Kim Zarillo stated she is glad to see the Comprehensive Plan is being implemented and the Board is working with the School Board; it has been long in coming and very necessary; and she speaks for the Partnership, a nonprofit organization interested in growth management and growth management issues. She stated when looking at mechanisms for exemptions or thresholds, the previous discussions sound reasonable; there are always exceptions to the rule; but it is important to look at permanent capacity when devising the policy because permanent capacity is what is in place today. She disagreed with total school capacity that may put children in trailers; stated they have a right to a quality public education as well as people have the right to develop their land; so a compromise is looking at the threshold. Ms. Zarillo stated Commissioner O'Brien is correct in saying the Board does not want to implement a policy that later is a Code Enforcement nightmare or nightmare for the Board; so thoughtfulness in how that is done seems to be important; and the Comprehensive Plan should be the Board's guide. She stated Policy 13 talks about Policy 1.3, Brevard County "should" utilize. . .; the Board had many discussions about the use of "should" and "shall"; and Policy 12, Coordinated Public School Facility Siting, says, "Brevard County 'shall' encourage the Brevard School Board. . ."; and that is important. She stated the school issue is in the Comprehensive Plan; it is the outline laid out for the Board; and there will be some exemptions with caveats.

Commissioner Colon expressed concern whether she is taking a gamble by allowing one or more to be approved or concentrating on the number three, which is what would be considered for having a school-age child. She stated that is where her dilemma is; she cannot take a gamble of whether the Board is going to be using the Comprehensive Plan as an excuse, or whether it wants every person to come before it and then say no, it is not consistent. She inquired if it is the new policy that has to do with school capacity, or what is it that the Board is deciding it on. She stated she is confused; she does not know what is going to happen at every zoning meeting; and inquired at whose discretion will it be to decide if they like the evidence presented or not. Mr. Knox advised the School Board information about the number of units that generate a child is evidence; it is not a standard; it is evidence that will come before the Board every time it has an application that involves school overcrowding; and the Board can take that into account in deciding each individual case along with other circumstances presented to it. He stated each case is different; based on the evidence the Board receives, it can say the project will not impact schools or it will impact schools; then it can decide to approve or deny the application. Commissioner Colon stated she does not want it to be used in a way where it will put handcuffs on the Board; and inquired if Commissioner Scarborough feels three or more is the way to go; with Commissioner Scarborough responding the County Attorney is not recommending that; the thing to do is proceed with his recommendation and take it case-by-case; and if there is a problem, the School Board may be willing to further define quality education. Commissioner Scarborough stated there are other things in schools such as moving students from school to school, creating certain programs that deal with quality education, etc.; and this issue is just the tip of the iceberg in creating quality education. He stated he would like the School Board to help the Board by further defining the program.

Chairman Carlson advised if the Board starts to require binding development plans on some of these applications, it will create a real problem, but it seems, based on the evidence the School Board presented to the Board, for every unit there is one-third of a child; so basically that threshold is three units that would increase the number of students by one and trip the threshold. She stated the Board has Option 2, which is exclude one and two unit requests and three units and above would be looked at with the school capacity criteria.

Commissioner O'Brien inquired if the County Attorney said the Board does not need the policy or does it help or hinder; with Mr. Knox responding if the Board does not consider every rezoning application in the same way under the Comprehensive Plan, it is going to walk down a dangerous path when it comes to making decisions about big projects. Commissioner O'Brien inquired if Mr. Knox is saying the policy should stand, whether it is one house or ten houses; with Mr. Knox responding from a legal standpoint, that is what he is saying. Mr. Knox stated the three houses generating one child is evidence; the Board can consider it in any case that comes before it; so if that evidence convinces the Board there is no impact, it can say there is no impact and go on from there. Commissioner O'Brien inquired if the applicant says no children, can the Board determine there will be no impact and approve it; with Mr. Knox responding yes. Commissioner O'Brien stated school overcrowding is only one part of the evidence to be considered; the Board is concentrating only on one topic; and it needs to ensure in its deliberations, it does not forget other areas that need to be explored. He reiterated previous statements about projects that are already zoned and approved drawing building permits versus a person wanting to build one house having to go through the school capacity process.

Commissioner Colon stated the zoning issue kept being school capacity; had the Board not used the terminology, it would have taken it just like it always has, one case at a time; the Board just made the policy; if it had not voted against the applicants, it would not have been consistent; and that is where the dilemma went back and forth. She stated the Board will take all the evidence, analyze it, and hopefully come up with the best decision; but that is where her concern was because the Board kept strictly focusing on the school policy. She stated Mr. Knox shed more light on it because that is all the Board has been talking about one after another; today it has four applications; each is unique in its own way; but if the Board wants to stick to the policy, it would have to say no, it is not consistent based on the fact it was on the chart that said the school was overcrowded, even if it is just an extension on a home. She stated school capacity has become a major issue of how the Board is going to decide each situation.

Commissioner Higgs stated every decision is based on different policies in the Comprehensive Plan; they may be locational criteria, commercial not infringing on residential neighborhoods, etc.; and how the Board uses that in its decision making process might mitigate certain factors. She stated the Board has to stick to the Comprehensive Plan, which is the law, then determine how that is applied in each situation; some cases are clear and others are less definable; and the evidence presented on school impacts may not be as clear, but the applicant has to demonstrate, through evidence, there is no impact on schools.

Commissioner O'Brien stated using the rule one child per three homes, the Board may approve the first two applications for single-family residences because there is no impact; but it would have to deny the third application because it would add one child to the overcrowded school. He inquired how would the Board define it in that parameter; with Mr. Knox responding the Board may or may not be in that position, depending on what the applicants bring before the Board; if they say they have an existing mobile home with people living in it and that is the basis for seeking rezoning, there is no impact because the mobile home is already there; and there may be a situation where they restrict the structure to two people over 55 and no children, which also would not have an impact; so it is going to vary, depending on the circumstances in each case. Mr. Knox advised the way it is designed allows the Board to consider each case individually and decide the issues on a case-by-case basis, depending on what the facts are; with some ingenuity, the Board can do things it would not otherwise think it was able to do; there is no reason why it has to deny everybody who applies for single-family residential rezoning because of school capacity issues; and there are ways to work around it.

Chairman Carlson inquired if the evidence the School Board provided that three units produces one school-age child is enough to bolster any legal action; with Mr. Knox responding that is one piece of the evidence; it is not one piece of evidence that makes or breaks a case, but it is all the evidence considered; that may be the factor in one case and not in another; but it is a standard rule of thumb the School Board uses. Chairman Carlson inquired if it is better to look at the evidence item-by-item and try to retain consistency across those items, than to leave it at a threshold of three units because that is what the School Board uses to determine the numbers for school capacity; with Mr. Knox responding if the Board establishes a threshold of three, anybody who comes in with 20, 100, or 500 units is going to say the Board is treating him or her differently than anybody else. Chairman Carlson advised the School Board suggested permanent school capacity be used; it also suggested an educational plant survey to document facility needs on a school-by-school basis; and inquired if the Board needs a motion to adopt those recommendations.

Commissioner Scarborough stated the County Attorney advised the Board can proceed on a case-by-case basis; if it starts to run into problems, it needs to go back and address the Comprehensive Plan in conjunction with the School Board's discussion; and that is getting to a different level than the Board can undertake today; so as the Board goes through the process, it will see if it has more profound problems. Chairman Carlson inquired if a motion is needed; with Commissioner Scarborough responding no, the Board is not changing its rules; it is going to operate under the rules previously adopted as recommended by Mr. Knox; it may open up to an attack if it takes an arbitrary number of two or three or four; but it can consider individual cases and find if they do or do not violate consistency.

Chairman Carlson advised the three/two vote was all residential rezoning requests that increase density one unit and above for the Review Threshold and permanent school capacity not including relocatable classrooms for Capacity Determination. Commissioner Scarborough stated Mr. Knox recommended the Board not deviate from that policy except on individual cases where evidence warrants it. Commissioner O'Brien stated the P&Z Board needs to be informed of the Board's school capacity policy so it can be applied in its deliberations. He suggested the paperwork generated for the Board's deliberation include the School Board information on the front page so Commissioners do not have to look at four different areas to make a decision on school overcrowding. Chairman Carlson advised no action is required as the previous policy will remain the same.

PUBLIC HEARING, RE: TABLED ITEMS FROM PLANNING AND ZONING BOARD
HEARINGS OF AUGUST 6, AND SEPTEMBER 10, 2001

Chairman Carlson called for the public hearing to consider the Planning and Zoning (P&Z) Board's recommendations of August 6, and September 10, 2001, which were tabled by the Board of County Commissioners on October 4, 2001, as follows:

Item 1. (Z0108404) George Harold and Nihla H. Trosset and Robert F. (Sr.) and Patricia Ann Trosset's request for change from AU to EU on 1.96 acres located on both sides of Rockledge Drive, north of Coquina Road, which was recommended for approval by the P&Z Board.

George Trosset advised they are trying to build a home in their backyard for his parents; the request is to convert the zoning from AU to EU so they can build the house; he heard all the discussion about the schools and problems this one extra house will create; and he would like to have a motion, vote, and an answer today.

Commissioner Higgs inquired if there is a statement Mr. Trosset can make that will indicate he will not violate the Comprehensive Plan by adding to the overcrowded schools. Mr. Trosset stated his parents are 71 and 72 years old and will not have any children; the home is for them as long as they are alive; and when they die, it will be sold, but he does not know who will buy it or if they will have children or not. Robert Trosset stated he had a home next to his son and sold it; the two lots were combined for AU; and now he wants to stay in the area instead of going somewhere else. Commissioner Higgs inquired if Mr. Trosset is willing to offer a binding concept plan; with George Trosset responding no. Commissioner Colon stated it is frustrating for the residents because it has been going on for a long time.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 1 as recommended by the P&Z Board.

Commissioner Scarborough stated someday Mr. Trosset's parents will pass on and somebody else will move in who may have children; but the demographics of Brevard County show a shifting from a younger to an older population; and the children of young families will grow up. He stated people will be moving in from other areas and other states; to go back and track every home will be frightening; and the prudent thing to do is believe Mr. Trosset who said his parents will be living in that home.

Commissioner O'Brien stated people expect the population of Brevard County to become older than it is, and perhaps more people who move here will be older; however, there will still be children because working people will be moving here with children. He stated if 60% of the people moving to Brevard County are under 35, in ten years 60% will be over 35, but there will still be 40% who will be 35 or younger and have children; the population of children will grow exponentially as the population increases, so schools will remain overcrowded; and he does not perceive the whole County getting so old that there will be no children here. He stated the population at the schools will not decrease unless the School Board builds more schools or expands existing schools; so there is no magic wand that the Board can wave and say everybody is going to be old in Brevard County. Commissioner Scarborough expressed concern about tracking a house into the future forever.

Nihla Trosset stated there are areas where smaller homes will be built; and inquired if that is ever taken into consideration within the restrictions. She inquired how can a family move into a small home; and stated that is a good consideration for limitations. Chairman Carlson stated because this is a zoning issue, the Board does not know what is planned in the building of a home, the square footage, etc.; and that is not the discussion before the Board. Commissioner Higgs inquired if Ms. Trosset is offering a binding development plan regarding the square footage; with Ms. Trosset responding no.

Commissioner Colon stated it would be an injustice not to allow someone like the Trossets to build a home; it is almost like they are the victims because the Board wants to decide whether it is one or three regarding school capacity; and inquired what is this really about and is it to stop growth in general. She stated the Board has no control over whether somebody rents a home to a family with three children, yet it wants to tell these people the Board needs a contract. She stated the Board does not know if it will be able to fix the school overcrowding problem in five years; but it would be an injustice to tell these people the Board wants a contract; and it is almost to the point where it is insulting. She inquired if the Board is going to be the family police; is it going to make sure that once they sell the home, it is not sold to a family; and what is the Board doing. Commissioner Colon stated the Board needs to think this issue through; it is affecting people's lives; people get angry with government that tries to put all those regulations on them; and they are saying when is it enough. She stated she is for smart growth and trying to stop school overcrowding, but not to the point of being so arrogant and telling the citizens what they are going to do; and it gets to the point of being ridiculous, and is not fair. She stated she knows the tempers of every Commissioner; and if they were standing at the podium and someone said something like that to them, they would say exactly what Mr. Trosset said because the Board is really pushing it now. She stated the Board needs to be fair; and the applicants have been kind enough to come to meeting after meeting and have said they have no intention of overcrowding the schools because the parents are in their 70's. She recommended the Board concentrate on the fact that they are not going to be affecting the schools and proceed with the item.

Patricia Trosset stated they have been working on this item since early June when she wrote a check to the Board of County Commissioners; if they had met in July, the whole thing would have been taken care of before the controversy about the schools became available; and inquired if there is grandfathering in since they applied so long ago; with Chairman Carlson responding the item of school overcrowding has been around since before June. Ms. Trosset stated the polices were not as firm as they are at this time; with Chairman Carlson responding she agrees.

Chairman Carlson called for a vote on the motion to approve. Motion carried and ordered; Commissioners Higgs and Carlson voted nay.

Item 2. (Z0109201) Cape Canaveral Hospital Foundation, Inc.'s request for change from GU to EU on 1.53± acres located on the east side of S. Courtenay Parkway, north of its intersection with South Tropical Trail, which was recommended for approval as SEU by the P&Z Board.

Chairman Carlson advised the affected schools are Tropical Elementary, Jefferson Middle, and Merritt Island High Schools; Jefferson Middle School is the only school with additional capacity; and inquired if the proposed number of units will go from two to four units; with Planning and Zoning Director Mel Scott responding yes, however, the property was subdivided substandard to the wetlands regulations. Mr. Scott stated the 1.53-acre parcel was created at a time when if the property was predominantly wetlands, as this property is, it was limited to one unit per five acres; so approval of this zoning action would not enable the property to obtain a building permit. He noted Debbie Coles is here to clarify the issue.

Natural Resources Management Supervisor Debbie Coles advised during the October 4, 2001 Board meeting, it came to staff's attention that the lot was not a legally established lot; therefore, she had questions about the language in the Code that relates to density on legally established parcels. She stated they consulted with the County Attorney's Office; and it was found, because Zoning did not consider it a legally established lot when it was established in 1987, which predates the wetland policy, it is currently not a legal parcel, and they could not consider it a legal parcel.

Commissioner Scarborough inquired if the applicant is present; with Chairman Carlson responding no. Commissioner Higgs inquired what can be done on the property; with Ms. Coles responding currently there are uplands on the parcel, but the uplands are long and thin and there are remnants of mosquito impoundment activities that occurred many years ago. Ms. Coles stated in their current configuration, the uplands cannot support a home, septic tank, and driveway; it is her understanding that Cape Canaveral Hospital has a contract to sell the property to an individual who wants to build a single-family residence; he gave her a plot plan layout of what he wants to do on the property; and it will involve impacts to wetlands. She stated if the property was zoned properly at the appropriate time, staff could have moved forward with the item because the Code allows for legally established lots to have a certain amount of vested rights, which would be the house pad, septic tank fill, and fill for the ingress.

Commissioner Higgs inquired under what circumstances can a person build on a GU parcel; with Planner Robin Sobrino responding if it is a nonconforming lot of record between one and five acres. Commissioner Higgs stated this parcel is not a legal lot of record; with Ms. Sobrino responding that is correct; the lot was created in 1978; and a nonconforming lot of record would have had to be created by 1975. Ms. Sobrino advised it is an illegal lot; based upon that, they are unable to obtain building permits because they do not have proper zoning; they applied for rezoning with the understanding it would enable them to create a legal lot from a zoning standpoint and thereby obtain building permits; but since it is not a legal lot, they must have five acres for one unit. Commissioner Higgs inquired if by granting the rezoning the Board is saying the illegal lot is legitimate through zoning to allow building; or could the Board deny it based on it being an illegal lot, created illegally, and that it does not have a buildable envelope; with Ms. Sobrino responding it is a "Catch 22" situation because if the Board gives it any type of zoning, it will make it a legal lot, but they will still encounter the wetlands restriction that would not allow them to build on the lot.

Chairman Carlson inquired what is the purpose of granting the rezoning; with Ms. Sobrino responding originally when they submitted the application, the Office of Natural Resources was under the impression it was a legally established lot; and on that basis, there was an indication that if they got the proper zoning, they would be able to proceed to the building permit stage; however, it came to light that it is not a legal lot; so it is basically a "Catch 22" situation.

Commissioner Scarborough stated he does not care if the Board decides to deny it the next time, but since the applicant is not here today, the item should be tabled to allow the applicant to participate in the discussion.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 2 to November 1, 2001 Board of County Commissioners meeting.

Commissioner O'Brien state the property was a gift from Mr. Provost to Cape Canaveral Hospital to be sold to raise funds for the hospital; it was not an illegal lot at that time; so the County may have to establish when it became illegal and who owned it at that time. He stated there is a paragraph that says if the Board changes the zoning to SEU, which the adjoining properties have done; they would still not be able to build; so it may come down to the County having to buy the lot, if it made the parcel unbuildable.

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

Mr. Knox advised after the Board made the decision on the Trossett application, to give it an idea of how this plays out and why it is better to handle it the way the Board did rather than try to set a threshold, what it had was evidence from the people saying their parents are going to live in the house and that the parents are 71 and 72 and will not have children. He stated Commissioner Scarborough made an important comment that he believed them and they are credible; as a quasi-judicial body, the Board judges the evidence it hears and the credibility of the people who testify; and the take on this matter is that three of the Commissioners believed the evidence they heard was sufficient to warrant the finding of no impact on the school capacity and two did not. Mr. Knox stated that is the way it works; the Board has to judge those things and make those determinations; and if the evidence supports its view of what the Comprehensive Plan policy says, then the Board can go forward with it.

Commissioner O'Brien stated Mr. Knox also said the Board has to be consistent in making those statements to defend itself in the future; with Mr. Knox responding no, all the Board has to determine is that a particular application is consistent with the Comprehensive Plan on a case-by-case basis. Mr. Knox stated he would have an easier time defending what the Board did with the Trosset application than he would defending a $20 million lawsuit by a big developer who was denied because he did not meet school capacity requirements. Commissioner O'Brien inquired why was Commissioner Scarborough's statement important; with Mr. Knox responding because the Board judges the credibility of people who come before it as witnesses presenting evidence; and if the Commissioners believe what the people are saying, they can take that into account when making a determination on whether or not it will cause a problem with school overcrowding.

Item 3. (Z0109502) Vistar Realty, Inc.'s request for change from BU-1-A to RU-2-10, removing existing BSP on 0.269 acre located on the northeast corner of Coconut Drive and Neptune Road, which was recommended for approval by the P&Z Board with access limited to Coconut Drive.

William Tollmann, representing Vistar Realty, Inc., advised he is requesting a piece of property they own on the corner of Coconut Drive and Neptune Road be rezoned from BU-1-A to RU-2-10; he provided the Planning and Zoning Department with a binding development agreement stating he would only build two units on the property; and in order to address the concerns he heard today, he will add an amendment to the BDP that no one under the age of 18 will live in the units. He stated he built nine buildings in the immediate area; and there are no school children residing in those buildings.

Commissioner Higgs stated the property abuts RU-1-9 property on three sides; in addition to the issue of school overcrowding, the Board deals with issues of compatibility with surrounding property; and inquired if Mr. Tollmann could address that issue. Mr. Tollmann stated the property immediately to the north is single-family residential; the property immediately to the east facing A1A and across the street from Quality Suites is a brick office building which is in the process of being rehabilitated; and the property to the northeast of that is property he owns on which he built duplexes similar to the ones he wishes to build on the subject property.

Commissioner O'Brien inquired if the property to the north is a single-family home; with Mr. Tollmann responding yes. Commissioner O'Brien inquired about the property toward the ocean; with Mr. Tollmann responding it is an office building of about 4,800 square feet. Commissioner O'Brien inquired if there are other duplexes close by; with Mr. Tollmann responding he owns the duplexes immediately to the north of the office building. Commissioner O'Brien stated his photographs were done in 1962 or something; with Mr. Scott responding Mr. Tollmann is referring to new construction; and to the northeast, where it shows natural vegetation is now the location of townhomes. Commissioner O'Brien expressed concern about moving to the west into RU-1-9 neighborhood of single-family homes. Mr. Tollmann stated they abut those homes now from the back. Commissioner O'Brien stated that is understandable and is done quite often as they move from single-family homes to the major highway; but Mr. Tollmann is requesting to move inland into the single-family neighborhood; and he has a problem with that.

Commissioner Colon stated she also has a problem with that and would prefer RU-1-9; and inquired if Mr. Tollmann has a problem with the entrance being from Coconut Drive. Mr. Tollmann stated no, and he included that in the binding development agreement that they would only enter from Coconut Drive. He stated he does not know why it was zoned BU-1-A because it was originally RU-2-10; but the owner of the office building got it rezoned to BU-1-A with the intent of expanding his facility and creating additional parking. He stated they are requesting a downzoning from BU-1-A to RU-2-10 in order to build a building, which will enhance the area; and there will be no impact on the schools or traffic.

Commissioner Colon inquired how big is the property and what can be built on it with BU-1-A; with Mr. Scott responding the current binding site plan on the property limits the use to a parking lot; and if the Board removed that BSP, single-family residential construction is a permitted use in BU-1-A. He stated right now the property is bound to be just a parking lot; and if the applicant pursues a BU-1-A use, it may pose problems with onsite stormwater retention. Commissioner Colon stated she has a problem with compatibility to the north and would prefer the integrity of the neighborhood remain the same with RU-1-9.

Motion by Commissioner Colon, to approve RU-1-9 for Item 3.

Mr. Tollmann stated it is totally inconsistent with what the Board is trying to accomplish; he is asking to downzone to RU-10 to build a duplex building and enter into an agreement that no one under the age of 18 will live there; so it will not impact the schools. Commissioner Colon stated it is not only about schools; with Mr. Tollmann responding what the Board is doing is saying it wants him to have RU-1-9, which is residential; he can build a five-bedroom home, which will impact the schools with four or five children in the house; but the choice is up to the Board.

Motion by Commissioner Colon, to approve Item 3 as RU-1-9 and entrance from Coconut Drive only.

Commissioner Scarborough stated the Board will have to have a binding development plan because it does not have the ultimate owner here tonight unlike the prior case; Mr. Tollmann is the developer and told the Board it will have an inconsistency problem; so he cannot support the motion because of the other problem.

Commissioner Higgs inquired if the applicant has the ability to build a residential unit on the property; with Mr. Scott responding no, because of the binding site plan that is on the property which limits the use to a parking lot.

Commissioner Colon withdrew the motion.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to deny Item 3. Motion carried and ordered unanimously.

Item 4. (Z0109102) Sharon K. Speers' request for change from AU to RRMH-1 on 1.25 acres located south of SR 46, east of the southern terminus of Timothy Court, which was recommended for approval by the P&Z Board.

Commissioner Scarborough inquired if Ms. Speers will be putting students in the schools; with Ms. Speers responding no. Commissioner Higgs inquired if Ms. Speers has an existing home; with Ms. Speers responding yes, a mobile home. Ms. Speers stated the mobile home belonged to her father-in-law who died Sunday morning; and it has been on the property since 1973. Commissioner Higgs stated there will be no change in the number of residential units in Brevard County as a result of this rezoning. Ms. Speers stated there is not going to be a home built; her father-in-law gave this land to his son, who was her husband and died in Vietnam; this is now her land; and she is trying to get everything straight the way her father-in-law wanted it before he died.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

The meeting recessed at 12:08 p.m., and reconvened at 1:15 p.m.

DISCUSSION, RE: SARNO ROAD CLASS III LANDFILL

Assistant County Manager Stephen Peffer advised on August 28, 2001, staff was asked to provide the Board a presentation regarding the Sarno Road Landfill, show the Board the expansion plans for the facility, and provide the opportunity for discussion of those plans. He stated the Solid Waste Management Department has been working with the consultant WCG Inc. and developed a presentation to provide a partial chronology of what the plans are at Sarno, both in the past and for the future; and the presentation will be provided by Ron Beladi, professional engineer working for WCG and the project manager for this presentation. He stated after the presentation, Mr. Beladi, Solid Waste Director Euri Rodriguez, and he will be available to answer any questions.

Ron Beladi, consulting engineer with WCG Inc., advised they are the engineers for the Brevard County Solid Waste Management Department and were asked to present a brief summary of the County's existing and future plans for the Sarno Road Class III Landfill. He stated the Brevard County Solid Waste Management System has historically been divided into three service areas; and each of those areas has certain facilities that allow the County to manage the solid waste in an environmentally safe and economically efficient manner. He stated the North County Service Area has the Mockingbird Yard Waste Mulching and Recycling Facility and the Titusville Transfer Station; the Central County Service Area has the Central Disposal Facility (CDF) with a combined Class I and Class III landfill, yard waste, mulching, and recycling facility, a solid waste shredder, and volume reduction facility, and other waste processing operations; and the South County Service Area includes the Melbourne Transfer Station and the Sarno Road Class III Landfill. Mr. Beladi advised Class III landfills by definition are limited to those that are permitted to receive and dispose of construction/demolition materials, furniture, carpets, landclearing, tree stumps, and other yard waste and clippings; a Class I landfill in contrast is where household garbage, food waste, and other putrescible waste and garbage are required to be disposed of; and it is important to remember that the landfill at the CDF in Cocoa is both a Class I and Class III landfill, but the one on Sarno Road is only permitted for Class III material. He advised in the South County Service Area, for the next 25 planning periods it is projected that the County would need to provide disposal capacity for approximately ten million cubic yards of Class I solid waste and a little less than six million cubic yards of Class III solid waste; the County's adopted Capital Improvement Program for the South County Service Area is to construct a new Melbourne Transfer Station and continue to transfer the Class I waste to the CDF in Cocoa, and continue to dispose of Class III waste at the Sarno Road Landfill until the capacity is exhausted. He stated the Melbourne Transfer Station is well underway; the project was initiated in 1996 by purchasing 23 acres adjacent to the existing facility; all the engineering plans and designs have been completed; and all permits and approvals are in place. He stated the County is in the process of selecting a contractor within the next few weeks to start construction in mid-December, 2001. Mr. Beladi stated for the Class III segment of the CIP, Sarno Road landfill is expected to meet the disposal needs of the South County Service Area; the landfill has been in operation since the 1940's; County control and ownership officially started in the mid-1970's when the County constructed a transfer station to transport Class I waste to Cocoa and converted Sarno Road Landfill into a Class III land for construction, demolition and landclearing material. He stated existing solid waste operations at Sarno Road include a Class III disposal, yard waste, mulching and recycling, and other waste processing such as tires and minor waste processing and transferring out of the County. He stated property acquisition by the County at Sarno Road goes back to 1954; the board shows all the different parcels that were acquired by the County and the dates they were acquired; currently the County owns 286 acres at the Sarno Road facility; but not all of those properties are permitted by the City of Melbourne for solid waste disposal. Mr. Beladi advised the last purchase was the 68 acres of McCauley property that was purchased in June, 2000; only 28 acres of the property are permitted for disposal activities; and the County purchased the McCauley tract because it was offered for sale to the County by the owners and provides an additional seven years of disposal capacity to the County. He stated it included zero acres of natural buffer to the surrounding properties; the price was below the appraised value; and public ownership and operation of the landfill assures responsiveness of the County to meet long-term needs of the community. He presented and explained an aerial photo of the land use approved by the City of Melbourne, the boundary lines of the County properties, the Forte McCaule property with the west 28 acres permitted for disposal of solid waste, and the private Melbourne Class III landfill. He stated the County is planning to request permitting from the City of Melbourne for the southern area; and stated there are indications the southern area was previously altered and used by the City of Melbourne as a landfill. Mr. Beladi advised the County is considering keeping a 100-foot buffer on the east side and a 200-foot buffer on the south side, and planting two rows of trees to eventually provide a visual barrier to the surrounding properties. He stated the County is finalizing development plans for the area to address the input provided by the adjacent property owners to continue with a good neighbor policy; and the County is also preparing a conditional use permit application for submittal to the City of Melbourne for approval. He advised soil borings from the southern area showed pre-existing use as a landfill anywhere between eight and twenty-four feet below ground; that limits other land utilization; the County plans to use the area for some of the waste processing that is currently done on top of the landfill; and displayed a map showing the existing processes being done on top of the permanent disposal area. He stated the existing yard waste mulching operation is on top of the landfill; every time the County needs to use the area for disposal, they have to move the operation to other parts of it; and now there is no more room on top of the disposal area to move the operation. Mr. Beladi advised there is one road in and one road out of the landfill that is used by all kinds of vehicles; there is a safety concern; moving the yard waste mulching and recycling operation into the southern expansion area would make it more efficient; they would not have to keep moving it; and it would allow the County to operate the landfill as it is permitted by Department of Environmental Protection. He stated it provides a dedicated citizens' drop-off area in the southern expansion and separates the small traffic vehicles from the large truck traffic; it provides an area for citizens to obtain free mulch; and trees will be planted and earthen barriers may be constructed to provide a visual and noise barrier in that southern expansion area. Mr. Beladi stated the estimated site life remaining at Sarno Landfill with the current land use approvals is approximately 21 years; and if the City approves the CUP for the southern expansion, it will extend the remaining life to approximately 28 years. He stated the County plans to obtain a CUP from the City for the southern expansion area to develop new yard waste mulching and recycling area, continue negotiations with owners of Melbourne Landfill for possible purchase, complete construction of the new transfer station, continue to transfer Class I solid waste to the CDF, and coordinate with the City to develop an end-use plan for the property when the Sarno Road facility reaches full capacity. He presented a picture of a closed landfill in Palm Beach County, which is roughly the same size as the Sarno Road facility, developed as a neighborhood park with soccer and softball fields, basketball court, jogging trails, model airplanes, and a future golf course for handicapped children. He stated the landfill can be planned and operated to provide benefit to the neighborhood long after it has exhausted its usefulness as a solid waste management facility.

Bonnie DeCaro, resident of Indian Head Subdivision, implored the Board to reconsider the expansion of Sarno Road Landfill away from Sarno Road. She stated not only does the current facility weigh heavily on the quality of life in adjacent residential areas, but also impacts businesses such as Wuesthoff Hospital that is going up there, Wal-Mart, and Tandem Health Care. She stated she spoke to many residents in Indian Head and Fountainhead Subdivisions, and adjacent condos and apartment complexes, and everyone told her the issue was a concern to them and they did not like the bugs and smell. She presented a petition to the Board signed by residents who live and/or work in the area. Ms. DeCaro inquired why was the land purchased for many millions of dollars above what it was purchased for just days before, what accountability standard allowed that to be done, and were the people notified the County was going to purchase the site and expand the landfill, bringing it closer to the residents.

Cheryl Palmer, Melbourne City Council member, advised it came to her attention a few months ago that there had been a purchase of an additional 68 acres for expansion of the Sarno landfill; the City was surprised as during the last quarter of 1999 it was heavily involved with the County on permitting of the transfer station; and some of the Council members were taken on a tour of a facility in Seminole County and the landfill in Cocoa, and no mention was made of future plans to expand operations at the Sarno site. She stated the City was also in the middle of lengthy negotiations on a joint planning agreement with the County to better serve the constituents of the Cities and the County by coming together and making sure they are all doing things in the best way for all citizens. She stated in looking at the documents of the purchase, not only was there planning to expand the landfill site, the conditions of the purchase were rather suspect; it appears that Forte McCauley Corporation and another corporation purchased the property and came to the City for a conditional use permit for a recycling facility with the Class III landfill as part of the overall site plan. She stated she visited Chairman Carlson and Commissioner Colon and asked them to have the County come forward to the City and show its long-range plans for the area and tell the City something about the purchase because apparently they issued the conditional use permit in February and almost immediately after that the property was appraised and the appraised value jumped by $6 million, then the County purchased it. Ms. Palmer advised Commissioner Colon hosted a community meeting where Mr. Rodriguez responded to her question and said the decision was made to expand the landfill at the Sarno site in 1996; but there was no move to purchase the property until after the value had gone up $6 million based on a conditional use permit. She stated it seems like the people who came before Melbourne City Council misrepresented what was going to happen with the property; that betrays the joint planning agreement; and it does not bode well for intergovernmental workings. She stated the whole situation looks bad; and those are her statements as a City Council member. Ms. Palmer stated, speaking as a resident near the landfill, it looks bad to the people who live nearby that the County has property to the west away from the City but decided to put "three mountains" in the City in the middle of residential and commercial property. She stated Class III waste is supposed to be in those mountains, but there is no control over everything that goes in there. She advised it was used as a landfill many years ago; it is flat, covered over, and nothing else is going in there; and requested the Board look back at the purchase and see if they have done everything right, been faithful to the people of the County and the City in spending their money wisely, and been forthcoming about the plans. She requested, when the Board has a plan that will impact one of the cities, it go to that city and discuss the plan, and the County and cities plan together and look at what is good for the County as a whole and not piecemeal. She noted Brevard County is a place where they are trying to protect the environment, and make it beautiful, safe, and clean, and this issue was ill-conceived.

Chairman Carlson advised when the discussions on the joint planning agreements first began, it was the intent of the Board that it include all Departments in whatever way might affect a local municipality; and she apologizes if it appears that the County dropped the ball on this issue. She stated in her briefing with Mr. Peffer, he did not comment on a public interest meeting that happened during the time before the actual purchase of the property; and inquired if the people were properly notified.

Mr. Peffer advised virtually everything the County has done has been guided by the Board; those decisions are made in workshops and public meetings; and the direction to expand Sarno landfill and utilize the investment made there was something that evolved as they made various decisions regarding solid waste. He stated solid waste planning is a long process; the County does have property on the western end of the County; and the Board direction in the mid-1990's was rather than utilize that property in the near future, it would look at that as a long-term investment, but in the short-term, expand in place. He stated the decision to purchase the Forte McCauley property was made in a public meeting; so he is not sure any notice was required. Mr. Peffer advised the rezoning was done by the prior owner; the difference in the value of the property was directly related to the fact that it had a conditional use permit for solid waste activities; when the prior owner entered into a contract for the purchase about two years ago or longer, they were looking at industrial zoned land; so they bought industrial land and the County bought land with a conditional use permit for a landfill. He stated the County's appraisals indicated the price the County paid was several million dollars less than it was worth if appraised as a landfill value.

Chairman Carlson inquired if the County was interested in the property in 1996, and was it available for purchase; with Mr. Peffer responding in 1996, the issue related to a decision not to seek immediate permitting of the property out west; it did not direct any acquisition of property; and it was his understanding that Brevard County was not interested in the Forte McCauley tract until it was offered to the County. He stated the map shows the property to the west, which is the existing Melbourne Landfill private operation; that was the property the County was interested in because it was not only zoned for landfill activity and mulching, but it was in use; and staff had the Board's authorization to negotiate with those people to acquire that property. Mr. Peffer stated later, as staff was dealing with those owners to see if the County might take over that operation, they were approached with the possibility of purchasing the property to the east, which they had controlled ownership over; and that is what led to the decision to go in that direction. He stated it was not the decision that was made in 1996; and it was much later than that when the owners came to the County and asked if it was interested in the property since they knew the County was interested in the Melbourne Landfill property.

Commissioner Scarborough inquired if the County could have purchased the property for $6 million less; with Mr. Peffer responding if the County had made the decision to pursue that acquisition at an earlier date, it might have been available at that time for less; but the County was not looking at that parcel to expand to. Commissioner Scarborough requested staff put it in a time and sequence reference because the allegation is certain things happened almost immediately and the price went up $6 million; with Mr. Peffer responding the issue of immediacy is the turnover in ownership, because after the acquisition of the conditional use permit from the City of Melbourne, the value of that property increased; and it now had a value to the County because it had the conditional use permit for a landfill operation; so the County entered into the contract to purchase it. Commissioner Scarborough inquired if it came before the Board before they got the conditional use permit and had the County decided to purchase it prior to the conditional use permit being issued; with Mr. Peffer responding the Board's first action was authorization to get appraisals. Solid Waste Management Director Euripides Rodriguez advised the property did not come to the Board before they got the conditional use permit; they got the permit before they offered it to the County; and in his conversations with the prior owners, it was their intention to expand their current landfill.

Commissioner O'Brien stated he does not like the allegations he heard about the cost of the property; $7.25 million for 68 acres is $186,000 per acre; the County can only use 28 acres of it, so that comes to $251,000 per acre of usable land; and inquired why did the group buy it in the first place at a far lower price than they sold it to the County. He inquired if it was speculation or did they buy it knowing the County was going to buy the property sooner or later. He stated something in a deal this size does not smell right to him; and he does not like what has happened. Mr. Peffer stated the property the County purchased is adjacent to the property that is being used as a landfill by similar parties; so if they had not sold it to the County, they had a CUP to expand their own operation. Commissioner O'Brien inquired why did they buy it one or two years prior to the County purchasing it from them; with Mr. Peffer responding presumably to expand their own operation. Commissioner O'Brien stated something is basically wrong; he does not know what it is; the presentation says, "Pre-existing use as a landfill limits other land utilization"; and that would not make the property increase in value, and would make it decrease in value because it lacks the ability to be anything else but a landfill. Mr. Rodriguez stated the property as a landfill has a much higher value than any other use; the pre-existing condition is on the southern portion of the landfill and not the northeast portion; and the northeast portion has never been used as a landfill.

Commissioner Higgs inquired when did Forte McCauley get the CUP; with Mr. Rodriguez responding the CUP for the property was obtained within three to six months of their closing out the deal, but he is not sure of the sequence of events; they rezoned the property while they had a contract on it; and before they actually closed on the contract, they obtained the CUP. Chairman Carlson inquired if Councilperson Palmer has a specific date; with Ms. Palmer responding the CUP was issued in February of 2000; almost immediately the property was offered to the County because the County's appraisal was in March or April 2000; and the County closed on the land in May 2000; so it all took place within three months from the issuance of the CUP to the sale to the County.

Commissioner O'Brien inquired if prior to February 2000 the property was worth $6 million less; with Ms. Palmer responding she believes they paid about $1.2 million for the property, but the appraisal went up by $6 million; and Mr. Rodriguez said it was based on the conditional use.

Chairman Carlson inquired if Forte McCauley represented to the City Council that they were going to get a CUP to expand their facility; with Ms. Palmer responding the City received a site plan that included mulch recycling, landfill for Class III materials, a buffer, and a strip of businesses to the east; she is not sure it was on the same site plan, but that plan was presented to the City Council; and some of the background information said it would be taking away some of the materials from the existing County landfill because they would be buying materials from the County for the mulch recycling. Chairman Carlson inquired if they talked about discussing it with the community. Chairman Carlson stated if the County did not buy the property, they would have expanded there; and inquired if there was an issue at that point; with Ms. Palmer responding there would have been a small-scale mulch facility.

Commissioner Higgs inquired if the CUP was for a C&D landfill; with Ms. Palmer responding that was part of the site plan. Commissioner O'Brien stated he has problems looking at land that costs $186,000 an acre that has no other relative purpose. County Manager Tom Jenkins stated the southern piece has no other purpose. Mr. Peffer stated the southwest corner was a pre-existing landfill; that has established the land use of the property; it is not suitable for any other purpose than a landfill; but it is only the southwest corner. Mr. Peffer advised the property that increased in value as a result of the CUP is the northeast portion; and in making a decision to purchase the property, staff considered a number of things, but there were two most important issues. He stated one is that the County has a significant investment in the facility at Sarno Road; and to maximize that investment for the citizens of Brevard County as well as the citizens of the City of Melbourne, they were trying to find the best way to use that operation and extend its life. He stated right now the County has approximately 20 years of life at the Sarno Landfill; that is a very significant asset for Brevard County; and the value of the property is worth more to the County to serve its citizens than it would be to someone else because of the proximity to the existing operation that enhances the value of the County's investment by being able to utilize the property. Mr. Peffer stated although it did jump in value and the County paid more than the prior owners did, the County still paid considerably less by several millions of dollars than what the property was appraised at based on the appraisals staff received. He stated the property did increase in value, but the County did not pay the full increase in value based on those appraisals. Commissioner O'Brien stated if those appraisals had been made two years earlier, they would have been $6 million or $8 million or $10 million less. Mr. Peffer stated two years ago it did not have a conditional use permit for any solid waste activities.

Chairman Carlson advised the County might have been considering looking in that area for property; and inquired if it had been possible to have looked at the subject property ahead of time and put in for a CUP versus having the CUP placed on the property then paying a higher price; with Mr. Peffer responding he cannot say that it was infeasible, but it was not what staff was intending to do; the actual plans were to negotiate with the private operation; and that was where staff was intending to go. He stated when the property owners came to the County with an alternate to consider, they looked at it and evaluated it to try and decide whether that would be a good financial decision to make; and when it came to the County with a conditional use permit for a landfill operation, staff felt that made sense; so they brought it back to the Board with a recommendation to purchase it.

Commissioner O'Brien stated the County could have bought the land next to the McCauley tract and offered the City of Melbourne $5 million for a CUP to operate a landfill rather than let the McCauley group make $6 million on a deal. Mr. Peffer stated at that time, the property was under consideration by the County, but it was under contract for purchase and had been so for several years by another party; so it was not something that was feasible for the County to look at then.

Chairman Carlson stated she was interested in finding out if it was feasible for the County to even look at the property if it was under an option to purchase and the County did not have access to it; with Mr. Peffer commenting they did not.

Commissioner Higgs advised people frequently come before the Board speculating on land and rezoning properties; awarding a different land use or zoning awards them significantly different values; and the County is on the different end of it with the purchase of this property. She stated it occurs before the Board and City Councils all the time; and whether it is speculation to sell to somebody or to use it in a certain way, it happens; and that awards a totally different value on property.

Commissioner O'Brien stated that is true, but when they were before the Melbourne City Council, they said they wanted it for their own use; and then they turned around and sold it to
the County for a completely different use. Commissioner Higgs stated her point is that people come before the Board and say they are going to use the property for a certain thing and then turn around and do different things all the time; and it is not out of the ordinary for someone to seek and receive a land use change that changes the value of the land significantly.

Mr. Jenkins advised if the County had not approached them about the existing private landfill, the discussion would not have occurred; they would have taken the land and used it for mulching and Class III C&D landfill, not a garbage landfill; so if the County did not approach them about buying the existing operating landfill, the offer would not have occurred. He stated they would have taken the property they received a CUP on from the City and continued to operate for many years in the future as a Class III landfill that also does mulching. Commissioner O'Brien stated if he could clear $5 or $6 million profit in a short period of time, he would do the same thing they did. Commissioner Higgs stated it happens all the time. Commissioner Scarborough stated it is generally for economic gain.

Commissioner Colon stated the difference with this issue is that it is taxpayers' money, $6 million worth; that is a huge difference; and what has the community and City upset is that not once did the County say it was looking to acquire a landfill. She stated communication is critical in regards to the trust factor that happens between local jurisdictions; and that is where everything unraveled. She stated she is not questioning anyone's integrity, but there are questions that were asked; they went to Melbourne City Council and said they were going to do mulching, etc.; the Council gave its blessing; and months after that the County purchase the property at a tremendous increase in price. She noted everybody has to make a profit, but within a few months, they made millions of dollars off the purchase; and inquired who knew about it. Commissioner Colon stated Melbourne is very disappointed with the lack of communication; it almost seems like it happened behind the scenes; and that is not good because the County has to work closely with the municipalities. She stated once the trust is not there, it is hard to get it back; the citizens felt they were not told; they felt there was going to be mulching, but they did not realize there was going to be an expansion; and inquired how does government protect itself from someone making that kind of profit based on a CUP. She stated the City of Melbourne was given a certain picture; when the County acquired the land, it did not communicate with the City; and that is why all the questions have come up. She stated she was not on the Board when it happened so she cannot tell the citizens in detail how each Commissioner felt; and she is sure a lot of the Commissioners did not know that the profit would be $6 million. She stated it is fair to say that because of what Commissioners O'Brien and Scarborough said; lack of trust is hard to deal with; and while on the City Council of Palm Bay she dealt with the County on a transfer station in Palm Bay and was very upset over the lack of communication. She stated this is a bit like déjà vu with the lack of communication from the County; landfills are quite controversial; and the community needs to be part of the decision making.

Commissioner Scarborough stated Melbourne heard the CUP presentation and decided it was okay to proceed with it; the CUP is taking a different nature now that the County bought the property rather than a private entity; and inquired if Ms. Palmer has seen it evolve in a different sense than what she envisioned when it came before the City Council; with Ms. Palmer responding the only changes she has seen on the property are an acceleration of the landfill operation; it looks like the mulch facility is still there; it looks pretty from the road; but the landfill is going out at a much more rapid rate. Commissioner Scarborough stated the City and County are sister governments; they serve the same people and are elected by the same people; and it would be tragic if the City finds it easier to deal with someone in the private sector who is profit-motivated as opposed to working with a sister government, which is supposed to make things work easier for the constituents. He stated if that is happening, it is tragic. Ms. Palmer stated she cannot say what would have happened if the County had come to the City and showed Council its plans and asked for a conditional use permit. Commissioner Scarborough stated ten years from now what the County does and how it does things on the project are subjects for discussion between two bodies that represent the same constituents; there should be a partnership because they are trying to reach the same ends; and he hopes that has not been lost in the process. Ms. Palmer stated she hopes not also.

Ms. Palmer advised according to the dates she has, Forte McCauley did not have an option on the property for many years; the purchase and sale agreement was entered into on April 23, 1999; the decision to expand the site was made at a workshop in 1996 according to Mr. Rodriguez; and the Board can find out when exactly that decision was made, but it was before the property was purchased. She stated after she came forward, started asking questions and asked the County to come forward and show the City its plans, she found out that the County was looking at buying the other property to the east and the property to the southwest; and once again the City had not been made aware of that. She noted there has been a perceived lack of faith and trust; in the stormwater plant project, there have been good improvements made through cooperative effort; and that is what they need to do with everything they do to provide services for people. She stated there are a lot of questions; she does not want to make any accusations; but for someone to come in with land speculation when it is taxpayers' money is different than when it is private money.

Commissioner Higgs stated the County bought a parcel below appraised value; the Board was presented with two certified appraisals and felt it was getting a good value; and she does not recall what went on before. Ms. Palmer stated she is sure what Commissioner Higgs saw was an appraisal and a price that looked like a good bargain; she is not making any accusations that Commissioner Higgs did anything underhanded; but what she is saying is the conditional use was granted in February, then the property was offered to the County a month later after the appraised value jumped $6 million. Commissioner Higgs stated she would not accuse the City of granting the property an unbelievable profit because it gave the owners a CUP. Ms. Palmer stated the City did not purchase anything. Commissioner Higgs stated the City gave the owners the right to develop a landfill, which increased the value of their property by $6 million; but she is not accusing the City of any wrongdoing; the County bought what it thought was a good deal based on the appraisals it had; and she would not accuse the City of having granted to that landowner an unbelievable profit. Commissioner Higgs stated the Board had two good appraisals; and not only can it justify the price based on the appraisals, but the additional capacity per cubic inch came within what she assumed was the value of a landfill. Ms. Palmer stated if Commissioner Higgs is satisfied with the things that transpired, she is the one who sits in the Commissioner's seat. Commissioner Higgs stated the City should not have given them the CUP. Ms. Palmer stated if the County made the decision in 1996 to expand, the City did not know that until after the fact; if the decision was made in 1996, the property should not have been purchased two months after the price went up by $6 million; and she presented that information to the Board to do with what it will. She stated she is sure the Board did not understand that at the time the transaction took place; she is not suggesting that it did, and does not believe that it did; and she believes the Board felt it was getting a good deal, but it should look back and look it over, and in the future have a more open relationship with the City of Melbourne. She noted she sees no reason why the County could not have come to the City for the same conditional use permit.

Chairman Carlson stated that was her question, if there was an opportunity to purchase the property then go to the City for a CUP and save $6 million; but based on what staff said, the property was under an option or was not available for sale at the time.

Mr. Peffer stated there are some things he would like to clear up; first there was no specific decision in 1996 to expand Sarno Landfill; the decision referred to in 1996 was not to pursue permitting of the property to the west, which is referred to as the Deseret property; and it was sort of a default to make the best use of existing facilities if the County was not going to pursue permitting of that property. He stated that was done at Melbourne and the Central facility where the County made significant investments over the last years to take advantage of the existing use. He stated Ms. Palmer asked that the County make full disclosure of its plans regarding Sarno Landfill; and he hopes that before leaving today, the Board does not get bogged down in talking about what happened, but really show, in a complete way, what the future of that site could and should look like. Mr. Peffer stated perhaps in discussions with the City regarding the transfer station staff was too or focused on that particular project; transfer and landfill operations are two very distinct operations; and when staff was talking with the City and trying to get those permits, they were focused on the transfer station and issues related to the transfer operation. He stated he does not believe staff intended to withhold information; it was not considered to be part of that discussion; and although the site abuts the landfill, it does not abut any other expansions, so in their minds it was not related. He stated if that was an oversight, the County owes the City an apology; and that is a point he wants to make publicly to the Council and the Board. He stated staff is now aware of the perception that they have not been talking with the City; they will do everything they can in the future to make sure that all decisions are fully communicated to the City; and since they became aware of the City's concerns, they have tried to do that. Mr. Peffer advised he has communicated with the City Manager who is in communication with the Council to make sure the City knows of items that are on the Agenda that are related to the operation; they intend to continue to do that; they have a need to cooperated with the City, as they are requesting another CUP to use the southwest corner of the property; and they need to work with the City on that. He stated Mr. Beladi was showing the intended use of the southwest corner; those were conceived as the best use of that property, but staff is flexible as to how they might want to use it; and if there is a better place in the City's mind to do the operation of mulching, staff will consider that. He stated they have been talking to Wuesthoff Hospital staff to make sure any future use of the property minimizes potential impact on them even though the County has been there on that property since 1954. Mr. Peffer stated it is staff's full intent to work with the City and communicate and the citizens; but beyond what was presented, there are no plans to do anything more; and the only change to the Forte McCauley tract is who will operate it. He stated when Forte McCAuley got the CUP, the land use became established; the County can do as good or a better job of operating a landfill on that site as any private owner can; and he will assure the City that staff will work with it for future closure plans. He noted Mr. Beladi showed some potential ideas that could be used; they recognize the need to serve the citizens; they can plan a buffer to have multiple uses; and they can plan the future area once the landfill is closed in a way that can maximize use by the citizens of the City. He stated the County is not here to make a profit but to provide a public service; it serves the same citizens the City serves; they owe it to the City to work out the future plans of the area; and that is a commitment they are now making as public as he knows how to make it.

Ms. Palmer stated she is glad that staff has come to that conclusion after the fact; she hopes any future plans do not come to the City piecemeal; and the County may have saved the taxpayers some money, headache, and aggravation, and the people who are going to be heavily impacted may have had more opportunity to provide input. She stated they have not had enough input into this transaction, yet they will be heavily impacted.

Commissioner Scarborough stated when the County put in Mockingbird Way Mulch Facility, it had dialogues with the City of Titusville; ultimately it became something that looks like people are entering a park; and the people now like the idea of going in there and getting mulch and dropping off hazardous waste. He stated it did not happen because staff thought of it; the community and the City were involved in every step; so, it is more than getting notice of a meeting. He stated they need to be part of it when it starts and provide input, ideas, and thoughts; and that is the way he wants to see it, so when it comes up, it is their thoughts that are being considered; and that is where the Board wants to be with the City of Melbourne. Ms. Palmer stated that is how they all felt with the joint planning agreement, and that is why it was conceived. Commissioner Scarborough stated it goes beyond that; the City may have a lot of good ideas; and the citizens are deprived of that if the County does not bring them into the process early on.

Chairman Carlson stated the joint planning agreement works both ways; in the future, if something comes up that may impact the County, the City could allow the County some notification so it can provide comments during the CUP process that may have benefit to the citizens as a whole. She stated it is a two-way street; and she appreciates the City of Melbourne joining the County through the joint planning agreement.

Commissioner Higgs inquired if the joint planning agreement covers the area being discussed; with Assistant County Manager Peggy Busacca responding no, it does not, and is not a part of the joint planning agreement. Commissioner Higgs inquired if the joint planning agreement has particular geographic boundaries; with Ms. Busacca responding it does, and the property is not included within those boundaries. Ms. Palmer commented she wonders why the agreement did not cover the area in question. Commissioner Higgs stated the area is inside the corporate boundary of the City so it would not be covered by the agreement. Ms. Palmer stated it has a lot more to do with the City than what is on their borders inside the City. Commissioner Higgs stated she is not disagreeing with that, but the agreements were designed in terms of annexations and rezonings, etc., not necessarily how a particular zoning is delivered. Ms. Palmer stated it was her understanding the agreements were designed to make sure that in areas where they are adjacent and may impact the County or the County may impact the City, they would sit down and plan together and not come in after the fact or at the last minute with complaints. She stated it is to sit at the table ahead of time and look at where they are going together. She stated she represents the same people the Board does and she does not want to cost them a lot of money or negatively impact their lives. Commissioner Higgs stated the agreements that have been developed up to this point have been very specific with specific areas and terms; and maybe in the future they need to be expanded. Mr. Peffer stated regardless if the agreement covers the property, staff intends to continue to work with the City in a forthright manner.

Commissioner Colon stated for about six or seven months the City Manager of West Melbourne has asked her to get together with the City Managers and County Manager; at the end of this month, the Cities of Melbourne, Palm Bay, Indian Harbour Beach, and Town of Melbourne Village will meet informally to discuss things that are going on in the community; and the County Manager will be there also. She stated they are planning to do that quarterly from now on within the District. Ms. Palmer stated that is a wonderful step in the right direction; every city is interested in what the County is doing; the County surrounds the cities and provides part of their services; so they are very interested in working cooperatively. Commissioner Higgs stated the County is equally interested in doing that; and if the cities would send their proposed annexations before sending them to Department of Community Affairs, that would maintain the same spirit.

Commissioner O'Brien stated the Board owes it to the public and has a responsibility to them; today it heard veiled accusations of wrongdoing; so the Board should go to an outside legal firm and ask for an investigation. He recommended a list of questions be brought back to create one list that will prove or disprove any wrongdoing; Commissioner Higgs may be right that they got a CUP and then asked the County to make a deal; and he wants to know how that occurred. He stated all parties involved should be investigated; it may have been an employee who went to work for Forte McCauley and mentioned buying the property and making a deal; and he would like to know how it was all put together. Commissioner O'Brien stated he would like to find out what the appraised value of the property was before they got the CUP and the value after the CUP, and if they do an investigation, who should they interview, what caused the sequence of events to occur, what was said at the meeting in 1996, was the property discussed or not, etc., who are the corporate personnel of Forte McCauley, Inc., who was involved in the whole deal, were there meetings some place or not, and is it an arm's length distance transaction that took place, so the public can find out what is true and what is not true.

Commissioner Scarborough inquired if Commissioner O'Brien wants Mr. Knox to come back with a name of a private firm to investigate it; with Commissioner O'Brien responding a private law firm that knows how to investigate this and clear all parties involved or say they found some problems. Chairman Carlson stated that is a good idea. Commissioner O'Brien stated the Board owes to the public; and to do nothing is wrong.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to instruct the County Attorney to get a private law firm to investigate the transactions and do a complete and thorough background check from 1996 to present regarding the purchase of property from Forte McCauley for expansion of Sarno Road Landfill, and return to the Board with the name of the firm for the Board to consider hiring it. Motion carried and ordered unanimously.

Chairman Carlson stated what has been brought out today needs some resolution; and it needs to be done in an objective manner. Commissioner O'Brien stated it should be an official, complete, and thorough investigation going all the way back to 1996 and including parties involved.

RESOLUTION, RE: UPDATING MISSION AND MEMBERSHIP OF CITIZEN BUDGET
REVIEW COMMITTEE

Commissioner O'Brien advised he read all the letters from previous Committee members; their comments were to the point; it appears the intent of the Committee has been circumvented; and the Board needs to fix it or get rid of it. He stated some of the comments were: the results do not justify the resources being spent in the process, it was hard to coordinate objectives, absence of leadership prompted by appointment of wrong type of individuals, budget process is complicated and takes more than one year to understand, disband the Committee, establish an annual plan if retaining the Committee, and other committees have their own agendas. He inquired where will the Board go from here and can it get good advice from a committee before the budget process starts in June. He stated it is unfortunate that the Committee has not functioned well and was unable to attain its task and goals and became political instead of analytical; and statements from previous Committee members say the same thing.

Chairman Carlson stated when she got on the Board, she never received a report from the Budget Review Committee since 1997 because of its inability to get together and get through all the data; it has not been a functional purpose; and maybe it has to do with the guidance the Board gave them, which may be a global guidance.

Commissioner Colon stated one of the issues is that the Board needs to appoint members so they can have a quorum; perhaps they could be at-large and have alternates instead of just one from each District; it is difficult dealing with the budget; and she would prefer that the members be consistent, but they are frustrated because they want to help in time but never had enough people to do that. She stated Mr. Young had five points in his letter regarding recommendations; and she would suggest appointing the people so they can have a quorum and make it at-large.

Dale Young advised General Lynn said the Committee lacked leadership, but he was the Chairman; John D'Albora was in favor of continuing the committee; Roger Dobson is a CPA and CPA's are the worst people to put on this Committee because their job starts when the

Committee is working, so Mr. Dobson was ineffective during his time; and they had several Generals, Colonels, and prior Commissioners, and it has enjoyed pretty good attendance. He stated the problem right now is not all Commissioners have appointed their members; it is hard to get a quorum; and that is the reason for the resolution, to change the makeup so they can conduct the Committee's business. He stated he helped to get the Committee started 11 years ago; the reason was because the budget was a total mess; there were no documents they could make sense out of; and it was a pitiful process. Mr. Young stated it has greatly improved since the Committee started; it created the Budget Office; and the Committee is needed more now than in the past because the State and local economy is under a degree of destabilization since the events; and it is going to be more important than ever that the County's revenues and expenditures are monitored closely. He stated the Committee takes a broad view of the entire budget as opposed to individual committees that look at their own agendas; and he hopes the Board will consider the resolution and keep the Committee in existence.

Kim Zarillo stated she disagrees with Mr. Young on some points and agrees with Mr. Dobson's letter; she served on the Committee for a couple of years; and there was a quorum at those meetings but nothing was accomplished. She stated two hours were spent discussing different viewpoints of the audience; and when she asked that the Committee get back to the purpose in the original Resolution Mr. Pritchard said he did not want to do that and wanted to discuss other things; so they did not want to follow the Resolution. She stated the Committee was designed to serve a function for the Board and citizens; she does not believe a report has been provided to review the budget because they go off on tangents on what individual members want to discuss; and sometimes there were two or three staff members from different Departments who spent hours discussing their programs when that information was in the budget material. She stated there is Brevard Leadership if people want to learn about the County; the County has a citizens forum to learn about Departments; but they did not perform the function stated in the Resolution so she does not see how the Committee can function whether it has a quorum or not. Ms. Zarillo advised it takes someone with County and State budgeting background, and knowledge of the laws and budget forms and timelines; and there is not much the Committee has done other than have County staff as necessary. She stated staff has done more than accommodate the Committee; they spent time discussing things; a quorum is not going to help; it will be the timing of the budget process, the appointments, and their backgrounds; and there are other letters she agrees with, but Mr. Dobson stated it in a polite way.

Commissioner Scarborough inquired if the Board decides to keep the Committee, can it come to the Board in the February timeframe with recommendations on what to look at that was not previously reviewed, go back and see if they did what they planned to do, determine if they planned for the community that is going to be older and poorer, coordinate activities and ask questions or will it be setting one committee on top of another. He inquired if Ms. Zarillo has a function she can envision for the Committee; with Ms. Zarillo responding she tried to think of a way citizens can review the budget and come forward to the Board; anyone can do that and anyone can call staff; and suggested looking at a single topic, a task force on an as-need basis, a tight time frame, and select subject matter on an annual basis. She stated the Committee is to serve the Board; if it meets just to have two hours of conversation, it does not serve the Board or the community. Ms. Zarillo stated some municipalities have interns who work on specific projects; if the County has an area where it wants to look at a Department to see how the budget is working or if it is efficient, then it can concentrate on that; but a group of citizens really does not have time to do the in-depth research and work involved with an entire budget. She stated the Committee lacks the expertise to produce a report; the Board has to have a way to bring in that expertise, concentrate on that, and include citizens who do not have an agenda to dismantle one department or another; they cannot rule civility; and there has been a problem at the committee meetings with some inappropriate behavior. She stated the Board has an obligation to its staff to see they are treated fairly and with respect and that committee members treat each other with respect; and the current chairman does a good job, but it is the way the Committee is set up with a broad brush of what it can do. Ms. Zarillo stated she served on the Melbourne Village Finance Committee for several years; they accomplished things, went through the budget, set up trust funds, etc., and it worked. She stated there were more than five people on the Committee; they had an accountant who helped a lot; the Citizen Budget Review Committee is not going to work as it is now, so the Board needs to do something that will serve a function; and that is how it should be decided, not to please Committee members.

County Manager Tom Jenkins advised budgeting is basically establishing priorities, setting policy, and projecting and monitoring revenues; currently the Board is doing strategic planning and establishing a number of goals for County staff to implement and monitor the level of achievement of those goals; and staff reports to the Board periodically on the status of those goals. He stated it is dangerous and a mistake to suggest that citizen volunteers who serve on advisory boards and committees are different than the volunteers who serve on the Budget Review Committee; they are all citizens of Brevard County, and hopefully all have the same objective; and that is to make Brevard County a quality place to live and work. He stated staff is taking the goals and priorities that the Board established in strategic planning; and some Departments have advisory boards that review their budgets and bring back priorities and policy recommendations to the Board for consideration in the budget. Mr. Jenkins advised another issue to deal with is the timing of the work of the Budget Committee; unfortunately, they meet during the critical crunch months of the budget process, which are the summer months; the Budget Office staff works 60 to 70 hours a week per individual to produce the complicated and complex document the Board gets annually; so the timing of their work is an important consideration. He stated if the Board wants to have a role for citizen involvement in the financial arena, perhaps it should be in the area of long-range financial planning in terms of what kind of reserves should the County have, should the County look at bonding and borrowing or pay as you go, what are the projected expenses going to be, what are the expected revenues, and how should the County plan for the future in terms of finances; those kinds of functions do not have to occur during the actual budget process when County staff is preoccupied with producing a budget document; and those are the observations he would offer.

Commissioner O'Brien stated committees have a primary function; Parks and Recreation has five committees; and their primary goal is to take the money and spend it on their priorities. He stated they have a defined agenda of what they want to accomplish; and rather than have the Budget Review Committee demand staff sit with them every year, he would rather see it go back and review last year's budgets to determine if what the Departments asked for was accomplished. He stated if the Sheriff asked for eight deputies for every junior high school, at the end of the year, the Committee could check to see if he placed eight deputies in those schools for the money the Board gave him. He stated the Board cannot control the Sheriff's budget, and something extraordinary, like what happened on September 11, may drain his budget; but at least the Board will know where the money went. Commissioner O'Brien stated years ago the Board gave the Property Appraiser extra money to take over the GIS System; that budget was never cut back; the Supervisor of Elections said the new voting machines will save $48,000 a year and pay for themselves in eight years; but the Board does not know if that goal has been accomplished; and that is the type of budget review he would prefer to see as the Board goes through the budget process, so it can compare what was said last year and if it was accomplished with the proposed budget requests.

Commissioner Higgs stated one way the Committee can be effective is if the members sit and listen to what the Board has to listen to at the budget workshops then say collectively or individually what is good, where more money is needed and where less money should be given. She stated she would vote to continue the Committee only if that is the way it will work; they can be a part of those meetings then make recommendations to the Board prior to the preliminary budget hearings; and that way the Committee is part of all the staffs' discussions and recommendations. She stated other than that, she did not find it to be effective use of their time or staff's time; but she would like to have good citizen input as the Board goes through the budget. Commissioner O'Brien stated they are volunteers; a lot of them work and have families; and the Board cannot expect volunteers to sit through the budget workshops and hearings. Commissioner Higgs stated they can watch it on television; and they would get the same information the Board gets simultaneously, and can give the Board recommendations.

Commissioner Scarborough stated they all agree the current system does not work; Commissioner O'Brien suggested they come in at an earlier point; and inquired if he would have a problem if they sat through all the hearings and met in the Fall so when the Board gets to January, they could advise the Board that it needs to look at certain areas. He stated when the Board got into the budget process this year, it was told the fees had not been increased in a long time; he was not aware of that; but a Budget Committee could take notes and get into the budget in the first part of the year so the Board could have its involvement. He stated the problem is they get to the moment and it is crunch time, and it is difficult to work with staff to put out a product and have another group at the same time. Commissioner Higgs stated they would listen to what the Board listens to, then they could meet and make recommendations, but not let it sit for six months and get old and stale. Commissioner Scarborough stated increasing fees did not sit for six months, it sat for years; with Commissioner Higgs responding the Committee sat for ten years and never recommended increasing fees.

Motion by Commissioner Higgs, to establish the Citizen Budget Review Committee as one person per Commission District, to meet and observe the budget process the Board of County Commissioners goes through, make recommendations prior to the September budget hearings, begin at the time the Board has its first budget hearings, and sunset at the last budget hearing.

Chairman Carlson inquired if that includes getting copies of the entire budget to each member so they can review it; with Commissioner Higgs responding affirmatively. Chairman Carlson inquired if they also need to be briefed by staff; with Commissioner Higgs responding no. Chairman Carlson stated it may be difficult to grasp what they are reading if they do not ask questions, and it would take up a lot of staff time doing the same thing they would do in a briefing setting. Commissioner Higgs stated they could submit questions.

Motion by Commissioner Higgs, to disband the Citizen Budget Review Committee.

Commissioner O'Brien stated the alternative is rather than being proactive, it could be retroactive and follow the money rather than follow the budget process. He stated all his appointees have said it was a waste of time; goals in the budget are driving the costs; so as they attain those goals, the Committee can advise the Board accordingly. He stated the Committee could also seek out wasteful spending that may be taking place in the budgets.

Chairman Carlson advised the Board has tried hard to integrate performance-based budgeting; ultimately accountability lies on the County Manager's head to make sure the outcomes are presented to the Board and performance measurements are met; but if the Board wants to get citizen input on making sure those performance measures are met, it could look at Departments that have performance-based measurements to make sure what the Board is getting for its buck is effective, and present feedback in that regard. Commissioner O'Brien stated if the Committee goes retroactive, it will find out if they were effective or not; they want to be part of the process and have overview of their government; and there is a function out there for the committee. He stated the Board is barking up the wrong tree making it part of the process as it goes along rather than looking backwards, because sometimes looking back, the numbers tell large tales. Chairman Carlson inquired if historical analysis of the budget includes Charter Officers and Departments; with Commissioner O'Brien responding all the budgets on file.

Commissioner Colon stated Commissioner Higgs kept saying she wants the Committee at the Board meetings, and she agrees; and if they are given the tapes to review the workshops, that would enable them to realize why the Board makes some of the decisions. She stated December 31, 2001 is the last day of the Committee members' terms unless the Board decides to reappoint the same persons. She stated she wants to make sure it is done right from the beginning; it seems some Commissioners had difficulty appointing somebody; it is now only District; and perhaps at-large would make it easier to make appointments. Commissioner Higgs stated it is not working that way now because Commissioners are appointing people outside of their Districts at this moment. Chairman Carlson stated two or more have not been able to find someone to serve on the Committee. Commissioner Colon stated the Board needs to give the Committee a mission for next year; it has to start now; it is not fair to change it in two months, which means they start in January; and the mission should include what Commissioner O'Brien suggested and give the Board feedback on where the money was allocated and what was accomplished by mid-year. She stated they should be given one more opportunity and guidance.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to disband the Citizen Budget Review Committee, Motion carried and ordered; Commissioners Scarborough and Colon voted nay.

Motion by Commissioner O'Brien, to instruct staff to come back to the Board, not necessarily with a resolution, but with a list of concepts and ideas of what a budget review committee may want to look at in forms of looking over the shoulder of government in an audit, taking financial audits or snapshot audits in their heads, and following the money.

Commissioner O'Brien stated the Board already has audits that compare the law to the actions taking place within departments, but this audit would be if staff said the money is going somewhere, did it get there no matter who it is, was the task accomplished, was the money spent properly, etc.; and if it was spent on equipment, the Board should be informed and take it out of the budget the following year. He stated fees are political statements that should not be reviewed by a committee because the Board is the political body of the County. Commissioner Scarborough stated he does not understand the motion. Commissioner O'Brien stated staff would report with written concepts and ideas of how the budget review committee would be an audit committee that looks backwards to see if financial goals were accomplished. Commissioner Scarborough stated it is the Board's job to define what it wants to get; Mr. Jenkins has given the Board an idea of the frustration staff has; and if the Board cannot come to a consensus on a vision for the Committee, it is wasting time sending staff to those meetings. He stated the Board is having a difficult time on this item and it is not coming together. Commissioner Higgs stated she would still like to have the committee with the Board at its budget hearings to give the Board its insight.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct that the Budget Review Committee participate with the Board of County Commissioners in the workshops and budget process and give its input as the Board goes through the process.

Chairman Carlson advised if the Commissioners allow their appointees to be in the briefings, it may alleviate additional staff time. Mr. Jenkins requested a definition of "participate"; with Commissioner Higgs responding they would be at the meetings, observe, listen, and submit questions, but not be part of the process other than a card they may submit as other citizens would.

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

Mr. Jenkins advised the Resolution will need to be amended. Commissioner Colon inquired if Mr. Jenkins is going to redo the resolution to better describe exactly what will take place January 1, 2002; with Commissioner Higgs responding the Committee will start when the Board starts the budget process in late spring or early summer. Commissioner Scarborough stated Commissioner Higgs is saying hearings, but the Board has workshops with staff prior to those hearings; and he hopes the committee is included in everything that has a budget context. Commissioner O'Brien stated the Board needs the committee's report by May 15 or June 1; with Mr. Jenkins responding that would not work because the Board does not have budget hearings until June or July. Commissioner O'Brien stated then it should be before the first hearing on the millages so it is valuable to the Board's decision making process. Commissioner Higgs stated the Board should have the report before it sets the tentative millage.

DISCUSSION, RE: BREVARD COUNTY JAIL FORENSIC SERVICES INTERIM REPORT

Freda Schildroth, President of NAMI-Space Coast, Inc., thanked the Board for caring about the welfare of the people in Brevard County who have a mental illness. She stated thanks to Commander Michael Brown, NAMI-Space Coast member Mary Brieske is the Brevard County Detention Center Mental Health Liaison; and she is the back-up liaison when Ms. Brieske is not available. She stated on September 26, 2001, the President and CEO of the National Mental Health Association, in a statement submitted to the U.S. Senate Committee on Health, Education, Labor and Pensions, said that, "The United States may face a major mental health crisis unless immediate attention is given to the lack of community-based programs and coordinated services throughout the country. The United States needs a long-term comprehensive prevention-oriented strategy that not only responds to the immediate crisis, but addresses the intermediate and long-term mental health impact arising from the September 11 terrorist attacks. The nation needs to understand that we are woefully unprepared for the mental health ramifications of the disasters, which we can expect to emerge. An uncertainty of what the future will hold adds to the nation's level of stress. The entire nation is at risk." Ms. Schildroth advised, because of the current economic and security crisis that Brevard County is presently experiencing, local mental health service providers are faced with a greatly increased demand for services, and the population of the jail increases as well. She stated an underfunded mental health delivery system adversely impacts the County budget; and not only are the costs of the jail increased when the system is not working, but there are huge liability issues as well. She stated another ill person is in jail and is refusing medications; he was arrested on felony charges before an "ex parte", which was signed by a judge on September 28, 2001, was served; and she advised the Clerk's Office Civil Division Supervisor of the "ex parte" problem. Ms. Schildroth advised NAMI-Space Coast supports the Brevard County Forensic Jail Program Interim Report; and Regina Friedman, President of NAMI-South Brevard County, was unable to be here today, but asked her to tell the Board that they also support the Interim Report. She stated it is a good beginning for putting a Crisis Prevention Program in place; only eight to ten of the 123 clients with a mental illness who were in jail on September 10, 2001 could be diverted from the jail if treatment beds were available elsewhere; so NAMI members advocate for treatment in jail for those 123 clients with a mental illness. She stated a five-year study by the University of Pennsylvania found it costs basically the same to provide adequate housing and treatment for individuals with mental illnesses as it does to do nothing; and researchers found the cost to taxpayers to keep a person in jail several weeks and then release him or her back to the streets is indistinguishable from the cost of providing a transitional program with supportive housing and treatment. She stated, on behalf of all the vulnerable people in Brevard County and all NAMI members, if funding can be found for the Forensic Jail Program presented to the Board, please approve the request. She thanked the Board for its interest and for caring.

Commissioner O'Brien requested an explanation of the statement that the cost of doing nothing and the cost of housing mentally-ill patients is the same; with Ms. Schildroth responding that information was provided by the University of Pennsylvania Center for Mental Health Policy and Services Research dated May 2001, provided to her by the Florida Partners in Crisis on October 1, 2001. She stated the five-year study by the University of Pennsylvania found it cost basically the same to provide adequate housing and treatment for individuals with mental illnesses as it does to do nothing, which means the ramifications of doing nothing. Commissioner O'Brien stated if an oversight committee through audit could identify the savings to the jail, then it should show up in the budget for the next year. Ms. Schildroth stated there are all sorts of numbers, depending on who gave the report; but it has been proven if the money is spent for treatment, it will save in the long run, especially with drug addiction. She stated if the people are treated and stabilized, they probably would not get into trouble, and go to jail, crisis centers, State hospitals, etc. Commissioner O'Brien stated his concern is Ms. Schildroth making a statement like that and other groups making similar statements of the savings to the taxpayers, but he has not seen results of those savings; with Ms. Schildroth responding it is spent on other things.

Chairman Carlson advised there are two options: (1) Two additional afternoons of psychiatric coverage, Mondays and Fridays, psychiatrists for phone consultation with PHS physicians, and one additional full-time forensic specialist at a cost of $86,000; and (2) Option 1 plus a second full-time forensic specialist at $122,000. She stated the Board has been supportive of this effort, but given the economic environment the County is in right now, it may not be prudent to make a decision at this time. She stated perhaps Mr. Jenkins can provide some insight as to the potential budget issues and if there are enough dollars currently.

County Manager Tom Jenkins advised at the present time staff is waiting for the Legislature to convene so they can find out what the State may end up doing to the County, and whether it is going to lose currently projected revenues it is supposed to receive from the State. He stated it is inevitable the sales tax revenue sharing will be reduced naturally because of the current market conditions; staff will have to find ways to make up those lost revenues; and if the County is hit with additional cuts from the State, it will have additional monies to make up. He suggested more time to get a sense of what the State is going to do as well as look at other funding options.

Commissioner Higgs suggested this item be a priority in mid-year budget if there is money available, and staff, the Sheriff, and Circles of Care be asked to look at any grant funding that may be available. She stated in mid-November there should be word about the lawsuit regarding Florida Kids Care, which the Board has matching funds for; but to make a commitment with the funding situation where it is right now is difficult. She suggested staff seek funding through District 7 Mental Health and do everything it can to fund those needs. She stated if there are funds in mid-year or November, if the County does not have to use its funds for matching Kids Care, the Board can look at that.

Mr. Jenkins inquired if the goal is option 2; with Commissioner Scarborough responding the Board should start with Option 2 and see where it can go.

Commissioner O'Brien stated Mr. Whitaker and Mr. Lusk stopped by his office, and Mr. Whitaker indicated Circles of Care would increase its time to 24 hours a day for psychiatric intervention. Assistant County Manager Don Lusk advised Circles of Care said it would be able to have its psychiatrists available via telephone in consultation with the medical staff at the Prison Health Services, so they could take care of emergency psychiatric kinds of things at the jail. He stated that does not take the place of the other options, but is in addition to. Ms. Schildroth advised Mr. Whitaker was talking about emergency on-call service, but the proposal is also for eight additional hours in the jail per week for a psychiatrist. Commissioner O'Brien stated Circles of Care is offering 24-hour consultation; with Ms. Schildroth responding it is on-call emergency service, not like no service from Thursday to Tuesday.

Commissioner Scarborough stated the report says, "At any given time 110 to 120 of the inmates have psychiatric disorder, 30 to 40 have a severe disorder; they are most frequently charged with felonies and cannot be released; therefore, they are there without attention and that leads to problems for themselves and other prisoners." He stated recently a gentleman committed suicide in the jail. Ms. Schildroth stated there is another problem there right now. Commissioner Scarborough stated this is one of those things the Board definitely needs to look at as something that cannot be ignored. Ms. Schildroth stated another thing is the medication; when they are on the outside, Medicaid covers their medication, but when they go to jail, the jail budget has to pick up that cost.

Chairman Carlson inquired if they have to have a doctor's order to provide the medication; with Ms. Schildroth responding they wait until the psychiatrist gets there and tells them what medication the person was on and assures everyone that person needs medication. She stated there is a formulary in the jail; and if the medication is not allowed, the jail will pay for a cheaper medication. Chairman Carlson inquired when is it deemed an emergency and gets Circles of Care's assistance through its psychiatrists and the medication to that person. She stated Circles of Care can provide psychiatric input to the folks at the jail as it stands right now; with Ms. Schildroth responding they normally wait until the doctor gets there on Tuesday.

Commissioner O'Brien inquired if a person on medication is arrested on a felony, the medication may be in his pocket, kitchen, bathroom, or at his house, so why would the County buy the medication rather than have it transported to the jail in its original container.

Mike Harle with Circles of Care, advised the psychiatrist at the jail on Tuesdays and Thursdays see patients, evaluates them, and orders medication; what Mr. Whitaker has offered to Commissioner O'Brien is that regardless of whether the Board is able to fund Option 1 or Option 2, they will establish 24 hours a day, 7 days a week on-call service to their psychiatrists to take calls from the jail physician for emergency psychiatric consultation. He stated the issue raised by the jail staff and Alliance people is when someone comes in and the doctors are not there, the jail physician is empowered to order medication, but is not trained as a psychiatrist, so Circles of Care will provide its medical staff for phone consultation for the doctor to order emergency medications. He stated part of Options 1 and 2 is to add a psychiatrist on Mondays and Fridays in addition to Tuesdays and Thursdays to expand direct coverage at the jail. Chairman Carlson inquired how do they classify an emergency; with Mr. Harle responding when someone comes in and is psychotic, acting out behavior that is imminently dangerous to himself or someone else in the jail, the jail physician sees that, and orders emergency psychiatric medication so they can get the situation stabilized so that individual is not going to hurt himself or someone else. Chairman Carlson stated if an individual is brought in on a felony, and it is not an emergency, they would wait until the psychiatrist gets there Tuesday or Thursday; and inquired if it is an emergency, can they do something at that point.

Commissioner Colon stated that was her question regarding medication by the jail physician; if someone comes in and they know the person has a psychiatric problem, they do not call the psychiatrist to get medication; and inquired why are they not being proactive and getting them the medication they need; with Mr. Harle responding Commander Brown can speak to that because there are security issues also. He stated staff does try to confirm with treating physicians, the community, and others; and if they can establish that someone is on medication, they will get that ordered. He stated it has to be established and verified.

Commander Michael Brown advised they are not able to confirm medication all the time; a lot of the people come off the streets and are obviously sick, but they do not know what the particular situation is, just that they are not acting right; and there is no one to call and confirm because they do not know anything about the person, only that he is sick. He stated they wait until Tuesday for a psychiatrist to talk to the person and make a diagnosis; and they have addressed the problem Mr. Harle talked about. Commissioner Colon inquired if Mary Brieske, working for the County, is the mental health liaison; with Commander Brown responding they worked it out with NAMI and it did not cost anything; they brought her in with Freda Schildroth; they got security clearance; and they are volunteering their time. Commissioner Colon stated it is critical to the communication that was lacking with the families. Commander Brown stated they have been able to establish a more in-depth dialogue with NAMI and Circles of Care; and they have been able to accomplish a lot of things now that they have not done before, like the liaison and 24-hour contact.

Mr. Harle stated when someone is arrested, sometimes medication is counter indicated because often the person will come in and have not taken his medication for some time; he is in a real agitated state; and often there is a question if he may have been taking street drugs and alcohol along with the medication. He stated sometimes starting that person on the medication they were on a couple of weeks before could be dangerous, so they have to be careful with that.

Chairman Carlson advised the consensus of the Board is to address the issue again once the County gets feedback from the State as to budget cuts that may occur.

The meeting recessed at 3:37 p.m., and reconvened at 3:49 p.m.

SPEED HUMP REQUEST, RE: ALDEN AVENUE

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve installation of four speed humps on Alden Avenue in Port St. John. Motion carried and ordered unanimously.

STAFF DIRECTION, RE: FEE WAIVER POLICY FOR APPLICATIONS PROCESSED
BY PLANNING AND ZONING OFFICE

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve Option 2, establish a fund of fixed annual amount for fee waivers that satisfy specific criteria. Motion carried and ordered unanimously.

Commissioner Scarborough stated some 501(c)(3) organizations are multi-million dollar operations; some small companies struggling to make ends meet may be good; and recommended the Board be given discretion so they do not have to have that status to qualify; with Commissioner Higgs responding she agrees. Chairman Carlson inquired if there will be a contingency in case there are many waivers; with Commissioner Higgs responding no, $5,000 is the limit. Planning and Zoning Director Mel Scott advised he will provide the Board with a menu of options so the Board can identify the criteria it wants.

STAFF DIRECTION, RE: ENFORCEMENT OF CHAPTER 18, BREVARD COUNTY CODE,
RELATING TO VALKARIA AIRPORT

Assistant County Manager Peggy Busacca advised Chapter 18 establishes regulations relating to safety procedures and operation at Valkaria Airport; the Code states the County Manager will investigate violations based upon a minimum of two affidavits describing an alleged violation; and this summer the County was provided with two affidavits and moved forward to enforce the regulations. She stated they came up against a number of issues, and wanted to bring them to the Board's attention; Cliff Repperger could describe those issues, but basically the enforceability of the Ordinance as written is limited; and staff would like to request direction from the Board on how they should proceed.

Assistant County Attorney Cliff Repperger advised there were several different issues that came up when they met with the Sheriff's Office; the first issue is the logistics of enforcing the provisions as written; the provision provides if there is a violation, the Sheriff's Office has to issue a notice to appear to the violator; and the logistics of enforcing that, according to the Sheriff's Office, is virtually impossible because by the time they receive the complaint they may not have a deputy in the area to get out there, or by the time they get out there, the pilot may be gone. He stated the second issue is stopping a moving airplane if they got there in time; they expressed great concern about doing that even if they had access to the airport; and they felt it was a major safety issue. He stated the last issue is a jurisdictional problem; the Sheriff's Office felt if it had substantial evidence that the violation had occurred, it could not go to Vero Beach and issue a citation because the primary violator of the provision is the flight school out of Vero Beach. Mr. Repperger advised they tried to figure out a way they could write into the Ordinance some enforcement provisions; their best idea is to come up with a way to suspend the privileges of people who are violating the Ordinance; they went to the FAA to talk to them about what their position is on something like that; and the FAA felt the County could restrict the use of the airfield by pilots who were violating the restrictions if it had a due process procedure written into the Ordinance, which currently is not there. He stated the FAA suggested a hearing procedure with a notice or some progressive discipline, putting them on notice that they are in violation the first time, enforcing some fine the second time, and suspending their privileges to use the airfield the third time. He stated there is no procedure for doing that in the Ordinance; the FAA told them if they suspend the privileges without due process, the potential violator would probably be successful in a challenge against the County under their rules; so that would have to be written into the Ordinance. Mr. Repperger advised one thing that came up when they met with the FAA is that the FAA has put the County on notice that the ban or prohibition against transitional landings creates an inherently dangerous condition; and they are concerned and raised those concerns again when they met last week. He stated staff will be looking for direction as to how the Board wants to handle that, whether it wants them to amend the Ordinance to provide due process procedures or whether it wants to reevaluate the prohibition as it exists.

Pam Winegar advised she and her husband moved to Malabar two years ago and looked for a home that would provide peace and quiet in a rural area; their home is two miles north of Valkaria Airport; and what she thought was a tiny rural airport that an occasional plane may fly out of has turned out to be a major nuisance in their lives. She stated she never heard of touch-and-go landings and never imagined such flights could circle their roof every five minutes when pilots out of the Flight Safety School use Runway 32. She stated she never imagined student pilots from Flight Safety would be insensitive enough to landmark their roof as a turnaround point on touch-and-go landings; and one day last November there were nearly 100 flyovers about 700 feet above their house. She stated no one can imagine how loud those planes are in full throttle; and complaints to the FAA resulted in Flight Safety working on a plan to turnaround before the roof of her home, but that has not happened. Ms. Winegar stated there are numerous documented complaints in her letters to the FAA regarding pilots flying too low after County Ordinance hours and in a reckless manner; there is no current mechanism to force them to comply with the simple safety rules; only the pilots are responsible to obey the rules she was told; and the one saving grace is there are no flights at night and supposedly between 6:00 p.m. and 8:00 a.m. so at least they can have dinner and breakfast in peace. She appealed to the Board to find a way to force Flight Safety to obey the rules that are in place because it is unsafe and unfair for the residents of Malabar and Valkaria to continue to endure this situation.

Richard Skovgaard, Director of Flight Safety Pilot Training Academy in Vero Beach, advised his purpose is to clarify some misconceptions that may exist regarding their operations at Valkaria. He stated the Academy has been in operation for 33 years; they are recognized throughout the aviation world as one of the top pilot training organizations in the world; they train pilots for professional aviation careers, primarily airline pilots; however, there are some that continue on to be corporate pilots. He stated many pilots who are flying today were trained at Flight Safety Academy; they currently have about 500 students in training; about 85% are from the United States and the other 15% from foreign countries; and they are normally employed by a foreign airline. He stated those students have been screened by the airline, hired by the airline, and their training paid for by the airline; most of the students are college graduates, and those who are not have some college education; so they are well educated and responsible individuals. Mr. Skovgaard advised they have a total of 300 employees at the Academy; about half of those are flight ground school or simulator instructors; and they train with a total of 93 airplanes and several simulators. He stated Flight Safety Academy received bad publicity following the tragic events of September 11; the reports indicated they trained some of the hijackers; all those reports were false; and they did not train any of the terrorists at Vero Beach. He stated his primary reason for talking to the Board is the allegations that Flight Safety pilots are not following the rules; they take the rules seriously and enforce them; the transition landings and making noise in patterns are the primary complaints; and if they are given specifics of the incidents, that is the time and tail number, they can find out who the student is, discipline that student, and if it recurs at Valkaria or any other airfield, that student would be terminated from training. He stated the point is they take the rules seriously and would like the cooperation of the people who are complaining to give them the specific information so they can deal with it. Mr. Skovgaard advised they have about 1,500 operations at Valkaria every month; the information they have is that out of the 1,500, there are two reported violations per month; it should be zero; and they will do everything they can to make it zero, but need the information to follow up. He noted the Airport Manager can confirm that information. He requested the Ordinance prohibiting transitional landings be revisited based on the comments from the FAA; they too feel it can be a hazard; and they have to back taxi on an active runway, that is taxi in the opposite direction of landing traffic or airplanes taking off. He stated if the Board does not see fit to change the Ordinance, they would ask that it consider an alternative; and the FAA has funds available to provide the County to construct a parallel taxiway so they could at least get off the active runway and taxi back to reduce the hazard. He invited each Commissioner to come to their facility in Vero Beach so they can show them how they screen pilots, explain their noise abatement procedures, show them how they operate, and offer everyone a flight in one of the training airplanes to Valkaria so they can see firsthand how they operate.

Janis Walters advised she has been on the Valkaria Airport Watch Committee since 1995 and with all due respect to Mr. Skovgaard, she has been there and done that. She stated she was told she was a liar; and when she contacted Flight Safety with dates, times, and tail numbers, whoever was in charge of air flight training at that time told her the people in that plane were sitting in the office and said what she said was not true. She stated she does not know what else to do at this point; there are codified airport rules about the use of a runway where they all agree what it means; they have affidavits from eyewitnesses stating it has been violated; but they cannot get it enforced because the process is too much trouble for a $50 fine. She stated on the other hand, she has been watching another situation where Code Enforcement has been expending an incredible amount of time and energy pursuing one citizen issuing notices of violation with no evidence and insisting that the County Code really means something other than what it actually says in plain English; but that is another story, and her point right now is there is not much hope for social order when enforcement of the law depends on the whims and inclinations of the people with the enforcement authority. Ms. Walters stated whenever a rule such as this comes up where they would like a procedure to be followed, they are told the pilot in command has the final decision as to what he is going to do; if they use Valkaria, they should know the rules. She stated they either accept the conditions or go some place else; it is not the only airport in the world; Flight Safety has taken advantage of the County's lack of inclination to act or ability to pursue whatever options are in the Ordinance as it exists; and the Ordinance is three years old, but hardly a week has gone by without at least one violation, yet there have been no prosecutions. Ms. Walters stated every concerned agency, entity, and individual had and liberally exercised the opportunity to review the Ordinance before it was passed; and inquired why the enforcement issues were not addressed at that time. She stated Flight Safety is a school; and inquired by not promoting and supporting compliance with the Ordinance, are they teaching their students that if they do not like the airport rules, they can do as they please, then flee the jurisdiction. She stated the County reinforces that by saying it is too much trouble to do anything about it; the residents have been listening to this for three years; Flight Safety makes big money teaching people how to fly and they are using Valkaria Airport for free; so they should be obligated to help enforce the rules. She stated she doubts the students climb into the aircraft at random and fly away to do their flight training; Flight Safety knows who is using each aircraft at every moment; and if they do not, they should. She stated if witnesses can provide date, time, and tail number of a violation with two credible witnesses, Flight Safety should be able to identify the pilot so that a citation can be issued or a notice to appear mailed by certified mail; and if Flight Safety refuses to cooperate by withholding that information and hindering the prosecution of the violators, there is no reason why the entire organization could not be banned from the airport by issuance of a trespass order; then any Flight Safety plane using Valkaria Airport, except for true emergencies, would result in a trespass citation. She stated until now Flight Safety had no compelling reason to help the County solve the problem; and requested the Board provide them with a little motivation.

Commissioner Higgs inquired why when someone presents the affidavits, they are not enforced; with Mr. Repperger responding the Sheriff's Office would have to issue the notice to appear and it does not have anything to do with the affidavits. Mr. Repperger stated the affidavits are for a different part of the Ordinance and have a different application; it has nothing to do with actual prosecution of the violation; the way it is written now, the prosecution of the violation requires an officer to issue a notice to appear; and in order to do that, he has to observe the violation or have credible evidence and be able to issue the citation. He stated if there is someone with a video tape or some other credible evidence he could use to substantiate the violation, he could issue the notice to appear, but he has to be able to catch the violator; and reiterated other actions stated previously regarding stopping an airplane and jurisdiction. He stated unless they are in hot pursuit, they would not go to Vero Beach to issue a citation. He stated the Ordinance provides that is the way it is supposed to be enforced, so that is the quandary the Board is left in right now on how to enforce it when the Sheriff's Office cannot issue the notice to appear. Commissioner Higgs inquired even if there are credible witnesses who deliver a video tape or other evidence, the Sheriff will not go to Indian River County to issue the violation citation; with Mr. Repperger responding they told staff in a meeting that they do not have the resources to investigate and drive to Indian River County to issue what they feel is equivalent to a traffic citation. Mr. Repperger stated there may still be some problems even with the tail number and video tape because often there are several people in the plane at one time and it is hard to determine who is flying the plane at any moment because they can switch when the plane lands at different times. Commissioner Higgs stated if there are several students in the plane, there are several witnesses and the School to verify who was flying the plane. Mr. Repperger stated that is true, but the County would not know who to issue the notice to appear to. He stated the better way to enforce it is to specifically restrict the privileges of people who do not comply with the Ordinance, and the FAA said it would go along with that as long as the County had due process in place.

Commissioner Higgs stated not having an ordinance that can be enforced is unacceptable; and she would support putting a due process provision into the Ordinance as soon as possible and authorize advertising the public hearing as quickly as possible so that can be inserted and action can be taken so the County can have people who violate the law either individually or as a group removed from the airport.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to direct the County Attorney to prepare an ordinance regulating Valkaria Airport, to include a due process provision; and advertise the ordinance for a public hearing before the Board as soon as possible.

Ms. Busacca inquired if it is the Board's intent to forward the ordinance to the VAAB before returning to the Board; with Commissioner Higgs responding they should be notified it is coming to the Board on a certain date and can come and comment on it so it can be expedited.

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

Motion by Commissioner Higgs, seconded by Commissioner Colon, to instruct the County Manager to Meet with the Sheriff to understand his position on this issue so the Board can be sure there is no way to enforce the provisions. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING GRANT APPLICATION FOR LANDSCAPING AND
MAINTENANCE OF STATE ROAD 405

Motion by Commissioner Higgs, seconded by Commissioner Colon, to adopt Resolution authorizing application for Florida Highway Beautification Council grant and enter into a Highway Beautification Grant Agreement and Landscape Construction and Maintenance Memorandum of Agreement with Florida Department of Transportation for landscaping and maintenance of SR 405. Motion carried and ordered unanimously.

RECONSIDERATION, RE: BILLBOARD ADVERTISING LIMITATION PLACED ON
TDC DISASTER FUND

The billboard advertising limitation placed on TDC disaster fund was withdrawn from the Agenda.

STAFF DIRECTION, RE: OPTIONS FOR SANITARY SEWER SERVICE FOR NORTH
COURTENAY PARKWAY INDUSTRIAL AREA

Water Resources Director Richard Martens advised staff recommended three options for the Board to consider regarding sanitary sewer service for North Courtenay Parkway industrial area; Option 1 is to take no action, in which case he will put the property owners on notice that connection to the sewer will be required within two years; and property owners would have the option to either connect individually to the sewer system, voluntarily join together in an MSBU application, or apply to change the zoning of their properties. He stated the second option is that the Board could require the property owners to participate in an MSBU and build a unified sewer system to serve the entire industrial area; and the third option would be for the Board to request a waiver or conditional waiver of the mandatory sewer connection as provided in the Florida Statutes. He stated he provided each Commissioner with information on how a potential waiver request could be worded.

Commissioner O'Brien inquired if Mr. Martens recommends Option 3; with Mr. Martens responding the actual uses of the property do not require industrial zoning; there are many areas in the County that have similar uses and do not have stringent mandatory requirements provided in industrial areas; so there is some rationale, under the terms and conditions he outlined in the proposal, to determine that connection to the sewer system is not in the public interest or a health consideration.

Commissioner O'Brien stated Option 1 is to take no action, thereby requiring each property to make individual connection, voluntarily petition for an MSBU, or request change of zoning. Mr. Martens stated if the zoning is changed, it would change the 500-foot threshold for sewer availability to the 50 feet that is seen in many other places for properties consistent with commercial zoning as opposed to industrial zoning; so changing the zoning is an option.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Option 1 for sanitary sewer service for North Courtenay Parkway industrial area, which is to take no action, thereby requiring each property owner to make an individual connection, voluntarily petition for a sewer system MSBU, or request change of zoning, which would require a Comprehensive Plan change or Zoning Ordinance change.

Commissioner Scarborough stated he asked Dr. Heshmati to interpret the Florida Statutes; if it was a County Ordinance, he would feel more comfortable dealing with it; Option 1 is a lot cleaner; and if it should not be industrial, they can take care of it, as opposed to trying to interpret the Florida Statutes.

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

PUBLIC INTEREST DETERMINATION, RE: NORTH NIKOMIS CANAL MAINTENANCE
DREDGING

Clayton Bennett, with Fleis & Bennett Engineering, Inc., representing Vistar Realty, presented exhibits to the Board, but not to the Clerk; stated the canal they are proposing to maintenance dredge is located in Sunnyland Beach and along the south property line of Inlet Groves; Exhibit MD-1 shows the area they are proposing to maintenance dredge; and it is an area approximately 264 feet long by 20 feet wide. He stated the proposed maintenance dredging is not to deepen or widen the existing canal, but to remove the organic and silt materials that have accumulated in the canal over time. Mr. Bennett advised as they were going through the permitting process with Department of Environmental Protection and Army Corps of Engineers, the canal was determined by the Department of Environmental Protection to be constructed prior to April 3, 1970, which met its exemption criteria; the dredging occurred prior to environmental permitting and as-built record keeping and documentation; so the question is how deep was the canal dredged originally; and the response is that they did soil borings, and hired a testing firm to test a section of the canal to determine what makes up the soil profile. He presented the test report to the Commissioners, but not to the Clerk. He stated the report dated March 28, 2001, prepared by KSM, determined there was dark gray silt located in the bottom of the canal; on Boring A-1, it ranges from 30 inches to 54 inches in depth; and in Boring A-2, it ranges from 36 inches down to 72 inches in depth. Mr. Bennett stated without this canal ever being permitted environmentally and without as-built drawings, it is the best way of determining how deep the canal was originally dredged to. He stated through the permitting process with Department of Environmental Protection and the Corps, some of the items they had to produce were manatee protection and construction and turbidity control plans; and presented copies of the plans to the Board, but not to the Clerk. He stated the plans address what happens if a manatee comes into the area while they are dredging or how to prevent the silt from re-entering the canal; and that was reviewed and approved by the Department of Environmental Protection. Mr. Bennett stated during the permitting process with Department of Environmental Protection, the issue came up if the canal had been used for navigational access in the past; and they were asked to document existing boats that had used the canal for navigational access. He stated their client did a survey of the homeowners in the area along the canal and came up with six different homeowners who used the canal for navigational access; some of the owners had more than one boat; and presented copies of the survey to the Board, but not the Clerk. He noted he understands County staff went out and confirmed that the survey was accurate; and it is important to note that it is more than canoes using it, as there were a number of different types of boats that used the canal for access. Mr. Bennett stated another issue that came up on the permitting is the actual ownership of the land; and presented a copy of the Department of Environmental Protection Notice of Exemption for the maintenance dredging to the Board but not the Clerk. He stated what the Department of Environmental Protection determined during its review was that the project occurs on State-owned sovereign submerged land and will require authorization from the Board of Trustees of the Internal Improvement Trust Fund for use of public property. He stated it says, "as the staff to the Board of Trustees, we have reviewed the project as described in your submittal, and as long as the work performed is located within the boundaries described and is consistent with the exempt criteria attached, we find the project qualifies for a consent to use sovereign submerged land. Consider this letter also to constitute authorization from the Board of Trustees of the Internal Improvement Trust Fund pursuant to Chapter 253.77, Florida Statutes, to perform the activity." He stated they started the permit process in May, 2001; and since that time, the State and St. Johns River Water Management District purchased the Inlet Groves property; and presented copies of a memo from Keith Fisher, Preserve Manager from Department of Environmental Protection, to the Board, but not to the Clerk. He stated in the memo, Mr. Fisher indicates the parcel was purchased on June 1, 2001, which was after they made their initial submittal to Department of Environmental Protection and Army Corps of Engineers; and he also indicates that the Florida Board of Trustees owned 89.1% of the land and St. Johns River Water Management District owned 10.9%, and that the property includes a 221.905-acre parcel. He stated it also indicates Department of Environmental Protection is the lead Department on managing the preserve. Mr. Bennett stated once they obtained the Department of Environmental Protection and Corps permits, they provided that documentation to County staff to make a determination that they were consistent with the County's regulations on maintenance dredging; a letter from Debbie Coles dated September 25, 2001 cites Section 62-3668, paragraph 11, stating dredging and filling shall not be permitted in or connected to Class II waters.

Chairman Carlson advised a motion is needed if the Board wants to extend Mr. Bennett's time. Commissioner Scarborough stated the Board has a lot of data that have been handed out today, which it cannot digest here, so if there are questions, the Board could get into that. Chairman Carlson inquired if Commissioners had questions for Mr. Bennett.

Commissioner Higgs inquired if Mr. Bennett received a copy of a fax dated yesterday from the Deputy Executive Director of the St. Johns River Water Management District in which he says he has become aware of the item for today's meeting and requested the County defer action on the item until the District can assess the impacts of the proposal; with Mr. Bennett responding no. Mr. Bennett stated Department of Environmental Protection and St. Johns River Water Management District own the uplands; they had discussions with Department of Environmental Protection on ownership of the land and whether it is sovereign submerged land; they indicated it was used as public access in the past; but the exemption criteria does not have anything to do with who owns the adjacent upland, so it does not make a difference in determination of exemption. Commissioner Higgs stated Vistar's property is not adjacent to where they propose to dredge; with Mr. Bennett responding no, but it is located on the water body, and they have historical navigational access to the Indian River. Commissioner Higgs inquired if Mr. Bennett represented that the property was recently acquired by the St. Johns River Water Management District and the State and included all the canal over to the upland owner on the south side when he submitted the proposals to Department of Environmental Protection; with Mr. Bennett responding they submitted the proposals in early May prior to the State acquiring the land; they made a re-submittal after receiving a request for additional information; and that was on or about the same day they received a letter from Keith Fisher indicating he had concerns about the project and asking for additional information. Commissioner Higgs inquired, as the applicant became aware that the County, State, and St. Johns River Water Management District acquired the property, was the submittal to Department of Environmental Protection altered so it would understand whose property it was; with Mr. Bennett responding no, the resubmittal was before receipt of Mr. Fisher's letter. He stated they received a letter from Mr. Pruitt saying they received documentation from Vistar Realty and were forwarding it to the new owners; on July 10, 2001, they re-submitted to Department of Environmental Protection; and on the same day his client received the letter from Department of Environmental Protection asking for additional information. He stated at that time, the process continued; and once the Department of Environmental Protection permit was issued, they immediately forwarded that along with information requested to Mr. Fisher for his review. Commissioner Higgs inquired if they told Department of Environmental Protection that the State and St. Johns River Water Management District acquired all the land in there for preservation; with Mr. Bennett responding the exemption criteria does not apply to the adjacent upland owner; and the Department of Environmental Protection determined it was sovereign submerged land. Commissioner Higgs stated Department of Environmental Protection has rules that say there has to be management plans in place before it will consider any kind of dredging; with Mr. Bennett responding they are here today to obtain a determination on the County's criteria, not on the State's criteria; and the State does its own review independent of the County. Commissioner Higgs stated if the proposal is approved, the initial dredge material will be placed on a residential lot in a residential subdivision abutting County property; Parcel A, Block E is government managed lands (GML); Brevard County also owns the property to the north as part of its acquisition for a community park in the area; and there is a large dock on the County's land, but she is not aware of any permitted conditions. She stated St. Johns River Water Management District asked for time to review the proposal; and Parks and Recreation and Natural Resources should thoroughly investigate the issues regarding the County's interest because it owns the property surrounding the project and the spoil site.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to table public interest determination for North Nikomis Canal Maintenance Dredging until November 20, 2001 for thorough review by all the agencies involved. Motion carried and ordered unanimously.

Commissioner Higgs requested additional information on the proposal for the spoil site because it will be part of the public interest issue.

ACKNOWLEDGE RECEIPT, RE: ANNUAL FINANCIAL AUDITS OF COUNTY AGENCIES
FOR FISCAL YEAR ENDED SEPTEMBER 30, 2000

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to acknowledge receipt of the annual financial audits of the Board of County Commissioners and each County Officer for fiscal year that ended September 30, 2000. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - JACK HORSCHEL, BREVARD COUNTY AIR AND BOAT
ASSOCIATION, RE: PERMIT FOR ROOFING AND SMALL REPAIRS

Jack Horschel, President of Brevard County Air and Boat Association, requested a waiver of the building moratorium in the 25-year floodplain so they can renovate their clubhouse. He stated on August 21, 2001 their clubhouse was vandalized, arson was committed and burned the interior of their facility, and in their efforts to rebuild, not the building, which is structurally sound, but the interior, and applying for permits, they were told about the building moratorium and no permits being issued. He stated not knowing how to proceed, they contacted the St. Johns River Water Management District and received a letter from the District saying anything they were doing would not require a permit; and he later received an email from Ms. Busacca explaining what the moratorium was and suggesting how to proceed to do interior repairs; and quoted from the email as follows: "The current 25-year floodplain moratorium Ordinance does not permit the issuance of a building permit in the case of reconstruction of the structure. It appears from your email that your organization is requesting repair of an existing structure. I would present that information to the Board and ask that the Board permit issuance of a permit in such instance. If your request is that straightforward, you may not need additional information." Mr. Horschel stated they have been there 23 to 24 years; their operating budget is limited so the sooner they can get a permit the better; they are renting meeting space now for their club activities; requested whatever variance is needed to obtain a building permit.

Commissioner Scarborough stated when the Board issues a moratorium, it is only so it can put its ducks in a row with an ordinance; and inquired how can the Board address individual cases like this during a moratorium. County Attorney Scott Knox responded the Board has exemption provisions written into the Ordinance and also has a provision that allows it to suspend the moratorium.

Assistant County Manager Peggy Busacca advised the exemptions specifically say "projects that are deemed to be subject to minimal risk from flood damage"; the public interest is determined by the Board of County Commissioners; and inquired if the Board can determine that internal renovations to the clubhouse meets the criteria; with Mr. Knox responding yes.

Commissioner Scarborough suggested Mr. Horschel describe the building, where it is located, and why there will not be a problem in a flood event. Joe Harrison stated it is a concrete block structure with paneled metal roof, drywall interior, concrete floor, one big meeting room, two bathrooms, a small kitchen, and a utility storage room. Mr. Harrison stated they have never had a flood in as long as he can remember; he has never seen the property under water; and it is higher than the old U.S. 192 roadbed. Commissioner Scarborough inquired how long has the structure been there; with Mr. Harrison responding 20 to 25 years; and commented if they had a flood they would not lose much of anything and would just replace the sheetrock.

Commissioner Higgs inquired if anyone lives there; with Mr. Harrison responding no, it is strictly a clubhouse used for meetings and other club activities, and there are private and public boat ramps there.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve an exemption to the 25-year Floodplain Ordinance to allow Brevard County Airboat Association to obtain a permit to re-roof and do interior repairs to its clubhouse, which was vandalized, as the improvements will not impact the floodplain, no one lives in the building, and it has never flooded in 24 years. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - GRADY STRICKLAND, RE: ORDINANCE IMPOSING
TEMPORARY MORATORIUM IN THE 25-YEAR FLOODPLAIN

Grady Strickland advised in May, 2001, he contracted with Precision Door Service to develop and build a 3,500 square-foot office building and 2,000 square-foot storage building; prior to the purchase of the property, the owner, Brian Tindale, contacted County staff about being able to do what he wanted to on the property and determined there was no problem putting an office on the site. He stated Mr. Tindale closed on the property about the first part of September; on September 12, 2001, the County imposed a temporary moratorium; after closing on the property, they hired a civil engineer and architect to proceed with preparation of documents needed to submit to County staff; and that has been done and in the process. Mr. Strickland advised when he came in to request a temporary construction trailer, and after talking to the Building and Engineering Departments, he did not meet with any resistance telling him he could not get a permit except for the Moratorium Ordinance; so they advised him to come to the Board and ask for a variance or request he be allowed to put a temporary construction trailer on the site. He stated temporary utility service is done but not hooked up; and the construction trailer will allow the owner to store materials and at the same time continue through the permitting process. He stated they are not asking to circumvent any process in existence, just to put a trailer out there until staff rules on it and they receive a valid construction permit.

Commissioner Scarborough inquired if this situation is the same as the prior request; with County Attorney Scott Knox responding it is the same criteria of whether there is minimal risk of damage from floods and is in the public interest. Commissioner Scarborough inquired if it is a security trailer; with Mr. Strickland responding it is a construction trailer that is up on blocks and fastened down. Commissioner Scarborough inquired how long will it be there; with Mr. Strickland responding it will take 60 to 90 days of processing through County staff and 120 to 150 days to build the project; and when it is completed, the trailer will be removed.

Commissioner Higgs inquired if anyone will live in the trailer; with Mr. Strickland responding no, it is to store materials and provide access while the project is under construction.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve an exemption to the 25-year Floodplain Moratorium Ordinance and allow temporary power and construction trailer for storage of materials during construction of an office building and storage facility, as there is minimal risk of flood damage, is in the public interest, and no one will live in the trailer. Motion carried and ordered unanimously.

PERSONAL APPEARANCES - CLAIRE AND JAMES ZUHLKE, RE: ISSUANCE OF
OCCUPATIONAL LICENSE FOR CHANGE OF USE

James Zuhlke advised on October 1, 2001, Robert Woods, President of Precision Car, Inc., went to the County offices in Viera to purchase an occupational license for a commercial building he is leasing from him and his wife Claire; and Mr. Woods thought it would be the end of spending months preparing to open his new business, but he was referred to the Land Development Division where he was informed that he would have to meet the requirements of Ordinance No. 01-35. He stated Mr. Woods was advised he would have to get a civil engineer familiar with Brevard County Codes to prepare a new site plan to be submitted to the Building Department for approval; a minimum time period after submittal would be two weeks, and six weeks or more was possible; and later that week he spoke to the civil engineer who stated that a site plan is just a plan and unless he planned to make changes to the building or the building was not planned, a plan is not what he needed, but he needed a survey. He stated earlier in the week he supplied Mr. Woods with a current survey that he submitted to Jim Strickland who commented the setbacks and parking looked acceptable, but he needed a civil engineer to prepare a new site plan. Mr. Zuhlke stated on October 10, 2001, after reviewing Ordinance No. 01-35, they met with Jim Strickland and Bruce Moia, who showed them the original site plan from the County Archives; the original site plan indicated floor space in question is 12.5% of the total site; and they explained the building was being used by the prior occupant, Diamondback Airboats, Inc., for an office, part storage, and airboat repairs, and there was no substantial change in use because every square foot of office space will still be used as an office and every square foot of storage space would be used for parts storage. He stated the parts are essentially the same and the remaining portion of the area used for repair and maintenance on airboats will be used for the same type of operation. Mr. Zuhlke stated removing a 350 Chevrolet engine from an airboat and rebuilding it and removing the same engine from a 1989 pick-up truck and rebuilding it are substantially the same; and the tools are the same, the skills are the same, the operation is the same, and the byproducts of the operation will be the same. He stated there will be no increase in density or intensity; in fact there will be a decrease because Mr. Woods operation is smaller than Diamondback Airboats' operation; and he will have fewer employees. He advised Mr. Moia said he would get back to him the next day after taking it to the committee; on October 11, 2001, he was contacted by Mr. Moia who informed him they were turned down; so he drove to Viera and met with Mr. Moia and Peggy Busacca; and Mr. Moia explained that the Legal Department had determined, while there may not be a significant change in the use, the names of the two businesses were substantially different. Mr. Zuhlke stated if Ordinance No. 01-35 is applied equally across-the-board, it will be completely devastating to businesses in the unincorporated area of Brevard County; Mr. Woods has a contract with NASA to repair and maintain its fleets; his contract will make up the majority of his business; and he cannot expect to keep his contract if Brevard County would not allow him to perform the work. He stated Mr. Woods is leasing his property, which started on October 1, 2001; half the month has passed by and he has been denied use of the property by the Ordinance, yet his taxes remain the same and his mortgage payments come due every month; and he should not be expected to pay on property he cannot use. He requested Mr. Woods be issued an occupational license and the County review its Ordinance No. 01-35 regarding change of use of facilities.

Land Development Director Bruce Moia advised everything Mr. Zuhlke said is true; the only difference is the Tax Collector's records show that it is classified as manufacturing, and the site plan shows it was approved as commercial warehouses for manufacturing and warehousing. He stated there is a different application of the Land Development Regulations for manufacturing and automobile repair; and that was the reason there was a change of use by the definition of the Code. He stated the actual work being done in the facility may be similar, but the classification is different; and that is why he is here to ask the Board for a determination.

Commissioner Scarborough inquired if the Board has the discretion to determine that the actual operation is substantially the same; with Mr. Moia responding yes.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to determine that the uses of Diamondback Airports, Inc. and Precision Car, Inc. are similar and not a change of use; and authorize issuance of an occupational license for automotive repairs in an existing facility on property zoned IU-1. Motion carried and ordered unanimously.

County Manager Tom Jenkins inquired if staff should review the Ordinance to change the definition to allow some flexibility; with Commissioner Scarborough responding there are things that will always fall in the cracks and from time to time staff or the Board should review Ordinances, but the next time it will be something else and it will never have a perfect ordinance. Mr. Jenkins stated that portion of the Ordinance could be modified to give some latitude in the interpretation if the applicant provides documentation that shows the functionality is the same even though it may be a different zoning classification. Mr. Moia stated at the time of application, staff does not know what the use is going to be; with Mr. Jenkins responding the applicant can tell staff what the use will be. Commissioner O'Brien stated staff should have discretion. Mr. Moia stated the appeal of administrative decision could go to the County Manager rather than the Board. Mr. Jenkins suggested looking at the whole issue and coming back to the Board with a recommendation.

Beth Kring, representing Merritt Park Place Group, stated she represents all the commercial property owners of the County and supports review of the Ordinance, which would affect the4m in a terrible way. She stated Merritt Park Place has old buildings that are going to have a hard time; so she would like to see the Ordinance reviewed and amended.

DISCUSSION, RE: FAC POSITION ON SPECIAL SESSION BUDGET CUTS

Chairman Carlson advised she wanted to make sure Commissioners were aware of Florida Association of Counties' position on the special session potential budget cuts; there were various emails sent to everyone, and a very strongly-written letter from Karen Marcus, President of the Florida Association of Counties, which resulted from the Board of Directors, where she sits, wanting the President to write a letter strongly placing the burden of the special session and the potential cuts from the September 11 debacle squarely on the shoulders of the Legislature and focus them on long-range planning, potentially a multi-year type of plan that may need to be put under consideration due to a shortfall that may also be multi-year. She stated the Rainy Day Stabilization Fund has $940 million in it; unfortunately, there is a caveat to that which says they have to repay the portion they borrow in five years; and that may be a problem for the Legislature if it is a truly a multi-year shortfall kind of occurrence where they cannot afford to pay back portions of that fund. Chairman Carlson stated she does not know what is going to come from the special session, but she wanted to make sure the Board was aware of some of those things. She stated another issue is the talking points; there was also a list of County revenue sources identified as being untouchable; the language of the letter was to try and get some of those points across to make sure accountability lands on the shoulders of the Legislature as well as the Board's; and inquired if there were any comments from the Board.

Commissioner Higgs advised the provision that covers the Rainy Day Fund is a legislative provision that says it has to be paid back in five years, so that can be amended by the Legislature; and inquired if Chairman Carlson wants authorization to send a letter on behalf of the Board. Chairman Carlson stated that would be fine.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to authorize the Chairman to send a letter, on behalf of the Board, to the Florida Association of Counties, concerning its position on special session budget cuts. Motion carried and ordered unanimously.

Commissioner Higgs commented in addition to the Rainy Day Provision that could be amended, it could give the Legislature more flexibility.

Chairman Carlson advised she is not sure who from the Board will go to Tallahassee and talk during the special session; she is not sure her schedule will allow her to go; but hopefully there will be representation with Carol Laymance and Guy Spearman helping out.

Commissioner Scarborough stated it is vital that the Board watches every single thing because this is the most frightening time it can imagine; and his feeling is that somehow the County is going to pay for what is going to happen.

Chairman Carlson advised in ongoing conversations with the Legislators she dealt with, they say there is no way to do a long-term plan, and that is frightening because the Board talks about long-term plans and dealing with how it will allocate funds to projects, etc.; and if they cannot do it at the State level, she fears there will be many shortfalls and potential mandates placed on counties. She stated another part of the letter from President Marcus was to make sure if the counties were going to get the cuts, the Legislature gets rid of the regulation that mandates counties to do things, so the counties do not have to go out and look for more dollars. She noted that is laid out under the talking points. She stated there is no way to do anything at this point because the County has already gone through its budget process; it is yet to be seen what would happen; but encouraged Commissioners to talk to the Legislators by phone or in person. She stated they like to have Commissioners in Tallahassee; there will be a large contingent of County officials up there during the special session; and hopefully it will let them know how the County feels and let the local delegation know the Board needs its help.

Commissioner Higgs stated Commissioners are authorized to travel to Tallahassee to represent the County, so they do not need a special motion for that. Commissioner Scarborough suggested someone like Guy Spearman tell the Commissioners when it is important to be there to get on different calendars to make it worthwhile; and suggested the County Manager, Guy Spearman, and Carol Laymance give the Board some direction. Chairman Carlson stated that will be a big help on a lot of the issues because everything is on the table. She stated they are looking at a $1.5 billion shortfall; and no one knows what that will mean when they get to the special session.

APPROVAL, RE: WORKSHOP SCHEDULE

County Manager Tom Jenkins advised there was an issue of moving the workshop and trading the floodplains for the legislative delegation; only one person is impacted by the Jacksonville trip; so the Board can go forward with the schedule as proposed.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve the schedule for the floodplains and legislative delegation workshops as proposed. Motion carried and ordered unanimously.

PUBLIC COMMENTS - JOE T. CARUSO, RE: PROPERTY APPRAISER'S OFFICE

Joe T. Caruso advised he is making this presentation as Attorney for Jim Ford and the Office of the Brevard County Property Appraiser; he will be referring to several Exhibits; and he requested copies of the Exhibits be given to the Commissioners so they will be available for review during the presentation. He stated in the event he needs an extra minute or two, he hopes the Board will extend the time and afford him the courtesy of concluding the presentation. He stated the Property Appraiser's Office is funded through the payment of commission for providing a service to all taxing authorities in Brevard County and the Region; Brevard County pays its fair share of the Property Appraiser's budget as a function of law, pursuant to Florida Statutes; the Property Appraiser's budget has oversight from the State, not the County Commission; and the County cannot, even with a Charter amendment, change that. He stated that was ruled upon by the Attorney General in AGO 73-381 and AGO 97-02. Mr. Caruso advised the Property Appraiser's office, in producing the annual tax roll to the satisfaction of the State, is the engine which runs city, county, school board and regional governmental operations; from a budget perspective, it is the one budget which should have the utmost priority; and that is why the State has reserved the Property Appraiser's budget approval unto itself in the Department of Revenue. He stated the Property Appraiser's budget increases over the last five years are in line with the other Charter officers as a report from the Budget Office illustrates; and Exhibit 1 reflects the percentage total increase for each Charter office. He noted three of the five Charter officers have greater percentage increases than the Property Appraiser. Mr. Caruso advised in prior meetings, Bea Polk has tried to single out the Property Appraiser's office and project the impression that the Property Appraiser's budget increase is grossly out of line; the Board can see by the comparison that it is not; her true motives are obvious; her daughter thought that she should have been appointed Chief Deputy instead of Mr. Larsen a few years ago; and her daughter subsequently exhibited repeated acts of insubordination and was terminated. He stated Ms. Polk's daughter ran against Mr. Ford in the 2000 Election and was soundly defeated; and the actions and statements of Bea Polk and her daughter have resulted in a lawsuit against them for defamation of character, slander, and libel by a deputy who works in the Property Appraiser's office. He stated for over a year the Board has allowed the Public Comment portion of its agenda to be used by Bea Polk for her false and malicious politically-motivated rhetoric against Mr. Ford and his office, thereby facilitating her agenda; she berates the current Chief Deputy and his salary because of his formal education level, yet never did she complain about the previous Chief Deputy who had the same level of formal education and salary relationship with the Property Appraiser for many years. Mr. Caruso stated the Board and Space Coast Government Television Council are giving Bea Polk the unbridled use of the cable television to spread her defamatory political propaganda against Jim Ford and his office; it is a clear violation of the SCGTV Procedures, Standards, and Guidelines referred to in Section IV.D.1, as shown in Exhibit 2; and he is here because Mr. Ford thinks the viewing public needs to be informed of the background and her true motives. He stated the Property Appraiser recognizes the importance of free speech and public comment, but when it crosses the line and becomes defamatory, something needs to be done; the Public Comment portion of the Board's agenda is being misused, but of greater concern is the Board allowing itself to be held hostage and used in this manner for political reasons. He stated they are requesting that the Board and Space Coast Government Television Council review the policy regarding the airing of the public comments portion of the agenda, which is wide open for abuse as they have seen in numerous instances. He stated Bea Polk continues to use the well-intended Public Comment portion of the meetings to vilify the Property Appraiser and his office and try to establish an erroneous public perception that his office is doing something wrong when it is not; it would seem that the Public Comment portion of the agenda should be limited to matters which are under the control and jurisdiction of the Board; personal attacks should be ruled out of order as contrary to the established ground rules; and as an alternative, anyone who makes defamatory remarks about another person or who is known to have provided false information or statements to the Board, should be required to offer all future comments to the Board only in writing with supporting documentation. He inquired if the Board allows persons to come to the meetings and publicly malign elected officials on city councils, school boards, or other entities beyond its control. He stated the Property Appraiser is an independently-elected Charter officer over whom the Board has no control and is no different than other elected officials; and the Board is sitting idly by while someone turns that portion of its agenda into a disgusting display of public access television at its and others' expense. Mr. Caruso stated Bea Polk's alarmist tactics are such that she rarely offers proof, usually relies on hearsay, and does not substantiate the accuracy or veracity of her statements; and unfortunately, she has seldom been required to do so, so her biased opinions and hearsay become reality to unsuspecting, uninformed viewers. He stated an example of that is during her recent public comments, she made the following statements, which are either misrepresentations of fact and/or unsubstantiated, erroneous allegations; and he will quote several statements from prior presentations of Bea Polk for the record.

Chairman Carlson advised Mr. Caruso his time was up.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve two additional minutes for Mr. Caruso to complete his presentation. Motion carried and ordered unanimously.

Mr. Caruso presented quotes and comments as follows:

Quote: "Now I know why the big bonus at the end of the year. Did any other department get this kind of deals?"
Comment: This is a false statement. Mr. Ford does not give bonuses; the increase in salaries for all deputies was based on the increase adopted by the Board for its employees, unless a re-assignment of additional job duties necessitated an additional salary adjustment.
Quote: "How would they (Department of Revenue) know what the Property Appraiser's office duties are?"
Comment: This is a false statement. Bea Polk is making the assertion that the Department of Revenue does not know what the duties of the Property Appraiser are, which is utterly false. The DR is the oversight agency that approves the Property Appraiser's assessment roll each year. In addition, it is the DOR's property tax rules and Florida Statutes that establish and govern the duties and responsibilities of the Property Appraiser.
Quote: "The State has no idea what his budget should be."
Comment: This is a false statement. The State approves the budgets of all Property Appraisers and has the ability to compare how reasonable one is to another.
Quote: "He (Pete Smith, Property Appraiser of Okaloosa County) was surprised to know who your assistant to the Property Appraiser was because he worked for him before and he made in the sixties, and I was shocked."
Comment: Exhibit 3 a letter from Property Appraiser Pete Smith, clearly establishes this as a false statement. Mr. Pete Smith, Property Appraiser for Okaloosa County was the Chief Deputy's previous employer and had full knowledge of Lance Larsen's position here in Brevard County. In fact, Mr. Smith has spoken with Mr. Larsen on several occasions. Exhibit 3 clearly shows the veracity of Bea Polk's refuted by Pete Smith.
Quote: "You know, we fussed about TODAY paper because the appraisal was wrong."
Comment: This is a false statement. The assessment of the Florida TODAY newspaper was not found to be wrong. The assessment was challenged and upheld.
Quote: "Some did and some didn't. Some next door neighbors, the exact house, the exact lot. Is it who you are or do we go out and just pick certain places?"
Comment: This is a false derogatory statement implying preferential treatment. Mr. Ford does not pick and choose which properties will receive increases from year to year. That is determined by annual studies of the market. The insinuation is absurd, malicious, and false.
Quote: "I have been fighting it for the longest, before I ever came here, about the appraisals in this County."
Comment: Our impression and recollection is Bea Polk has only taken interest in property valuations since her daughter, Penny Farrar, was terminated from the Property Appraiser's office.
Quote: "I went to the Charter Committee, Gene Sterling said to me, "Bea, let's give Jim Ford just four more years, and then we will."
Comment: This is a false statement. Mr. Sterling has written a statement, which verifies that he never made any such comment to Bea Polk. The statement is Exhibit 4.
Quote: "Well, we don't do our friends that way, but let me tell you, the most powerful office in this County is the one that sets your property taxes. You don't believe it, fight him, and see what your property taxes are like."
Comment: This is another false statement. This is a vicious attack on Mr. Ford and is a false, unsubstantiated statement. In addition, as stated earlier, the Office of the Property Appraiser only establishes the market value of property as required in order to obtain annual approval of the tax roll.

Chairman Carlson advised Mr. Caruso his time has expired; and Mr. Caruso requested 30 seconds.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to approve 30 seconds for Mr. Caruso to complete his presentation. Motion carried and ordered unanimously.

Mr. Caruso advised free speech permits everyone to express an opinion, even if that opinion is wrong or without foundation; but free speech does not extend to stating facts as the truth when they are false. He stated the Supreme Court has made it clear that free speech does not extend to derogatory or inflammatory statements. He stated public comments should be confined to opinions, but not to derogatory misstatements of fact; and the Board has the power to establish guidelines to permit every citizen the right of free speech, but to draw the line when it is no longer free speech.

PUBLIC COMMENTS - BEA POLK, RE: PROPERTY APPRAISER'S OFFICE

Bea Polk stated having to hire an attorney to come to the Board meeting to take on the public shows the stuff that goes on in the County; as for Pete Smith, she does not know what he wrote, but she will talk to him; and for the other stuff she said, she has most of the documents. She stated TODAY Newspaper's evaluation was put up last year and was kept, but tomorrow is another day; TODAY is trying to get it down to $7 million; and she has the paperwork on that and will attend that meeting. She inquired as far as the public being able to speak, what has happened to America; and stated they hire big lawyers to take on the public, and the public does not have that kind of money. She stated he talked about evaluations are so good; and inquired how many parcels were checked last year; how many changes were made to correct square footage; and how many maps were drawn in GIS that were correct and usable. Ms. Polk stated the Board can go back; she fought evaluations for years, even before Mr. Ford came in; she took on Mr. Maxwell; but Mr. Maxwell was a man who would stand and give her paperwork. She stated she asked for paperwork and some of them she got, but they wanted $300 and she does not have $300 to waste on that. She stated the public has a right to keep checking; the County is going to have a hard time making it this year; there are a lot of things that should not have been approved; and she agrees with Commissioner O'Brien that they should go back the year before and look at what was bought for every Department. She stated she worked in the Courthouse and was told to buy up to the last dime in pencils or anything; that is wrong; and if there is money left over, it should go back to the taxpayers for next year. She stated there have been good years, but it is going to be hard for the next couple of years; it may not be hard on her or the Commissioners, but it will be hard on people with children to pay their taxes; and it is going to get harder because the County will have to cut services. Ms. Polk stated she disagrees with Mr. Caruso that if the Board takes their money to pay a Constitutional Officer, it should have some rights to cut his budget and put it down like everyone else's; and requested a copy of the budget that was amended in the middle of the year. She stated it started out at $6,783,606 and was amended to $7,144,853; and inquired if the Board amends all the Constitutional Officers' budgets in the middle of the year. She stated there was an increase in salaries of $304,305; the Board gave him that in the middle of the year; and she has most of the paperwork she is speaking about. She stated the increase in mid-year 1 and 2 was $194,332; and inquired why was it so much last year; she has where there were a lot of things changed; she will not give names, but will give the figures; and they are straight from the record since he said all her statements were lies. She stated on March 25, 1999, every two weeks this person made $1,969.70; on December 2, 1999, that person made $2,668.97 every two weeks; and by December 28, 1999, it was $2,279.18; and she is not lying. Ms. Polk stated if she was Mr. Ford, she would be ashamed to send an attorney that cost the taxpayers from $150 to $175 an hour; she would have been man enough as the Appraiser of Brevard County to come and say it herself; and she would have felt a lot better if he would have come to her face and said it instead of the taxpayers having to pay a guy to sit in the Board Room all those hours to call her a liar and a cheat. She stated she will be back; she does not know what the situation is going to come to for public hearings for people; but if the Board stops it, it will stop freedom because they have no way to get to his office.

PUBLIC COMMENTS - NELLY STRICKLAND, RE: BOMB THREATS AT JACKSON
JUNIOR HIGH SCHOOL, AND PARRISH MEDICAL CENTER ISSUES

Nelly Strickland gave the Board candy from Belgium; stated Jackson Middle School is having a problem with bomb threats invented by kids; but the police and firefighters have to come out; and while all that commotion was going on J. B. Jewelers was broken into. She stated throw her a problem and she will find a solution; children should not be thrown out of school for three days if they talk about bomb threats; the Board talks about it, it is all over the television and radio, and she got that World War II thing again of what to do, run or hide. She stated that is not good; other things can be done; they can have someone from the Police Department or Sheriff's Department give a spiel at the school and make them realize if they do that stuff somebody else may get robbed, and ask if that is what they had in mind when they did those funny tricks. She stated there are solutions and she wishes the Board would make suggestions. Ms. Strickland stated the Board has heard her crab about the hospital and its procedures many times through the years; the contract is up and the support group has been dissolved; there is more money to buy more equipment; and it is getting a little uptown there. She stated now for the former members of that outfit, there must have been stuff slipping through the cracks or they would not be so hep about having that job. She stated Walt Johnson came to the Hospital Board meeting with two letters and read one of them which was ugly; Mr. Noffel who is well-qualified, has better qualifications than anyone on that Board, and knows what he is talking about, went over some figures and found them very interesting, and that is the reason that thing was finally dissolved, to apologize because there was the word "corrupt" in there. Walt Johnson, who she will call a self-declared power broker, read the thing and instigated the hassle; corrupt means making something good worse; and that is exactly what Mr. Noffel had in mind, it made something good worse. She stated Nate Pilate, Bob Jordan, and Jay Parrish were riding herd; Jay Parrish she can understand, but she cannot understand Mr. Pilate and Mr. Jordan, and hates for them to do to someone else what they fought all those years to not have done to them. She stated that is very ugly and bad news that they serve on every committee; and she wanted the Board to know that. She inquired if they need another equal rights amendment favoring just plain folks or do they have to get into the hassle. She stated those are people who do not know what they are talking about, talking against someone who is extremely educated and extremely well documented; it makes her ill that those people are harassing him because Walt Johnson stepped in like a self-declared power broker; and her fear is that he sold his house and may be moving into the City of Titusville.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 5:33 p.m.

ATTEST: _________________________________
SUSAN CARLSON, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
____________________
SCOTT ELLIS, CLERK

(S E A L)