March 5, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session at 9:04 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Susan Carlson, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Rabbi Richard Margolis of Temple Beth Shalom, Melbourne, Florida.

Chairman Truman Scarborough led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve the minutes of January 15, 2002 Regular Meeting. Motion carried and ordered unanimously.

REPORT, RE: REDISTRICTING IN SOUTH MELBOURNE BEACH

Commissioner Higgs advised according to the latest information in the newspaper, about 3,000 people south of Sea Dunes Drive in South Melbourne Beach are being put into an Indian River County District and will be the only Brevard County residents in a Legislative District that is not predominantly Brevard County. She inquired if the Board is willing to send a fax today to indicate to the Legislative Delegation that it would be in the best interest of all that they be put in one of the other districts that is predominantly Brevard County.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to instruct the County Manager to send a fax to the Legislative Delegation indicating that the Board thinks it would be in the interest of all to put the approximately 3,000 residents in South Melbourne Beach in one of the other districts that is predominantly Brevard County. Motion carried and ordered unanimously.

REPORT, RE: VERY SPECIAL ARTS

Commissioner Carlson advised there are folks in the lobby representing Sampling the Arts, which is a program that is sponsored by Brevard Cultural Alliance, and today they have the Very Special Arts of Florida and Brevard. She stated it is the recipient of a County cultural grant, which serves people with disabilities through the arts; and on April 11 and 12, 2002, which marks the 14th Annual Hands on Arts Festival at F. Burton Smith Park in Cocoa, they will gather with the artists and community volunteers to provide arts experiences for children and adults with disabilities. She stated programs are held throughout the year, including art contests, exhibitions, and workshops; and Very Special Arts also sponsors two national programs--Start with the Arts for Pre-schoolers, and Express Diversity for All Ages. She stated Janice Kershaw heads up the Very Special Arts Board; she can be contacted at 690-6817; and requested everyone to stop by the display.

REPORT, RE: MEMO FROM MICHAEL FITZGERALD ON GRANT WRITING

Commissioner Carlson advised she has a memo from Michael Fitzgerald who was the designated grants writer on a part-time basis, expressing the need for more grant writing and working with nonprofits; and requested Mr. Jenkins advise of the status of that issue.

County Manager Tom Jenkins advised Mr. Fitzgerald has taken another position in County government, and is no longer in that role; however, another employee has assumed that role and based on the Board's request, Mr. Fitzgerald did give the Board his thoughts of what the County might do to expand or improve. He stated Mr. Fitzgerald made several suggestions; staff is in the process of trying to implement those suggestions; they have made each of the Department Directors specifically aware of what Mr. Fitzgerald's recommendations are; and the individual who has taken his duties has also been made aware of those recommendations and has taken steps to try and implement them. Mr. Jenkins advised the first step basically is to make everybody aware of those thoughts, then look for opportunities to take advantage of the suggestions that Mr. Fitzgerald offered; so they have received the memo and have circulated it.

Commissioner Carlson inquired if Mr. Jenkins can give the Board an update on the status of that process once it is established; with Mr. Jenkins responding affirmatively.

REPORT, RE: TOWN MEETING

Commissioner Colon advised on Saturday at 10:30 a.m. she will hold a town meeting in Palm Bay at the Senior Center on Culver Street.

REPORT, RE: WALK FOR LIFE

Commissioner Colon advised Walk For Life will begin this Saturday at 8:30 a.m. at Gleason Park in Indian Harbour Beach, and invited everyone to come out and participate.

REPORT, RE: YOUTH SUMMIT

Commissioner Colon advised the Youth Summit they had on Thursday was wonderful; it was hosted by Leadership Round Table; and Together in Partnership was established to reduce risk factors for youth and improve protective factors to cushion children against the risk of abuse, delinquency, and violence. She stated the Department of Justice has established participants in a faith community; it is an important factor, but TIP's data shows that Brevard County is below State and national averages in this factor. She stated they were able to identify all the key spiritual leaders who were interested in exploring a partnership to improve outcomes for children; and if anyone wants to be part of it, they are more than welcome to call her office and they will put them in touch with Rita Elkins from TIP.

Commissioner Carlson stated it was a very enlightening experience and nice to see the faith community come together for the youth. She stated the Board is trying to engage the faith community; she was lucky enough to sit at a table where she was the table leader and got to talk to some outreach ministers; and they have some novel ways of reaching youth in the community. She stated it was a great experience and she looks forward to them going forward; it was one in a series, so there are going to be others to develop conversation with the faith community; and it will be a great shot in the arm for the youth in our community.

REPORT, RE: PREVENT OF BREVARD

Commissioner O'Brien advised Saturday night is the annual Prevent of Brevard party with about 30 restaurants participating with food booths around a huge tent; and for a minimal charge, people can sample all the foods of Carrabas, Outback, and other restaurants. He stated it is one of the few events where no speeches are given; the band is good and people can dance to the music; and there will be alcohol served. He stated it will be at one of the prestigious buildings in Central Brevard along South Courtenay Parkway; it starts at 6:30 p.m.; last year they had about 600 people and expect 800 this year; and invited everyone to come to the party. He stated Prevent of Brevard is a group that works towards drug abuse prevention for young people; they are good at it and the school on Clearlake in Cocoa got a huge grant to intercede through education; and they have been successful. He noted the site is about ten miles south of SR 520 on South Courtenay Parkway.

REPORT, RE: NEW CORNERSTONES

Chairman Scarborough advised he sent a memo to Commissioners about the New Cornerstones commissioned by the Florida Chamber Foundation; the first segment came out in November, 2001, but it continues to be repeated again and again in newspaper articles and some press; and some of the data is very disconcerting. He stated per capita personal income, the single most basic measure of the region's economic development, increased at a slower rate than the national average during the last ten years, pushing Florida residents from almost 3% above to nearly 5% below the national capita income level. He stated just over 19% of working parents earn incomes at or below 150% of the poverty level in 1997-99; this ranks Florida 37th among the 50 states; and about 12% of all workers were able to work full time, but were unable to find full time work according to the U.S. Bureau of Labor Statistics. Chairman Scarborough stated the data suggest Florida's robust job growth during the 1990's has been concentrated in the lower wage industries and lower quality jobs, a situation that is keeping the State employed but preventing the State's goal of boosting average income levels. He stated he is the County's representative on My Region, and found out last week Florida has the least amount of health insurance for employees in the nation, and Orlando is the lowest in the State; and it does not indicate that wage is the only factor because it is the whole job package. He stated Florida ranks 45th for the number of science and engineering graduate students, with about 932 for every one million residents in 1998; in 1990, just under two of every 1,000 workers had Ph.D's in science and engineering, the fourth lowest rate nationally; and Brevard County is supposed to be high-tech. Chairman Scarborough stated Florida's existing efforts in education and research may not be sufficient to position the State to compete in the knowledge economy; K-12 education expenditures per pupil rank 38th in the nation, which is near the bottom; and in 2000, with the decline in real dollar spending since 1991, the State is at the bottom and spending less. He stated Florida's manufacturers invested $6,900 per employee in new property planned equipment in 1997; it ranked the State 44th in the nation; the State ranked 10th for venture capital disbursement, which sounds good; but compared to California, its $1.2 billion is far from the $24 billion of California. He stated between 1980 and 1999, total vehicle miles traveled increased 83%, but highway lane miles increased only 18%; and the report is peppered with that type of information.

Commissioner Carlson stated she received a copy of that a while back; all that information is very good and they have been feeding it into the Brevard Tomorrow process because that is the information they need; and it is very disconcerting and shows they have a long way to go in the State of Florida.

Commissioner O'Brien stated it amplifies what the Board has been saying for years; sometimes the public does not understand it; Florida ranks about 46th in the nation for education; noted New Mexico is 50th; and Florida is so close to it that it is embarrassing. He stated it is time for everybody, especially adults who can do something about it, to stand up and scream and send letters and emails to Tallahassee to remind the Governor, Legislature, School Board, and everybody involved that they need to get out of the hole. He stated the numbers show Florida has the fewest science and math students and engineers and doctorates because it does not have the children graduating high school qualified to take those kinds of studies; one feeds off the other; and it is almost an embarrassment to say his son graduated from high school in Florida because Florida has the worst school system in the nation. Commissioner O'Brien stated the people have to speak up and tell government to take all the lottery money and put it back into education; Florida has been on the bottom since he can remember; and it has never changed positions. He stated it is not because it has good weather and children go surfing instead of school; people in the middle of the State do not go surfing all day; the education system is terrible; and unless something is done about it, it is going to stay bad and the figures will remain where they are.

Commissioner Colon stated it may be ranked low against the nation, but Brevard County has one of the highest percentages in graduation at 86% compared to the rest of the State; and that is something to focus on. She stated with Dr. DiPatri's goals and expectations, the bar has been raised higher since he has been here; his focus is on magnet schools; and in the last year things have been happening in Brevard County that are exciting. She stated overall Brevard County's numbers show it is ranked well against the State and Nation; the Space program and NASA put Brevard County in a different expectation; parents expect educators to set the bar high; and Brevard County has data that prove it is doing well. She stated it can always do better and have 99.9% graduation, which would be awesome; but 86% is something the Board should be proud of. She noted letters to encourage the School Board and let it know the Board wants to have Brevard County stay up there will definitely be appreciated.

Commissioner O'Brien stated the Board needs to demand that money be spent on education for better results, and the people of the County and other counties need to speak up; it is great to have 86% graduating, but it is terrible to have 14% that do not; Brevard County may have good schools, but the State is at the bottom; and the schools in Brevard County cannot compare to those of Union County in New Jersey. He noted that is a harsh statement, but it is the truth; and it is time for the people of the County and State to realize how bad the situation really is. He stated there is no excuse for it except the lack of leadership from the top and unwillingness of the people who live here to step up and loudly proclaim that education is #1 if they want the children to get out of the cycle that the State is in.

Chairman Scarborough stated the report is peppered with all kinds of data; and what has been done with Brevard Tomorrow will have the leadership coming from Brevard County for the State. Commissioner Carlson stated the analysis from Brevard Tomorrow and from the State and Region will create a more accurate picture of where Brevard County stands. Commissioner Higgs stated the Board has to recognize and accept the numbers; and the efforts of Brevard Tomorrow and others to help the Board understand those numbers and its opportunities to be something other than the bottom of the barrel are important. She stated the prayer this morning talked about opportunities; and this points out the opportunity the Board has to be something other than that level, but it has to accept where it is. She stated the figures are important; and it is in the Board's collective interest to address those issues; every one affects everybody; Brevard County and Florida are juveniles that have grown up, but are not mature yet; and rather than seeing it as a crisis, it has to see it for what it is. She stated Brevard County has grown up and gotten bigger, but has not matured; it has to catch up and bring itself together, because if it does not, it is going to be in big trouble. Commissioner Carlson stated the Board has to accept the figures, but as the community has shown, it does not have to accept it for the community; and that is the big message through Brevard Tomorrow, that it does not have to accept it and it is going to try and do something about it. Commissioner Higgs stated she did not mean to accept it as good enough, but to accept it as real; and now it has to make a choice to be something other than that. She stated she is proud of the leadership the Board is providing and trying to get Brevard County on the level it wants to be.

RESOLUTION, RE: RECOGNIZING BRIAN BORU'S REIGN AS KING OF IRELAND

Commissioner O'Brien advised Mark Pence, dressed in his Irish kilt and garb, and several members of the Ancient Order of Hibernians are here this morning; every year the Board adopts a resolution for the Irish of Brevard County; and this year it goes back over 1,000 years in Irish history. He read the resolution acknowledging Ireland's beloved son Brian Boru as one of the bravest, wisest, and noblest of all the Kings of Ireland.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to adopt Resolution recognizing Brian Boru's reign as King of Ireland. Motion carried and ordered unanimously. (See page for Resolution No. 02-048.)

A representative of the Ancient Order of Hibernians advised the St. Patrick's Day Parade will be held on March 16, 2002 at 2:00 p.m. on New Haven Avenue in Melbourne; and expressed appreciation to the Board.

RESOLUTIONS, RE: RECOGNIZING YOUNG WOMAN AND WOMAN OF THE YEAR

Commissioner Carlson read a report as follows: "The Board of County Commissioners has recognized women and young women of the year for the past nine years. This year the Commission on the Status of Women (CSW) is partnering with Patrick Air Force Base to celebrate Women's History Month, and solicited nominations through the media and members of the CSW. The award winners were selected for their outstanding volunteerism in the community and school. The young woman was selected out of four nominations, and the woman was selected out of 21 nominations." She requested Ms. Brenda Black to come forward; and read aloud the resolution congratulating Ms. Black as Woman of the Year for 2002.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution declaring Brenda K. Black as the 2002 Brevard County Commission on the Status of Women Woman of the Year in recognition of her role in volunteerism. Motion carried and ordered unanimously. (See page for Resolution No. 02-049.)

Commissioner Carlson presented the Resolution to Ms. Black, who expressed appreciation, and stated what she does is because it is the right thing to do, and she never expected anything to come from it. She thanked the people who nominated her and recognized her for this honor. Commissioner Carlson advised Brenda is a Manager at Avtech.

Commissioner Carlson read aloud a resolution declaring Kristiana Eileen Henkel as the 2002 Brevard County Commission on the Status of Women Young Woman of the Year.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution declaring Kristiana Eileen Henkel as the 2002 Brevard County Commission on the Status of Women Young Woman of the Year in recognition of her role in sustaining the American spirit of volunteerism. Motion carried and ordered unanimously. (See page for Resolution No. 02-050.)

Miss Henkel advised she is honored to receive this award and do what she does because she enjoys it.

Brenda Harris, Chairman of the Brevard County Commission on the Status of Women, thanked the Board for recognizing Women's History Month and the outstanding women and young women. She presented a poster to the Board for Women's History Month.

Commissioner Carlson advised she attended the breakfast at Patrick Air Force Base that the CSW did; Helen Wyatt Snapp, who was a Women Air Force Service pilot in World War II, was the guest speaker; and she was very engaging and enlightening when she spoke about what women did in World War II.

RESOLUTION, RE: PROCLAIMING KNOW YOUR NEIGHBOR MONTH

Commissioner Carlson read aloud a resolution proclaiming the month of April 2002 as Know Your Neighbor Month in Brevard County.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution proclaiming April 2002 as Know Your Neighbor Month, and encouraging citizens to come together for the betterment of the entire community and get to know one's neighbors. Motion carried and ordered unanimously. (See page for Resolution No. 02-051.)

Commissioner Carlson presented the Resolution to Bunny Finney and Rob Raines. Ms. Finney thanked the Board for recognizing United Way and the work it does in the community. Ms. Finney stated it is important to take time to celebrate the good people in Brevard County; and that is part of what Know Your Neighbor Month is all about. She requested Rob Raines, President of United Way, to give the Board the details about Know Your Neighbor Month.

Rob Raines thanked the Board for the proclamation; stated it is the third year the Board has declared April as Know Your Neighbor Month; and they have been trying to get more people to do block parties to get out and know their neighbors as another protective factor. He stated if people know the folks in their neighborhood, from a crime watch perspective, it is a good thing; if they know the children and seniors in the neighborhood who may need help, it is a great thing; so they have been encouraging folks to do block parties with potluck dinners. He stated Florida TODAY likes to cover block parties, so if an area is going to have a block party, they could let United Way know so they can notify Florida TODAY to send a reporter out. Mr. Raines advised Publix is doing something special; it has 20 stores in Brevard County, and each store is giving away $100, $50, and $25 for the best ideas for block parties; so if people have good ideas, they could submit an application to Publix and perhaps get funds to purchase food and drinks but no alcohol. He stated it is a great thing to know your neighbors; it is simple to get out and meet them; and it is important to do that.

RESOLUTION, RE: RECOGNIZING EAGLE SCOUT JASON JAMES WARD

Commissioner Carlson read aloud a resolution recognizing the achievements of Jason James Ward and his attainment of the rank of Eagle Scout.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to adopt Resolution recognizing the achievements of Jason James Ward who earned the rank of Eagle Scout working with the EEL Program at Cruickshank Sanctuary clearing a trail for hiking and installing signs for visitors, among other accomplishments. Motion carried and ordered unanimously. (See page for Resolution No. 02-052.)

Commissioner Carlson presented the Resolution to Mr. Ward, who thanked the Board for the honor; and stated he hopes to help the community any chance he is given.

RESOLUTION, RE: RECOGNIZING OLIVIA McCREADY

Commissioner Colon advised Olivia McCready is called "Beautiful" in Palm Bay; and read aloud a resolution commending Olivia McCready for her outstanding volunteer service, commitment, and dedication to the citizens of Brevard County. She noted Ms. McCready celebrated her 85th birthday on February 21, 2002.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to adopt Resolution commending Olivia McCready for her outstanding service, and expressing appreciation for her commitment and dedication to the citizens of Brevard County. Motion carried and ordered unanimously. (See page for Resolution No. 02-053.)

Ms. McCready stated she is not a speaker but a doer; the good Lord kept her here in good health to do something good for people; and she does not deserve a reward for it. Commissioner Higgs advised Ms. McCready made flags for the tops of automobiles; and does great things for people.

RESOLUTION, RE: RECOGNIZING EAGLE SCOUT KYLE A. HUNTER

Commissioner Colon read aloud a resolution recognizing Eagle Scout Kyle A. Hunter.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to adopt Resolution recognizing Kyle A. Hunter who attained the rank of Eagle Scout by enhancing a one-mile stretch of Bayside High School Cross Country Course, removing debris, trimming trees, and widening surfaces along the course, among other accomplishments. Motion carried and ordered unanimously. (See page for Resolution No. 02-054.)

Commissioner Colon presented the Resolution to Mr. Hunter, who thanked the Board for the honor.

APPOINTMENT, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT BOARD

Commissioner O'Brien recognized Jack Selman, and advised he will be appointed to the North Merritt Island Dependent Special District Board later in the meeting.

FINAL PLAT APPROVAL, RE: SORRENTO VILLAGE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant final plat approval for Sorrento Village, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining appropriate jurisdictional permits. Motion carried and ordered unanimously.

CONTRACT WITH S & S ENTERPRISES, INC., RE: INFRASTRUCTURE IN ISLES OF
BAYTREE, PHASE 2

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Infrastructure Contract with S & S Enterprises, Inc. guaranteeing infrastructure improvements in Isles of Baytree, Phase 2. Motion carried and ordered unanimously. (See page for Contract.)

CONFIRMATION OF REPLACEMENT REPRESENTATIVE, RE: NORTH MERRITT ISLAND
DEPENDENT SPECIAL DISTRICT BOARD

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to confirm the appointment of Jack M. Selman, Jr. as the replacement Group 2 representative on the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

RESOLUTION, RE: ACKNOWLEDGING DEPARTMENT OF TRANSPORTATION'S
LETTER OF INTENT TO TRANSFER A. MAX BREWER BRIDGE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution acknowledging the letter from Florida Department of Transportation dated February 14, 2002, regarding the transfer of A. Max Brewer Bridge. Motion carried and ordered unanimously. (See page for Resolution No. 02-055.)

USE AGREEMENT WITH THE VIERA COMPANY, RE: LANDSCAPING WITHIN
WICKHAM ROAD/LAKE ANDREW DRIVE RIGHT-OF-WAY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Use Agreement with The Viera Company for landscaping within Wickham Road/Lake Andrew Drive right-of-way. Motion carried and ordered unanimously. (See page for Agreement.)

EASEMENT TO FLORIDA POWER & LIGHT COMPANY, RE: GOVERNMENT CENTER
MAINTENANCE BUILDING IN VIERA

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Easement in favor of Florida Power & Light Company and Underground Distribution Facilities Installation Agreement for the new maintenance building at the Government Center in Viera. Motion carried and ordered unanimously. (See pages for Easement and Agreement.)

ACCEPTANCE OF DEEDS FROM J. J. PARRISH III, TRUSTEE AND ROBI ROBERTS,
TRUSTEE, RE: FOLSOM ROAD RIGHT-OF-WAY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to accept Deeds from J. J. Parish III, Trustee and Robi Roberts, Trustee, for Folsom Road right-of-way. Motion carried and ordered unanimously. (See pages for Deeds.)

NOTICE OF CONTRACT EXTENSIONS, RE: CONSULTING ENGINEERING SERVICES
FOR REGIONAL STORMWATER UTILITY PROJECTS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Notice of Contract Extensions with Camp, Dresser & McKee, Inc.; Post, Buckley, Schuh & Jernigan, Inc.; Bussen-Mayer Engineering Group, Inc.; BRPH Architects/Engineers; and Creech Engineers, Inc. for a one-year extension of continuing consulting engineering services Contracts for regional stormwater utility projects. Motion carried and ordered unanimously. (See pages
for Notices.)

GRANT PROPOSAL, RE: HOMELESS ASSISTANCE GRANT FOR CONTINUUM OF
CARE IN THE CATCHMENT AREA

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize submittal of a grant proposal to Florida Department of Children and Families, Office of Homelessness for a homeless assistance grant as the lead agency for the continuum of care for the Brevard County catchment area. Motion carried and ordered unanimously.

EMERGENCY PURCHASE AND CONTRACT WITH CREATIVE EDUCATION, INC., RE:
EXHIBIT DISPLAYS AT ENCHANTED FOREST SANCTUARY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to waive bid requirement and authorize emergency purchase of design, fabrication, and installation services for the educational interpretive exhibits for the Enchanted Forest Sanctuary from Creative Education, Inc.; and authorize the Chairman to execute the Contract. Motion carried and ordered unanimously. (See page for Contract.)

RESOLUTION, RE: REQUESTING CONGRESSIONAL DELEGATION SUPPORT
FUNDING FOR BREVARD COUNTY SHORE PROTECTION PROJECT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution requesting the Florida Congressional Delegation to support funding for Brevard County Shore Protection project. Motion carried and ordered unanimously. (See page for Resolution No. 02-056.)

APPOINTMENT, RE: 9-1-1 COORDINATOR

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to appoint William Stevens as the Brevard County 9-1-1 Coordinator. Motion carried and ordered unanimously.

SETTLEMENT OF CLAIMS, RE: CLARA J. WILLIAMS v. BREVARD COUNTY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize settlement of all claims with Clara J. Williams in the amount of $85,000. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to reappoint Sheila Hutcheson to the Personnel Council with term expiring December 31, 2002. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve bills and budget changes as submitted. Motion carried and ordered unanimously. (See pages
for List of Bills and Budget Change Requests.)

DISCUSSION, RE: CONTINUED OPERATION OF DRUG COURT

Commissioner Colon advised at the December 11, 2001 Board Meeting, she was tasked with meeting key officials such as the Chief Judge, Drug Court Judge, Court Administrator, Clerk of Courts, Public Defender, State Probation, and Department of Corrections regarding continuation of the Drug Court Programs; and the consensus of that meeting is that drug court should remain in operation. She stated four essential elements of the operation of drug court were discussed; and the treatment component is the only remaining unfunded component. She stated a lot has happened since December 11, 2001; Circuit Court will provide a judge to preside over drug court at no cost to the County; Court Administration will assume drug court administrative functions, not to exceed $30,000 for the year; the Department of Corrections will assume supervision responsibilities through existing State Probation Officers of approximately 100 drug court participants; the Clerk Scott Ellis is contributing $50,000 from his budget to defray the remaining unfunded treatment costs; and Circles of Care will donate two full residential treatment beds to drug court participants who need intensive residential treatment. She noted those beds are available under the existing counseling service Contract with Circles of Care.

Jail Oversight Coordinator Shaunna Heffernan advised Commissioner Colon's statements are correct and would disperse the County's function if that is the vision of the Board. She stated since then, the Governor has stated he will put $360,000 into the budget in July 2002.

County Manager Tom Jenkins advised if the State funds the drug court starting July 1, 2002, the Board needs to decide whether or not it wants to turn it over to the Department of Corrections and Court Administration or leave it under the Public Safety Department. Commissioner Colon stated the way it is set up now under Public Safety is working very well; and since each participating agency has offered in-kind services or additional funding, the only remaining shortfall is $43,334 to provide treatment for the drug court participants until September 1, 2002. She stated if the Governor's budget of $360,000 for Brevard County's drug court is approved, it will be available July 1, 2002; and that will further reduce the County's contribution by approximately $15,000. She stated that is a positive note from when they first started on December 11, 2001; and there are a few people here, who took time from their busy schedules, to address the Board or answer questions.

Commissioner Higgs inquired if the request is to fund the $43,334 and move forward with a coordinated effort to provide the drug court services; with Commissioner Colon responding yes, and also the County being the administrator. Commissioner Colon stated Shaunna Heffernan has been a critical component of the drug court. Mr. Jenkins requested staff clarify the funding; with Public Safety Director Jack Parker responding to this point they have incurred about $150,000 of unbudgeted spending for the drug court program, so the other $43,334 will add to that making the total out-of-pocket expense for the County $193,000 unbudgeted. Mr. Jenkins stated that amount could be reduced if the State funds the program as of July 1, 2002. Mr. Parker stated it could mitigate some of the $43,334. Mr. Jenkins noted if the Governor puts it in his proposed budget, that gives it a fairly high probability, so it is possible the cost will be less than $43,334.

Commissioner O'Brien stated he intends to vote for approval, but there are statements of fact made in the notice to the Board that say, "Based upon those 180 graduates who have refrained from further arrests, the cost of incarceration for those individuals would most likely range between $1,600 and $6,600 per inmate per arrest." He stated if he takes those numbers and averages them out to $3,000 x 180, he would get $540,000, or twice that because there is a range in there. He stated the high range would be about $1.2 million dollars. He stated they go on to say, "The National Drug Court Institute reports that drug courts generate cost savings by reduced jail time, reduced criminal activity, and lower criminal justice system costs. On average there is a $10.00 savings for every $1.00 spent"; so if the County spends $360,000, that means it would have a savings of $3.6 million dollars, taking what is said in the report. Commissioner O'Brien stated he always questions numbers on savings to determine whether they are true or inflated; and if the County is saving a million dollars in jail costs, then the Board should reduce the jail budget by $1 million. He stated it works both ways; the County cannot save a million dollars if it spends a million dollars; the jail costs have never gone down; so the County is not going to save a dime. He inquired where is the $3.6 million the Board will save so it can cut the budget somewhere.

Mr. Parker advised the cost the Board has is the cost savings for incarceration; there are a lot of other costs with the effects of crime; and trying to put a personal value on being a victim is very difficult to do. He stated Brevard County's jail is significantly less cost per day than almost every other jail in the State; Orange County's jail is about $80 a day per inmate, and Brevard County's Detention Center is $37 per day per inmate; and it has been that way for eight years. He stated the reason the cost has been able to stay stable is because of programs like the drug court which save money in the long run; it is a proactive measure; and the savings are in not seeing escalating costs because those people are not returning to the jail. Mr. Parker stated a lot of those cases are felony drug offenses, so the repeat offenses, if not stopped, could lead into other crimes; and they could also do time in the State system. Mr. Jenkins noted it is also a savings to the State penitentiaries. Commissioner O'Brien stated if he can save $3.6 million, someone needs to tell him where it is because in all the years he has passed budgets for Brevard County, the budget has never gone down by $1 million, or half a million, or $10.00.

James Russo, Public Defender for the 18th Judicial Circuit, advised he tends to agree with Commissioner O'Brien in most instances, but in this instance, the savings are in future costs not to expand the jail or feed 180 additional inmates; so while the Board cannot take money out of its budget right now, it is saving money by not having to expand the jail or pay for those 180 people further down the line. He stated it is not a present day reduction, but it is a potential future reduction. Mr. Jenkins stated while it takes 180 people out of the jail, there are another 300 taking their place in the jail; so even though 180 people were removed from the jail population, it continues to rise as other people who are not participating in the program are incarcerated; consequently, the cost of the jail continues to increase.

Commissioner O'Brien stated it is a good measure and he believes in the program, but what is not shown is the cost per person who goes through the system. He stated he likes that the Department of Corrections is going to pick up the slack on the probation officers rather than duplicate it by using County and State officers; the person in the program has to pay the County $10 a week and Department of Corrections about $500; and by removing the County, it reduces the paperwork and cost of operating the program.

Commissioner Carlson read a paragraph that talks about the cost savings as follows: "Of the 517 defendants who successfully completed the program, 247 clients were level 3, most intense. Recidivism rates have been tracked for those individuals, and of those 247 graduates, 67 have had at least one new arrest and 180 or approximately 73% have refrained from further criminal activities. The Brevard County Sheriff's Office reports that it costs $37 per day for an incarcerated inmate. The length of incarceration for a repeat offender is approximately 45 to 180 days, depending upon the offender's prior record and the offense the defendant is arrested for. Based upon those 180 graduates who have refrained from further arrests, the costs of incarceration for those individuals would most likely range from $1,665 to $6,660 per inmate per arrest." She stated anyone who can do the multiplication can tell it has been saving Brevard County money in the long run. Commissioner O'Brien stated he did the multiplication and explained that to the Board; however, his insurance has not gone down, and the number of burglaries has not gone down; and other figures speak loudly for themselves and the reality of the situation. He stated drug court is a good system, but the numbers do not add up. Mr. Jenkins stated the population of the jail increases every year, so that should be considered in the math as well; and inquired what is the figure in peak season at the jail; with Ms. Heffernan responding approximately 1,150 inmates on the average. Mr. Jenkins inquired what does it increase to during peak months; with Ms. Heffernan responding 1,250 to 1,300. Commissioner O'Brien inquired what was it last year; with Ms. Heffernan responding approximately the same. Commissioner O'Brien inquired what was it the year before that; with Ms. Heffernan responding about 1,000 during peak season. Mr. Jenkins stated Ms. Heffernan is giving numbers off the top of her head, but he believes the number goes up each year. Commissioner O'Brien stated he would like to see a chart of the numbers to see if it is true or not and by how much. Commissioner O'Brien stated 500 people go through the drug court program who are not going through the jail, so the population has been decreased by 500 people for a short period of time and only 180 graduated, so he presumes the others go to different programs or back to jail, but he does not see money being saved. Mr. Jenkins stated the cost of operating the jail continues to go up; the cost of food, health care, salaries, health insurance, and everything else goes up as well. Commissioner O'Brien stated he understands that.

Harold Koenig, representing H.E.A.R.T., stated H.E.A.R.T. applauds the Board's efforts to keep Brevard's drug court operating, and thanks the Board for its vision and filling the void abdicated by the State-elected leaders. He stated parents enthusiastically support drug court offering young first-time substance abusers the same second chance that Florida's long-standing pretrial intervention diversion program offers; and drug court seeks first to get treatment for abusers, restore their hi-jacked brains, and then address their criminal wrongdoings by restitution, probation supervision, counseling, spiritual guidance, rehabilitation, and reentry into society. He stated as with pre-trial intervention (PTI), successful completion wipes out their criminal records; and they are not branded convicted felons and will not have to suffer from such a tag. Mr. Koenig advised H.E.A.R.T. urges the Board to expand the enrollment criteria for drug court to include all first-time nonviolent offenders, juveniles and adults, who are substance abusers and/or mentally ill, including alcoholics, and not limit it only to those charged with drug possession offenses. He stated they need to focus on addiction illness, not the type of nonviolent crime. He stated parents recognize how evil and ungodly the jails and prisons are where the plight of first-time nonviolent sick offenders is made much worst; incarceration does not work; not one sick person has been cured by incarceration; so it has zero percent success. He stated the jail is overcrowded with first-time nonviolent addicts and mentally-ill offenders; supervision is lacking; medical care is inadequate; violence and maltreatment are increasing; some inmates are driven to suicide; and some are infected with deadly diseases. He stated they are incarcerated with many educated in criminality of how to pursue a life of crime; some young inmates are bailed out by traffickers who give them drugs in exchange for sex, thereby placing them into sexual slavery in Brevard County; and the Board needs to stop the despicable evils in the jails by diverting young people away from it and placing them into cost-effective treatment. He stated they must do what God calls them to do, cure the sick children, help them rebuild their lives, and stop building more jails as the Governor and Legislators propose. Mr. Koenig stated treatment works; coerced treatment brings higher success rates than voluntary treatment; and with heavy spiritual input, success rates exceed 90%. He stated treatment is cheaper than incarceration; every dollar spent on treatment can save more than $12; and by expanding drug court the Board will keep first-time nonviolent offenders out of jail, give them a realistic shot at living constructive godly lives, and reduce the harsh criminal sanctions Florida now imposes on Brevard's youth. He stated they must end Florida's destructive laws and policies and focus on saving the most precious asset, the children. He restated the seven recommendations presented on December 11, 2001, as follows: (1) to get financial resources to fund treatment, divert funds from the County jail budget reflecting the lower cost from having less inmates, divert at least 50% of the net proceeds from the County's drug asset forfeiture fund, and divert at least 50% of the present cost of investigation funds; (2) to conserve Brevard County funds, recruit a former judge to work as volunteer drug court judge; (3) ask Criminal Justice to provide the funds to the County now used to pay for the present judge; (4) recruit volunteer counselors and spiritual advisors; (5) require clients to make tuition payments; (6) to get access to State resources; and (7) keep drug court on the wish list for the Legislative Delegation and keep the public fully informed. He requested the Board continue its monthly report of results, and continue participating in H.E.A.R.T.'s public community forums; and advised the 20th forum will be held on March 14, 2002, at 7:00 p.m., in the Zion Orthodox Primitive Baptist Church, 715 Fiske Boulevard, in Cocoa.

Freda Schildroth, President of NAMI-Space Coast, advised Regina Freidman is President of NAMI-South Brevard, and she will speak on behalf of Ms. Freidman and the 238 NAMI members in Brevard County. She stated they support the continuation of the Brevard County drug court; treatment works, even coerced treatment; and treatment saves lives and taxpayer dollars. She stated in his news release on February 7, 2002, Sheriff Don Eslinger, State Director of Florida Partners in Crisis, stated, "Every dollar invested in substance abuse treatment saves $7.00 in crimes and other societal costs"; continuation of drug court is another step in the right direction; and Brevard NAMI members are grateful to the Board for its interest, willingness to understand the problems of substance abuse and mental health, and for its desire to do what is best for all the people it serves. Ms. Schildroth stated under the Board's leadership and with the help of its superior staff who make available to the Board the tools it needs to make those difficult decisions, they feel confident the Board will put into place all the programs the County needs to solve the mental health and substance abuse problems.

Bruce Jacobus, Chief Judge of the 18th Circuit, thanked Commissioner Colon for her leadership; and stated for some reason the drug court program does work, thanks to the efforts of folks like Jack Parker and Shaunna Heffernan. He stated Judge Burk volunteers his time, and Judge Stevens does in Seminole County, to be drug court judges; it has a savings anecdotally; it saves time for judges, the Public Defender, and the State Attorney; and it keeps people out of felony court. Judge Jacobus advised the reason it works is because the people in it want to be there; emphasis is on treatment as opposed to punitive elements, and people do not have a felony record when they get out of drug court; and it is a wonderful program that seems to work throughout the State. He stated every circuit that has drug court has great success, so it is important to keep it; and he appreciates the Board's efforts to do that. Judge Jacobus advised the money talked about is in the House budget, but he is not sure it is in the Senate's budget; and suggested the Board write to Senators Posey and Futch and ask them to put it in the Senate's budget. He noted the Governor is more in favor of this type of program in light of things that have happened; and it is a wonderful program.

Chairman Scarborough stated Commissioner Colon went to Broward County to view its drug court. Commissioner Colon stated it was enlightening to see some of the things talked about at the meeting that take place there; all the components came together to make it work; it was not just the County or Sheriff's Department or Court Administration; and it was all the agencies put together. Judge Jacobus commented everyone seems to want to make it a success. Chairman Scarborough inquired if that is one of the premier programs of Florida right now; with Judge Jacobus responding he does not know. Judge Jacobus stated when they find a program that works, they seize on it and keep it going; he cannot explain why it does; but part of it is the people who are in it who are committed and want to be there. Chairman Scarborough stated Commissioner Colon desires to keep it alive and that it becomes the standard for Florida. Judge Jacobus advised Judge May was very active in the State and National drug court systems and has done wonders with it; it works in Seminole County also; and Sheriff Eslinger and Judge Stevenson has done a lot of work on it. He noted they do not have the money in Seminole County, but they have been trying to get federal grants and have kept it going.

Court Administrator Mark Van Bever advised he is in favor of keeping the program and has seen the Court Alternative Division work very hard for a number of years to be the administrative support of this program. He stated he is pleased to contribute by offering a State-funded position for one of the current employees; the position is stable; and he has no inclination that it will be eliminated. He stated it is a drug court position; and the County is welcome to use it as long as it likes.

Mark O'Donnell with Department of Corrections, advised he lives in Port St. John and has worked in Titusville for 11 years, five of those years associated with the drug court program; and he sees it as the most effective program he has been associated with. He stated his first four years he supervised the caseload for the North part of the County, from Scottsmoor to Rockledge, and including Merritt Island and Cocoa Beach. He stated he was asked by Mr. Marvin Barnett, Deputy Circuit Administrator, to convey to the Board that, "Presently two correctional probation officers and one correctional probation senior officer are currently designated and assigned to Brevard County drug court and pretrial intervention services. As long as resources permit, it is the Department's intention to continue utilizing these officers in their present capacity, which includes providing field supervision services for drug court." Mr. O'Donnell advised the concept of drug court is successful because it is a comprehensive program that requires a lot of meetings for the addicted individuals, meetings with counselors, peer groups, and officers; and the major part of the contribution to this program has been the County officers who have been involved, namely David Graham and John Sander. He stated to say there is duplication of supervision is not accurate because the three officers from the Department of Corrections are not fulltime drug court officers; they are each part-time officers and have caseloads for between 120 and 140 people; and 40 or 50 of those are drug court clients. He stated they are occupied with pretrial intervention as well as PTI drug court. Mr. O'Donnell stated about two-thirds of his investigations are PTI, and one-third are PTI drug court; he does screenings that determine whether a person is statutorily eligible to enter the programs, which he passes on to the State Attorney for his final approval; and the point he is trying to make is the program is successful because the clients have two officers. He stated they have one fulltime drug court officer, David Graham; he holds the Court together; he coordinates with the supervision officer to the north, Tom Shanders and the supervision officer to the south, John Milano; and when they come together for staff meetings, David Graham is the only officer who has complete caseload responsibility for the entire County. He stated he understands there is a budget problem; and hopefully with the Governor's approval of funding, those two positions will be retained because John Sander and David Graham are important to the program.

Mike Harley with Circles of Care, advised they have been involved with drug court for some time; and they are in agreement with the importance of it. He stated about two and a half years ago, when the original federal grant that funded drug court for Brevard County was lapsing, Circles of Care provided cash funds to keep the program going for nine months; it also provided a counselor at no charge; and it is happy to do that because it is a good program, good partnership, and works well. He stated sometimes under adversity things grow together even better; and they are happy to offer the additional inpatient beds to drug court participants who need more intensive levels of care without having to wait for limited State-funded beds. Mr. Harley advised drug court really works because it is a consistent program; the counseling component of it needs to be consistent for the participants; and counselors need to be substance abuse experts and meet regularly with the supervision officers and the judge. He stated there is a lot of close communication, which is necessary if they are going to have a consistent program; and all the individuals who participate in drug court receive consistent clinical services based on their needs. He stated it is important to have consistency because in the field of substance abuse, generally people do not get well because they decide they want to get well; there needs to be, for most of them, some level of coercion that is consistent; and they need to know the consequences. He stated one of the things that is helpful in drug court is that sometimes the clients see people who have not followed through going to jail or receiving sanctions; and that is an important part of the program because they know what they are facing, the choice to get well and do what they need to do, or be responsible for the legal violations. He encouraged the Board to do what it can to support the drug court program.

Chairman Scarborough advised Mr. Koenig mentioned the need to move beyond the drug offense anytime drugs are the cause for the criminal offense, such as breaking and entering; and inquired if Brevard County is at a point to identify and divert those activities into drug court, or is that still something that needs to be accomplished; with Commissioner Colon responding Wayne Holmes from the State Attorney's Office may know more about that.

Wayne Holmes advised they are in favor of drug court and drug diversion programs as long as they can be safely implemented; however, when it gets to second degree felonies, they are not statutorily eligible to go into drug court programs because they have victims involved. He stated State sentencing guidelines even require prison on a first-time burglary of a dwelling; so those are issues that need to be dealt with elsewhere. He stated right now the main concern is lack of dollars to do drug treatment; and there are approximately 30 or 40 people who could come into the program if they can get the issue of drug treatment dollars resolved. Chairman Scarborough inquired if that is to Circles of Care; with Mr. Holmes responding yes, through its Contract with the County. Chairman Scarborough inquired if Mr. Holmes confirms the prior comments that it reverses repeat offenses; with Mr. Holmes responding there are certain people, without the drug treatment component, who would go right back to committing crimes; but for the right kind of individual, who is ready for drug treatment, it has been very effective.

Public Defender J. R. Russo advised if he had the mechanism to give funding from his budget for the drug court, he would do that, but he does not, but he will provide whatever people are necessary to make the program work for the Public Defender's Office.

Chairman Scarborough stated what Mr. Koenig said is that something they need to pursue is to go beyond the offense to the cause of the offense; Mr. Holmes indicated it is something that requires looking at the Statutes that require mandatory sentencing, etc.; and inquired how would they get to the cause of the criminal activity rather than just the drug possession activity; with Mr. Russo responding if they knew the cause, they would have a lot of things solved. Mr. Russo stated to expansion of the program has to be done statutorily by creating more eligibility situations; and that is going to become more difficult. He stated he understands Mr. Koenig wants to run, but the rest of them have to walk through it; and to do that will take statutory changes and serious debate. He stated it would be dealing with victims, more serious crime situations, and other issues; it is a good idea, but it will take a lot of work to get to that point; and they have a lot on their plates right now. He stated if they can deal with the people in the program now, they have done quite a bit of work; and they can move beyond that later.

Commissioner Carlson stated even though it is hard to get to that point statutorily, the Board may want to talk to the Legislators to see if they can convene a discussion group or panel to identify the issues and see if they can attack them from a different angle. She inquired if Mr. Russo sees that as a possibility, or if there is too much lobbying out there that it is not in the realm of possibilities; with Mr. Russo responding there are some crimes that could be included by expanding the statute, but burglary of dwellings is further out there. He stated there are probably lesser crimes that can be opened up that would allow more people into the drug court program; and the way to do it is to get the Legislators to do that.

Mr. Jenkins advised drug court is primarily geared to nonviolent crimes; anyone who commits a violent act is traditionally not considered for drug court; and the second issue is people may be committing violent acts because of a drug problem. He stated if there is a drug treatment component in the jail, then they can treat those people who commit violent acts and still have a drug problem; those who commit violent crimes belong in jail, but that does not mean they cannot provide treatment in the jail but still remove them from society so they cannot hurt anyone else. Commissioner Carlson stated they need to do their time for the offense, but if there is an element of drug treatment in the jail, it is the wiser way to go.

Commissioner Colon stated almost 500 men and women graduated and were able to go back into the community and become productive citizens, so 500 families were not torn apart; if a lady with children went through the drug court program and now has the husband at home as the breadwinner, it is a cost saving because she will not need to get aid from the County; so it is a spiraling effect. She stated they are individuals who want to make a difference in their lives; they are not forced to be part of the program, but want to turn their lives around; so just looking at those 500 families realizes a tremendous savings in Brevard County.

Clarence Rowe advised he supports the drug court; the Governor's particular situation focused serious concerns to the drug scenario and drug court program; so the good Lord works in mysterious ways. He stated a task force headed by Commissioner Colon reviewed other plans; what he heard is perhaps a need to tack on more to the program; it would be beneficial if funds can be found; he heard the State Attorney, Public Defender, and perhaps all law enforcement and citizens would support such a plan; and they have information providing that it works. He stated based on the task force and some of its viewing of other communities and what they have in place, he would like to support it and keep the ball moving in a positive way; and the good Lord has a way of working things out when people cannot seem to see their way.

Commissioner Higgs suggested allocating funds for what has been done up to this date and for the remaining fiscal year, which would necessitate $193,334 from the General Fund to continue operation of drug court. Mr. Parker stated his understanding is they will retain the probation services with Criminal Justice Services; he will try to cover that cost from funds that they have; and Court Administration will pay for the drug court coordinator position. He stated thanks to Clerk of Courts Scott Ellis, who may be able to come up with $50,000 to offset some expenses to drug court, his budget may not incur more than $193,000 of unbudgeted expenses.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve $193.334 from the General Fund to continue drug court. Motion carried and ordered unanimously.

The meeting recessed at 10:43 a.m., and reconvened at 11:00 a.m.

PERSONAL APPEARANCE - ROLAND CARLSON, RE: SELECTIVE ENFORCEMENT TO
DRUGS AND ALCOHOL AND JAILING INTOXICATED PERSONS

Chairman Scarborough advised Mr. Carlson is entitled to a time certain under the Americans with Disabilities Act.

Roland Carlson advised he was interested in what he heard about the drug court, but the subject matter is what is the cause; he has 30 years of cause and a total of 15 years of sobriety, with four years of sobriety now; and many times when he drank, he ended up in jail at the cost of the taxpayers. He stated he did not do drugs, but knew a lot of people who did and wanted to get away from drugs and alcohol, but they would hit the streets and did not know where to go because they lost their respect of being away from drinking. He stated a lot of the causes are because of selective enforcement by well educated people, mostly lawyers and judges; they know what the problem is, and so do a lot of county managers and legislators; but they take health, safety, and welfare of the people and leave it out because of revenue problems. He stated the problem with revenue in this country is there is no problem; they do not have enough money for health, safety, and welfare, but they have money to plant trees, create ordinances, and buy boats; and a lot of money is dispersed for labor. He stated income tax is derived from labor, which goes to the federal government; and they have the money but are not using it for health, safety, and welfare. Mr. Carlson stated the Commissioners are there to regulate health and industry; there is a lot of credit pledged to industry through no taxes and monies from bonds that are not paid off by the industry; and inquired if they have money to take from Department of Transportation and give it to a private firm, namely the Port Authority for cruise terminals, why is that money not put into more hospitals and Circles of Care. He stated the Bureau of Alcohol and Tobacco is keeping a lot of the money for adolescent addiction; so that brings it back to selective enforcement. He inquired why the licenses of people who serve intoxicated people are not taken, and why does the Sheriff's office not turn over the money that is confiscated from drugs for drug court. He stated most of the victims are the children; the children have no choice, but the Legislature has a choice of providing prevention through deterrent, so they do not have to coerce drug abusers because coercion is illegal and deterrents are not. He stated they also have to respect the Fifth Amendment regarding multiple punishments; it gets into a lot of categories that cost the taxpayers a lot of money; and they are leaving health, safety, and welfare of the public alone. Mr. Carlson stated nobody has the answers, but he has the qualifications to get those answers; he was told there is no law saying the Sheriff can incarcerate a person who is intoxicated in the County jail who is intoxicated, but there is; the only problem is sometimes they have to do it because they do not have appropriate places that were supposed to be established. He stated the landfill was supposed to be abolished a long time ago if health, safety, and welfare were taken care of; the Commissioners are supposed to protect the health, safety, and welfare; and it should have to put in incinerator plant before it put in the Viera Complex, but the ground was cut before they went to the people to get permission. He stated he is being cited by the Code Enforcement Office and has done nothing wrong; he has been studying a lot about government and that is why he is here right now; his being here is a violation of the 13th Amendment because he is working and this is involuntary; he should not have to do it; and he does not want to hear anything about money. He stated there is money in this country for health, safety, and welfare; they have money for the Sheriff to buy boats and go out to control the intercoastal waterways that are navigable and controlled by Commerce of the United States of America; they have money to plant trees first; and that money comes from the Department of Transportation. He stated if they have that much money, then the Board could borrow the money for health, safety, and welfare; the trees are only contributing bugs and nothing else; and beautification does not include health, safety, and welfare. He stated aesthetics are not health, safety, and welfare. He stated people who live in residential areas are not in the business to make a profit on their houses; if he wants to buy a house for $100,000, he will; and if he wants to buy a house for $50,000, he will. He stated if he wants to sell his house for $50,000 even though it is worth $100,000, he can do it; and the fact is the Board does not have the right to invade into people's rights and freedom unless they are endangering the health, safety, and welfare of the public. Mr. Carlson stated aesthetic value only came into law ten or fifteen years ago; those are things somebody created; the Commissioners may have a good paycheck, but he does not; therefore, he cannot afford aesthetics or to plant a big garden around his house. He stated he cannot afford to live in the same type of house the Commissioners do because he cannot keep the outside of his house looking like theirs; and if he does not, he will get the Code Enforcement Officer down on his back and will have to go to what he calls involuntary servitude and run back and forth to Viera to meetings which have nothing to do with his Constitutional right of common law. He stated it has something to do with laws that are made for health, safety, and welfare, but it does not show that they are health, safety, and welfare laws, it shows aesthetics and that is all.

Chairman Scarborough inquired what is the status of Mr. Carlson's requests; with County Manager Tom Jenkins responding Assistant County Manager Peggy Busacca is doing a report on the Code violations, and Assistant County Manager Don Lusk is working on the issue of incarceration of people arrested for intoxication. Chairman Scarborough stated he has not received a report yet, and assumes they are still working on it; with Mr. Jenkins responding Ms. Busacca sent her report out, and he assumes Mr. Lusk is still working on the incarceration issue. Chairman Scarborough stated when Mr. Carlson was here last week, the Board asked staff for reports; they are doing those; and the Board needs to review them.

Mr. Carlson stated the issues are not new; the newspapers had written about people who died in jails; a couple of deaths recently occurred in Orlando; intoxication from drugs and alcohol is not criminal, but is a sickness; and if the courts want to support it as being criminal, it is adding to a violation of the 8th Amendment of the Constitution of the United States, which they are under oath to uphold and protect. He inquired if they should press perjury charges against the judges and police officers. He stated those people are officers of the court with morals; he has a 9th grade education and knows his morals are a lot higher; and if they lose those morals in this country, it is going to cost plenty, and the children will have to pay the damages.

Chairman Scarborough inquired if Mr. Carlson was present during the discussion about drug court; with Mr. Carlson responding that was very good, but they also asked what was the cause, and he did not hear anyone mention the cause. Mr. Carlson stated the cause is that alcohol is allowed to be abused; he has a drivers license and if he abuses it, he loses his license; it is not a right to buy alcohol, it is a privilege; and it is not a right to sell alcohol, it is a privilege. He inquired what would be the price of coercion and deterrents. He requested a piece of paper telling him what he can do on his own property; and stated if he knew what he was going to go through as he has in the last few months because of his home, he would never have bought it. He stated he can live on the water a lot cheaper. He stated the Board does not have enough money to build establishments for detox and it does not have money to give to the courts to prevent people from going to jail. Chairman Scarborough stated the Board allocated almost $200,000 in the last month; with Mr. Carlson responding $200,000 to protect the innocent is nothing. Chairman Scarborough stated that is what was requested for the program; with Mr. Carlson responding he understands, but the Governor knows different. Chairman Scarborough suggested Mr. Carlson review the staff reports and perhaps everyone will be further informed. Mr. Carlson stated he has another issue; with Chairman Scarborough responding his time has expired. Mr. Carlson stated he will get back on the agenda for the next meeting.

PUBLIC HEARING, RE: APPEAL BY JOHN W. BUTTREY, BUTTREY DEVELOPMENT, LLC
OF PERMIT DENIAL

Chairman Scarborough called for the public hearing to consider an appeal by John W. Buttrey, Buttrey Development, LLC, of a permit denial for land alteration to locate an access road.

Ed Chesney with Bishop and Buttrey, advised they were before the Board last month; and the County Attorney was going to look into what they need to move their project along. John Buttrey advised they provided Mr. Knox with a lot of data, and are waiting to hear his report.

Natural Resources Management Director Conrad White advised the original land alteration permit was issued in 1996; it included a haul road that was northwest of Cidco Park to access a commercial borrow pit; an alternate haul road was designated that extended west from the borrow pit to Grissom Parkway; and Mr. Buttrey acquired property to the south of the commercial operation; but is presently accessing his property through another site directly to the north. He stated Mr. Buttrey wishes to construct a road that would impact some wetlands on his property; but the site is not surrounded on two sides by commercial development, so it does not meet current County Code.

Chairman Scarborough stated the map shows the original haul road in yellow, the proposed road in green, and the alternate road in blue; and inquired if staff discussed other routes that could access the property from the east. Mr. White advised at the last meeting the Board directed staff to look at other routes that could be used to access the commercial site to the east, and they found none.

Public Works Director Henry Minneboo advised whatever the Board decides, it is important to take into account the intersection of whatever road is selected, and the potential for some type of turn lanes.

Chairman Scarborough stated the concern was the proposed road coming out into faster moving traffic; with Mr. Minneboo responding that is a concern because most of the locations intersect with Grissom Parkway, which is a primary route through the area. Mr. Buttrey stated they have pictures taken of Grissom Parkway; and presented them to the Board. Chairman Scarborough stated he had hoped Mr. Buttrey would have addressed the issue more directly with staff in the interim. Mr. Buttrey stated Grissom Parkway is wide open. Chairman Scarborough stated there is an 11:30 a.m. executive session; he would prefer to have staff review the options; when he spoke to Mr. Minneboo yesterday, Mr. Buttrey had not gotten back to him to discuss the issue; and inquired if Mr. Minneboo has seen any of the data; with Mr. Minneboo responding no. Chairman Scarborough stated it would be advantageous to let staff visit with Mr. Buttrey and Mr. Chesney because the Board needs staff's remarks before it begins to discuss the issues, since they are more knowledgeable about traffic conditions and what would be required.

Commissioner Higgs advised the Agenda item is an appeal of a permit denial for the road in green; if the Board makes a determination regarding the appeal, staff and others will have some direction about where to go; and having reviewed the documents and heard what has been stated this morning and at the last meeting when the item was brought up, she can deal with the question before the Board, which is appeal of the denial of the permit. She stated what the applicant chooses to do from there to determine how he gets in and out of his property is not the Board's problem; the County has to issue the permit, but they have to resolve the problems; they got to the property via a lease and lost that lease; they have an alternate lease, but do not wish to use that because they consider it undesirable; and the issue before the Board is whether it wants to approve the appeal and permit the proposed route. She stated she is ready to make that decision so they can go forward and make whatever decisions they need to make.

County Attorney Scott Knox advised the Board needs to know several things before it makes a decision; first is that this item came to the Board as a taking appeal, which means Mr. Buttrey is claiming he will not be able to use his property if the Board denies him access; so what Mr. Buttrey presented is a clean alternative as shown on the map. He stated that may or may not be desirable from a public safety standpoint; that is what Mr. Minneboo is going to look at; however, Mr. Buttrey provided him with ownership information he requested at the last meeting and there is an indication he owns the property to the south of the borrow pit, which comes close to Cidco Road. Mr. Knox stated if the Board decides it is not disposed to grant the access or appeal, which would allow the access in green, Mr. Buttrey would be forced to see if he can find some other way to get in and out of his property; and if he is not able to do that, he will be back seeking a statutory way of necessity because he is landlocked at that point. He stated the way the statutory method of necessity works is that the landowner gets access to the nearest available route; in this case that would be Cidco Road; so the Board would have to acquire that for Mr. Buttrey if he cannot do that himself.

Chairman Scarborough inquired if Mr. Minneboo prefers the Cidco Road route rather than coming out on faster moving traffic; with Mr. Minneboo responding it is better to go into an interior road rather than a main artery.

Mr. Buttrey stated they will be happy to work with Mr. Minneboo and other staff on safety issues; the issue is they cannot get any permanent access other than the route they are asking the Board to approve; and that route is apparently being denied because of a very small amount of wetlands. He stated it is not 95 acres of wetlands; it is less than a half-acre of wetlands; they have commercial sites all over Central Florida and do not know of any other county that would not allow some minor impacts to wetlands; and requested the Board appeal to its common sense. Chairman Scarborough stated the Board is trying to use common sense, but so many times common sense needs to be based upon facts; and he needs to look to staff to be fully informed. He stated Mr. Buttrey failed to contact staff when it was incumbent upon him to do so; and he would prefer to let this issue come back and address it in a more complete sense. Mr. Chesney stated they have been working with staff and did not fail to do that. He stated he has been working on this issue with Debbie Coles for about year. Chairman Scarborough stated that is not what he heard; the Board tabled the item for a specific purpose; and that was for the applicant to meet with Mr. Minneboo, but that did not occur. Mr. Chesney stated he does not believe that direction was given to them; with Chairman Scarborough responding the Board is giving them time now; otherwise, it can entertain Commissioner Higgs' motion and they can come back with subsequent action. Mr. Chesney stated they will take the time, and do not think the other is an option.

Chairman Scarborough recommended the item be brought back at the end of the meeting so the applicant can define the issues and go over them with staff. He stated he does not mind hearing opposite points of view, but needs to have staff fully informed so they can present the Board with their views. Mr. Chesney stated he has received a steady stream of letters on this case, but has not gotten one on a traffic issue. Chairman Scarborough stated it was brought up at the last hearing; and he recalls that because he was part of the conversation.

The Board postponed the hearing until later in the meeting.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENT IN
BAREFOOT BAY, UNIT ONE - BAREFOOT BAY REALTY, INC.

Chairman Scarborough called for the public hearing to consider a resolution vacating a public utility easement in Barefoot Bay, Unit One, as petitioned by Barefoot Bay Realty, Inc.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Colon, to adopt Resolution vacating a public utility easement in Barefoot Bay, Unit One, as petitioned by Barefoot Bay Realty, Inc. Motion carried and ordered unanimously. (See page for Resolution No. 02-057.)

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENTS IN OYSTER COVE SUBDIVISION - HENRY AND TOMMYE REYNOLDS

Chairman Scarborough called for the public hearing to consider a resolution vacating public utility and drainage easements in Oyster Cove Subdivision, as petitioned by Henry and Tommye Reynolds.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution vacating public utility and drainage easements in Oyster Cove Subdivision, as petitioned by Henry and Tommye Reynolds. Motion carried and ordered unanimously. (See page for Resolution No. 02-058.)

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY IN OCEAN SHORES
SUBDIVISION - JOHN L. ANDERSON

Chairman Scarborough called for the public hearing to consider a resolution vacating a right-of-way (Beach Street) in Ocean Shores Subdivision, as petitioned by John L. Anderson.

There being no objections heard, motion was made by Commissioner Colon, seconded by Commissioner Carlson, to adopt Resolution vacating a right-of-way (Beach Street) in Ocean Shores Subdivision, as petitioned by John L. Anderson. Motion carried and ordered unanimously. (See page for Resolution No. 02-059.)

PUBLIC HEARING, RE: ORDINANCE GRANTING ECONOMIC DEVELOPMENT AD
VALOREM EXEMPTION TO MAGNETIC AUTOMATION CORPORATION

Chairman Scarborough called for the public hearing to consider an ordinance granting economic development ad valorem exemption to Magnetic Automation Corporation.

Chairman Scarborough advised he thought the Board was going to get in each case how much the County was paying for each new employee as part of the documentation; and the Board is paying about $1,185.40 per employee in this case. Commissioner Carlson stated it is $11,854; with Chairman Scarborough responding that is divided by ten employees. Chairman Scarborough stated Mr. Lugar brought the information to him in one case; and inquired if the Board made a motion to include that information in all the cases; with Economic and Financial Programs Director Greg Lugar responding he is not sure if the Board did; from time to time he does include that ratio; but this time he did not. Commissioner Carlson inquired if the Chairman wants a motion in that regard; with Chairman Scarborough responding the Board should handle the item first and do that subsequently.

There being no further comments or objections heard, motion was made by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt an Ordinance granting an economic development ad valorem exemption to Magnetic Automation Corporation, located at 3160 Murrell Road, Rockledge, Florida; specifying the items exempted; providing the expiration date of the exemption; finding that the business meets the requirements of Florida Statutes 196.012; providing for proof of eligibility for exemption; providing for an annual report by Magnetic Automation Corporation; providing an effective date. Motion carried and ordered; Commissioner Higgs voted nay. (See page for Ordinance No. 02-12.)

The meeting recessed at 11:26 a.m., and reconvened at 1:00 p.m.

PUBLIC HEARING, RE: DEVELOPMENT AGREEMENT WITH H & M SHOPPING CENTER,
RE: VESTING OF TRANSPORTATION CONCURRENCY

Chairman Scarborough called for the public hearing to consider a development agreement with H & M Shopping Center vesting transportation concurrency. He advised that John Evans, the applicant's attorney, has requested additional time; this is a public hearing; and inquired how the Board wants to proceed; with Commissioner O'Brien responding according to the rules.

County Attorney Scott Knox advised it is not a zoning item, but it is treated as equivalent to zoning under the Florida Statutes; so the Board may want to treat it the same way.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to allow the applicant ten minutes for presentation and five minutes for rebuttal. Motion carried and ordered unanimously.

Chairman Scarborough advised the ten minutes includes everybody who is supporting the applicant.

Attorney John Evans, representing the applicant H & M Real Estate, introduced documents into the record; and requested the Board look at the stack of papers, and note when he discusses Sans Lassiter's November 20, 2001 traffic report, that is the document. He stated it is a proposed shopping center at Florida Boulevard and SR 3; and on May 16, 2001, when his client applied for his site plan, he was advised by staff that there was no capacity on SR 3 and there was a probability that the site plan would not be accepted. He stated they found additional capacity through a traffic study; staff did not accept the site plan because of some traffic study issues regarding dates and things like that; but on August 14, 2001, the Board had a hearing for vested rights, which said that staff should accept the site plan, but it was their obligation to demonstrate before the site plan was accepted that there was sufficient capacity on SR 3 to handle the additional traffic. He stated after the August 14, 2001 meeting, his client attempted on numerous occasions to submit the site plan; the letters in the file reflect that; and again it was accepted finally in October, 2001 by staff, with the understanding that his client had to do the traffic studies to show that there was additional capacity on SR 3 to support his client's project. Mr. Evans advised his client spent tens of thousands of dollars; and on November 20, 2001, he submitted a report from Sans Lassiter, which indicated that there was enough capacity on SR 3 to handle his client's project. He stated not only did Mr. Lassiter find it by breaking up segments a little bit different than the County had previously, but he did traffic studies and traffic counts, which actually increased the allowable capacity on SR 3; so he made the number of daily trips higher than otherwise had existed prior to that date. Mr. Evans advised they received a certificate of concurrency on January 7, 2002, a copy of which is in the packet; they also received a letter from staff in October, 2001, saying that under the Ordinances, they do not vest capacity, and the only way they can vest capacity is to apply under that Ordinance for a development agreement. He stated where his client finds himself at this point is he had to pay thousands and thousands of dollars for traffic studies to show that SR 3 can support his project; but immediately behind them are two site plans that have been filed using the capacity his client paid for and found to support their projects; so they are in a situation where, if they do not receive a developer's agreement from the Board reserving the capacity for a reasonable time to allow them to get their site plan approved, it is quite possible other projects will run in behind them and take the capacity that they paid for and found; and when they are ready to apply for building permits, the County will say sorry, the capacity is gone because the other projects used the capacity they paid for and found. He stated that is why they are here today to ask for a reservation of that capacity. Mr. Evans advised they heard whispers about wetland issues; he is here to tell the Board the project will comply with all County Codes, Land Development Regulations, and Land Use Plan Regulations; they are in the site plan process right now; there is some debate as to whether or not a particular wetland does need to be preserved; but whatever the final resolution is with staff, it will be done and will be in compliance with the County Ordinances. He stated wetlands are not an issue today; they will comply with the Ordinances; and if the final determination is the wetlands need to be preserved, they will be preserved. He stated he attached the Developer Agreement Ordinance to the Board's package; and what is interesting is that the Ordinance has no standards; and inquired what criteria do they have to meet to have the development agreement approved. Mr. Evans stated the Board's burden is relatively high, and it has to approve some sort of health, safety, and welfare issue before it can deny the agreement; they have concurrency as County staff found; and they are entitled to receive the developer agreement without anything further; but staff indicated there are traffic issues they want to address. He stated they looked at the 25-page report the Board received the other day and at what they had planned to do; what they found out was that the County engineer made certain recommendations regarding traffic improvements; and identified what the County engineer recommended on the site plan. He stated it deals with deceleration lanes and certain markings; one of the crucial things is he wants Florida Avenue aligned with the street across the way and a permanent stoplight put there at his client's expense; they want the signalization to be timed between the various stoplights up and down SR 3; and his client will agree to that and will stipulate to it. He noted they had planned to do 90% of that through the site plan process; however, they did not plan on putting in a third lane, but speaking with the County engineer, it appears that is necessary. Mr. Evans stated even though he does not think it is legally necessary that they do so, he will stipulate that they would accept Alternative 3, which is the engineer's report; and they will install, at their expense, those improvements which are recommended. He stated they have been equitable in that sense; they have done what the traffic engineer suggested; and it is incredibly inequitable to make them go out and spend tens of thousands of dollars for traffic studies to find capacity and then not have the time to process their site plan to use that capacity. He stated that is basically unfair; and requested the Board give them the developer's agreement for a reasonable time to get their site plan processed and get their building permits issued for the project.

Troy Stephan, representing homes within the area of H & M Shopping Center's proposal, stated they sent a petition around opposing the development agreement; and inquired if the Board received a copy of the petitions. He stated the petitions have approximately 150 names from houses within the area; and they have an additional 150 signatures, which he presented to the Board. He stated it is a clever argument the applicant is making that because they spent so much money to find capacity they should be entitled to put up a project they are proposing; they knew the problem before they even started; and no one held their arms behind their backs saying they had to spend that money to find extra capacity on the road. He stated everyone knows the problems they have with Courtenay Parkway, especially in the area where they are proposing the development; they have Kennedy Space Center traffic; and they cannot move out of The Meadows or Waterway Manor when people are going to work and coming home from work. He stated the schools get out at 2:45 p.m.; Divine Mercy, Lewis Carroll, and Merritt Island High all use Courtenay Parkway; and adding that traffic to the congestion problem will cause no movement in that area. Mr. Stephan stated they have proposed to realign the development on Florida Avenue; that has been a problem; he sees the traffic every day; and they make it sound like they are going to do it, but that should have been done anyway by any development. He explained a map of the area, identifying Waterway Manor, The Meadows, the road alignment, and Target; and stated when Target was put in, it totally met the maximum road capacity. He stated people leaving Target make U-turns in their development; and when Target went in, which the Board approved, that is when they saw the main effects of the problems that exist. He stated the other issue is the churches in the area, including Palm Chapel and Divine Mercy; a lot of people in the adjoining developments have children who walk to school at those churches; and any development like the one proposed will make it unsafe for those children to go to and from school. Mr. Stephan stated they received information that one of the vendors would be Winn Dixie; if the Board is familiar with Courtenay Parkway, Winn Dixie is right down the road; that means they have an existing company moving into a new development; and they all know what happens to the old development when they cannot find vendors. He stated there is a Publix across the street that they are having problems finding a vendor for; and the development with the current Winn Dixie is going to become dormant. Mr. Stephan stated he understands the capacity of Courtenay Parkway is 43,900 cars; it is over capacity now by about 40,000 cars according to the evidence he brought to the Board's attention; and they could find extra capacity here and there, but it should not compel the Board to accept the proposed development from a company that already knew there was a problem and spent money on traffic studies anyway. He stated if the Board does allow the company to take the remaining capacity, it is going to preclude small businesses and other businesses from locating in the area and further north towards the Cape.

Attorney Leonard Spielvogel, representing Noble Properties, advised his clients own and manage Merritt Crossing; their anchor store is Publix; they have 89,700 square feet of rentable space on North Courtenay Parkway; and directly across from Merritt Crossing is Victoria Square, which is anchored by a Winn Dixie and has 112,000 square feet of rentable space. He stated the proposed H & M Shopping Center will have 74,700 square feet and intends to be anchored by the Publix that is presently in Merritt Crossing; his clients own and manage about 16 shopping centers and can handle the competition; and should Publix move out, they will find another store to move into that space. He stated the request today is to allocate all the capacity on North Courtenay Parkway, from SR 520 to SR 528 because the project will use it all up; and that will shut down what otherwise might take place. He stated his clients have proposals to do more development; and the issue is do they need another shopping center in light of what is available. Mr. Spielvogel advised they are all clusters around the same intersection; Target is in his clients' Center; Victoria Square is across the street; and the proposed development is on the same side as Victoria Square, a little to the north. He inquired if there are sufficient equities being put forth besides the fact that they paid for the traffic studies; stated nobody forced them to pay; they hired a good traffic man, Sans Lassiter, whom he respects and knows very well; and it is amazing how they can find more capacity on a street depending on what methodology is used. He stated there should be some uniformity so they all approach those things in the same fashion; he travels North Courtenay Parkway; and if anybody says it is not a congested street, they know not what they speak of. Mr. Spievogel stated Mr. Evans minimizes it and says it is not an issue before the Board; maybe it is not; but he looked at the site plan, and noticed that the building encroaches into wetlands. He stated he checked with the Zoning Department and was told there is residential on all sides, even across the street from the project, either multifamily or single-family. He stated the Comprehensive Plan provisions say they cannot mitigate for that situation because there is a wetland there; there is some relevancy there; and how many trips will be placed on North Courtenay Parkway will depend on the square footage of rental space at the proposed center.

James Mays advised he is a landowner and a small business owner in the area; and if this project is approved, it will basically tie up all the capacity; he has a small townhouse project planned for first-time home buyers; it is in the submittal phase right now; and if this measure is approved, not only he, but any other small business owner who wants to expand his or her business or put in a small development will be prohibited from doing that because of the traffic on North Courtenay Parkway. He stated this project will pass the burden to the small business owner; it has always been the objective of this administration and the administration before it to promote growth in small businesses; and approval of this project will be detrimental to growth of small businesses in the area. He stated he is not opposed to development; however, as Mr. Spielvogel pointed out, there is an excess of that type of strip centers in the area. He inquired if there is a way to more equitably distribute capacity and evaluate the needs of small business owners. Mr. Mays stated as a business owner he opposes the measure; he does not think any of the other business owners in the area are aware of the impact of this shopping center and the fact that it will prohibit growth for them; and it will devalue their lands and the sale of any lands available between SR 520 and SR 528.

Attorney Evans advised as of May 16, 2001, there was a moratorium on all development on SR 3; Mr. Rusnak wrote, "This application was reviewed and the proposed development was found to exceed the maximum allowable volume of 40,000 trips per day"; but for his client spending all that money for traffic studies the capacity would not exist, and the small business owner would not be able to expand his business. He stated without the expensive traffic study, the staff records showed a moratorium on SR 3; they are asking to use the capacity, which they found to exist through the expense of a traffic report; and even at the end of their project, there will still be some additional capacity available for other businesses to expand. He stated the stoplight issue is underplayed; the alignment will be put in at his client's expense; and there is a letter from DOT that says they can put the light in and have it operating the day the shopping center opens. He stated that would allow both subdivisions to safely exit and enter their subdivisions at the stoplight; presently it is a very dangerous intersection; the streets are misaligned; when SR 3 is six-laned, they will have to go to U-turns to turn around; so this project will be a great benefit for the neighbors. Mr. Evans advised Mr. Gaich met with the Waterway Manor Homeowners Association; there were 50 t0 60 people in attendance; and the vast majority had no objections to the plan, and in fact supported it because it gives them a much safer access out of their subdivision. He stated they spent the money to do the traffic reports to be able to submit the site plan; and now that money is going to benefit another developer who could be a developer of a project of the same size that his client proposes and gobble up the capacity at their expense. He stated they believe that is inequitable; because there are no standards for developer agreements, the Board has to find good reason to turn it down; they do not believe that reason exists; and he will reiterate that they will comply with all wetland Ordinances; and if the wetland is required to be maintained, they will maintain it. He stated if they have to reduce the size of the project, so be it; they will comply with all the Ordinances; so they feel they have met the burden and addressed the traffic issues the traffic engineer raised, and would appreciate approval. He stated they asked for five years, but they should be required to get on with the project or lose that capacity; so he would suggest two years as being adequate.

Commissioner O'Brien stated the project is located on SR 3 just south of Divine Mercy Church and next door to the Christian Church down by Target; it has taken serious consideration to determine if the project is valid; the Board cannot say no to a project because the neighbors do not like it; and it is a lot more than that. He stated Mr. Spielvogel hit one of the nails on the head when he said it is amazing what one can do with numbers, depending on what methodology is used; the client's traffic expert simply recalculated traffic impact numbers to justify the project; and looking at the paperwork before the Board today and earlier, some numbers may be quite creative. He stated the developer did not propose any widening of SR 3; in fact they have done nothing to alleviate the capacity of the road; DOT made a promise to the people along Courtenay Parkway that the light they are proposing today would actually go up by Divine Mercy Church; the two churches could use it as their outlet as well; and DOT turned down the light at Florida Avenue. He stated anyone who lives in Waterway Manor may recall going to those meetings and saying they wanted a light; DOT said no because it is too close to another light; and in fact, a light at this location would do nothing more than continue to slow down the movement of traffic through the area. Commissioner O'Brien stated he has other concerns that were not addressed today, such as the sale of alcoholic beverages next to schools on both sides of the property; alcoholic beverage would have to be carryout but not consumption on premise because that would require a conditional use permit; and his concern is how many more stores will be allowed to move in between schools and churches and sell beer and wine. He stated Albertson's sells hard liquor as does Walgreen's by Winn Dixie; there is nothing to stop the store from also opening a package store and starting to sell hard liquor; and it is an inappropriate location to allow that to occur. He stated how much the developer spent on his study is irrelevant; he could have spent a million dollars or four dollars; but it is irrelevant to what is being discussed today. He stated the traffic would increase significantly in an area where roads are already crowded and where they have serious accidents, especially between Publix and Winn Dixie, and also at Target, which is one block to the south. He stated emergency personnel are called out once or twice a week to go to that area and remove the wrecks and people seriously injured; this project would add to and compound the problem; and public safety would be compromised further than it already is. He stated the stoplight has been overplayed because the traffic problems are not adequately addressed; there cannot be a traffic light at Florida Avenue as DOT said in public hearings; now they are saying they can get a light without any public hearings; but about 4,000 people went to 18 public hearings and wanted stoplights also, and could not get them. He stated the plan for SR 3 does not show a light at Florida Avenue or near Florida Avenue; it was supposed to be at Divine Mercy Church with the next one at Venetian Way; so he is not sure the light proposed in this plan would even meet the distance required between lights on SR 3, especially when it is widened to six lanes. Commissioner O'Brien advised currently there are five large shopping centers, three anchored with major grocery stores, Albertson's, Winn Dixie, and Publix; and Palm Cay and Target are the other two large shopping centers that are very close. He stated there are three churches within 200 yards, Divine Mercy, River of Life Assembly, and First Christian; and there are other developments already on the books. He stated the site plan package was deemed incomplete when it was first submitted in August 2001; and inquired if it is complete now; with Mr. Evans responding yes. Commissioner O'Brien stated Mercedes Homes wants to build about 146 homes between Villa de Palmas and SR 528 with exit at Venetian Way; DOT already agreed to a light because it was in its plan; however, Florida Avenue was never in the plan. He stated there is a plan to build condominiums on Fortenberry Road; Minna Lane was tabled by the Board last week and will come back; he has no idea what the growth of North Merritt Island is going to be because there is no control over one-at-a-time permits to build houses; but homes are going up rapidly. He stated Pioneer Road runs along Lewis Carroll Elementary School and abuts Villa de Palmas and Raintree by the Lake; there have already been three or four plans submitted for the area between the school and Pioneer Road; and his primary concern is alcohol being served or sold from stores in the proposed project. He stated it also makes it prohibitive for small businesses to continue and expand; it will have a detrimental effect on the area; and recommended denial of the agreement and allow the applicant to proceed through the site plan process at his own risk. He stated that is Option 5 and that is the way to go; so he will make that a motion.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to deny the development agreement with H & M Shopping Center for vesting of transportation concurrency.

Mr. Knox advised that is one of the alternatives outlined for the Board in its staff's presentation; the Board has that option; but he has a question for staff that may relate to the motion. He inquired if there were any determinations made as to whether the project, as applied for, is consistent or inconsistent with the Comprehensive Plan policies on transportation; with Planning and Zoning Director Mel Scott responding staff has not made that determination on transportation. Mr. Scott stated they would proceed as they normally do on the site plan review process for the project, but there is nothing that sticks out from what he has seen the applicant present that renders it inconsistent per se with the transportation or the Traffic Circulation Element of the Comprehensive Plan.

Commissioner Carlson advised she agrees with Commissioner O'Brien, but wants clarification on road capacity. She stated the Board has a right to have a moratorium when the road capacity gets to a certain level; and inquired what is the intent of the Ordinance as it exists, and what is the Board's responsibility or obligation to make sure additional capacity comes online at a future date.

Mr. Knox advised what the Board has is a comprehensive planning issue because the comprehensive planning law says its development orders have to be consistent with its Comprehensive Plan. He stated certain levels of service have been established in the Comprehensive Plan; and once those levels of service have been reached, theoretically, to be consistent with the Comprehensive Plan, the Board cannot issue any more development orders that would result in over capacity on the roadway segment, in this case Courtenay Parkway. He stated the only way around that, which he has seen, is a provision in the State law that allows the Board to allow a developer to pay his fair share of the cost of an improvement that would alleviate the overcrowding situation; and that is one of the options that was laid out for the Board. Mr. Knox noted concurrency says once it reaches that threshold, it needs to either expand the facility or create some alternative access that allows for trips on the road, or stop issuing development orders.

Commissioner Carlson inquired based on the language in the Ordinances, at what point does the Board stop allowing traffic studies to be done to boost the level of service of a road. She stated if this project goes in, the next project that comes along will want to do a traffic study; and to find extra trips, they will bump it up. Mr. Knox stated that is a matter of engineering practice more than anything else; the threshold level of service is established in the Comprehensive Plan and Ordinances; the question is whether or not the engineers can prove that they have reached or not reached that level of service; Mr. Lassiter went out and did that; and with a different methodology he came up with a calculation that was less than the level of service. Commissioner Carlson inquired if it would be appropriate to review any policies the Board has to identify a standard so no different methodology happens and the Board is stuck in a position it cannot legally get out of; with Mr. Knox responding for the purposes of making it consistent for everybody, it would not be a bad idea to have a methodology established.

Chairman Scarborough inquired if Mr. Kamm wants to respond to that; with Transportation Planning Director Bob Kamm responding to assess the capacity of a roadway, there are three different levels of analysis that can be done; Level #1 is a very simple way that does not require much data and can be performed quickly; and Level #2 requires a little bit more effort and more data, and takes a little more time. Mr. Kamm stated in the case of SR 3, staff performed a Level #2 analysis on North Courtenay Parkway about 1995 or 1996; at that time, they fixed the level of service standard at about 40,000 vehicles a day; and that is the number that has been used for all concurrency reviews on North Courtenay Parkway for several years. He stated when this development came forward early last year, the roadway was very close to that 40,000; it was made clear to the developer that the traffic coming from his development would exceed 40,000; and when the 4,000 or so trips from the project, plus the background traffic was added together, they went over 40,000, so a negative concurrency finding was issued on the project. Mr. Kamm stated in meeting with Sans Lassiter, the traffic analyst the applicant retained, the question was posed on what they can do; the option that staff presented to them was to go to the Level #3 analysis, which is far more detailed and a more data and labor intensive effort; but it also is more precise. He noted each of the three steps takes more work, but it increases the level of precision; that level of analysis was done; and that is why the applicant incurred the cost. Mr. Kamm stated it is standard procedure; the three-fold level of analysis is what they do routinely; and it is well understood in the profession that it is the approach the County uses.

Commissioner Carlson inquired how staff defines whether or not the level of service capacity is being approached, and if it is 85% rule; with Mr. Scott responding it is over 90%. Commissioner Carlson inquired if the Board were to take the traffic study that the applicant provided at 43,900 trips per day, even though it may deny the request today, how does the Board approach it in terms of a moratorium on that road. She stated when it gets to 85%, it is basically first-come, first-served; and that is the way she thought the Code was written. Mr. Knox stated to answer the first part of the question, the road is now at 43,000 or whatever the number is; that is basically the threshold number; and when that number is tripped, that is the end of the development order process on that road. Commissioner Carlson stated prior to this action 85% would have been a lesser number; but now that it is working off 43,900, 85% is going to be more; with Mr. Knox responding it increased over what it was before. Commissioner Carlson inquired is 43,900 trips 85%; with Mr. Scott responding yes, but at this point in the deliberations, it becomes a moot point because they are now over 90% with the new maximum acceptable volume number of 43,000. Commissioner Carlson inquired, based on the intent of the Ordinance, is the Board legally required to execute the development agreement when it is in a position such as this; and is there any requirement legally that it has to go into such a thing; with Mr. Knox responding the applicant has taken that position, but he would not take that position. Mr. Knox stated it would not be a logical requirement of the Ordinance that the Board has to vest a project that would be over the threshold that it established for vesting. Commissioner Carlson inquired if a moratorium is applied according to the Ordinance, would the Board have to show intent of fixing the problem because it cannot not allow people to develop; with Mr. Knox responding the Board has not reached a moratorium stage yet; but if it gets there, there are ways to avoid the moratorium in the Florida Statutes, which he has described before. He stated the Board would have to come up with some improvement that would alleviate the conditions and make the developer pay the fair share toward that improvement; and that is the way it would have to work.

Commissioner O'Brien stated part of the solution is that SR 3, from Merritt Island High school to SR 528 is planned to be six-laned; at that time the problem may be alleviated; but until then, there is no relief and they cannot get away from the problem that presently exists on SR 3.

Commissioner Higgs stated she does not want people to be confused by the conversation the Board is having today and the item that is before the Board; if it approves the motion to decline the agreement, it is not approving or disapproving the development, but is simply not accepting the agreement to take the applicant's money and reserve the capacity. She stated the Board is not saying it does not like alcohol there or any of the other things discussed; all it is talking about is a proposal by the developer to buy the remaining capacity on the road; and inquired if that is correct; with Mr. Knox responding affirmatively. Commissioner Higgs inquired if the Board approves the motion to decline their offer, would they stand in line with everyone else who may want to do a project in that area, and if there is capacity, could they go forward and get a permit approval; with Mr. Knox responding affirmatively. Commissioner Higgs stated if the applicant is in line at the time there is no more capacity, then it stops and the Board deals with the issues at that point; she does not want anyone to misunderstand that it is an approval or disapproval of the plan; it is simply the developer agreement; and she does not want citizens who do not want the project to think that it is a disapproval of the project. She stated the applicant wants to buy the capacity; the motion is not to agree to that development agreement; the Board will not take his money and allow him to reserve all capacity if the motion passes; and that is all that is before the Board today. Commissioner O'Brien advised the applicant will have to proceed at his own risk. Commissioner Carlson inquired if the Board will allow the applicant to go at his own risk or is there any vested right implication that may cause the Board to actually make the improvements; with Mr. Knox responding he does not see a vested rights issue with this case; he sees the possibility that one of the developers is going to be stopped because of the threshold being reached; and at that point he can see a developer agreement becoming the option. Mr. Knox stated they would have to come back and agree to pay the Board a fair share cost for improvements the Board designates as part of the agreement in order to get the right to go forward with their project.

Chairman Scarborough inquired if the Board has to have finding of fact to move forward with Option 5; with Mr. Knox responding it is a discretionary issue. Commissioner Higgs stated from time-to-time the Board has asked the County Attorney to draft findings of fact to be sure that it is on the record and that the Board agrees with it; and inquired if it would be prudent to table this item for a couple of weeks to allow the County Attorney to draft the findings of fact based on the Board asking him to do that; with Mr. Knox responding it is a discretionary issue, which probably does not require a finding of fact, but in the abundance of caution, since they have a court reporter here and it has been portrayed to the Board as being something that is mandatory, it would not be a bad idea. Commissioner Carlson stated she would feel more comfortable if there was a finding of fact because the Board will be seeing this problem again. Commissioner O'Brien inquired if he should withdraw the motion; with Chairman Scarborough responding no, a motion to direct the County Attorney to prepare the finding of fact is needed.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to direct the County Attorney to prepare a finding of fact on the H & M Shopping Center request for a development agreement for vesting of transportation concurrency.

Chairman Scarborough stated Florida Statutes 163.3180(11) has been referenced on page 3 of the memo; there is another memo from Scott Knox to Peggy Busacca, which the Board discussed; and that is something anyone can avail themselves of, not just this applicant; with Mr. Knox responding that is correct; there will come a point where everybody who wants to develop on Courtenay Parkway will have to do something like that. Chairman Scarborough stated the question from Mr. Mays is are they on equal footing; that does not afford any particular rights to anybody; and anybody who wants to utilize that section of the Florida Statutes can do so. Mr. Knox stated the only caveat is that staff, the Engineering Department or somebody, has to come up with the alternative they will be able to contribute toward.

Chairman Scarborough stated the motion was altered to request Mr. Knox come back with the finding of fact. Commissioner Higgs inquired if the public hearing has to be continued; with Chairman Scarborough responding yes. Commissioner Higgs stated the motion needs to continue the public hearing until the next meeting. Chairman Scarborough stated the Board does not need to have a public hearing. Commissioner Higgs stated that is how it was done before. Mr. Knox stated the Board can do that or just close the public hearing and continue the item until some other time. Commissioner Higgs stated at zoning meetings the Board closed public comment and continued the public hearing. Mr. Knox stated either way is fine.

Chairman Scarborough inquired if Commissioner O'Brien's motion is to close the public comment and continue the public hearing; with Commissioner O'Brien responding yes. Commissioner Higgs stated that was also her second to the motion. Chairman Scarborough called for a vote on the motion as amended. Motion carried and ordered unanimously.

Mr. Knox advised a date is needed; and the Board agreed on March 19, 2002.

PUBLIC HEARING, RE: APPEAL BY MAURICE AND CAROLYN BOUVIER OF SEAWALL
PROVISIONS IN SECTION 62-3666, SURFACE WATER PROTECTION ORDINANCE

Chairman Scarborough called for the public hearing to consider an appeal by Maurice and Carolyn Bouvier of the seawall provisions in Section 62-3666 of the Surface Water Protection Ordinance.

Attorney Tim Pickles, representing Maurice and Carolyn Bouvier, advised Mr. Bouvier is here; their expert Ken Rose, who is the project engineer, will discuss the specifics of the project; and he will talk about the history and the law that applies. He stated Mr. Bouvier contracted with a licensed contractor to have a seawall constructed on his property in the beginning of 2001; after assurances from the contractor that a permit would be pulled, Mr. Bouvier was notified by the County in the summer of 2001 that a permit had not been pulled and the seawall would not comply with Section 62-3666; and that was shocking to Mr. Bouvier considering that directly across the canal is a seawall and down the canal are several more. He stated Mr. Bouvier's lot is in Indian River Isles North; in the main subdivision, which is on the same canal, approximately 90% of hardened seawalls have been constructed for years; so Mr. Bouvier thought it was not a big deal since everybody else had one, but he found out the hard way that was not true and after about 80% of the seawall was constructed, he stopped the work, and hence the appeal. Mr. Pickles stated the Board has the authority to override the specific language in the Ordinance that talks about general intent; Section 62-3663 specifically identifies the intent of the seawall Ordinance and says, "It is the purpose and intent of this division to improve the quality of surface waters within the County and protect and enhance the natural function of these waters"; and Mr. Rose will testify that is what the seawall will do. He stated he thinks the Ordinance was passed in 1979 and amended in the 1990's; the intent of the Ordinance is justifiable and clear; and that is to prohibit the destruction of indigenous vegetation on property and construction of seawalls that would negatively affect the environmental quality of the water. He stated just the reverse is true on a private canal; they are not dealing with property that is sitting on the Indian River; and it is a private canal that is maintained by the Association and also provides for dredging consistent with an MSTU of the County. He stated the reason for Mr. Bouvier's surprise at being denied a permit is that there are other permits in the same subdivision, which were issued in the past; upon inquiry to the County, they were either issued based upon an application submittal of the required information or in error; but in any event, they were issued. He stated the Ordinance appears to be arbitrary; the language identified by staff has a series of requirements that say in order to be approved, there have to be 75% of existing seawalls and seawalls within 150 feet of the same shoreline as the applicant; and that is a circular argument because they cannot get to that point if they need a significant number of seawalls in order to construct a seawall. He stated if the Board denies this application, anyone else who attempts to apply for a permit in the future would have to look to the same criteria; and if the Board cannot authorize the issuance of a permit to one applicant, then it cannot get the sufficient numbers to meet the criteria in the future. Mr. Pickles noted there may be a way out; and presented copies of Section 62-3668(3) to the Board, but not the Clerk. He stated that Section was pointed out to him in the denial letter from Ms. Debbie Coles in September; it says, "Alteration or construction within the shoreline protection buffer other than that which is permitted under this division shall be prohibited unless it is shown to be in the best public interest and does not adversely impact water quality and natural habitat"; and public interest is identified as net public benefit, which does not adversely impact the environment. Commissioner Higgs inquired if that deals with private or public projects; with Mr. Pickles responding it says public project in the Ordinance. Mr. Pickles stated without public project being specifically identified, this project, even though it benefits Mr. Bouvier's property, will benefit the public because it will reduce the runoff into the canal, not increase pesticides, etc., and limit the need for dredging; so that provision provides the Board with the discretion to grant the permit. He stated that would be the right thing to do; the Ordinance should be addressed in the future because there are some inconsistencies; and the Board should look at whether or not it was intended to prevent someone from protecting his/her property and not negatively affect the water quality within a private canal. He requested the Board review the Ordinance, consider the testimony of Mr. Rose as to the specifics of the project, and grant the application for a permit so Mr. Bouvier can enjoy the benefits of his property. He noted again that the project will have a positive impact on the canal and water.

Ken Rose with Total Engineering Alliance, representing Mr. Bouvier in support of the environmental and engineering considerations of the bulkhead construction, presented an exhibit to the Board, but not the Clerk. He stated the exhibit highlights what Mr. Pickles discussed about the specific nature and character of the subdivision, and shows there is bulkhead construction on 96% of the lots to the south and about 55% on the north canal where Mr. Bouvier's lot is located. He stated they addressed several criteria brought to light in Office of Natural Resources Management's documentation in the package they previously submitted with illustrations and exhibits; they suggested the bulkhead construction is in substantial conformance with the reasonable intent of the Brevard County Code as well as in the best public interest by minimizing erosion, sediment transport, and water quality degradation by stormwater runoff to the receiving system. Mr. Rose stated in his opinion, strict interpretation of the Code appears unreasonable when existing bulkhead construction influences the character of the subdivision and surrounding neighborhood; and from the pictures the Board can see that the canal on the south section of Indian River Isles is extensively bulkheaded. He stated the canal is experiencing some erosion mostly caused by wave action, but because of the steep slopes on the west side of the canal, some erosion from the yard runoff has taken place. He stated there are several issues of Natural Resources' comments that warrant comments and clarification, specifically items (b) and (c), which make reference to alternatives to shoreline hardening and whether they were employed without success. He stated contrary to Natural Resources' report, alternative methods have been employed without success; and referred to the illustrations that show the backyard retention swale to preclude stormwater from directly discharge into the canal that did not work. He noted the swale does not seem to be successful because there currently is some erosion along the top of the bank, especially where the walkway is located.

Chairman Scarborough advised the applicant was allowed ten minutes; that ten minutes have elapsed; and inquired if the Board wants to allow Mr. Rose more time. Commissioner Carlson inquired how much more time; with Mr. Rose responding about three to four minutes. Commissioner Higgs suggested he take the time out of the rebuttal. Commissioner O'Brien stated when someone has invested personal funds in a project, he should be given more time; and recommended giving an additional five minutes.

Motion by Commissioner O'Brien, to allow five additional minutes plus five minutes for rebuttal. Motion died for lack of a second.

Mr. Rose summarized that alternative approaches were employed without success; the bank of the shoreline is much too steep to support any propagation of native vegetation or revetment construction; there is no bulkhead construction on adjacent lots on either side, but there is one to the rear within the 150-foot criteria; and the entire subdivision bulkhead construction approximates 75% shoreline hardening. He stated bulkhead construction is in keeping with the character of the subdivision; bank stabilization will serve the best interest of the public by precluding stormwater discharge directly to the canal, and prevent accelerated erosion, sediment transport, and water quality degradation of the Indian River. He stated they feel substantial justification has been presented to allow construction of the bulkhead; and requested the Board's approval of the project.

Kent Cady, President of Indian River Isles North Homeowners Association, stated he represents the members of the Association and himself; and they are in favor of Mr. and Mrs. Bouvier's request. He stated there are a number of residents who do not have seawalls; he has lost some of his yard and foliage to runoff; and presented a photograph to the Board of the rear portion of his home. He stated he kept a lot of the original vegetation, but had to put coquina rock in place because his yard was caving in; there was foliage all across the 143 feet of his lot at one time; but now there are rocks where erosion is taking place. He stated he hopes the Board can see its way clear to approve the permit, and allow those who do not have seawalls to obtain permits. He noted every bit of his 143-foot lot line is in danger of erosion.

John Watson, resident of Indian River Isles North and neighbor of Mr. Bouvier, advised he completed his house about a year ago and has been trying to get a seawall. He stated last summer he was in the process of preparing his appeal and had to be out of State for a while so he could not complete it; but he is here to support Mr. Bouvier's request.

Maurice Bouvier advised he wants to add to what was said and give a brief history and status of seawalls in the north end of Indian River Isles and the road that brought him before the Board. He stated he purchased his house in 1987 when it was three years old; the development was five or six years old then; the south end had not started to be developed, and basically no seawalls were in the area when he moved in on the north end. He stated the seawalls have almost all been built in the last fifteen years since he has been there; and most of them have been built in the last ten years. He stated the Board enacted the 75% rule in December, 1991; it was ten years ago when it came into effect; and over the 15 years that he has been there, he has observed erosion along the shoreline. He stated his walkway, from the back of the house to the dock, fell in a couple of years ago; the end of it collapsed and eroded out; he rebuilt it, put sandbags under it, and filled it in; and a year or so later they had high water for several months and it fell in again, this time on a workman in his backyard. Mr. Bouvier advised over 15 years he has seen erosion and effects on his walkway, as well as his neighbors on a regular basis building seawalls that do not comply with the requirements of the Ordinance; the last three seawalls were built in 1998, 1999, and 2000; and about the time he decided to build a seawall, he was shocked to find out the contractor did not apply for a permit, but more so that the County would not approve it when they submitted the application. He stated he met three times with Natural Resources staff; they were cordial and friendly and very professional; it was enlightening to him to understand what the Ordinance said; but he could not get a definition of the purpose of the Ordinance, if there was anything wrong with his project, and if his project would hurt the neighborhood or environment; and he never got a feeling from anyone that it was the case. He stated it is simply an arbitrary requirement that says there has to be 75%; and their subdivision falls short of that and is at about 57 to 58%. He stated most County employees' jobs are to see that Ordinances are followed to the letter of the law; they do not have interpretative abilities; so the reasoning, logic, and interpretation of his project on its merits would be made by the Board of County Commissioners; and that is why he is here.

Natural Resources Supervisor Debbie Coles advised Mr. Bouvier did a good job explaining why the item is before the Board today; there was an exhibit distributed to the Board that showed where the seawalls and rock revetments are within the north and south canals; they have records on a number of those, some were permitted, some were denied, and a few were put in without records of approval or denial; and it has been eleven years since the Ordinance was passed, and a number of those records could be in archives, but staff was not able to locate them. She noted there may have been some seawalls put in by a gentleman such as Mr. Bouvier hired who did not get permits, but staff never was called about a complaint. Ms. Coles advised there are two main factors involving this case that are stumbling blocks for Mr. Bouvier; those are criteria (b) and (c) of Section 62-3668 that are not being met; they talked about the 75% of the canal and within 150 feet on either side with bulkheads; and those are the criteria that the applicant cannot meet. She stated in addition to that, there has been no other permitted stabilization that staff knows of that had been put in place which would show they have tried other methods to stabilize the shoreline in the past; and that is where staff is on this case.

Commissioner Carlson advised Ms. Coles told her there was one lot in the same section that had a permit denied; and inquired what was the justification for that denial. Ms. Coles stated those were Lots 12 and 13; Lot 13 belongs to one of the gentlemen who spoke today and Lot 12 is his neighbor's lot; both requested seawalls; but they did not meet the criteria, similar to Mr. Bouvier's request. Ms. Coles noted 75% is the stumbling block for the lots on that part of the canal. Commissioner Carlson stated Mr. Bouvier brought up walls being built in 1998, 1999, and 2000; and inquired if those have no records; with Ms. Coles responding they have one permitted in error on September 12, 2000; they have records in 1997, and 1994 of lawfully permitted seawalls; and a rock revetment was approved in 1999. Commissioner Carlson inquired what was the basis for the permit issued in error; with Ms. Coles responding it went past them in the system. Ms. Coles stated they have hundreds of building permits for review, and for some reason the reviewer did not catch it as being problematic. Commissioner Carlson inquired, since the Board denied permits based on the Ordinance and same details, one was issued in error, and others without permits, in what position does that put the Board in terms of following the absolute wording of the Ordinance.

County Attorney Scott Know advised the Ordinance is clear about what the Board can and cannot do; whether people did it without permits does not make a lot of difference; one could argue they should not be included in the numbers; but the real issue here is whether the case is made under Section 62-3668(3); and that is the issue the Board has to make a call on. Commissioner Carlson stated the Ordinance talks about best public interest; this is a private canal and private project; and inquired how does the County apply best public interest to this project; with Mr. Knox responding the definition in Section 62-3661 says, "a public project that clearly demonstrates a net benefit to the public as determined by the Board of County Commissioners, which adequately mitigates adverse environmental impacts"; and the question is whether it is a public project or not. Commissioner Carlson inquired if the subject project is private or public; with Mr. Knox responding the Board primarily has to look at public project as what is the predominant purpose of the project in this case. Commissioner Carlson stated Mr. Knox is not answering her question of whether it is public or private based on the information in front of the Board and can the Board define it; with Mr. Knox responding it is the Board's call as to whether it is public or private. Commissioner Carlson stated it seems like a private project to her. Commissioner Higgs stated it is a private project to her also; however, Section 62-3668 does not talk about seawalls; seawalls are discussed under Section 62-3666; so she is concerned that the Board is trying to apply Section 62-3668, which talks about different things such as construction within the shoreline protection buffer. She stated it does not apply to seawalls; and best public interest is not the criteria under which the Board can even review the seawall because it is under the other Section of the Code. Commissioner Carlson stated she thought it applied to the entire Section; with Mr. Knox responding it applies to construction within the shoreline protection buffer. Commissioner Higgs stated Section 62-3666 talks about bulkheads or seawalls; it is very specific; so best public interest under Section 62-3668(3) does not apply to this application.

Commissioner Carlson stated in the briefing, staff applied best public interest, and the question came up, which staff had an explanation for, but it was not the same as Commissioner Higgs' explanation. Ms. Coles stated she believes it does apply throughout the Code, specifically because it is a Class III waterway and the project is on the waterward side of the buffer. She stated the buffer extends from the mean high water line landward; parts of the wall are definitely above the mean high water line; and some of it is below the waterline because there is a curvature to the shoreline. She stated if the Board wants to consider it a private project versus a public project, there are components of the project that could be deemed as being beneficial to the public, but it seems like this is for the particular lot, which is a private lot on a private canal. She stated the people who live there own the canal; and the property lines go to the center of the canal. Commissioner Carlson stated the public interest part is water quality; and inquired if there is any problem; with Ms. Coles responding at one time the applicant talked about speaking with Ron Jones because there is an outfall at the end of the canal; they were going to talk to him about public components of the discharge that could be mitigated; but she does not think that was accomplished. Commissioner Carlson stated it is difficult because the way it is explained in the Ordinance cannot be applied to private property; she does not want to create a precedent for seawalls anywhere else that may impact water quality, but it seems the Board needs to address the Ordinance in some way, given that the circumstances of erosion and alternative treatment have been qualified. She stated in one phase of the subdivision they completely bulkheaded the development; she does not know of any environmental engineering statement that says it is a problem with water quality; but there is still discovery to be done. She inquired where would the burden of public interest and water quality be put; with Mr. Knox responding he understands the argument of the applicant that public interest of this project is improvement of water quality because there is no erosion flowing into the river; that is the argument the Board has to decide if it is a public project or not; and if it is not, it should be considered in the Ordinance, which needs to be amended to say prevention of erosion is also part of the determination. Commissioner Carlson stated that is her point; there is erosion occurring, a swale that is not working, and things flowing into the lagoon that may be preventable if the property owners in that area were given the opportunity to install seawalls; that would be in the best public interest; but she is not sure if it is private or public.

Commissioner Higgs stated if the Board applies Section 62-3668, and the argument is public interest, it has to go to Item (5) which says, "development within the shoreline protection buffer is limited to fences, docks, boat ramps, pervious walkways, and elevated walkways"; none of those qualify in this case; so she does not see how that section can apply. She stated it is not multiple choice; the Board cannot pick and choose; if it is a private canal and project, then it is not a public project; so the public interest criteria cannot be applied. She stated the Board has to go back to Section 62-3666 that deals with seawalls and bulkheads, which says, "the applicant shall demonstrate the subject property has experienced continued and significant loss and alternatives have been correctly employed without success." She stated the Board does not have evidence that says they tried something else, so they do not meet that criteria. Commissioner Carlson stated they presented the evidence with engineering study and pictures showing the swale; with Commissioner Higgs responding a swale does not hold the shoreline; it deals with runoff, but not protection or stabilization of the shoreline; she cannot see where staff has incorrectly applied the Ordinance; and in this case, the Board has to deny the project going forward. Commissioner Carlson inquired if the swale is for retention or to stop erosion; with Ms. Coles responding it is for retention and to slow down runoff to keep erosion down. Ms. Coles advised the subdivision was permitted prior to the effective date of the Ordinance; there were no provisions to require or maintain a buffer at that particular time; so the lots that were developed before the Ordinance went into effect, were sodded down to the shoreline. She stated the St. Johns River Water Management District has a real lot swale in place, which is part of the package provided to the Board; in addition to that, the applicant is also going to do a secondary swale system behind the seawall as part of his proposal. Commissioner Carlson stated one of her questions was why they could not vegetate to reduce erosion, but that was not one of the choices because of the steepness of the slope. Ms. Coles stated she does not agree with the applicant on that particular issue. Commissioner Higgs inquired if rocks and vegetation might work; with Ms. Coles responding it might work; there is also a problem with the revetment provisions; the applicant was not able to demonstrate Criteria A under the revetment provisions; so their office recognizes they are having an erosion problem mainly because they have sodded down to the shoreline and wave action has damaged the property. She stated it has not been shown that there has been a destructive loss of existing established native vegetation; and it was not a requirement for them to keep native vegetation at that time.

Commissioner O'Brien stated the intent of the Water Protection Code is to improve the quality of surface waters in the County and the natural functions of the waters; and it was proven, after the dredging projects on Merritt Island, that the water quality immediately improved in the canals that were hardened and dredged out. He stated this situation has water runoff from the property creating erosion in the canal; if it is allowed to continue, the canal eventually will fill with silt and the water quality will be severely degraded; and as far as public purpose, if the seawall can catch the runoff and take the fertilizers and pesticides through geotextile and gravel, the water that ends up in the canal will be much better; and it would be a great public service not only for people who live on the canal, but also the Indian River, which water from the canal eventually enters. He stated if the Board wants to achieve the goal to improve surface water in the canal, Mr. Bouvier's project will improve the water quality in many ways; so there is a public benefit. He stated it is Class III waters; requiring the applicant to remove the seawall will create an intolerable hardship; and the applicant has said he experienced significant losses from erosion and other things and tried alternatives that did not work; so he has met some of the criteria. Commissioner O'Brien stated putting the seawall in has enhanced the natural function of the water; erosion will continue to occur if planting sea oats down there and putting a mangrove along the edge is required; the other side of the canal has seawalls, so in front of his lot would be filled with silt; and that would create a serious water quality problem. He stated manatees need five feet of water to find the grasses and cavort; this will help the public protect the endangered species and provide a place for them to eat; and the other seawall is within 150 feet of Mr. Bouvier's house. He stated if the Board wants to attain its goal and intent to improve the quality of surface water and enhance the natural function of those waters, the seawall meets those criteria and public purpose. He stated denying the permit today will create a terrible hardship for someone who has done a good thing.

Commissioner Carlson inquired, in any circumstance, is bulkheading a good thing in terms of the environment; with Natural Resources Management Director Conrad White responding over the years they always recommended people consider riprap installation over bulkhead installation; there are a number of reasons why they did that; and one is that riprap provides a lot of crevices for vertebrate and invertebrate animals to hide, slows down wave action because of the roughness effect, and there is less scouring of the sediment along the interface of the riprap. Mr. White stated a seawall has a very limited attachment surface; it also has energy from wave action being directed downward that scours out the toe of the seawall; and riprap has a longer life. He stated some seawalls are maintenance intensive; and there could be failure in a short period of time unless they are installed correctly. Commissioner Carlson inquired how does that play into runoff and water quality; and does it affect the wildlife that live in the water; with Mr. White responding they could have riprap and a swale landward of the riprap to achieve the results. Commissioner Carlson inquired if that is a requirement of the Ordinance if they do riprap, and does it protect the lagoon system; with Ms. Coles responding the applicant may be willing to do that in light of the comments they made here, but it is not a specific requirement at this time. Commissioner Carlson stated if it is not a specific requirement, she is not sure why they would do it, which defeats the purpose of what the Board is talking about. She stated she does not want to propagate the issue of seawalls, but in this case, it is important not to put things into the lagoon that are not there already, such as pesticides and herbicides. She stated the pictures show a steep slope, and swaling is not doing the trick and is causing erosion, which means the fluid on the surface of the lawn is going into the lagoon; she does not know if a bulkhead and swale system can help, but it would be nice to get advice as to the positiveness of the Ordinance and what they are trying to do.

Commissioner O'Brien stated scouring against the seawall argument would stand up readily in places where boats are allowed to operate without a no-wake restriction; he had a seawall for 20 years and had no scouring next to his wall at the base; in fact, the dirt was always higher and visible from the seawall; and his friends did not experience scouring either. He stated riprap could use coquina rock, but it has sharp edges with clamshells sticking up all over the place; and personally he would not want to fall into a batch of coquina rocks. He stated the amount of wildlife being preserved by riprap in a canal, which never experienced severe wave action makes no sense. Commissioner O'Brien stated the Board is trying to preserve the water quality of the Indian River; behind the seawall there is generally a good gravel base below the water level; and if geotextile is placed properly, as the water enters in there, it is filtered and the sediments are held back. He stated the filtering action alone would prevent a lot of other sediments from getting into the water column; and described several types of seawalls and swales and their benefits. He stated if the intent is to protect water quality, this type of seawall will protect the water quality; that has been proven time and again; and after dredging was completed, the water quality improved almost overnight.

Commissioner Carlson stated she does not know where the Board is comfortable with this item, but she is comfortable, if the construction of a seawall is approved, that a high standard be applied to make sure any runoff would be captured with an additional swale. She stated she does not have a problem because they have met most of the provisions of Section 62-3666 with the exception of greater than 75%, which, if looking at the entire subdivision, would have that number; but she is not sure if the Board feels comfortable with it. She stated she does not want to set a precedent, but given that the residents of the subdivision are all experiencing a certain level of erosion, at some point it may be more of an emergency. She stated maybe riprap will be the key; maybe they should go back and try it; and requested input from the Board. Commissioner O'Brien stated he would support a motion to approve the permit. Commissioner Carlson inquired if there is any way to provide a higher standard for these projects. She stated the runoff needs to be captured with all things in it, which seems to be vitally important to those who want to protect the estuary; and inquired what can the Board do to improve the Ordinance language to allow these projects with a higher standard or lay out differences in areas and the lagoon. Ms. Coles advised making it mandatory to have a swale system would be an improvement because the only time they get to upgrade those types of systems is when an applicant is placing a structure on the property that encroaches into the buffer that generates runoff; and that seems to be the case on private canals because most of them are in older subdivisions that do not have those types of treatment systems available. She stated another option may be to require at the toe of the seawall they put a row of rocks to encourage habitat. Commissioner Carlson inquired if there are implications, passing something like this permit, to any other Ordinance the County has in terms of seawalls; with Ms. Coles responding the Building Department is the only other agency she knows that has requirements for seawalls, but that is a design requirement. She stated the Board may want to look at all hardening projects as being included in the 75% calculation; and that is another option. Commissioner Carlson inquired if the Board would feel more comfortable reassessing the general provisions before having anyone get a permit. She stated she does not want to set a precedent, but wants to do what is best for the lagoon and the folks who are living on the lagoon; and based on history, when the 75% rule was put in, those lots that were created prior to 1991 are the ones that are basically the problem sites.

Chairman Scarborough stated the conversation is going in a circle. Commissioner Carlson stated she is looking for guidance if this should be taken back, and staff work on it and bring it back in a couple of weeks to give the Board additional language and a way to deal with a standard for swaling along with bulkheads. Chairman Scarborough stated his concern is somebody hired a contractor who does these things and should have gone through the proper procedures; the seawall is out there; the applicant is at risk because he has a seawall; the Board is supposed to look at other things first; but what is happening is the Board has been driven to a discussion that it would not have been driven to if the contractor had done what he was supposed to have done; and somehow the Board is creating a burden for itself and now is talking about changing the entire format of how it considers seawalls. He stated he is not an expert on seawalls, but he has never had anyone come in and recommend seawalls; the Board is supposed to look at alternatives first; it did not put itself in this position; and the contractor who knew better put the Board in this position. He inquired if Commissioner Carlson wants to table the item; with Commissioner Carlson responding she does not know if it is going any further and would hate to have another hour of discussion and go nowhere or go in a circle; but based on what has been said it sounds like the Board needs to deny the permit and ask Mr. Bouvier to take out the seawall and put in a revetment; and inquired if that is what she is hearing. Commissioner O'Brien stated that would not be fair; it would create such a hardship; the Board created a law; the applicant has proven what the seawall can do; and he is doing the Board a favor by improving the water quality of the Indian River lagoon. Chairman Scarborough stated Commissioner O'Brien may be right; and if so, the Board should change the rules; but he does not like to have someone who knows better ignore the laws and do a job without a permit, then have a Code violation and come to the Board and pretend it is wrong. He stated if the Board is wrong, it should change the rules; but he does not want to give a message to the community that it is okay to ignore the rules. He stated there are many people who do not go that way; they abide by the rules and do things right; and the Board is doing a disservice to everyone who tries to work with staff; so he has a lot of problems with this request.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to continue the public hearing on the appeal of denial of a seawall permit for Maurice and Carolyn Bouvier pursuant to Section 62-3666, Surface Water Protection Ordinance, until April 2, 2002 to allow staff to work with the applicant on other options. Motion carried and ordered unanimously.

Ms. Coles inquired if the Board wants staff to return with some language for consideration; with Commissioner Carlson responding she will meet with staff and talk about it. Commissioner O'Brien stated he would like to see the whole Code come back and give people back their rights that they deserve. Chairman Scarborough inquired if Commissioner O'Brien wants to make a motion on that.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to direct staff to bring back the entire Code for discussion. Motion carried and ordered; Commissioner Higgs voted nay.

Chairman Scarborough stated he prefers to do it that way and do it up front. Commissioner O'Brien stated the Board has gone so far beyond reality that it stripped away the rights people should have. Commissioner Higgs stated the Board has never heard anyone step up here and say seawalls are good. Chairman Scarborough stated that will be discussed; if Commissioners have different feelings, that is fine; but that is the way to handle it. Commissioner Carlson stated there is some gray area that needs additional discussion.

ACCESS WAIVER, RE: CLAIRE'S COVE

Commissioner O'Brien inquired if there is any problem with the request; with Chairman Scarborough responding there are several people in opposition.

Robert Lee of Lee Engineering, Inc., representing the applicant Jim Mayes, presented three handouts to the Board, but not the Clerk; stated the request is for a waiver to use an easement as access to a proposed project of 40 townhouses on approximately 4.0 acres. He stated it was previously approved as a future phase of the current condominium called Isle of Merritt; and in the condominium declarations, there are easements granted over the first phase to provide access for future phases or the property if the future phases were not built. He stated prior to purchase of the property, a title opinion considered the easements valid and that it was for the project to have access; therefore, they request the Board's consent to grant the waiver. Mr. Lee advised they sent out public notice, scheduled a meeting to discuss it with the Isle of Merritt homeowners; and distributed a letter from the majority owner of the condominium, who owns eight of the 15 units, that states they would not object to the action. He stated he spoke to the representative of Tinsley and Tinsley Inc. who also owns one or two units; and no other owners called or wrote to him. He stated the homeowners on Hurwood Avenue were notified by the County, and several are present tonight; and requested the discussion be held to the access waiver, and any issues regarding the site plan be considered during the site plan process.

James Mayes, Sr., representing Mayes Development, Inc., advised nobody seems to know what the project is; it is about starter housing, ranging from $89,000 to $100,000; and that is the market they are targeting and the service they want to provide to the community. He stated the majority of units are rental units; and they will provide an impetus and neighborhood improvement, in addition to that first home ownership experience.

Diana Howard advised she is opposed to the project off Minna Lane because it would contribute additional traffic to Courtenay Parkway. She stated currently there are two condominiums, an apartment complex, and single-family residences that meander down Minna Lane, which has no traffic light; and cars are backed up trying to get on Courtenay Parkway or coming off it onto Minna Lane. She stated there is a Vitalizer complex, which is a commercial piece of property there, and they are using the parking area to come through to Hurwood Avenue and use the traffic light to gain access to Courtenay Parkway. Ms. Howard stated in addition to the traffic problems, the proposed development will destroy the natural buffer zone between three existing communities; it is difficult to believe the developer plans to cram 40 units on less than five acres; and stormwater runoff is also a concern. She stated under the proposed site plan she was furnished, she did not see any areas designated for retention; there is a small ten-foot ditch or canal that borders her property line, which is the southernmost property line of the project and her north property line; however, she does not see how that will carry all the stormwater runoff from the proposed project. She stated there are distances shown on the site plan from the edge of the proposed building to either her fence line or their property line, at Lots 17 and 18 in Hibiscus Park; she owns Lot 18; and the developer's building appears to be 18 B, which would be directly behind her lot. She stated the arrow indicates it is coming from the building to her fence line and not the property line; and inquired if that is correct. She stated following the distances easterly, they go from the building to the property line with the exception of the two distances from Lots 17 and 18 in Hibiscus Park, which seem to go beyond the property line to the existing fence line. Permitting and Enforcement Director Ed Washburn advised the developer does not have site plan approval; it is his conceptual drawing of how the property can be laid out; and the applicant can better address the distances, but the request today is for an access waiver and not approval of a site plan. Ms. Howard stated then her only leg to stand on is the additional traffic it will create on North Courtenay Parkway. She stated the existing residents are already using a parking area owned by Vitalizer to make their way to Hurwood Avenue to gain access to Courtenay Parkway by the traffic light; and 40 units for two-car families will be a lot of extra traffic trying to get on Courtenay Parkway. She stated the majority of the residences are single-family, single-story structures; the developer is getting ready to put in a two-story complex less than 20 feet from the existing houses; and it is not conducive to the atmosphere that is there.

James Mayes, Jr. advised they are here to apply for an access waiver and not site plan approval; they did a conceptual site plan to address the issues Ms. Howard brought up; she said they are planning to put in two-story complexes; and that is not true. He stated there is a mixture of two and one-story buildings as stated on the preliminary plan; his property is not designated as a buffer zone; it is zoned for 15 units per acre; and his plan proposes ten units per acre, which is a reduction in the amount of units they could put on the property. He stated they propose fee-simple new home ownership or starter homes; in his opinion, the area is in need of starter homes; Hurwood Avenue has no stormwater drainage system; their proposed plans will meet all County and St. Johns River Water Management District's requirements; and they have already designed an applicable stormwater management system for the property. Mr. Mayes stated he understands the maximum capacity on Courtenay Parkway is not an issue at this point; however, they plan on using some of it for their project, but that is a site plan issue. He reminded the Board this request is strictly an access waiver issue.

Commissioner O'Brien advised they have proven they have an easement; and inquired what are they applying for today; with Land Development Director Bruce Moia responding the ability to use the easement as access to a publicly-maintained road right-of-way. Mr. Moia stated it is the parent parcel that was severed when Phase 1 was built; Phase 1 recorded an easement to the remainder of the property; for access by easements for single-family and multifamily developments, the Code limits the amount of units that can use that easement; and they are asking for a waiver to develop in a manner consistent with their zoning or similar to what was previously approved, allow the access through the easement, and waive the requirements of the Easement Ordinance. Commissioner O'Brien inquired if the property is zoned for multifamily; with Mr. Moia responding yes, it is RU-2-15. Commissioner O'Brien inquired if they propose to construct fewer units; with Mr. Moia responding yes, the plan approved in 1985 was for five phases of condominiums, but only Phase 1 was developed; and the others were never built, but were permitted for 60 units. Commissioner O'Brien inquired if they are requesting approval to access a public right-of-way through a recorded easement and not to approve the easement because they already have it; with Mr. Moia responding yes, for the number of units proposed.

Commissioner Higgs inquired if they can develop duplexes with RU-2-15 zoning; with Mr. Moia responding yes. Commissioner Higgs inquired if the easement allows duplexes; with Mr. Moia responding yes. Commissioner Higgs inquired if they choose to do duplexes, would they need a waiver; with Mr. Moia responding if they plat fee-simple lots, using the strictest compliance with the Easement Ordinance, they could not get 40 units. Commissioner Higgs stated she did not ask about 40 units, just about duplexes; with Mr. Moia responding yes, they can get access for single-family and duplexes according to the Easement Ordinance. Commissioner Higgs stated they have the zoning to do duplexes and an easement they could use for duplexes; and inquired if without a waiver they can proceed to do that; with Mr. Moia responding yes.

Chairman Scarborough inquired how many total units would there be if Phases 2, 3, 4 and 5 were built out; with Mr. Moia responding he believes it was for 60 units. Chairman Scarborough inquired how many units would they have with this proposed plan; with Mr. Moia responding four acres would allow 60 units; that was approved in 1985; and they are proposing 40 units which is 20 less. Chairman Scarborough stated he has problems with the request; the development agreement says "for the benefit of phases 2, 3, 4, and 5"; there are no phases 2, 3, 4, and 5; and inquired will this create more traffic than what was previously part of the easement. He stated it may not be an easement; there may be some legal problems with the title; however, it is a private matter and the Board does not have to get into it. He stated his concern is letting an easement be used under the provisions of the County Ordinance; if it is not impacting traffic, he does not have a problem; but he does not know if that is the fact. Commissioner O'Brien stated they claim it is an easement and the property is zoned properly. Chairman Scarborough stated he is talking about a private easement on a property for a specific purpose or individual; there is a difference between a drainage easement and egress/ingress easement; this is an easement for phases 2, 3, 4, and 5 of a condominium project; however, there are no phases 2, 3, 4, and 5; and the proposed project is totally different; so he does not think it is appropriate for the Board to go there, but he has questions about it. He stated the Board should not render opinions on this issue. Commissioner O'Brien stated if the Board denies the request, it should give the developer some reason why it was denied. Chairman Scarborough stated he does not think the Board needs to deny it because it is a legal issue. County Attorney Scott Knox stated it raises the issue whether or not there is access over the easement, which would fall under the Code. Chairman Scarborough stated they abandoned phases 2, 3, 4, and 5; and in doing so, they did away with the entity that had a right to the easement; so the entity is no longer in existence, and with that, the easement is gone as well. Mr. Knox noted he tends to agree with that.

Jim Mayes, Jr. stated there is a letter from Attorney Mitch Goldman to Gwen Heller that supports the issuance of a title; that was a condition for them applying for the waiver; so there will be no title issuance problems and there is an easement which they have a legal right to.

Chairman Scarborough stated Mr. Mayes' attorney can render an opinion in his favor, and some other attorney could render an opinion in someone else's favor; there are courts because attorneys have different opinions; and he does not think it is appropriate for the Board to render an opinion. Commissioner O'Brien inquired if the Board wants to continue the item until the developer provides proof or a judge's order, or something. Mr. Knox stated the Ordinance does not kick in until the issue of whether or not there is an easement is resolved. Mr. Lee stated in the Declaration of the condominium it says to the successors and assigns; so it is not just the phases, but the future successors and assigns of the property; and that was given to the Land Development Department. Chairman Scarborough stated just because it says something does not mean it is there; phase 1 should not be adversely affected by what happens in phase 2; and he has not reviewed it, does not plan to review it, and it is not his prerogative to review it. Mr. Knox stated tabling would be best until he has a chance to look through the issues because the exhibit he has does not match up with the easement.

Commissioner O'Brien inquired if it is a simple civil matter; with Mr. Knox responding no, they are trying to get a waiver from the easement access requirement and to do that they have to have an easement. Commissioner Higgs stated they have the ability to build something in terms of single-family housing and duplexes; earlier today the Board dealt with capacity on North Courtenay Parkway; and that should be an issue to consider because they can build 20 or 40 units. She stated the Board has discretion on the number of units they can build.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to take the request for access waiver for Claire's Code until March 19, 2002. Motion carried and ordered unanimously.

The meeting recessed at 3:11 p.m. and reconvened at 3:20 p.m.

CONTRACT FOR SALE AND PURCHASE AND ADDENDUM WITH WILLIAM J. PAGE,
PROJECT STATUS, AND RESOLUTION AND NECESSITY REQUEST, RE: PROPOSED
PINEDA CAUSEWAY EXTENSION

Public Works Director Henry Minneboo advised there are three landowners left; and staff has been meeting with them, hopes to meet with them again, and will return to the Board with a report. Commissioner Carlson inquired if today is only to approve the Page Contract; with Mr. Minneboo responding yes.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to execute Contract for Sale and Purchase and Addendum with William J. Page for proposed Pineda Causeway Extension property at $407,000. Motion carried and ordered unanimously. (See pages
for Contract and Addendum.)

PERSONAL APPEARANCE - GRAZYNA PODSIEDLIK, RE: REFUND OF APPLICATION
FEE FOR SMALL SCALE PLAN AMENDMENT

Grazyna Podsiedlik, owner of Orbit RV Park located on U.S. 1 in Grant, requested refund of her application fee for a small-scale plan amendment. She stated in November 2000, her research showed she had density of ten units per acre for the RV Park, but when she was ready to do remodeling and rezoning in July 2001, she was told there is a new Ordinance that requires four units per acre, which was not what she wanted to do, so she applied to do a Comprehensive Plan amendment to change the density of her park from four to ten units per acre. She stated by the time her application proceeded, the new Ordinance went back to the old Ordinance of ten units per acre, so her application was pointless; in January 2002, she withdrew her application; and requested refund of her application fee.

Planning and Zoning Director Mel Scott advised in 2001, portions of the Orbit RV Park were nonconforming because of the zoning classification, etc.; but in the Spring of 2001, the Comprehensive Plan would have allowed ten units per acre as a matter of right if the Podsiedliks had made application to rezone their park to RVP. He stated there was a Policy in the Comprehensive Plan that said if they had mixed use district and obtained RVP zoning classification they could obtain ten units per acre; when they came in for a pre-application conference with staff in the summer, there was an update held up in court, which would remove the policy, but it was not yet effective; so staff identified they would need to rezone their property and change the Comprehensive Plan. He stated several months transpired and the update became effective; so when they came to pay the application fee, the policy was no longer there and instead of simply rezoning their property with mixed use districting and getting ten units per acre as a matter of right, they needed to not only rezone their property but amend the Comprehensive Plan to residential ten units per acre. Mr. Scott advised when the Board of County Commissioners ultimately saw the application, the implications of that on the Future Land Use Map were such that the Board would have had an island of ten units to the acre on the residential density map; and recognized it might set a bad precedent; so the Board opted to reestablish the policy in the Comprehensive Plan, thus doing away for the need of the Comprehensive Plan map amendment. He stated the Board funded the change of the Code to reestablish that policy; and it funded the Comprehensive Plan amendment, so it rendered Ms. Podsiedlik's Comprehensive Plan amendment moot. He stated she ultimately got the rezoning approved; when the policy was reestablished as a matter of right, she got the ten units per acre; so this is a request for a refund of the fee for the Comprehensive Plan amendment, which the Board funded; and the contention is staff should have informed her that there was a pending Comprehensive Plan change during the pre-application conference.

Chairman Scarborough inquired how much time and money from the County was spent on this item; with Mr. Scott responding Ms. Podsiedlik paid the Comprehensive Plan amendment fee, which would have changed the residential density map, but the Board said it is going to remove that application and do something different and funded that change. He noted the fee is $530.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to refund application fee for small-scale plan amendment in the amount of $530 to Grazyna Podsiedlik. Motion carried and ordered unanimously.

PUBLIC INTEREST DETERMINATION, RE: MAINTENANCE DREDGING OF
TUCKER CHANNEL

County Manager Tom Jenkins advised of a request to table the item to April 16, 2002.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to table consideration of public interest determination for maintenance dredging of Tucker Channel until April 16, 2002. Motion carried and ordered unanimously.

CHANGE ORDER NO. 3 WITH SHUTTER OUTLET, RE: PHASE III HURRICANE
SHUTTER INSTALLATION

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to approve Change Order No. 3 to Agreement with Shutter Outlet for Phase III of Hurricane Shutter Installation, increasing contract price by $66,339 and time by 45 calendar days to install accordion shutters on all openings with glass in doors at Enterprise, Jupiter, Meadowlane, Discovery, Atlantis, Suntree, and Rivera Elementary Schools. Motion carried and ordered unanimously. (See page
for Change Order No. 3.)

Chairman Scarborough inquired if staff has resolved the Buttrey item; with Public Works Director Henry Minneboo responding short of a grade separation, they agree with everything Public Works wants to do at the intersection. Chairman Scarborough stated the Board talked about other means of access; comments were made there could be access over existing roads; and inquired what are the options; with Natural Resources Management Supervisor Debbie Coles responding they have an alternate haul road approved with the current permit; that would require them to enter into a lease agreement again; and they have property they own and a perpetual easement over another piece of property that gets them to the property that has the borrow pit on it. Chairman Scarborough stated that is the green route, which has a wetland issue; the blue route they could get with a lease; and inquired about the chartreuse route. He stated there were also comments about hooking into the cul-de-sac. Mr. Minneboo stated that was an option they looked at; it is owned by a corporation and the owner is located up North; but it is all private land; and Mr. Buttrey indicated they tried to have dialogue with them and were unsuccessful. Chairman Scarborough inquired if they are landlocked, can they come to the Board for assistance in going that route; with Mr. Minneboo responding yes, after they make an effort to contact the owner. Chairman Scarborough stated since the County would be charged with making that happen for them, the question is the alternate route or the cul-de-sac.

Commissioner Higgs inquired what alternate route is the Chairman referring to; with Chairman Scarborough responding the blue route. Commissioner Higgs stated they came in with a lease on that route; it was approved that way; so the question is the denial of the permit revision based on property taking. She stated if the Board denies the appeal, they can move forward to the alternate or another way, but not the green route.

John Buttrey advised they have an access easement on that alternate route now, which he sent to the County Attorney; they will be back in a year because it expires and the land will be sold for development; so that is a temporary easement and is not going to solve the problem long term. He stated if the Board forces them into getting the access out to Cidco Road, even with its help in condemnation, the property owner is going to fight it because he has a contiguous piece of lane and does not want an easement through it. He stated if they are denied access, that is going to further complicate the issue; so he is appealing to the Board to approve the sensible route that they have. Chairman Scarborough inquired why is the alternate haul road only good for a year; with Mr. Buttrey responding he has a recorded easement that covers it, but it is only good for another year; it expires in 2003; the property that had their original haul road was sold off by the people who owned it; and the same thing will happen to the alternate haul road; so they will be back with the same situation they are in today.

Commissioner Higgs inquired what approvals were requested when the Board first entertained the project; with Mr. Buttrey responding he came in with a small borrow pit initially. Commissioner Higgs inquired if he received zoning or a conditional use permit; with Mr. Buttrey responding he cannot remember. Ms. Coles stated the Board saw it as a conditional use permit, waiver of impacts to wetlands, waiver of depth requirements, and changing the Code to allow for that to happen. Commissioner Higgs stated the Board has seen it several times and each time for a different configuration; and all those times he had access as he represented to the Board. Mr. Buttrey stated they have the alternate haul route; the permit was approved using that route because they were told they could not do the other one because of the wetland impact; and they got the permit approved with the option, realizing it was not a long-term solution.

Mr. Chesney stated the wetland impacts they propose are less than half an acre; there are a whole grid of roadways through the wetlands; the area is heavily impacted, not by them, but by unlawful mud-bogging on weekends, rifle shoots, and everything else; so some of the wetlands have existing trails cut through them that were manmade; and they were following the path of least impact, which happens to be going out through the access route that already exists there. He stated a right-of-way utilization permit would have to be approved; they are going to follow existing impacted wetlands to get to their property; and inquired if the Board is hung up on the wetland issue and is that where it is; with Chairman Scarborough responding yes. Mr. Chesney stated they are sensitive to wetlands also; that is why the proposed route has the least amount of impact; and that is the only way out.

Mr. Buttrey stated in the early approvals of the borrow pit, they had wetland impacts, but something changed, and now they are sitting here for the second time having to bother the Board for such a simple issue. Mr. Chesney stated Florida Power & Light has 300-foot power lines through the wetlands; all their easements are through wetlands because they do not want to use the uplands; and Florida Transmission on the other side of their property did the same thing, and heavily impacted wetlands that he is trying to skirt the fringe of to get out. Chairman Scarborough stated staff's memo is clear and he does not have a problem figuring out what they are saying. Mr. Buttrey stated as to the public safety issue as far as traffic, they understood from the beginning they had to get a right-of-way utilization permit to get that access; and they will do whatever staff requires them to do to obtain that permit. Chairman Scarborough inquired if there is anything that is incorrect in the report; with Mr. Chesney responding he does not question what is being said, it is what is not being said.

Commissioner Higgs inquired what is not being said; with Mr. Chesney responding that they minimized the impact. Commissioner Higgs stated that is not what the law says; the staff report says, "the proposed layout will result in wetlands impact of .26 acre. Wetlands impacts are permissible for commercial or industrial land development only if the criteria in Section 62-3694(c)(3) are met." She stated the applicant cannot meet that criteria; and she does not know why he cannot understand that. Mr. Chesney stated what they could not meet was the use around their property; with Commissioner Higgs responding she understands what they could not meet. Mr. Buttrey stated the rule is so inflexible that it cannot allow something like that; but the Board has the authority to make the change; they cannot accept denial of the use of the land based on a small amount of wetlands; and they will do what they have to do to see that through. Commissioner Higgs stated it is not denial of the use of the land; it is a route Mr. Buttrey does not want to take. Mr. Buttrey stated they have no other choice. Commissioner Higgs stated Mr. Buttrey has the option of an alternate haul route to his property and project that he could lease; with Mr. Buttrey responding it is only good for another year. Mr. Chesney stated they would do more impact to land that has not been impacted and on gopher tortoise habitat to build a half-mile road than they would by impacting the fringe wetland; and that is what he does not understand. Mr. Buttrey stated the County can do what it wants to do, but he has done these projects all over Central Florida and never ran into an area where they were not allowed to impact wetlands; that is new to them; the U.S. government even allows impacts to wetlands; and the State does also. Mr. Chesney noted he feels bad that the Board looks at them as terrible people because they are trying to get out of their project.

Commissioner Carlson stated it appears there are not too many alternatives other than the question she had the last time; and inquired again, looking at all the different white lines on the map, are there any other alternatives; with Mr. Chesney responding those are power easements; all the other lines are wetland impacts by people who do not follow the rules; and there are burned cars turned over on half of them. Commissioner Carlson inquired what impacts are on the alternative haul road; with Ms. Coles responding they would have substantial impacts; it does go into an area that may be on the scrub jay inventory; it is heavily vegetated with sand pines; so she doubts it would be occupied currently. She stated that property was one site McDonnell Douglas was looking at some time ago; and they would have to clear the sand pines and possibly change the topography to make it level.

Chairman Scarborough stated he sees three roads; he does not know who owns the properties; he heard the property owner should move a little bit further south; and it is not incumbent upon him to find the best route out, but he is not happy with what he is being shown and does not have enough information to say there is a better route. He stated it is easy for Mr. Buttrey to say give them the proposed haul route because they own the property, and it is a done deal; but he does not think that is where the Board wants to go.

Commissioner Carlson inquired does the Board have to give them the opportunity to use their land even though there is a wetland issue; with Mr. Knox responding the Board has a wetland policy that prohibits the use of the green road; there is an escape mechanism built into the Comprehensive Plan, which is the taking appeal; and that is why they are here. He stated if the Board takes that away from them, they will end up losing the alternate haul road a year from now and will have no way to get to their property; and the Board will have prevented them from having access to the property at that point. He stated they claim it is a taking and are here trying to get relief from that; and if the Board does not grant the relief, then they will have the opportunity to see if the court agrees with them. He stated they have access on the blue road for another year; and they could come back a year from now and revisit this issue with the Board. Commissioner Carlson stated that is not an existing road; and they have to create it. Mr. Buttrey stated they have to build the road. Commissioner Carlson stated there will be a lot of impacts. Mr. Buttrey stated the impacts on the green road are 75% within the footprint of the borrow pit; so that is not impact; and they sent the County Attorney all the paperwork on this issue, and tried to show him they have no other way out.

Chairman Scarborough inquired if they looked at all the routes, land ownership, and everything; with Mr. Knox responding what the Board sees is what they have. Chairman Scarborough stated he sees the map, but does not see the land ownership and where the patterns of land ownership go; with Mr. Knox responding Mr. Minneboo has the document that shows that. Mr. Buttrey stated it is the tax map. Mr. Knox noted the shortest route is out to Cidco Road. Mr. Buttrey stated their property is outlined in yellow; they have a perpetual easement that runs with the land; they own half interest in the parcel that goes out to Grissom Parkway; and the rest is privately owned, including the block that goes out to Cidco Road. He stated the property owner built a big facility, which prompted the shutoff of the original access road; there is one they have a right to use for another year; but they are trying to get a permanent access out of the property.

Commissioner Higgs stated they are here about a taking; this has not gotten to a point of a taking; the applicant still has full economic use of the property as a commercial/industrial parcel; and if they were to make any other considerations, other than commercial/industrial use, they have a number of economic alternatives for use of the property; so the Board is not here about a taking. She stated they argued in court for years about the wetlands regulations and language that is before the Board; it was part of a Settlement Agreement with Department of Community Affairs and a lot of people; and the Board needs to stand by its Code and Comprehensive Plan.

Mr. Buttrey stated if the Board denies their request, they will very shortly be shut down from using the existing road by staff and at that point will have no choice but to build the other haul route, which will have more impacts, as Ms. Coles pointed out, than they would have with the green road; so the whole thing does not make sense to him. Commissioner Carlson stated it does not make sense to have somebody construct a road over a piece of rural property and have to get off of it unless they have a plan for development of that property; and inquired if anyone has a clue on the alternative road they are talking about. Mr. Buttrey stated they would have to stop using it; the same thing happened with the original route; it was with the same landowners who sold the property; and they had to quit using it. He stated they have a written recorded lease which is good for another year on the alternate haul route; but after that they will be back before the Board. Commissioner Higgs noted they can come back.

Chairman Scarborough stated he wants to see more than the routes, and wants to see different parcels of property and ownership of those parcels. Mr. Minneboo stated he has that in detail. Mr. Minneboo stated since they built Grissom Road, the blue route is saturated with tortoises and scrub jays; there may be a wetland issue also; and that may be something to consider. Commissioner Carlson stated they have to be permitted before they can do anything; and they may not get the permitting for the alternate route. Mr. Minneboo stated the blue route has a lot of environmental issues; he does not know how that route came about; it is not an exciting route environmentally because when they did Grissom Parkway, they had to deal with those issues; and that is where the property is located. Commissioner Higgs stated the Board would have to amend the Comprehensive Plan if it does not like the wetlands laws which say do not impact at all certain classes of wetlands unless it is in commercial/industrial and it is already substantially surrounded. She stated it says do not do new impacts on wetlands; and if the Board does not like it, then it has to amend the wetland laws. Commissioner Carlson stated she understands that, but what she is curious about is the alternative and where does the applicant go if he cannot get permitting from the Board for the green route and cannot get it from the appropriate agencies on the blue route. Mr. Knox stated the only thing they can do is try and get alternate access; if they exhaust all possibilities of getting alternate access, including contacting people who own the property that abuts Cidco Road, they will have no place else to go, and have to come back to the Board and ask it to condemn an easement for them over the portion that is closest to the nearest public right-of-way. Mr. Knox stated on the map is a small shot between their property line and Cidco Road; but it would split in half a piece of property owned by someone else; and that is going to carry damages with it. Commissioner Higgs inquired if the applicant or the County will have to pay for it; with Mr. Knox responding it is going to be up to the judge. Mr. Buttrey stated if he was the property owner whose property was condemned to save half an acre of wetlands, he would fight the County on that; so it is not going to be a cut and dry issue; and that property owner is not going to believe what he is going to tell him.

Commissioner Carlson stated based on what has been discussed, Mr. Buttrey has to take his chances with the blue route because she does not think he has support on the Board to change the wetland language that the Board worked many hours on trying to come up with a solution that would work with all the properties in the County. Mr. Chesney stated the Water Management District approved the blue route; with Commissioner Carlson responding that does not address the scrub jays. Mr. Chesney stated he means through the County agency when they went through there with the original permitting, so it is a permitted route, but has not been constructed. Commissioner Higgs suggested they take their chances with the blue route. Commissioner Carlson stated Mr. Chesney said it was permitted. Mr. Chesney stated it is permitted; and the scrub jay regulations were not enacted when it was approved in 1999. Commissioner Carlson requested staff explain the scrub jay issue. Ms. Coles stated when they start construction, staff will notify the appropriate agencies to review that, and they may do a survey to check for those species. Mr. Chesney stated they did a scrub jay survey in 1999. Ms. Coles stated she does not believe there are scrub jays in the area, but there may be gopher tortoises, which may not have been properly addressed at the time. Commissioner Carlson stated hopefully staff will address it when it comes up. Conrad White stated they have up-to-date information on that, but it will take him a little while to pull it out. Commissioner Carlson stated it will be helpful to have the most recent up-to-date information.

Mr. Buttrey stated if the Board is going to deny the appeal, he would ask for some time to try and work the issues out using the existing road. Commissioner Higgs inquired if that is the yellow route; with Mr. Buttrey responding no, the yellow route is closed; and they are using the green route, which goes straight to Grissom Parkway. Commissioner Carlson stated that is in violation of the Wetlands Ordinances. Mr. Buttrey stated that is questionable from their standpoint. Commissioner Carlson stated that is the law, which the Board is bound by; it cannot allow the green route because of the wetlands issue; and the applicant has to deal with the issues on the blue route because it sounds like that is his only alternate route.

Commissioner Colon stated it would have been easy to deny the appeal, but the Board is having a hard time with it because it is trying to help Mr. Buttrey; and inquired if the Board says no to the green route, how long would it take to construct the blue route. Mr. Minneboo stated if he has to get permits, it will be four to six months to have a finished product. Commissioner Colon stated it will take six months for Mr. Buttrey to use the blue route; the Board is saying no to the green route; Mr. Buttrey does not have an option with the yellow route because the lease has expired; so they will not be able to do anything with their business. She inquired if that is what will happen; with Ms. Coles responding the Board could consider abatement of the violation until they construct the alternate haul route.

Chairman Scarborough stated the Board needs to take one thing at a time; and inquired if there are any Commissioners who want to allow the applicant the proposed haul route identified in green, and if so, would someone make a motion. No response was heard from the Commissioners. Chairman Scarborough stated it is alleged that even after violations, continued clearing and additional impacts to the wetlands took place; with Mr. Buttrey responding it was a mistake. Chairman Scarborough stated Mr. Buttrey came in with a mindset he wanted to go with the green route and the alternate haul route is an unacceptable option; he does not know who the landowners are or the configurations of the parcels; there are things that could be done to make the green route work; but he does not know what attempts were made. He stated with that in mind, the Board needs to put the burden back on the applicant and let him work with it to see what he can come up with. He noted the Board can look at it again; so a motion to deny the request is in order.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to uphold staff's denial of a revision to the permit to amend the location of an access road for a currently permitted land alteration for Buttrey Development, LLC. Motion carried and ordered unanimously.

PUBLIC COMMENTS

Bea Polk advised a few weeks ago she asked the Board to get opinions from the Attorney General on audits of Constitutional Officers; and the Board ask the County Attorney to get that. County Attorney Scott Knox advised it is in the hands of the Attorney General. Ms. Polk advised the next item was about emails; with Mr. Knox responding he is still working on that and collecting policies from other counties. Commissioner Carlson inquired if Mr. Knox has a time line on when he will have the information on the email issue; with Mr. Knox responding as soon as he is done with the Sawgrass issue, which is due March 18, 2002.

County Manager Tom Jenkins inquired if the Board wants to send a letter to the Senators about continuing the drug court operation.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to authorize the County Manager to send letters to Senators Posey and Futch regarding the continuation of the drug court operation. Motion carried and ordered unanimously.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 3:59 p.m.

ATTEST: __________________________________
TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK

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