The Board of County Commissioners of Brevard County, Florida, met in special session on March 2, 1995, at 5:06 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Merritt Island, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook and Scott Ellis, Assistant County Manager for Community Development Dean Sprague, and County Attorney Scott Knox.

Commissioner Cook led the assembly in the Pledge of Allegiance.

Chairman Higgs advised of the proper procedures for addressing the Board.

DISCUSSION, RE: MEETING WITH CITY OF TITUSVILLE

Commissioner Scarborough advised at the last meeting, the Board wanted him to talk to the Mayor of the City of Titusville regarding whether or not they want to have a joint meeting; the Mayor indicated he could not think of any reason it would be essential for them to meet; but he is going to bring it up at the next City Council meeting to see what it desires. He noted if there is no desire to have a meeting, it can be deferred until there is an interest.

DISCUSSION, RE: NUDITY ORDINANCE

Commissioner Scarborough stated there are a lot of people interested in the nudity issue; the Board should anticipate approximately 500 people; there is also the bingo issue; and requested staff review the meeting schedule. Commissioner Ellis requested strong legal research be done from the County Attorney regarding the nudity ordinance; stated there is going to be a large group of people wanting something done; and everyone needs to understand the consequences of what the County does one way or the other. He noted his concern is if the County passes the ordinance and it gets struck down in court, then there is the problem throughout the whole County.

County Attorney Scott Knox inquired is Commissioner Ellis speaking of a response to his memorandum specifically. Commissioner Ellis requested Attorney Knox find out what is happening with St. Johns County; and stated Brevard County needs to make sure it starts with the right thing first.

Chairman Higgs noted beyond the ordinance from the County Attorney, the Board hopes it will see research that gives it a strong indication of where it will be.

DISCUSSION, RE: STONE COMMUNITY LIBRARY

Chairman Higgs advised the Stone Community Library issue is scheduled for March 7, 1995; and she has been contacted by the NAACP, The Friends of the Library, and the Martin Luther King Coalition requesting such item be heard on March 14, 1995.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to schedule the Stone Community Library item for the March 14, 1995 agenda. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE ON PERMITTING OF ELECTRICAL TRANSMISSION LINES

Chairman Higgs called for the public hearing to consider ordinance on permitting of electrical transmission lines.

County Attorney Scott Knox advised this is basically a permit ordinance which governs the locational criteria for any transmission lines which are not covered by the current State law governing the location of transmission lines; and the transmission lines as currently defined in the State law is those designed to operate 230 kilovolts or more. He noted there are specific exemptions recognizing the State law where 230 kilovolt lines and above do not fall within the certification procedures set forth in the State law; and that is what this ordinance is designed to get at and any transmission lines that are below that threshold. He noted Section E, 31-5 sets the criteria for the permit issuance and where to locate a line in the County; the Florida Power and Light (FP&L) Company or any other utility would have to come before the Board to get approval of a permit for the location of that particular transmission line; and those are the criteria the Board would be looking at and considering.

Steve Dickinson, 240 Cadiz Court, Merritt Island, Area Manager for FP&L Company, advised the Company has reviewed the proposed ordinance; it has many concerns; and he is going to focus his attention on one concern it has in particular that relates to the County and not necessarily to FP&L, which is the transfer of responsibility from the current FP&L Company, the Public Service Commission and the courts of the siting of power lines to the County Commission, and what those implications are. He noted presently when a transmission line is determined to be needed, it is because load in the area typically grows to the point where there needs to be additional facilities constructed and to infuse more power into the transmission grid; at the point, it is identified there is a need, typically there is a supply of power somewhere and a need somewhere; there are two points; and the power needs to get from one point to the other. He advised then it becomes a matter of routing; presently FP&L has to go through a very intensive effort in terms of meeting criteria that are generally accepted by its regulators and the courts; the courts are a very important party in this; and those criteria the Company has to look at include what are the alternative routes, costs, environmental effects, long-range planning or needs, safety, and sound engineering practices. Mr. Dickinson stated when and if this site gets challenged and ends up in the courts, these are the six criteria that his Company has to defend; this particular process is very long and technically intense; and it takes a lot of time and staff to evaluate all of these alternatives. He advised he contacted different areas to find out how many times the Company sited transmission lines where all of the adjacent property owners are happy with the site; the answer was none; nobody knew of anywhere the adjacent property owners were happy; that means in every case, the Company has some unhappy customers that have to be dealt with; and in most cases, there is some eminent domain proceedings that have to take place in order to utilize the best route as determined by many months of analysis. He noted with this ordinance, the best route would be determined by the County Commission; and all of the responsibilities and liabilities, both political, legal and financial that go along with determining the best route and defending that in the courts, would be shifted to the Board. He advised he is assuming the Board in passing this ordinance would be intending to make some changes over and above what FP&L's best route was determined to be or else there would not be a need for an ordinance; and if the County assumes that the best route is now being done, then it would not want to change that in the future. He stated the increased costs to Brevard County is going to be substantial in terms of staff taking over this responsibility.

Bob Coleman, 28 Iroquois Trail, Ormond Beach, representing FP&L Company, advised what the ordinance spells out is something that is good for attorneys and engineers that are looking for work because the County would have to acquire a tremendous number of both of them; a transmission line is a very complex operation; they are tied in a grid; what happens in Pinellas County can very well affect what happens in the transmission circuits in Brevard County; and the County would have to find someone with the technical expertise to understand this. He noted there are some problems with the ordinance that the County is asking the Company to do; and he is concerned about the technical expertise and costs involved. Mr. Coleman advised FP&L has criteria when it goes for a transmission line which it must meet; in almost every case, some part of the circuit will have to be acquired in right-of-way by eminent domain; when FP&L goes to court, the courts look at alternative costs, the routes, environmental effects, long-range planning, safety, and sound engineering practices; and if the Company has not followed all these criteria, the court will not award FP&L eminent domain. He noted if the Company comes to the County with a route that has fit all these criteria and is changed, then FP&L would not be able to acquire the right-of-way; and without that, it cannot build the transmission line. He stated this is something that is set; the criteria are very explicit; and when FP&L goes to court, it must be able to demonstrate that it has followed these criteria that have been recognized by the Public Service Commission as well as the courts. Mr. Coleman advised there are various laws on local regulation of transmission lines; and in looking at case law and what the Legislature passed, the idea is very clear the Legislature intended transmission lines not to fall on a local jurisdiction because these lines typically cross boundaries. He noted the bottom line is what will the County gain for it; what it is talking about doing is passing an ordinance that duplicates what happens in the courts and at the PSC; the end result, if the criteria is properly applied, is the same conclusion; and if applied correctly, there is only one way which is really the best way. He requested the Board seriously consider asking the County Attorney to go back and work on another ordinance that possibly can help the County bring citizen input earlier in the process; but does not assume the role of a judge and put itself in that position.

Judy Lipofsky, 1831 Laurel Oak Drive S., Rockledge, advised they are one of the many homes that will be impacted if the FP&L project is built as proposed; they do not argue with the fact that power is necessary for the areas of Brevard County that are growing rapidly; and their argument is that new power lines should not be placed above ground in established residential areas. She stated they have never been opposed to this project if the lines were placed underground; and inquired what is the cost in revenue to the County when there is a power outage. She stated it costs $30,000 to replace the transmission line and pole due to an accident in Melbourne; all of these things should be taken into account; FP&L said overhead power lines are used because they are much cheaper than underground; and the only thing that costs less is the initial installation. She requested power lines be placed away from residential areas; and stated if they must be placed in such areas, then they should be placed underground. She noted the technology is here to do it in a cost-effective manner; and the County needs to start looking at modern technology instead of continuing to do things the way it has done them for the last 50 years.

Nicholas Rahal, 1269 U.S. 1, Rockledge, stated the representatives for FP&L indicated when the County encounters an ordinance such as this, it might be open to all kinds of problems; all good ordinances adopted by the County in protecting the people's health, safety and welfare subjects it to all kinds of counter attacks from all organizations; FP&L is a profit-making organization; it has to satisfy its stockholders; and he is one of them. He noted the price of freedom and the freedom of press and speech is very expensive; millions and millions of dollars have been spent in keeping freedoms; and when the Board feels it has to protect the safety and welfare of the people, then they support it all the way. Mr. Rahal stated the trend is coming that all power lines are going to have to be underground; everyone is going to have to pay the price; to maintain their health for the future, they are going to have to pay plenty; and he is willing to pay for the safety of their future. He noted Rockledge is not a fast-growing area; all of this power is going somewhere else; he appreciates the way the Board has supported the people; and the citizens of Brevard County will stand behind it.

Peter Fischer, 1820 Live Oak Drive S., Rockledge, complimented the Board for taking an aggressive approach in coming up with a proposed ordinance; advised there have been various studies on whether EMI's have an affect on health and so forth; there has been about 60 studies; 54 of them said yes; and there a lot of lawsuits in about 12 states right now on the health results of the EMI's produced by high tension power lines. He expressed appreciation to the Board for spearheading this operation.

Commissioner Cook stated there are serious concerns that people have regarding this issue; there are some questions that have been brought up; and requested the County Attorney respond.

County Attorney Scott Knox stated he can respond better at the next public hearing; he has seen FP&L's analysis of the ordinance; it has some legitimate concerns; this is an ordinance that was prepared on a very broad basis because he did not have a lot of time to put it together; and if the Board finds something it does not like, it can adjust it accordingly. He noted there are some issues that FP&L has raised which he would not have to address in the ordinance in order to make it a valid ordinance; and he does not think everything it has said is necessarily the case. He stated there is a way to draft an ordinance that would allow the County to have some control over how these things get sited; and whether or not it wants to do that is a different question. Attorney Knox stated in terms of specifics, he would prefer the Board give him the chance to come back at the next public hearing and address those individually.

There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Cook, to continue public hearing to consider ordinance relating to permitting of electrical transmission lines until March 14, 1995 Board Meeting at 5:01 p.m.; and direct the County Attorney and County Manager to address comments and concerns by Florida Power & Light (FP&L) Company representatives and the Board regarding the proposed ordinance, and provide alternative language for consideration by the Board.

Commissioner Cook stated Jim McKnight, Rockledge City Manager, has reviewed the ordinance and supports it.

Chairman Higgs noted the issues need to be brought forth; the County Attorney needs to work the ordinance and come back to see if the issues are clarified; and the Board can proceed at the second hearing.

Commissioner Ellis stated the Board needs to have all the information available when it goes to the final hearing.

Discussion ensued on language changes in the proposed ordinance, health, safety and welfare issues, evaluating applications for conformity, Comprehensive Plan amendments, land development and zoning regulations, above ground and under ground transmission lines, electromagnetic fields, allowing cities to opt out of the ordinance, provisions for sharing costs if cities opt in, notification process, intent of the Legislature regarding the size of lines, what the PSC deals with in terms of local siting of power lines, what the court does in assessing impacts and issues, and the liability issue the County would acquire if it is the permitting agency.

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

PUBLIC HEARING, RE: ORDINANCE RELATING TO CANOPIES OVER GAS PUMPS

Chairman Higgs called for the public hearing to consider an ordinance relating to canopies over gas pumps.

Zoning Official Rick Enos advised this is an ordinance to provide a setback for canopies over gas pumps; right now the Zoning Code does not directly address the setback for canopies; and therefore, it is regulated as any other structure. He noted gas pumps can be set back at 15 feet; so there is a situation where in order to take advantage of the gasoline pump setback, a canopy cannot be put over it. He stated the industry is such now that because of self service customers, they all want to have the canopies over them; this proposal would allow the canopy to go to 15 feet; and in the process, the LPA recommended the pumps be moved back to 20 feet.

There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Cook, to continue public hearing to consider ordinance relating to canopies over gas pumps until March 14, 1995 Board Meeting at 5:01 p.m., with canopy setback of 15 feet and pump setback of 20 feet as recommended by the LPA.

Commissioner O'Brien inquired has the fire department been consulted about this; with Mr. Enos responding no. Mr. Enos advised staff will get the fire department's comments.

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

PUBLIC HEARING, RE: ORDINANCE RELATING TO A1A AND OTHER SPECIAL SETBACKS

Chairman Higgs called for the public hearing to consider an ordinance relating to A1A and other special setbacks.

Donald Dowling, 105 Mohican Way, Melbourne Beach, stated if the ordinance is adopted, A1A could never be four-laned; he has lived in the area for 21 years; he has the traffic go from practically nothing to where it is trying sometimes getting to Melbourne; and in another 10 years, the population is going to double. He noted to give up all that land and later on have the County's hands tied where it cannot do a thing would be a huge mistake.

Commissioner Ellis advised the County does not own this property.

Chairman Higgs stated she is very reluctant and would not support changing the particular setbacks that are there.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to reject the proposed ordinance relating to A1A and other special setbacks.

Commissioner Ellis stated he does not support the denial; it is not fair to have one road in the entire County that has special setbacks; there are numerous other State roads that eventually will be widened; and none of them have a special setback. He noted this is the only road in Brevard County that has special setback in the Zoning Ordinance; no other State road and no other County road has a special setback; inquired why are the property owners on A1A subjected to something no one else in the County is; and stated it is very unfair.

Commissioner Cook requested staff provide the Board with additional information; with Planning and Zoning Director Peggy Busacca responding staff can provide some cross section showing the right-of-way and additional information that may be more helpful.

Commissioner Scarborough stated if the Commissioners want more information, he will withdraw his motion. He noted he believes the County is making a mistake if it takes away the option of four-laning A1A. Chairman Higgs noted to eliminate A1A as a four-lane possibility would be wonderful, but irresponsible; it is not a wise thing to do; and her second to the motion still stands.

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

Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to continue public hearing to consider ordinance relating to A1A and other special setbacks until March 14, 1995 Board Meeting at 5:01 p.m., with staff to provide additional information and options, including the feasibility of four-laning A1A. Motion carried and ordered; Commissioner Higgs voted nay.

Upon motion and vote, the meeting adjourned at 6:45 p.m.

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

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