The Board of County Commissioners of Brevard County, Florida, met in regular session on February 14, 1995, at 5:30 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Bob Lorenzo, Bowie Gardens Baptist Church, Melbourne.

Commissioner Cook led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve the Minutes of the February 1, 1995 Special Meeting, as submitted. Motion carried and ordered unanimously.

REPORT, RE: CANAVERAL GROVES LAND CLEARING

Commissioner Scarborough advised at a previous meeting he brought to the Board's attention land clearing in the Canaveral Groves area; and distributed pictures. Land Development Specialist III Reba Floyd advised the situation is under investigation; and it is believed to be Mack Powell Timber Company of Cocoa.

Commissioner Ellis stated this was land clearing in the right-of-way; with Commissioner Scarborough advising it was private land. Commissioner Scarborough advised there are many different property owners; some people assumed the County was taking this action; and it continued longer than it might have because of the assumption that it was under County contract. Planning and Zoning Director Peggy Busacca explained the situation; and advised the easements have not been conveyed to the County in most instances. Commissioner Cook inquired about the width of the easements; with Ms. Busacca responding she does not know the width.

Commissioner Scarborough stated the County Attorney had been authorized to go for an injunction; the clearing has been stopped now; and outlined of the options for penalties or entering into a consent agreement.

County Attorney Scott Knox advised normally a Code violation is handled through Code Enforcement; but that does not apply as the violation has occurred and is finished; and explained the alternative mechanism.

County Manager Tom Jenkins advised of past actions taken by the County. Commissioner Scarborough advised of past actions; but noted this is more complex because there is no settlement.

Ms. Floyd requested permission for staff to do an inventory and survey of the land clearing; and expressed concern if a consent agreement is entered into about clearing up all the debris. Commissioner Scarborough noted it has to go beyond cleaning up.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to direct staff to proceed with preparation of criminal misdemeanor actions for illegal land clearing in Canaveral Groves.

Mr. Knox advised prosecuting the criminal misdemeanor does not preclude the consent agreement which may be imposed by a judge. Commissioner Scarborough stated if massive action is offered, that is fine, but just clearing up is not sufficient. Commissioner Ellis inquired if this will go to the State Attorney; with Mr. Knox explaining the process that will take place. Commissioner Ellis requested clarification of the right-of-way issue; with Mr. Jenkins explaining the situation. Mr. Jenkins outlined the elements which make the issue unique. Commissioners Scarborough and Ellis advised they have received complaints. Commissioner Ellis advised of the situation south of the Police Foundation; and stated he will not support criminal charges without more information.

Chairman Higgs suggested staff proceed to prepare the case and bring it back to the Board at the next meeting.

Commissioner Scarborough stated he will make part of the motion that this will come back at the March 14, 1995 meeting; with Commissioner O'Brien accepting as seconder of the motion.

Commissioner Cook inquired if the company presumed to be involved has been notified; with Ms. Floyd responding yes.

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

Commissioner O'Brien stated if this goes forward to a trial situation, the County Attorney should be instructed to enter as a friend of the court on behalf of the County.

REPORT, RE: FISCAL ANALYSIS OF CERTIFIED MAILINGS TO PROPERTY OWNERS

Commissioner Scarborough advised of a letter received by staff regarding an item on the agenda, indicating the writer did not receive a timely notice. He advised of the general nature of the advertisement run in the newspaper; and stated the County is missing the mark with courtesy notices.

Planning and Zoning Director Peggy Busacca advised in the case of administrative rezonings, the Board direction was to notify everyone. Commissioner Scarborough stated he is speaking of other zonings; and noted for administrative zonings certified notification is only sent to the property owner, not the adjacent property owners. He stated on other than administrative rezonings, a courtesy mailing is done with no return receipts and there is publication in the newspaper. Commissioner Scarborough stated he would like to see certified mailing in all zonings to adjoining property owners within 500 feet. Ms. Busacca inquired if the Board is requesting a fiscal impact of that action.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to direct staff to prepare a fiscal analysis on providing certified mailings to adjoining property owners within 500 feet on all zonings, and report to the Board on March 7, 1995. Motion carried and ordered unanimously.

APPOINTMENTS, RE: VARIOUS BOARDS

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to appoint Daniel I. Petro, 157 North Orlando Avenue, Cocoa Beach, and Hank Lemerise, 357 Imperial Boulevard, Cape Canaveral, to the Contractors Licensing Board; and appoint Paul D. Lewis, 400 East Merritt Avenue, Merritt Island, and Richard Amari, 96 Willard Street, Cocoa, to the Merritt Island Redevelopment Agency Committee. Motion carried and ordered unanimously.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to appoint Laurel MacKenzie, 1908 Woodhaven Circle, Rockledge, to the Art in Public Places Committee, and Julie Wise, 230 Parnell Street, Merritt Island, to the Environmentally Endangered Land Procedure Committee. Motion carried and ordered unanimously.

REPORT, RE: CONFLICT WITH BOARD MEETING

Commissioner Cook advised of his appointment to the Canvassing Board and the possible conflict with the May 2, 1995 Board meeting. Chairman Higgs advised generally that has been done between noon and one o'clock; arrangements will be made that Commissioner Cook will be present at the meeting; and the Board is understanding of that commitment.

ANNOUNCEMENT, RE: BIRTH OF ALEXANDER KNOX

Chairman Higgs announced there is a new member of the County family in Mr. Alexander Knox; and the Board wants to congratulate County Attorney Scott Knox on the birth of his son.

ANNOUNCEMENT

Chairman Higgs extended best wishes to everyone for a Happy Valentine's Day.

DISCUSSION, RE: MOVING ITEMS ON AGENDA

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to move forward Items II.B. and VI.E.5. Motion carried and ordered unanimously.

RESOLUTION, RE: SUPPORTING FRIENDS OF THE ENCHANTED FOREST

Commissioner Scarborough read aloud a resolution in support of the Friends of the Enchanted Forest.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Resolution supporting the Friends of the Enchanted Forest. Motion carried and ordered unanimously.

Dave Rick, representing the Friends of the Enchanted Forest, expressed appreciation for the support of the Board for the Enchanted Forest; and summarized activities planned for or taking place at the Enchanted Forest.

Chairman Higgs thanked the Friends of the Enchanted Forest for their efforts.

Dave Rick distributed tote bags to the Commissioners.

PERSONAL APPEARANCES - PATRICIA CHARPENTIER AND DONALD HILLOCK, RE: NUDITY ON THE BEACH ORDINANCE Donald Hillock stated he is a fisherman who has lived in Titusville for fifteen years; and expressed concerns about the nudity problem at Playalinda Beach, which has been the only family-oriented beach. He described the problems with the nudists; advised when it was announced there was no law banning nudity on government property, the problems increased; and explained the problems of the nudists in the family sections of the beach. He advised tourists who come to fish are changing their plans; and unless something is done, the community will lose its family-oriented beach and the County is going to lose tourists.

Patricia Charpentier stated she spoke to the Board last August concerning her family's experiences; and since that time other families have shared their experiences which are not pleasant. She submitted incident reports from Playalinda Beach; and described the situation at the beach. She read aloud from an article from the December, 1993 News Observer describing the problems at the Canaveral National Seashore. She noted the article compares the situation at the Canaveral National Seashore to the one at Sandy Hook Unit of Gateway National Park in New Jersey, which is currently reconsidering its tolerance of public nudity. She asked members of the audience in support of an ordinance to prohibit public nudity to stand. Members of the audience stood. She requested the Board instruct the County Attorney to draft an ordinance addressing the nudity issue.

Commissioner Scarborough stated at one time there was a tolerance of the activity, and the beach was divided; but recently acts of harassment are driving the average person off the beach. He stated there have been acts of deviant behavior; the Park Service has not been responsible; the actions of the State have not been successful; and the County has the capacity to adopt an ordinance. He displayed letters received from people in the North Brevard area.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to direct the County Attorney to draft an ordinance prohibiting nudity.

Commissioner Cook stated there is a serious problem; and the Board must move to control it.

Commissioner Ellis advised each of the incident reports is a violation of State law; and the Sheriff can move against these now, and each can be prosecuted under current State law. County Attorney Scott Knox advised if you just appear nude on the beach, you cannot be prosecuted. Commissioner Ellis stated that is not what the incident reports are for. Mr. Knox advised if a lewd or lascivious act is accompanying the nudity, they can be prosecuted; and some of the incident reports qualify while others do not. Commissioner Ellis advised the County went through this before with Canova Beach; and it can be addressed by law enforcement. He inquired what is the value of another ordinance when the laws are not enforced now.

Commissioner Scarborough stated there are two different situations that evolve; one is that there is a community that wants to be left alone; but now there is a community which is performing, if not lewd acts, then insulting acts to drive people away. He advised of incidents on the beach which drive families away.

Commissioner Ellis stated the Park Service has the authority to act now; and read aloud from a letter from the Park Service advising a formal rule could be pursued to define where nude sunbathing might be accommodated at the Canaveral National Seashore. He stated South Brevard experienced the same problems; the Sheriff enforced the law; and now the problem has gone away. He noted adopting a nudity ordinance will not stop lewd and lascivious behavior; there will be no difference unless the Park Rangers are deputized; and inquired if the County has anything from the Rangers saying they will enforce the rules if deputized.

Commissioner Scarborough advised of problems with deputizing the Rangers. Commissioner Ellis inquired if they will accept deputization; with Commissioner Scarborough responding they will. Commissioner Ellis inquired why not do that and have them enforce State law. Commissioner Scarborough explained what happened when the Governor did that; and stated the law needs to state that the act of being totally unclothed is in itself a violation of law.

Commissioner Cook reiterated the problems are serious.

Commissioner O'Brien expressed support for Commissioner Scarborough; and stated it is necessary to move forward because otherwise we are creating a trash society.

Commissioner Ellis reiterated there are laws on the books now that are not being enforced. Commissioner Cook advised the Board can make a statement that it is not going to tolerate this type of behavior. Commissioner Ellis noted State law already says this type of behavior will not be tolerated. Commissioner O'Brien stated it is not being enforced; someone needs to do something; and it is the County's turn. Commissioner Ellis stated this will give people false hopes; without a commitment to enforce, the ordinance is meaningless; and if a commitment is going to be made to enforce, the County can do that now as can the Rangers.

Commissioner Scarborough explained the State law; and stated what is being done is not necessarily a lewd act under the law, but it is flaunting nudity to drive people away. Commissioner Ellis noted each of the incident reports describes lewd behavior; each one has witnesses; but they are not being prosecuted now. Commissioner Scarborough stated he assumes those are being prosecuted.

Chairman Higgs inquired if a section of the beach could be allowed for naturalists; with Mr. Knox responding that could be done.

Commissioner Scarborough noted the Department of the Interior has written a letter suggesting it would not be appropriate to designate portions of the beach nude or not nude; but advised it would accept an ordinance since the property is in Brevard County.

Chairman Higgs stated she will support the motion to direct the County Attorney to draft an ordinance; and advised of the public hearing process. She requested information on exempting a portion of the beach from the ordinance; and requested the County Attorney advise how the ordinance will affect all areas of the County. Commissioner Ellis requested information on why the current law is not being enforced. Discussion ensued on which agency could provide that information.

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

Chairman Higgs stated she and Commissioner Ellis are requesting clarification of the issues. Mr. Knox stated he discussed these issues with the Park Ranger, and can do so in his discussion with the Sheriff; and he will report back in memo form.

Chairman Higgs advised the public hearings will probably be set in April, 1995, and they will be publicized. Mr. Knox advised it will probably be heard on the same dates as the bingo and impact fee ordinances. Mr. Jenkins advised that will be April 11 and 24, 1995.

The meeting recessed at 6:28 p.m. and reconvened at 6:42 p.m.

PERSONAL APPEARANCE - DAWN ZIMMERMAN, RE: RESOLUTION PROCLAIMING STUDENT NURSES DAY AND WEEK

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Resolution proclaiming February 22, 1995 as Student Nurses Day and the week of February 19 through 25, 1995 as Student Nurses Week. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - PAT GARRISON, AMERICAN RED CROSS, RE: EQUIPMENT FOR EMERGENCY SHELTERS

Pat Garrison, representing the American Red Cross, advised during the weather related disasters in Barefoot Bay and other areas of the County, it became evident there are not enough cots to equip emergency shelters; and there has been some discussion regarding this problem. She advised of the purchase of cots, bedrolls and blankets through a Red Cross grant, and the need to store 150 cots in Brevard County. She explained how the cots will be used; and requested a donation of $2,500 to purchase a trailer to store the cots.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to allocate $2,500 from Contingency for the purchase of a trailer for storage of Red Cross cots.

Chairman Higgs inquired if Commissioner Scarborough would include having the American Red Cross work with County staff in terms of how to properly house the equipment and what areas of the County might be available for storage. Commissioner Scarborough stated that is included in the motion.

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

Chairman Higgs expressed appreciation for the work the American Red Cross performed in Barefoot Bay in District 3.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: PROPOSED RATE CHANGE FOR TIME WARNER CABLE FRANCHISES I AND II

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant permission to advertise a public hearing on March 14, 1995 at 5:30 p.m. to consider proposed rate changes for Time Warner Cable (TWC) for Franchises I and II for its fourth quarter ending December 31, 1994. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS AND APPOINT SELECTION COMMITTEE, RE: DRUG AND ALCOHOL TESTING OF COUNTY APPLICANTS AND EMPLOYEES

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to authorize publication of Request for Proposals to solicit proposal from qualified laboratories to provide drug and alcohol testing in accordance with Board policy adopted December 13, 1994; and appointed a Selection Committee consisting of Health and Wellness Officer Sally Wilkinson, Transit Services Director Don Lusk, Solid Waste Director Richard Rabon, Road and Bridge Director Norman Caddell, and Central Services Supervisor Roger Donnelly to consider the proposals, with Leslie Rothering of the Purchasing Division as support staff. Motion carried and ordered unanimously.

DISCUSSION, RE: FLORIDA POWER & LIGHT COMPANY'S ACQUISITION OF PERPETUAL EASEMENT OVER DRAINAGE CANAL OWNED BY THE CITY OF ROCKLEDGE

Janice Peterson stated she lives in Levett Park where there was a problem with FP&L three years ago. She described actions taken by Florida Power & Light in relation to the right-of-way in question; and noted after being turned down by the City of Rockledge, FP&L advised it would cost an extra $2 million to put the high tension power line underground. She advised of the health risk; and stated the line should go underground. She described actions taken by Minnesota and Wisconsin in terms of the power lines to protect the safety of cow's milk.

Lee Wenner requested Judy Lipofsky speak first. Commissioner Cook noted Mr. Wenner is a former County Commissioner, and now is a City Councilman.

Judy Lipofsky, 1831 Laurel Oak Drive, Rockledge, stated the issue is the health and safety of people, not drainage; and disputed FP&L's assertion that only six homes will be affected. She noted FP&L contends there is no proof that living beneath high voltage power lines is dangerous; and compared FP&L's position with that of cigarette manufacturers who claim the studies do not prove that smoking is harmful even though the government has chosen to act on the evidence to protect people from the potential health hazard. She noted the studies of high voltage power lines have also been epidemiological; no one has been able to prove they cause cancer; but a study done in Sweden in 1992 showed the incidence of leukemia in children was three times greater than for children not living near power lines; and the Swedish government has responded by mandating that all power lines be underground. She advised all power lines belong underground; provided each of the Commissioners with a copy of an article on the benefits of undergrounding; and delineated the benefits. She recommended the City and County work together to protect the citizens.

Lee Wenner stated the main reason he is here is to ask the County to join the suit.

Jim McKnight, City Manager of the City of Rockledge, advised he has been dealing with this issue since the summer of 1993; and the merits of the case will be debated in court as well as in the newspaper. He stated the County's action to file a Disclaimer of Defendant to be allowed out of the suit did not support the actions of the City. He described the claim filed by the County; and advised this could be a problem for the County as it has an easement through there. He advised the poles are scheduled to be placed in an area that could affect the ability to maintain and other things the DISCUSSION, County may be concerned about. He requested the Board re-enter the case and support the City in its efforts to block the petition for eminent domain. He advised how close County residents would be to the line.

Lee Wenner stated in his 27 years with the County, he never knew a County Attorney to take an independent action like this without consulting with the elected officials.

Nick Rahal, 1830 Laurel Oak Drive, Rockledge, stated he is a real estate broker; and there are homes on Green Road ranging from $45,000 to $65,000. He noted the Board has been granted police powers by the U.S. Constitution and the State of Florida for the purpose of protecting health, welfare and safety. He described the Board's action in vacating buildings because of asbestos. He explained what will happen to property values as a result of the proposed high voltage power line. He explained a decision from the Department of Housing and Urban Affairs calling for all dwellings and related property improvements to be located at a safe distance from overhead electrical transmission lines; and advised any property which lines within the fall distance of such lines and poles is not eligible for FHA mortgage insurance. He advised of other cases where judges ruled high voltage power lines could not be put near schools. He stated no court would overrule the County's right to protect the public safety, health and welfare of the people.

Commissioner Cook expressed concern at the implications resulting from the County's submittal of the document.

County Attorney Scott Knox stated he acts in the best interest of his clients to keep them out of trouble; and if everyone had the full facts, they might understand. He described the case and the issues involved; and explained the County's part in the suit. He advised the County has an easement over Rockledge's property; but FP&L is not seeking to acquire any of the County's property or consent to use that property; and FP&L advised it was going to dismiss the County as a party to the suit. He described the Stipulation which he prepared in response. He stated the City of Rockledge is requesting the County participate in a lawsuit which has no effect on the County's interest at this time; and even if there was an effect on the County's easement, he is not sure this is the right forum to bring it up. He advised the fact that the County was dismissed from the case does not preclude it from coming back at a later date if FP&L interferes with the easement. He emphasized the only interest the County has in the easement is use of the canal for drainage purposes; and the County's standing to pursue anything in this lawsuit is tied to its interest. He noted the problem with diminishing property values in the adjoining subdivision due to health concerns; but advised the County does not have an ordinance which allows it to deny a permit to use the easement based on health reasons or depreciation of property values. He noted the only thing that regulates use of the easement is the Stormwater Ordinance; the issue is whether the use of the easement is going to conflict with the County's use; and that has not been resolved yet.

Commissioner Cook expressed concern that the Board was not notified and this was not a Board action. He recommended the Board reaffirm the previous action which was to insure no permits are issued in this area until the lawsuit is resolved. Chairman Higgs inquired what kind of permit is Commissioner Cook referring to; with Commissioner Cook responding a permit to construct the structures for the transmission lines.

Commissioner Scarborough inquired if there is any way to proceed to obtaining an injunction to preclude this from proceeding based on health, safety and welfare; with Mr. Knox responding at this point the County does not have standing to stop this particular transmission line from going forward on the basis of the interest it has in the easement which is stormwater interest.

Commissioner Cook inquired if the County can enter back into the case as a party; with Mr. Knox responding it could if it could show an adverse effect to the easement; but he has no information that is the case, and, in fact, received opposite information. Mr. Knox advised of the danger of raising a frivolous defense which could result in the County paying attorney's fees and costs.

Commissioner Scarborough inquired if the County can proceed with the City of Rockledge in some form of injunction to preclude the development based on scientific facts. Mr. Knox advised the County would not have standing to pursue it. Commissioner Cook inquired if the County could enter as a friend of the court to express its concerns; with Mr. Knox advising the only issues to be considered are necessity and compensation. Chairman Higgs inquired if compensation would vary depending on the harm to the individual; with Mr. Knox responding the County has not been harmed. He reiterated if the County had an ordinance such that FP&L could not do this without permitting, that would be different.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to direct the County Attorney to look at options to allow the County to support the City of Rockledge in its lawsuit with regard to the easement.

Commissioner O'Brien stated people in municipalities pay taxes; and it is incumbent on the Board to work with the City to help with this problem.

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

Commissioner Scarborough stated it would be prudent to contact the Public Service Commission to see what action could occur at that level.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to direct the County Attorney to look at an ordinance that would allow the County to have input in these types of situations.

Commissioner Cook stated an ordinance would require a public hearing, and then this situation could not happen again. Mr. Knox reiterated his position that there is not much the Board can do to assist Rockledge in this lawsuit; and suggested the better approach is the ordinance. He advised of the permitting process through the Department of Environmental Protection; noted the lines in question are below the permitting threshold; and suggested the County could adopt an ordinance to regulate transmission line locations in the County.

Motion restated by Commissioner Cook, seconded by Commissioner Scarborough, to direct the County Attorney to draft an ordinance regulating transmission line locations in the County and advertise for public hearing.

Mr. Knox suggested it be done in March, 1995 with the Land Development Regulations. Assistant County Manager Dean Sprague advised the LPA has exercised its 60 days on the ordinances; and a result, only the canopies over gas pumps issue remains; so staff is recommending scheduling new meetings in May, 1995. Mr. Knox noted because this will be a Land Development Regulation, it will have to be heard by the LPA first; and that would prevent it from being heard at a March meeting. Planning and Zoning Director Peggy Busacca advised the LPA does not meet again this month, but will meet on March 20, 1995. Mr. Knox advised the Board can hold the public hearings in April, 1995. Commissioner O'Brien inquired if that is enough time for the City of Rockledge to react. Rockledge City Manager Jim McKnight advised the County cannot regulate property with the City of Rockledge; with Mr. Knox disagreeing. Mr. Knox explained the effects of Charter government in terms of the County adopting an Ordinance. Mr. McKnight stated he is not sure the City would go along with what the County is suggesting, and it retains the ability to regulate its own land. Mr. McKnight advised this goes to hearing on March 21, 1995; and explained the third issue of eminent domain which is prior public purpose. He advised of the prior public purpose as a drainage right-of-way; and stated it is fee simple ownership. He inquired if County staff reviewed the site and came to a determination that it did not materially affect it, noting City staff is in disagreement. Mr. Knox advised that is in the pleadings; he has received information that the line will not interfere with the County's ditch; and he is not going to raise a frivolous defense unless he is advised there is a problem with the drainage ditch.

Commissioner Cook stated his first motion calls for Mr. Knox to reevaluate, making sure nothing was missed. He stated the consensus of the Board is to assist the City of Rockledge, if possible. He explained how Charter Counties can adopt ordinances, with the cities having the ability to opt out; and stated an ordinance could prevent this from happening again.

Commissioner Scarborough inquired who issues the permit if the ordinance is in effect; with Mr. Knox responding if the County adopts an ordinance requiring a permit, they would have to come to the County for the permit. Commissioner Scarborough inquired if it is possible to adopt the ordinance in a timely manner such that FP&L will have to go through the ordinance; with Mr. Knox responding they have not received any County permit; and a Stormwater Permit would have to be issued. Commissioner Cook stated it is necessary to expedite it. Commissioner Scarborough inquired if there are assurances the ordinance will be in place. Commissioner O'Brien inquired if staff can be directed not to issue a permit until the matter is resolved. Mr. Knox inquired when is the order of taking; with Mr. McKnight responding March 21, 1995. Mr. McKnight advised a lot of the line runs through unincorporated County area; and only a portion goes through Rockledge. Commissioner Scarborough inquired if Mr. McKnight is saying it will not help; with Mr. McKnight responding he does not think so. Commissioner Cook advised if the ordinance is in place before the lawsuit is concluded, FP&L would have to go through the permit process. Commissioner Scarborough inquired about an emergency ordinance; with Mr. Knox responding the Board has great discretion in determining an emergency. Mr. Knox expressed belief that it can be done before the March 21, 1995 hearing if it is possible to get the LPA together before then, and then hold the two public hearings. Ms. Busacca advised of the dates of the next zoning meeting and regular LPA meeting. Mr. Knox suggested it be included on the March 6, 1995 agenda; with Ms. Busacca advising it cannot meet the requirement for legal advertisement. Mr. Knox stated he will look at that issue; and if it cannot be done that way, it can be done by emergency ordinance.

Motion restated by Commissioner Cook, seconded by Commissioner Scarborough, to direct the County Attorney to draft an ordinance regulating transmission line locations in the County and advertise for public hearing, and if that is not possible in the time frame, prepare an emergency ordinance for the Board's consideration. Motion carried and ordered unanimously.

Commissioner Cook stated the previous action is in effect as far as issuing the permits.

Commissioner Ellis stated the real issue is the effect on property values which would be devastating. He expressed his opinion regarding the asbestos issue which involved fraud and scare tactics. He advised of contradictory studies; and reiterated the issue is the effect on property values if you have a power line in your back yard. Mr. Knox stated if FP&L had condemned any portion of the back yards of any of the effected homes, the issue would become relevant in terms of compensation; but since only the County and Rockledge are named as parties, that does not come into play.

Commissioner Cook summarized the actions the Board has taken at this meeting.

PUBLIC HEARING, RE: PUBLIC COMMENT ON PROPOSED RATE CHANGES FROM TIME WARNER CABLE FOR FRANCHISES I, II, AND III

Chairman Higgs called for a public hearing to consider comments on proposed rate changes from Time Warner Cable for Franchises I, II and III for its third quarter ending September 30, 1994.

There being no comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Ellis, to approve rate changes for Time Warner Cable (TWC) for Franchises I, II, and III for the third quarter, ending September 30, 1994, raising basic tier rates for Franchises I and II from $8.44 to $8.48 per month, and decreasing basic tier rates for Franchise III from $8.79 to $8.72. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: CONSENT TO TRANSFER AND ASSIGNMENT, RE: TIME WARNER ENTERTAINMENT COMPANY, L.P. TO TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP

Chairman Higgs called for the public hearing to consider Consent to Transfer and Assignment between Time Warner Entertainment Company, L.P. (TWE) and Advance Publications and Newhouse Broadcasting Corporation to create a new joint cable operation to be called Time Warner Entertainment-Advance/Newhouse Partnership for the three existing cable TV franchises.

There being no comments or objections, motion was made by Commissioner Ellis, seconded by Commissioner Scarborough, to execute Consent to Transfer and Assignment between Time Warner Entertainment Company, L.P. (TWE) and Advance Publications and Newhouse Broadcasting Corporation to create a new joint cable operation to be called Time Warner Entertainment-Advance/Newhouse Partnership for the three existing cable TV franchises. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE ADOPTING 1994B COMPREHENSIVE PLAN AMENDMENTS

Planner II Todd Peetz read the description for Item 94.B.12, the existing and proposed land uses, and the recommendation of the LPA.

Frank Wichowski, 5151 Adamson Street, Orlando, representing Florida Department of Transportation, Supervisor of Aviation, Ports and Intermodal Programs for Central Florida, expressed concerns about safety and noise related to the future of Valkaria Airport and the neighboring community. He explained why residential zoning is not compatible with an airport; and recommended the Board not set the groundwork leading to houses being built in such close proximity to an active runway. He advised the other public airports are run by Airport Authorities, and receive complaints relating to noise and safety; however the complaints about Valkaria Airport will come to the Board. He requested the decision on this item be delayed; and advised he or someone from his staff will meet with all affected parties to try to reach a mutually agreeable solution.

Don Nohrr, P. O. Box 369, Melbourne, representing the property owner, stated he concurs with Mr. Wichowski's statement. He advised if the Board wishes to grant Mr. Wichowski's request, his client is willing to meet to try to resolve the matter. He read aloud the section concerning non-compatible uses from the Master Plan; and advised the issue has already been addressed.

Chairman Higgs inquired if there is any reason this cannot be delayed; with Planning and Zoning Director Peggy Busacca responding this can be tabled and put into the next amendment cycle.

Commissioner O'Brien expressed concern about putting residential at the end of a runway. He stated on page 24 it addresses the recharge area; and questioned whether the scrub jay is an endangered species. Mr. Peetz advised scrub jays are threatened, and that change will be made.

Commissioner Ellis advised he does not support delaying; and explained his rationale. Mr. Nohrr advised of complaints about the airport. Commissioner Ellis noted the airport was there first. Nohrr noted there will be a lawsuit. Commissioner Ellis stated the intent was to have the business park inside the road on the airport side, and not on the other side; it was zoned GML even though it was privately owned; and originally it was AU zoning. Commissioner O'Brien stated it was PIP; with Commissioner Ellis disagreeing. Commissioner O'Brien stated the existing land use is PIP and the proposed land use is residential. Chairman Higgs stated the Board does not have to deal with this issue at this time; the applicant, FDOT and staff believe accommodations can be made that may be suitable for everyone; and she would support that.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to continue the public hearing to consider Item 94.B.12 to the 95B amendment cycle. Motion carried and ordered. Commissioners Scarborough, O'Brien, Higgs, and Cook voted aye; Commissioner Ellis voted nay.

Commissioner Ellis requested prior to the 95B cycle, the minutes be made available to Commissioners O'Brien and Cook about the previous meeting. Ms. Busacca advised she will put all those together for them.

PUBLIC HEARING, RE: RESOLUTION VACATING COUNTY PARK IN WATERWAY ESTATES, 4TH ADDITION - WENDI ADAMOSKY AND MICHAEL AND LYNN BARLET

Wendi Adamosky, 445 Sparrow Drive, Satellite Beach, outlined her reasons for requesting the vacation of the park; and advised the Engineering Department recommended approval of an agreement as a result of their onsite observation. She noted there are no objections from any of the homeowners, FP&L or the gas company; and vacating will not be a loss to the County, but removal of an obstacle which could result in great cost.

Commissioner Scarborough advised of a letter from Property Appraiser Jim Ford offering the opinion that the property cannot be vacated and would have to be sold, and if vacated, there would be a question about the title. He stated Mr. Ford advised it would have to go through a quiet title action to clarify.

County Attorney Scott Knox stated vacating anything but a right-of-way ends up vesting title in the prior fee simple owner, who is probably the developer; but there is a Statute that provides that if the County deeds the property to the abutting property owners, seven years after it is deeded, the title is effectively quieted. He stated the better alternative would be the deed; and it would have to go through the normal process.

Ms. Adamosky noted staff has researched this; and the staff recommendation was to deed it to the abutting property owners.

Lynn Barlet, 449 Sparrow Drive, Satellite Beach, stated she is the other property owner; and inquired what is the property appraisal value; with Chairman Higgs responding the Property Appraiser does not provide appraisals based on hypothetical land transfers. She advised of the time and money invested in the property including the cost of the sea wall; they have maintained the property for eight years; and she is missing work to attend these meetings. She stated she and Ms. Adamosky do not wish to invest more money into the property as they already have full use. She stated if she and Ms. Adamosky do not purchase the property, they are still requesting the County make repairs to the seawall.

Ida Blickley, 4475 Swift Avenue, Titusville, representing Bea Polk, advised of the precedent being set by giving properties away. She noted there are people, including Ms. Polk, waiting to make bids on this property, sight unseen, if the Board wants to sell it; and it would be quite a bit of money.

Commissioner Ellis stated he has no problem with the vacation; and explained his rationale.

Commissioner Cook advised of his visits to the property; and expressed concern about Mr. Ford's memo and putting the property out to bid. He inquired what options does the Board have. Mr. Knox advised he agrees with the Property Appraiser; if the Board vacates, he is not sure it accomplishes anything other than to vest title in the underlying fee simple owner; and under Statutes it would have to be put out to bid if it is surplus property. He noted there is a procedure in place which would allow the County to take a formal offer from neighbors as a minimum bid; and follow the natural bidding procedure. Commissioner Cook inquired what would happen if someone outside the neighborhood bought the land; with Mr. Knox responding they would be proud owners of one-eighth of an acre. Commissioner Ellis advised in that case, they would be totally liable.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to direct staff to proceed with the sale of the property as outlined by the County Attorney, with the property going to bid as surplus property and with Wendi Adamosky and Michael and Lynn Barlet being allowed to make a formal offer which will be the minimum bid.

Commissioner Cook stated if the Board does this, it should return the application fee because this is a different procedure than what they were told they had to follow.

Commissioner Scarborough stated he will incorporate the refund of application fee in the motion. Discussion ensued on whether the applicants were given incorrect information. Engineering Director Susan Hann stated when staff inquired about the situation, they were advised that vacating is a possibility although the status of the title would be unclear and the applicant would need to work on that issue independently of the County to clear the title. Commissioner Scarborough stated he can only make the original motion in that case. Commissioners Ellis and Cook expressed support for refunding the fee.

Chairman Higgs called for a vote to direct staff to proceed with sale of the property. Motion carried and ordered. Commissioner Scarborough, O'Brien, Higgs, and Cook voted aye; Commissioner Ellis voted nay.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to refund the fees to the applicants.

Commissioner Cook stated the letter just came from the Property Appraiser; the County Attorney is now advising it cannot be vacated in the manner being considered; and that makes a difference. He requested the motion include having staff work with the applicants to go through the process.

Commissioner O'Brien inquired when they will get the refund; with Commissioner Ellis responding as soon as Finance can cut a check.

Mr. Knox noted there is a memo from Assistant County Attorney Eden Bentley in everyone's packet which indicated there would be a title problem if vacated; but he does not know if that was made available to the applicant.

Commissioner Scarborough inquired if Ms. Adamosky was told they would not have clear title if it was vacated; with Ms. Adamosky responding no, and explained what they were told. Commissioner Scarborough inquired if Ms. Adamosky understood anything about it going back to the developer; with Ms. Adamosky and Ms. Barlet responding no.

Chairman Higgs inquired who spoke with the applicant; with Ms. Hann responding Cynthia Fogle, and she cannot tell from the file whether the applicants were given Ms. Bentley's memorandum.

Chairman Higgs stated she cannot support the motion; but would support a motion to table to get more information.

Chairman Higgs called for a vote on the motion to refund the money, and direct staff to assist the applicants through the process. Motion carried and ordered. Commissioners Scarborough, O'Brien, Cook, and Ellis voted aye; Commissioner Higgs voted nay.

The meeting recessed at 8:02 p.m. and reconvened at 8:17 p.m.

APPROVE OPTION, RE: PARKING METER FEES AT NANCE PARK

Mayor Bill Vernon, 216 Fifth Avenue, Indialantic, explained how Nance Park and the other waterfront properties are operated as enterprise funds; advised of shortfalls; and requested the parking meters at Nance Park be changed from twenty-five cents for forty-five minutes to twenty-five cents for a half-hour. He stated it is expected this will allow them to break even; there is increased use; they have not honored County or Indialantic parking permits; and they would like to keep it that way until they determine they are breaking even. He advised of capital improvements in the park and funding sources.

Commissioner Cook inquired how many staff members are funded by park revenue; with Mayor Vernon responding four people, but there are subcontracts for fertilizing and lawn maintenance. Commissioner Cook inquired if the staff is funded totally from the meters; with Mayor Vernon responding from meters and fines. Commissioner Cook inquired if the staff services all the parks; with Mayor Vernon responding the services of the staff are pro-rated based on the size of the activity; and provided an example. Mayor Vernon advised the other enterprise is larger and operates the same; and Enterprise I has been loaning Nance Park money. Commissioner Cook explained the purchase of Nance Park and the grant for development of the park.

Chairman Higgs stated the total for personnel in 1993 is $10,707. Mayor Vernon noted that funds approximately one-half person.

Commissioner Ellis stated this is a 50% increase which would be enough to bring the park into the black; and requested next year consideration be given to honoring the parking passes. He stated the County could look at a sharing agreement with the Town of Indialantic so a certain percentage of the parking pass revenue would go to the Town.

Chairman Higgs stated she and Mayor Vernon discussed the possibility of having a couple of parking places that could be used for that; and she could support that. Mayor Vernon advised of the need to revisit this next year.

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to approve the request of the Town of Indialantic to increase parking meter fees from twenty-five cents for forty-five minutes to twenty-five cents for thirty minutes; and directed staff to provide a report at the end of September, 1995, on fees collected to allow consideration of use of Town and County parking passes.

Commissioner Cook stated the park was purchased with tax money, and he would not want to see it become a revenue generator. Chairman Higgs stated the Town is supportive of that and willing to work with the County on the passes. Commissioner O'Brien stated it is a user fee, and there is nothing wrong with that to maintain the park.

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

DISCUSSION, RE: SIDEWALK POLICIES IN COMMERCIAL AREAS

Sandy Lanier, 3200 Milwaukee Avenue, Melbourne, representing West Melbourne Christian Center, expressed concern that there are no sidewalks on the Center's side of the street and none are planned. She explained why the church site is unique; and stated if they are required to build a sidewalk it would go to no where and service no one. She advised of hardships which would be placed on the environment, drainage, and the church building program and budget. She expressed appreciation to the Board for considering their situation or others in a similar situation.

Commissioner Ellis stated he supports Options 3 and 5; Option 3 is to discontinue the payment in lieu of sidewalk construction policy and refund the money collected to date to the applicant; and Option 5 is to amend the Comprehensive Plan to relax the existing sidewalk criteria and allow staff to administratively waive sidewalk requirements for all developments where it has been demonstrated by the applicant that there is no current or future need for sidewalks in the immediate area. He stated it is unfair to take money for a sidewalk that is not going to be built; and in the case of the Church, the County recently installed a widened shoulder on the south side of Milwaukee for the opening of Meadowlane. He noted there is an opinion from the County Attorney that any assessed fee has to be site impact related.

Commissioner O'Brien disagreed with Commissioner Ellis; and stated the Board cannot imagine that a sidewalk would never be required in any neighborhood. He recommended the Board not be short-sighted; and advised of areas that had to be retrofitted. He stated getting the money up front prevents problems in the future.

Commissioner Cook expressed concern about collecting money when there is no impact, although he has no problem with setting aside right-of-way. He recommended the policy be changed.

Chairman Higgs inquired what correction can the Board make in a situation where an immediate need is not seen but the Board does not want to rule out all possible needs in the area. County Attorney Scott Knox stated in order to justify collecting money for future sidewalks, it is necessary to set up a sidewalk plan, study the impacts of each development on existing sidewalk system, figure out the pro rata share of the cost of each development as it comes in, and spend the money within six years for the benefit of the developers who have provided the money. He stated if the Board can not do that, it cannot collect.

Commissioner Cook inquired how a fee can be assessed when there is no impact.

Chairman Higgs inquired if sidewalks can be required where they are in place and collect the money; but where the need for a sidewalk is not seen immediately, that is difficult to justify. Mr. Knox advised it is impossible to justify unless the Board goes with the sidewalk impact fee.

Commissioner Ellis stated if the right-of-way is not available, the County is extracting the land and the sidewalk; and if the landowner builds the sidewalk on their property, right-of-way for sidewalks would have to be bought up and down the street. He stated there are areas where there will not be sidewalks; payment in lieu of construction is extortion; and requiring the landowner to build a sidewalk to nowhere does not make sense.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to approve Option 3, to discontinue the payment in lieu of sidewalk construction policy and refund the money collected to date to the applicant.

Chairman Higgs expressed concern about refunding the money; and inquired if the Board is putting itself in a difficult position. Mr. Knox responded the only way the people who have paid the money would not be eligible for refund would be if the Board enacted an impact fee ordinance which would withstand judicial scrutiny. Chairman Higgs inquired if this is everybody over the history of this policy; with Mr. Knox responding he does not know how long the policy has been in effect. Traffic Engineering Director Billy Osborne advised the policy has been in effect since 1992; and there are approximately eight people who would be affected. Chairman Higgs inquired how much money does that represent; with Mr. Osborne responding $20,000. Mr. Knox noted there is a Statute of limitation of two years on money improperly paid to government.

Commissioner Scarborough explained the problems with the evolution of sidewalks; and described the situation in Port St. John when new schools were built. He stated if the Board is going to require sidewalks, it needs to think of a way to have complete sidewalk systems.

Commissioner Cook noted it has been said government is most dangerous when it is benevolent; and this was an idea that did not work. He stated the County cannot collect a fee for an impact that does not exist. Commissioner Scarborough stated the Board is going to say in some places there should be sidewalk systems; and he has not heard an answer. Commissioner Cook stated that can be addressed. Commissioner Scarborough stated the Board has a responsibility to say it believes in bike paths.

County Manager Tom Jenkins stated the Comprehensive Plan element will have to be amended because the language currently requires it; so at that time the Board could discuss it. Commissioner O'Brien stated that is addressed in the Comprehensive Plan.

Commissioner Ellis advised this is not a new area; and explained what happened when Roy Allen Elementary School was built in terms of a sidewalk assessment program. He noted there are MSTU and gas tax dollars available, so there are ways to address having sidewalks put in.

Commissioner Scarborough suggested the County build all the sidewalks, and the developer not be responsible for any sidewalks which would be uniform. Commissioner Ellis stated when the developer puts in sidewalks, the people that buy there are paying an assessment. Commissioner Scarborough explained a scenario where the sidewalks are put in a checkerboard fashion. Commissioner O'Brien noted he built two sidewalks in Cape Canaveral that go nowhere.

Mr. Knox advised Comprehensive Plan except for the first policy which he identified in his memorandum was all right; and noted the second policy identified indicates sidewalks can be built consistent with the Subdivision Ordinance, which will be coming to the Board in the next couple of months, so it can be addressed at that time. Chairman Higgs noted that would not address commercial areas. Mr. Knox stated it could cover all development to the extent criteria is put down when it would be required and when not.

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

Motion by Commissioner Ellis, seconded by Commissioner Cook, to approve Option 5, which is to amend the Comprehensive Plan to relax the existing sidewalk criteria and allow staff to administratively waive sidewalk requirements for all development where it has been demonstrated by the applicant that there is no current or future need for sidewalks in the immediate area, and provide for appeals to the Board of County Commissioners, with this information to be provided to the Bicycle and Pedestrian Advisory Committee and the Building and Construction Advisory Committee for review and consideration, upon Board approval.

Chairman Higgs inquired if Commissioner Ellis would prefer to do that as part of the subdivision ordinance. Commissioner Ellis stated it has to be dealt with as part of the Comprehensive Plan before it can be dealt with as part of the subdivision ordinance. Commissioner Scarborough expressed interest in having it considered in a larger sense with staff coming back to the Board with information. Chairman Higgs stated she is not going to support the motion because sidewalks are needed. Commissioner Cook noted doing away with sidewalks is not the point; and the point is it applies where there is no current or future needs for sidewalks in the immediate area and provides for an appeal.

Mr. Knox advised Option 5 does not require a Comprehensive Plan amendment; and it can be inserted in the subdivision and land development regulations which will be coming to the Board. He stated the Comprehensive Plan provisions are tied down well with the exception of the first one. Commissioner Ellis inquired about commercial and industrial; with Mr. Knox responding that is the one he was concerned about as it is too broad. Commissioner Scarborough advised this needs to be sent to the Bicycle and Pedestrian Advisory Committee and the Building and Construction Committee for recommendations. Chairman Higgs stated she could support that. Commissioner Ellis advised that is what it is. Discussion ensued on the wording of the option. Commissioner O'Brien suggested striking the provision to amend the Comprehensive Plan. Mr. Knox advised the only amendment to the Comprehensive Plan would be to repeal the one provision he read earlier. Chairman Higgs suggested asking staff to draft that and send it to the two groups and then come back to the Board. Mr. Knox recommended eliminating the language in the Comprehensive Plan, amending the Subdivision Ordinance to allow for administrative waivers and appeals, and referring that to the Advisory Committees for review before adoption.

Commissioner Scarborough inquired whether it should go to the advisory committees first or last. Chairman Higgs read aloud Option 5. Commissioner Cook stated he has confidence in staff. Commissioner Scarborough stated he would prefer the committees review first before the Board begins the waiver process. Commissioner Ellis inquired what is the impact of waiving it every place. Discussion ensued on the need for sidewalks. Commissioner Scarborough stated he does not want to extort or do it wrong; but there are committees that should input the criteria. Commissioner Cook inquired if it goes to the committees first for comments, what happens in the interim; with Mr. Osborne indicating he does not know. Commissioner Cook stated the Board has to provide direction tonight. Commissioner Ellis inquired what about the Church; with Mr. Osborne responding he does not know. Commissioner Cook stated the Board needs to support the motion and then also send it to the Advisory Committees.

Mr. Knox advised the County cannot collect money for sidewalks to nowhere; and it is not a question of giving direction. Commissioner Ellis inquired can you make them build a sidewalk to nowhere.

Commissioner Cook inquired is that enough direction for Mr. Osborne. Commissioner Scarborough stated if there is a sidewalk to nowhere, the County must obey the law; and suggested a way to handle things in the interim period.

County Manager Tom Jenkins stated staff needs Board direction.

Commissioner O'Brien stated he agrees with Commissioner Scarborough; he would prefer to have a policy to go forward that eliminates having to build sidewalks to nowhere, and allows administrative waiver. Discussion ensued on whether that is the action of Option 5.

Chairman Higgs called for a vote on the motion to approve Option 5. Motion did not carry. Commissioners Cook and Ellis voted aye; Commissioners Scarborough, O'Brien and Higgs voted nay.

Commissioner Ellis advised the opinion of the County Attorney and the Comprehensive Plan are contradictory. Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant a waiver of sidewalk requirements for the Church; to proceed with Option 5 by having staff present it to the Bicycle and Pedestrian Advisory Committee and the Building and Construction Advisory Board; and in the interim, if there is doubt about legality, it should first be returned to the County Attorney and then to the Board until the policy is developed. Motion carried and ordered unanimously.

DISCUSSION, RE: MEDIANS ON MALABAR ROAD, PHASE 2

Chairman Higgs read aloud a letter from Mayor Broom of the City of Palm Bay indicating the City Council did not wish to reopen the matter of medians on Malabar Road.

Sabas Murillo, 3200 Turtlemound Road, Eau Gallie, noted he wrote a letter to the Board requesting the median be eliminated in front of his property as it would be a burden to his tenants. He described his experiences on Wickham Road.

Commissioner Ellis advised the City wants to put the medians in; it is a mistake; but it is their prerogative. He described the situation on Malabar Road with the ditch on the north side; and requested approval of plans as they are with the stipulation, in the future, if the City wishes to have the medians removed, it will be at City expense.

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to direct staff to proceed with the Malabar Road, Phase 2 project as designed, and stipulate if the City of Palm Bay wishes to remove the medians at a future date, the removal will be at City expense. Motion carried and ordered unanimously.

RESOLUTION AND LEASE AGREEMENT WITH PREVENT OF BREVARD, INC., RE: SPACE AT GIBSON COMMUNITY CENTER

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to adopt Resolution and execute Agreement with Prevent of Brevard, Inc. for use of 5,500 square feet at Gibson Community Center, pending approval of the County Attorney and Risk Management.

Commissioner O'Brien inquired who pays for the program, dinner and transportation, and who funds Prevent of Brevard, Inc. Commissioner Scarborough responded it is federally funded.

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

ADOPTION, RE: EELS SELECTION COMMITTEE OPTIONS TO RESOLVE FINDINGS OF INTERNAL AUDIT

Ross Hinkle, 6475 Windover Way, Titusville, representing the Environmentally Endangered Lands Selection Committee as Chairman, advised two other members are present, Margaret Hames and Paul Schmalzer. He expressed appreciation for the Board's support of the program. He noted the Committee had several public discussions with the Clerk of the Courts, County Attorney, and staff; and the Committee unanimously supports the recommendations which have been offered. He noted the recommendations will meet the concerns of the Clerk of Courts and provide a mechanism for the EEL's Program to move ahead. He advised this a model conservation program regionally and deserves full effort to move ahead.

Mary Todd, 135 South Bel-Aire Drive, Merritt Island, representing Turtle Coast Group of the Sierra Club, advised the Sierra Club and the citizens support the EEL's Program because it preserves part of the County's natural heritage. She advised of the legal dispute regarding ad valorem tax revenue use; and suggested trying to get the legislative language clarification or, if that fails, make an administrative adjustment to the EEL's Program tax collection itemization to allow for operation and management. She asked those in support of the EEL's Program to stand. A group stood in support. Christine Ambrose, 2065 Shannon Avenue, Indialantic, commended the judgment of the Board in establishing the composition of the EEL's Selection Committee and allowing the Committee to work apolitically. She advised of the scientific background which was brought to the program, and the scientific approach which is recognized nationally and statewide as a progressive model. She expressed full confidence in the Committee. She requested the Board's support of staff recommendations to find funding for operations and maintenance, and to allow the program to bond to its maximum and continue to levy the .25 mills.

Priscilla Griffith, 6414 South Drive, Melbourne Village, Natural Resources Chair of the League of Women Voters of the Space Coast, stated the League voted to request the Board consider options for the EEL's Committee to resolve issues associated with the findings of the internal audit. She outlined the requested options including clarification of the language in the Florida Statutes, a request for an Attorney General Opinion regarding the findings of the Clerk of the Courts, a declaratory judgment from the Circuit Court on the Clerk's legal opinion, and maintaining collection of the quarter-mill for the Program. She noted the least preferred option is the last one; the quarter-mill would be collected until 2011, with some of the millage split to the General revenue to fund operations and management; and while it would provide an administrative solution and a mechanism to pay back previous operation and maintenance expenditures, they are uneasy about the ramifications. She expressed concern about politics not being kept out of the process with the last option; but if other options fail, it should be implemented. She expressed support for full bonding and continuance of the one-quarter mill.

Margaret Broussard, 3660 North Riverside Drive, Indialantic, advised the EEL's Committee brought state and federal money to the County to help preserve disappearing eco-systems; and the intent of the referendum was to provide money to purchase and manage the environmentally sensitive lands. She noted saving land for posterity has never been free from controversy; and cited examples in California. She expressed support for continued collection of the quarter mill for the full 20-year duration, and for full bonding. She advised against taking the issue to the over-burdened Circuit Court; and requested a clarification of language by the Legislature. She advised it would be wasteful to hold up the EEL's Program because land is not getting cheaper, and maintenance always costs less when done in a timely manner.

Ed Slaney, 382 Lamplighter Drive, Melbourne, member of the Indian River Audubon Society, expressed support for the opinions and views of the previous speakers.

Christine Panico, 803 West Central Boulevard, Melbourne, Executive Director of the Scrub Land Trust, expressed concern about any delay in the progress of the EEL's Program, and support of the EEL's Selection Committee recommendation. She explained the partnership and domino effect that any delay in proceeding with the EEL's Program would have; and advised of the relationships which have been built around the EEL's Program.

Julie Wise, 3910 Postridge Trail, Melbourne, expressed appreciation to the Commissioners, staff, and EEL's Selection Committee members for their help. She stated the most important issue is to get the internal audit question resolved quickly; and going to the Circuit Court would provide prompt resolution.

Carroll Holland, 350 Glenhaven Drive, Merritt Island, noted the people he has spoken with do not understand the problem, but believe it should be resolved rapidly, and that maintenance is part of it. He advised of the groups he works with including students; and recommended the quickest resolution be sought.

Marie Slaney, 382 Lamplighter Drive, Melbourne, expressed support for the previous speakers' statements.

Edwina Davis, 430 Bahama Drive, Indialantic, requested the Board do everything possible to strengthen the EEL's Program.

Rita Karpie, 3865 North Wickham Road, Melbourne, expressed support for the statements of previous speakers; and stated she was privileged to be at the birth of the EEL's Committee with Preservation Brevard. She advised of the actions taken to create the EEL's Committee and the purpose of the tax. She commended the Committee; and noted the Board is considering adoption of option to allow the Committee to be funded and to use tax funds for maintenance and operation of the sensitive lands. She advised of the excess money being collected over what was initially expected; stated the money has been well spent; and the language of the referendum can be clarified without spending money on legislation. She stated there is no question about the intent; and the language should be amended. She noted since there is excess money over what was expected, splitting the millage is a feasible alternative.

Diane Stees, 21 Bougainvillea Drive, Cocoa Beach, President of the Indian River Audubon Society, expressed support for the EEL's Program. She outlined the history of the EEL's Program; and urged the Board to resolve the conflict found in the audit to allow the Program to continue uninterrupted.

Commissioner O'Brien stated there is an impression that some of the Commissioners are against the EEL's Program; but only 60 days ago or less, the Board endorsed the EEL's Program to provide assurance that no one wants to harm the Program in any way. He noted the Board is trying to find a solution to the problem found by the Clerk of Courts.

Commissioner Cook reaffirmed support of the EEL's Program; and stated the question is how the Board fulfills its responsibility to make sure this is resolved.

Commissioner Scarborough stated this goes to honesty and candor in the language which people vote on; and what they voted on was the protection and maintenance of environmentally endangered lands, and making improvements as appropriate for passive recreation and environmental education. He stated if the Board does not live by the language of this, it will attack the credibility of every referendum.

Don Garretson, 4975 Citrus Boulevard, Cocoa, advised of his affiliations with organizations; and described his experiences in Pinellas County. He encouraged the Board to continue to support the EEL's Program; and advised of its value. He noted Clerk of Courts Sandy Crawford campaigned for the EEL's Program; and he wants to do the right and legal thing. He stated Commissioner O'Brien questioned whether the full amount has to be levied and bonded; and advised it is an upper limit. He stated as a voter and homeowner that is what he voted for.

Commissioner O'Brien advised he has no problem with that and only brought it up because of the excess funds which created a problems; and a way to resolve the problem would be to lower the millage to balance it out.

Mr. Garretson expressed interest in saving as much of the endangered land as possible; and stated it is a "win-win" situation. He encouraged the Board to support the Selection Committee's recommendations.

Tim Franta, 225 Fifth Avenue, Indialantic, Legislative Aide to the Brevard County Delegation, advised two of the options affect the Delegation. He advised this is a General Bill; it cannot be correct by Special Act as Ms. Broussard suggested; Representative Futch reviewed the Statutes and ballot language; and there are three Statutes that cover this. He noted Representative Futch does not believe there is a conflict of Statute, and believes the County is correct; and he would like an Attorney General Opinion. He outlined the actions which may be taken upon getting the AGO.

Chairman Higgs advised Nancy Snipes, 540 Rio Pino North, Indialantic, submitted written comments. Assistant County Manager Stephen Peffer advised the EEL's Committee has combined a number of options for the Board to consider. He outlined the possible actions as detailed in the package.

EEL's Program Director Dr. DeFreese explained the excess millage issue and bonding strategy.

Commissioner Scarborough inquired how the solutions presented by EEL's, the League of Women Voters, and staff differ. Mr. Peffer advised the League of Women Voters has expressed the opinion the split millage is the least preferred option; but the EEL's Committee and staff recommend that in preference to the declaratory judgment. He noted the declaratory judgment is always available to the Board should it prove necessary; but there is another administrative matter which could accomplish the same thing without the taxpayer expense of taking a case to court.

Commissioner Ellis inquired what will take the place of the declaratory judgment; with Mr. Peffer responding the recommendation is to take administrative action to split the millage in such a fashion that it accumulates dollars which are clearly within the interpretation the Clerk has provided as being legal for management; and the balance would be used for debt service. Commissioner Ellis expressed concern if this does not go to court, there is still the issue of previous excess ad valorem and the status of the past administrative cost. Mr. Peffer advised there may be another way of dealing with that by accumulating dollars in a manner that is legally consistent with the concept of using it to pay for debt service for capital; and outlined the details. Commissioner Ellis inquired how that addresses the issue of dollars previously expended for administration. Mr. Peffer noted the Finance Director advised the dollars which do not qualify under the capital expenditure are not a significant amount; and explained the mechanism to deal with that by assessing General millage to pay those dollars back so the funds balance and an appropriate source of funds is used to repay anything that may not have been acceptable under the Clerk's definition. Commissioner Ellis expressed support for going to the Circuit Court; and noted this is not an unfriendly suit with the Clerk; and once the judge makes a ruling, the County will know what it needs to do instead of guessing.

County Manager Tom Jenkins noted he has no qualms with Mr. Peffer expressing an opinion; however that is a risky approach. He recommended getting a declaratory judgment to get the issue resolved because splitting millages is precarious at best.

Commissioner Cook recommended getting a definitive judgment on this through a declaratory judgment from the courts. He expressed concern that administrative solutions do not have the force of law; and stated the Board has a responsibility to make sure the EEL's Program is being done correctly.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to direct the County Attorney to seek a declaratory judgment from the Circuit Court on the legal opinion of the Clerk of the Circuit and County Courts regarding the EEL's Program.

Commissioner Scarborough stated if the Board loses the declaratory judgment, it can do the split millage; the Board is not getting a good response from the Legislative Delegation; the Clerk is not comfortable with an Attorney General Opinion; and while it may cost money, the declaratory judgment may clear the problem quickly. Commissioner O'Brien agreed.

Chairman Higgs stated the Legislative Delegation is supportive; but the opinion is the County is right. She noted Representative Futch prefers the County go to the Attorney General; he will be willing to introduce a bill into committee; and there has been no indication from the Delegation that is not supportive.

Commissioner Scarborough noted the Clerk has been advised of certain things by professionals; and although he disagrees, that is what the Board has to deal with. He advised getting an AGO will not change the Clerk's position; and if the Board goes for a declaratory judgment and loses, it can go to split millage. Commissioner O'Brien expressed concern about the dark cloud over the program; and advised he wants to clear this up and get on with the program. Commissioner Cook stated an independent judgment is needed in order to move forward.

Chairman Higgs reiterated the Delegation is supportive; the Board can continue to pursue legislative language clarification; but if it goes to court now, the Legislature may not wish to act at the same time, so a year would be lost. She noted if the decision was to go to a declaratory judgment and at the same time go to the administrative solution of the two mills, that would make it clear that the intention is to move forward completely with the program as the Board believes it was designed and voted on by the taxpayers.

Chairman Higgs passed the gavel to Vice Chairman Ellis.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to amend the motion to include that in the time period in which the Board is awaiting a declaratory judgment, it will also proceed with the administrative options in terms of split millage.

Commissioner Ellis stated this is a separate issue; and expressed concerns about the retroactive aspect. He noted a bill in the legislature would not be retroactive; a future Clerk could decide all the things that have been done are not good enough; but a declaratory judgment from the court will stand the length of the program.

Commissioner Cook stated he cannot support as it is going to muddy the waters; and the clean solution is to go to court. He noted splitting millages was not the intent of the referendum; that needs to be taken as a separate agenda item if the Board decides to consider it; and if the declaratory judgment goes against the County, then the Board can address whether it wishes to split the millage.

Commissioner Higgs stated it is important to do it tonight because the County is involved in negotiation for matching funds and supplemental funds, and failure to make it clear that the Board will support the maintenance could result in loss of a lot of money.

Mr. Knox stated if he was the attorney representing the Clerk in the declaratory judgment suit, he would use the action trying to split the administrative expense out of the millage against the Board. Commissioner Higgs requested an explanation. Mr. Knox advised the County would be doing something contrary to its position up to this point in time; and that could be taken as an admission that the Board thought it might be wrong. Commissioner Higgs inquired if the Board can make a position tonight that will assure the Board is going to support the maintenance operation so it can be presented to CARL. Dr. DeFreese stated the County is in a better position because the CARL rankings are over until December; the real issue is that money is appropriated on an annual basis; and it is going to be important to send a clear message that this is a clarification and there is no intent to dismiss past agreements. He explained the concerns of the Selection Committee in terms of the six month period for the declaratory judgment and the need to capture CARL money. Commissioner Higgs inquired what is Dr. DeFreese's recommendation. Dr. DeFreese advised a lot of it is up to the Clerk of Courts as to the type of capabilities the EEL's Committee has in the interim until the decision is made by the court; and there are three grants pending. Natural Resources Management Director Lisa Barr advised as far as the long term millage, that decision could be deferred and done as part of the budget process because the millage cannot be split in this budget year; and that will give the EEL's Committee the opportunity to set its long term management needs and strategy. She stated the short terms issues are the ones that are outstanding; and hopefully those can be reserved with the Clerk or interim loans can be obtained through other funds; but those can come back for Board discussion at another time.

Commissioner Cook advised there is need for a clear solution; and recommended going on with the declaratory judgment. Commissioner Higgs noted the Board already asked the Delegation to clarify the language. Commissioner O'Brien stated his impression from the Delegation was it was saying it was not going to waste time on it. Discussion ensued on whether the question was to be brought forward by Representative Futch. Mr. Franta reiterated Representative Futch believes the Board is correct; he serves on the Finance and Taxation Committee, and will amend the tax bill to clarify this; but as he believes the Board is correct, no clarification is needed. He advised Senator Kurth has agreed to do the same thing in the Senate; and he will be advising them in the morning of the outcome of tonight's meeting. Commissioner Cook stated the issue needs to move ahead. Commissioner O'Brien recommended working on both sides; and if the legislative issue goes through, the legal action will not be required. Commissioner Cook noted it might not be retroactive, so the legal action might still be required. Mr. Franta agreed it is a chicken and egg situation. Commissioner Higgs stated it is unlikely the Board will get the declaratory judgment before session is over, so the clarification will be necessary. Commissioner Cook stated it is in the Legislative Package; and the Delegation is going to follow up. Mr. Franta noted there is only one person who has an interpretation problem; with Vice Chairman Ellis advising it is the person who signs the checks. Mr. Franta stated everyone advises the Board is correct; and the only person who has not been consulted is the Attorney General.

Clerk of Courts Sandy Crawford stated there will not be a problem with the legislation agreeing with the Board's position being correct; and if he gets that agreement, he can continue with no problem. He stated if the Legislative Delegation and the Senate agree that the interpretation is correct, there is no problem; but if they do not agree, then the law needs to be changed or a declaratory judgment is necessary. He stated in the meantime, the EEL's Program needs to continue; he has agreed to finance this along the same lines as now; he can do that for another year and ten months; and he does not know if he will be in office when that comes up, so he can only guarantee up to that point in time. He stated he is willing to work with the EEL's Committee; and he has committed that he will put the funds out the same way as was done before until this is resolved. He advised if the Senate and the House pass bills indicating the Board does not have a problem, he will accept that. Mr. Franta advised that will not happen; the Legislature passes law; and it does not interpret, which is the function of the courts. Discussion ensued on whether it is included in the Legislative Package and the possible action that might be taken on it. Mr. Crawford noted this is a statewide problem; and other counties are involved in the same type of thing. Mr. Franta stated the Delegation will proceed. Commissioner Higgs inquired if going for a declaratory judgment has any effect; with Mr. Franta responding if the County wins, the Delegation will drop everything; but if the Board loses, it will have to take the legislative action. Mr. Crawford stated this is in line with the EEL's Committee recommendations. Dr. DeFreese agreed; and stated the first four options were left open for interpretation and concurrent action.

Commissioner Higgs inquired if Dr. DeFreese knows of any negative impact of going to the declaratory judgment; with Dr. DeFreese responding no, but Mr. Knox can better address the issue.

Commissioner Higgs inquired if there would be a problem with her amendment to the motion to split the millage at this point; with Mr. Knox responding if he was representing the Clerk, he would bring that up as a point against the County. Commissioner Higgs withdrew her motion.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to amend the motion to request the Legislative Delegation proceed with the General Law change to reflect the County's needs. Motion carried and ordered unanimously.

Vice Chairman Ellis called for a vote on the motion to direct the County Attorney to seek a declaratory judgment, as amended. Motion carried and ordered unanimously.

Vice Chairman Ellis passed the gavel to Chairman Higgs.

The meeting recessed at 10:02 p.m. and reconvened at 10:16 p.m.

RESOLUTION, RE: $4,900,000 MULTI-FAMILY REVENUE BONDS, SERIES 1995 (SHOREVIEW APARTMENTS PROJECTS)

Chairman Higgs noted representatives of the Brevard County Housing Authority and Steven Seawright, representing Shoreview Limited Partnership, are present to answer questions.

Motion by Commissioner O'Brien, to adopt Resolution to authorize issuance of $4,900,000 in Multi-family Mortgage Revenue Refunding Bonds for the Brevard County Housing Authority. Motion died for lack of a second.

Commissioner Ellis noted if it is losing money now, then it could continue to lose money in the future. Financial Advisor Tom Holley explained the documents which were provided to Commissioner Ellis. Discussion ensued on the state of the cash flow. Management Services Director Michael Managan explained the negative $3.6 million cash flow. Mr. Holley advised the net worth of the partnership is a negative $3.6 million which is a balance sheet concept rather than a cash flow concept.

Steven Seawright, 5516 Mohican Road, Bethesda, Maryland, representing Shoreview Limited Partnership and Clark Enterprises, advised the number includes depreciation and is not negative cash flow. Mr. Holley advised it should read $3.6 million losses over the past ten years, a portion of which has been depreciation. Commissioner Ellis inquired if they are out $1 million in cash flow; with Mr. Seawright agreeing. Commissioner Ellis stated if there is a 90% occupancy rate and money is being lost, he does not know how that can be turned around. Mr. Seawright advised it has been turning around; and explained the actions involved in making that happen. Commissioner Ellis inquired why Mr. Seawright would want to continue with land use restrictions if money is being lost; with Mr. Seawright responding the two are not necessarily connected. Mr. Seawright explained the financing alternatives, and how the cash flow will be facilitated. He stated eventually they will sell the property or refinance; but this is in the best interest of the property. Commissioner Ellis inquired what is the book value of the property; with Mr. Seawright responding in the three range, net of depreciation. Commissioner Ellis inquired how much is the balloon note; with Mr. Seawright responding $4.9 million which is the same as the refunding. Discussion ensued on the financing and depreciation.

Commissioner Cook advised the Finance Committee recommends the Board base any approval contingent upon the developer receiving a credit enhancement for the project, and the financing for the project not exceeding the project's life expectancy; and if the Board is going to consider it, that has to be part of it.

Chairman Higgs inquired if the criteria can be met. Mr. Seawright responded yes; and advised of things which have affected the investment in the property; and stated they do not see the property ceasing to have economic value within any reasonable period of time that would be life of bonds.

Commissioner Scarborough inquired about the Letter of Credit if the project is not successful. Mr. Holley explained the Letter of Credit. Commissioner Scarborough stated it is bank always paying so there is no deviation in the payment whether the project is paying or not. Mr. Holley noted that is the developer's problem, not the bond holder's problem. He noted if the project fails the underlying asset value is not good, and so it is a negative reflection on the bonds; the rating on the bonds though would maintain their AA- rating which is a function of the bank's rating and Letter of Credit; but the underlying credit does have an impact on how investors perceive bonds. He described the Orange County, California situation. Commissioner Scarborough inquired how the market perceives a problem; with Mr. Holley explaining the secondary market disclosure rules would cover that instance. Commissioner Scarborough inquired if that happened, would it negatively reflect on the County; with Mr. Holley responding the Housing Authority is issuing, not the County; but a multi-family housing project which is not cash flow, just because it is located in Brevard County and sold through the Brevard County Housing and Finance Authority, would not necessarily reflect negatively on the County's financial reputation.

Commissioner Ellis stated he does not understand why the County would endorse something that has lost a great deal of money; and the note is $2 million more than the value of the building. Mr. Holley advised the Finance Committee did not take a position to recommend or not recommend the bond issue; and explained the reasons for no recommendation and the decision the Board needs to make. Discussion ensued on what is defined as median income. Commissioner Ellis noted low income is only 20% of the apartments, and already most apartments go to people in that salary range; and if this is run as a private project without the bond, over 20% of the apartments will be supplied to people who are low income. Mr. Holley noted he is not sure that assumption is correct, and deferred to a representative of the Housing Finance Authority.

Attorney Angela Abbot, representing Brevard County Housing Finance Authority, explained what could be done with the property if this is not approved, and why this is a good financing. She stated if the project goes under, the Letter of Credit will pay off the bonds immediately; if the developer defaults with the bank, the bank will pay the bonds off and go after the developer, so it is not a situation where bond holders would lose money. She noted the developer is operating the project in a responsible manner; and they demonstrated that by putting in over $1 million in cash. She expressed the belief they will be responsible managers, but if not, the bond holders will be paid through the Letter of Credit.

Commissioner Cook expressed concern that the Finance Committee did not take a position, which is unusual. Mr. Managan advised when the Committee reviewed this, there was some question about whether the credit enhancement was there; but what we are hearing now is we do have the credit enhancement.

Chairman Higgs stated she was concerned; but since certain conditions have been met, it is a better position than with the current bonds in place.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Resolution authorizing issuance of $4,900,000 in Multi-family Mortgage Revenue Refunding Bonds for the Brevard County Authority, with the issue to have a credit enhancement of Direct-pay Letter of Credit.

RESOLUTION, RE: $4,900,000 MULTI-FAMILY REVENUE BONDS, SERIES 1995 (SHOREVIEW APARTMENTS PROJECTS)

Commissioner Cook inquired if financing for the project will not exceed the life expectancy of the project. Commissioner Scarborough advised that is included in the motion.

Commissioner Ellis stated he will not support the motion; and explained his rationale.

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

RESOLUTION, RE: $40,000,000 SINGLE-FAMILY MORTGAGE REVENUE BONDS, SERIES 1995

Management Services Director Michael Managan advised the Finance Committee and Financial Advisor recommend approval.

Commissioner Ellis inquired why interest rates are going to be subsidized on a home costing over $100,000, and what is the point of this program. Mr. Managan advised it makes more people eligible for mortgages because the interest rate is lower. Commissioner Ellis stated that is true when you are talking about the bottom rung of the housing market; however when you are talking about a $100,000 home, it would not be a shame to have to settle for one that cost $95,000.

Attorney Angela Abbott, representing the Brevard County Housing Authority, stated this is not subsidizing; it is issuing bonds which will be sold on the open market; and the proceeds from the mortgages will be used to pay the bonds, so there are no tax dollars or subsidies involved. She explained the limits and the target areas. She advised the majority of the money will go to people who are far below the upper income limits and do not purchase homes in the higher price ranges. She advised there is $64 million in demand for a $27 million issue. Commissioner Ellis advised everyone would like a cheaper mortgage. Ms. Abbott reiterated the lower income individuals are being targeted; and the limits are set by HUD. Discussion ensued on the income and mortgage limits. Ms. Abbott explained why the interest on the mortgages are lower.

Sally Hutchison, Chairman of the Brevard County Housing Finance Authority, stated she has a home and would like to help others get homes; the program is non-subsidized; and these are federally tax-exempt bonds which causes the buyer of the bonds to be willing to accept lower yield on the bonds they purchase. Commissioner Ellis inquired if Ms. Hutchison has statistics; with Ms. Hutchison responding they can be put together; but they do not keep running statistics as there is no staff. Commissioner Ellis inquired if there are no statistics how is it known how many people got into a home from versus an apartment versus how many just got into a better home. He cited his housing experience; and expressed concern that tax money is being used to put people in better homes. Ms. Hutchison reiterated it is not tax money; and these are first time home buyers.

Commissioner Scarborough inquired if there is a possibility people are getting the more expensive homes when people who are more needy are being denied; and is the program working. Commissioner Ellis inquired what is the purpose of such high limits. Ms. Hutchison stated the Housing Finance Authority is meeting the need; as to whether people with high incomes are pushing away those with low incomes, it is first come, first served; and the lending institutions help determine what the need is.

Commissioner Cook concurred with Commissioner Ellis' comments. Commissioner Ellis inquired how hard is it to keep statistics on this. Ms. Abbott advised statistics are available on prior programs; and expressed desire to move forward on the current issue because there is demand. Ms. Hutchison advised lenders embrace the bond program because the people coming in are on an income class that they cannot qualify for the bank's regular commercial loans. Commissioner Ellis inquired why the caps cannot be changed. Commissioner Cook noted he knows people who bought through the bond program who could have qualified if they wanted to; and inquired if everyone who qualified for the bond program cannot qualify for a commercial loan; with Ms. Abbott responding that is not what she is saying. Ms. Abbott reiterated the limits are set by HUD; and there are tax law requirements. Commissioner Ellis stated those limits are nationwide; with Ms. Abbott advising they are specific to this County; and she can show the program is not assisting to buy luxury homes. She advised the Housing Authority was lucky to receive the private activity volume cap allocation from the State; they got $22 million; and others did not get anything.

Commissioner Scarborough inquired if this could be approved with new caps. Ms. Abbott responded IRS regulations do not permit those caps to be lowered. She advised first time home buyers have to be able to credit qualify through lenders who will not put them into something they cannot afford.

Commissioner Cook inquired if Ms. Abbott is positive about the IRS regulations; and does the Board have to move on this tonight.

Ray Popkin, William R. Huff and Company, Underwriters, advised the way the private activity cap allocation system works is first come, first serve; and there is a 90-day period to issue the bonds. He noted Orange, Lake, Osceola, and Seminole Counties also wanted to do a large issue, but did not get funded; and if the money is not used here in a couple of weeks, that money will go to the other counties. He explained how the system works in the County; and advised if the caps were changed now, the process would have to be started again. He stated in the time frame that is left, the lenders would not be able to respond, and the funds would go to other counties.

Randy Rodriguez, Member of the Cape Kennedy Area Board of Realtors, advised the real estate industry is hurting, at 61% of normal business volume. He noted many people who took advantage of the bond did it because of the interest rate, but they do have the restriction of having to be a first time buyer, so it has a limited target area. He advised of a recent 7.5% bond issue which has been extended because the funds are still not used up. He advised of lay-offs in the area; and stated some buyers who will be unable to use this are those who are having to scale down because of lower pay rates.

Chairman Higgs stated the money is there to be obtained by various counties; and in going ahead with this, Brevard County would have the money available for mortgages. She noted previous Board discussions about being competitive with other counties; and not being competitive in the housing market is inconsistent. She stated she is ready to support the issue because there are no negative impacts to the County, and meets the County's policy in terms of financial criteria. She noted it has been recommended by the Finance Committee, and will make it possible for people to afford home ownership.

Commissioner Cook stated he would like to know if the caps can be changed. Chairman Higgs noted they said no. Mr. Popkin advised they are saying no because of the timing; but it could be considered for the next issue. Commissioner Cook stated in the future it can be addressed; but on this issue, even if it is delayed by one week, it would be too late. Mr. Popkin explained the problem with delaying.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Resolution authorizing issuance of $40,000,000 in Single-family Mortgage Revenue Bonds, Series 1995, for the Brevard County Housing Authority.

Commissioner Ellis inquired if it has to be first come, first served. Ms. Abbott advised this program is structured as first come, first served; but the guidelines can be reviewed.

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

APPOINTMENTS, RE: MANATEE PROTECTION PLAN AD HOC COMMITTEE

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to appoint Bretta Woodford, 47 Barton Avenue, Rockledge representing District 2; Penny Levin, 1414 Rosa Court, Melbourne, representing District 3; David Marlow, 1655 Sweetwood Street, Melbourne, representing District 4; and Ronald Rincones, 3950 Corey Road, Valkaria, representing District 5 to the Manatee Protection Plan Ad Hoc Committee. Motion carried and ordered unanimously.

Commissioner Scarborough noted he made his appointment previously.

Kenny Boyd, 1465 South Lester Court, Merritt Island, declined the opportunity to speak.

DISCUSSION, RE: PREPARATION OF BOARD MEETING MINUTES

Clerk of the Circuit and County Courts Sandy Crawford requested the Board accept summarized minutes rather than verbatim minutes due to the increase in number of meetings and increased work load associated with the Value Adjustment Board. Mr. Crawford outlined the duties being assumed relating to the VAB; and advised he does not have the manpower to keep up with verbatim transcripts of the meetings. He noted if the Board denies this request, he will have to add personnel to keep up with the schedule.

Commissioner O'Brien suggested cutting the schedule.

Commissioner Ellis suggested eliminating a lot of the rules. He inquired if the minutes can be contracted out; with Mr. Crawford responding no. Commissioner Ellis noted when it comes to the VAB minutes, that is just one major hit a year. Mr. Crawford noted normally there is disagreement on ten to fifteen cases, but this year the Property Appraiser has gone to court on the Baytree development and approximately a hundred other cases; and a full transcript of each will have to be done. Commissioner Ellis reiterated his question regarding contracting the work out; with Mr. Crawford advising he will have to take people from other areas, but it will be a Board expense. Mr. Crawford emphasized contracting work out will not help with the number of meetings being held or the type of minutes desired, noting the current meeting will go until midnight. He stated there is not enough time to do all the paperwork the Board is requesting with the staff he presently has; and it is necessary to summarize minutes or add to the staff. Commissioner Ellis explained his problems with summarized minutes. Mr. Crawford advised the tapes are always available; and it may be possible to do verbatim transcripts on certain items; but today's meeting is six hours, and transcription of a meeting takes a long time.

Commissioner Cook stated he would not have a problem with summarized minutes for workshops and zoning meetings, but not on regular meetings. He advised of the shortcomings of the School Board minutes; and stated verbatim minutes of regular meetings are necessary for those researching the minutes. Mr. Crawford advised that is approximately one-third of the workload. Commissioner Cook expressed concern about summarized minutes for regular meetings.

County Manager Tom Jenkins advised zoning meetings are quasi-judicial; and he is not sure what kind of record is required. County Attorney Scott Knox advised the notice for the meeting calls for anyone desiring a complete transcript of the proceedings to bring their own court reporter; and it is not the Clerk's responsibility to do that.

Chairman Higgs stated she has no problem with summarized minutes, if verbatim transcripts will be available; and she supports the Clerk's request. Mr. Crawford advised he can make the tapes available; but verbatim transcripts will only be done when it is a necessary requirement.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to approve having summarized minutes of workshops and zoning meetings, with minutes of regular meetings to remain as they are.

Commissioner O'Brien suggested having zoning meetings every two months.

Chairman Higgs called for a vote on the motion. Motion carried and ordered. Commissioner Scarborough, O'Brien, Cook, and Ellis voted aye; Commissioner Higgs voted nay.

Commissioner O'Brien suggested cutting the agenda by 50%.

Mr. Crawford advised he will be back with a staff recommendation; with Chairman Higgs responding the Board assumes the Clerk will need more staff to take care of what is needed.

DISCUSSION, RE: DCA'S FINDING OF NOT IN COMPLIANCE FOR 94A AMENDMENTS TO EXISTING AND FUTURE SEWER SERVICE AREA MAP

Assistant County Attorney Lisa Troner requested direction from the Board to allow staff to include negotiations with the Department of Community Affairs; and stated the negotiations would be a discussion of the concepts to get feedback to see if there are grounds for compliance. She stated the conditions will be the criteria for the on-site sewage disposal systems, the monitoring of the systems, what kind of operation or maintenance permitting will be established, and the funding sources. She noted if the monitoring resulted in certain kinds of impacts that would be considered in the Evaluation and Appraisal Report. She stated the request is for ability to discuss these conditions with DCA to see if there is common ground for a settlement agreement; and if DCA comes back with a positive outlook, it would still have to be brought to the Board, and a compliance agreement would have to go to public hearing. She noted the 120 hearing would not be cancelled unless the compliance agreement was executed by both parties and plan amendments adopted consistent with the agreement, and if that does not happen, the 120 hearing is still available.

Randy Rodriguez, 4742 Brookhaven Street, Port St. John, Chairman of the Board of Directors of the Port St. John Homeowners Association, advised of meetings with Ms. Troner and Commissioner Scarborough to review the proposal to be presented to the DCA. He noted there has not been a vote of the general membership; but the Board of Directors has been polled and supports the proposal. He noted the decision was split; there is no objection to the terms offered; but there was objection to buckling into DCA, and questioned as to why the agreement with HRS was not honored. He stated if this is going to be presented to DCA, it should include an agreement with the Department of Environmental Protection so the people do not have to go through this again.

Commissioner Scarborough stated this is frustrating; and outlined the actions taken previously. He stated Ms. Troner advised DCA feels this is a DEP issue; and HRS is split. He advised of mixed signals. He noted he does not know how the proposal would differ from what the County got from HRS. He expressed his concerns about pollutants and the sewer system.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to direct staff to proceed with a course of action, including negotiation with DCA concerning conditions relating to the finding of "not in compliance" for the 94A Amendment to the Existing and Future Sewer Service Area Map.

Commissioner Ellis stated the Board is not agreeing with the conditions. Commissioner Scarborough stated there has been some movement from where it was previously to the point where the Homeowners Association thinks it may be prudent to open a dialogue. He stated there could be something that is substantially the same as the status quo.

Commissioner Cook stated DCA is out of control like many agencies on the federal, state and local level.

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

DISCUSSION, RE: REMOVAL OF PORT AUTHORITY'S TAXING AUTHORITY

Commissioner O'Brien expressed concern about the fact that a statement made by the Port's attorney that the only effect of the bill was immunity from taxation differs from the wording of the Port's Charter. He advised Chairman Higgs sent a letter to the Delegation expressing the concerns of the Board; and he does not know if the County and the Port have been meeting to address the concerns because he has not been informed. He expressed concern that this issue is slipping through the Board's fingers. He stated the Legislative Delegation voted to support the Port's request to become a political subdivision of the State; and outlined events to date. He stated if the Legislature changes the Port's Charter to make it a political subdivision of the State, it should also eliminate its authority to tax North and Central Brevard; the taxing authority was regularly used until 1986; and although it has not been used since that time, it could be used at any time. He noted the Port's spokesmen have expressed desire for a level playing field with other ports; however the Port of Jacksonville does not have the authority to tax local property owners.

Motion by Commissioner O'Brien, seconded by Commissioner Ellis, to advise the State Legislators that if the Charter of the Port is changed, then it should be amended to remove taxing authority.

Bill Ellis, representing the Canaveral Port Authority, advised eliminating the taxing authority would limit the Port's bonding capacity; and there are several outstanding issues which would require bonding. He noted the Delegation supports the Port's bill unanimously; and if the Board's intent is to send a letter to the Delegation, he opposes that action. He advised the Port's attorney has been meeting with Mr. Knox; but he does not know the outcome of the meetings.

Commissioner Ellis questioned how limiting the Port's ability to tax would interfere with its bonding capacity because the Constitution forbids use of property taxes for long term debt without referendum. Mr. Knox advised that is correct. Mr. Ellis stated the Port's financial advisors advised if the Port does not have taxing authority, it would severely hamper any financing in the future. Commissioner Ellis reiterated his belief that financing dependent on property tax revenues is unconstitutional; and advised of an incident with the Merritt Island Redevelopment District. Mr. Ellis stated all he knows is what the bond people advise.

Chairman Higgs indicated she understands how losing the ability to generate revenue through taxes might affect a rating even though it could not be pledged.

Commissioner Scarborough inquired what is the difference in being an entity of the State as opposed to an independent special taxing district now which was created by the State Legislature; with Mr.Ellis responding none. Commissioner Scarborough inquired why the bill is needed; with Mr. Ellis explaining that a DCA ruling in the Fifth District would mandate the Port paying taxes; and the bill corrects that deficiency returning the Port to its position in 1992. Mr. Knox advised that is correct. Commissioner Scarborough inquired if there is any anticipated change to a gubernatorially appointed board or something like that; with Mr. Ellis responding there is no change except for the tax issue, and it will remain an elected board.

Commissioner O'Brien expressed concern about the Port's retaining the authority to tax at any time. He noted the Port brought forth several projects which the people did not favor; and as a subdivision of the State, the Port could move forward, bond, and use taxes against the wishes of the people. Mr. Ellis stated that is why the Board answers directly to the electorate. Discussion ensued on whether the elected board could change to an appointed board. Commissioner O'Brien advised of an article he read in Seafarer Magazine concerning the ports. Mr. Ellis explained FSTED funds. Commissioner O'Brien reiterated his concerns about the taxing authority of the Port.

Commissioner Cook noted the Port has not taxed in eight years; and if the Board sends a letter to the Legislative Delegation, it will not matter because the Delegation is not going to pursue it. Commissioner O'Brien advised the Port could have been a political subdivision of the County and gained the same tax relief for property taxes; but it would have had to abide by County Code and Ordinances.

Commissioner Scarborough stated he would like to advise the Delegation that the Board would appreciate an opportunity to express itself and be more fully informed on issues. He advised of other issues about which he had concerns; and noted the Board is not able to provide input at all. He inquired since there are other methods of accomplishing the same thing, why did the Port choose this method. Commissioner O'Brien expressed concern that the Board did not find out about the issue until the race was half over. Chairman Higgs stated the race is probably over; and she does not know what the Board will achieve by passing the motion other than to further aggravate the situation and possibly have a negative impact on working with the Port on other issues. She advised she could support something like Commissioner Scarborough was suggesting.

Commissioner Cook stated he agrees with Commissioner O'Brien; but it is a dead issue.

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

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to authorize the Chairman to send a letter to the Legislative Delegation requesting in the future, it work more closely with the Board on matters that affect the County, and in particular that issues such as the Port issue be afforded greater opportunity for public discussion for better understanding of the full impact of actions. Motion carried and ordered unanimously.

RESOLUTION, RE: CREATING SOUTH MAINLAND COMMUNITY CENTER CITIZENS ADVISORY COMMITTEE-SOUTH SERVICE AREA

Motion by Commissioner O'Brien, seconded by Cook, to adopt Resolution establishing the South Mainland Community Center Citizens Advisory Committee-South Service Area; and appoint Tilly Anzolone, 421 North Seagull Circle, Barefoot Bay, Ronnie Beatty, Micco Fire Department, Jackie Kapp, 7510 Cedar Box Road, Micco, Bonnie Keller, 8600 U.S. 1, Sebastian, Bill Lewis, P. O. Box 158, Roseland, Phyllis McCullers, 9920 Riverview Drive, Micco, Jeanne Osborne, 100 Cherokee Court, Barefoot Bay, Bill Sansbury, 9830 Honeysuckle, Micco, and Frankie Schott, 3545 Heather Lane, Micco to the Committee. Motion carried and ordered unanimously.

Commissioner Scarborough inquired if all the items can be taken together. Commissioner Ellis stated there is one he does not support, Item 94.B.2. Chandler Well Drilling.

Chairman Higgs inquired if there is any other information. Commissioner Ellis advised the owner is opposed.

Planner II Todd Peetz read aloud the description for Item 94.B.2, and the existing and proposed land uses. He advised Mr. Chandler's lots were no longer included in the amendment, at his request at the transmittal hearing; since then he had a change of heart and is in favor of the mixed use district; but he has not provided anything in writing to that effect. He advised Mr. Chandler came to the LPA meeting to speak in favor of it, but did not have an opportunity to speak. He advised another property owner faxed a letter to staff today; he has a BU-2 commercial zoning in that area; and he is in favor.

Chairman Higgs stated the applicant has indicated he supports the mixed use district and BU-2 on that location. Mr. Peetz advised Mr. Chandler is no longer part of this amendment, but he supports it. Commissioner O'Brien advised he has reviewed this item, and recommends approval.

Mr. Peetz advised Item 94.B.10A is a parcel staff does not want to include in this package because it is no longer under government ownership. He stated the proposed changes to the Future Land Use Element were done to satisfy DCA's concerns in the Objections, Recommendations, and Comments Report; and requested the words "Department of Community Affairs" be stricken from the proposed recommendation.

Commissioner Ellis stated he has a problem with 94.B.6 because industrial to residential is a radical change.

Commissioner Cook inquired if the Board wishes to address this tonight, or defer it more prudently. Discussion ensued on whether to defer or continue.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to continue the public hearing to consider the 1994B Comprehensive Plan Amendments to February 21, 1995.

Commissioner O'Brien stated he is willing to approve everything now. Chairman Higgs stated she is comfortable with it. Commissioner Scarborough stated this is a lengthy process; and suggested an alternate method of handling it.

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

PUBLIC COMMENTS

Clerk of the Circuit and County Courts Sandy Crawford requested the Board reconsider the evening meetings, try to schedule things with the most public input, and end the meetings before 8:00 p.m. He noted there are five members of the public, thirteen staff members, three Clerk's staff, and five Commissioners still present; and expressed concerns that this is not a productive use of time.

County Manager Tom Jenkins advised there were two items that did not get through the LPA; and the Board cannot hear them. Planning and Zoning Director Peggy Busacca advised the Site Plan and Subdivision Ordinances will not be heard in March, 1995 because the Local Planning Agency tabled them; but the County Attorney is preparing an ordinance that can be considered at the March hearings, so those hearings will be held. Mr. Knox inquired if the Board wishes to consider the gasoline canopies and A1A setbacks at the same meeting. Ms. Busacca advised those have been advertised, and can go forward. Chairman Higgs stated the Board should go forward with everything if it goes forward with anything.

Upon motion and vote, the meeting adjourned at 11:53 p.m.

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

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