August 12, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on August 12, 2003, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners Truman Scarborough, Ron Pritchard, Nancy Higgs, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Rocky Van Hoose, Island Community Church, Merritt Island, Florida.

Commissioner Carlson led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the May 29, 2003 Special Meeting Minutes. Motion carried and ordered unanimously.

REQUEST FROM MIRA, RE: REMOVAL OF ADVERTISING BENCHES ON S.R. 3 AND
S.R. 520

County Manager Tom Jenkins stated the Merritt Island Redevelopment Agency (MIRA) has requested Item VI.F.5. be pulled from the agenda; and it will be rescheduled to the August 26, 2003 meeting.

The Board rescheduled request from MIRA for removal of advertising benches from the S.R. 3 and S.R. 520 rights-of-way as soon as legally possible to the August 26, 2003 meeting.

REPORT, RE: ORLANDO INTERNATIONAL AIRPORT COMPUTER GLITCH

Commissioner Scarborough stated it was reported in the Orlando Sentinel on August 3, 2003 that the day before there was an incident in Orlando that did not reflect well on the country or the community that receives many international visitors; about 3,000 international passengers all arrived, five flights from Britain and one from Mexico in less than two hours; the computer at customs shut down; and there was an incapacity to handle it. He noted people were cramped into an area; some people passed out, others vomited, and children cried hysterically; it was apparently a madhouse; and since it is a federal issue and not an airport issue, he would suggest the Chairperson send letters to Congressmen Feeney and Weldon indicating the Board’s concern.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize the Chairperson to send letters to Congressmen Tom Feeney and Dave Weldon expressing the Board’s concern with Orlando International Airport’s computer glitch that left 2,700 passengers waiting for hours in hot, cramped conditions in the immigration section of the Airport, and that it is not representative of the community. Motion carried and ordered unanimously.

REPORT, RE: DERELICT VESSELS

Commissioner Pritchard stated funding does not exist for the County or the State to remove derelict vessels; it may be time for the private sector to get involved in the same way it does with tow trucks; organizations might be able to provide a method to remove the vessels and then claim ownership of the vessels under certain salvage laws, etc.; and it would be a way to remove a derelict vessel and perhaps eliminate the problem, and it would not cost the County any additional money. He inquired if the Board would be interested in having staff review the issue.

Commissioner Carlson stated such issue has been looked into before, so there is already information available; perhaps staff could present it to Commissioner Pritchard; based on his analysis of the information, if he wants additional information to come back then she will support it; and the derelict vessel issue is a problem. Commissioner Pritchard stated the County is dealing with other laws, navigation hazards, and oil spillage; and there are a lot of issues.

Assistant County Manager Stephen Peffer stated the County has made a similar proposal through the Legislative Delegation to look at derelict vessels; such proposal is to modify the laws to allow for a more prompt and efficient removal of vessels; it would involve a concept similar to tow truck operators removal of vehicles; and the County would propose something similar with vessels so they could be removed before they become embedded in the bottom of the river. Commissioner Pritchard requested staff check on the status of it.

REPORT, RE: CONTACTING ELECTED OFFICIALS

Commissioner Pritchard stated the Commission has been inundated with faxes and letters coming from one person who has a focused agenda on what he thinks the Board should or should not be doing; it is not the way he treats people and it is not the way he expects people to treat him or any other person; and the letters are insulting and childish. He noted one letter has his picture with Osama Bin Laden and Saddam Hussein; the letters are coming from someone who is supposed to be a retired Lieutenant Colonel claiming to not represent a group of people; this is not the way to write responsible letters; and he is disgusted by it all. He stated it is time to stop this irresponsible letter writing.

REPORT, RE: SURFSIDE PLAYHOUSE

Commissioner Carlson stated Surfside Playhouse is in the lobby with a display; and requested Lynnea Adams tell the Board and audience about Surfside Playhouse and its programs.

Lynnea Adams, Operations Director at Surfside Playhouse, stated the Playhouse is Brevard’s only beachside community theatre and about to open its 45th season; it has never closed its doors and is proud of it; this year it has three musicals and two plays it is presenting; and it has created two new partnerships with non-profit organizations, Star with Teens and Earth Awareness. She noted there will be a band bash and karaoke contests on Saturday nights; and Surfside Playhouse is excited about the partnerships and programs.

Commissioner Carlson stated Brevard County is glad Surfside Playhouse is in the community; and requested individuals in the audience visit the display in the lobby.

APPROVAL, RE: T-HANGAR RENT INCREASE AT VALKARIA AIRPORT

Commissioner Pritchard stated the County has seven-day service at Valkaria Airport; it is something that needs to be reviewed as part of the budget process; and if the County went to five days, it could probably save about $10,000.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the increase in rent for T-Hangars at Valkaria Airport from $165 to $175 for a full-size hangar and from $82.50 to $87.50 for a half-size hangar per month. Motion carried and ordered unanimously.

APPROVAL OF PAYMENT, RE: EMPLOYEE INNOVATIONS PROGRAM

Commissioner Pritchard stated the intent of the Employee Innovations Program is to reward employees for making suggestions that result in improved productivity, enhanced health, safety, and operating cost savings for the County; it is a good program; what Scott Heil did in the Water Resources Department has produced an annual savings in excess of $9,000; and for that, he received a small monetary award. He noted Mr. Heil should be commended for what he did; and encouraged other County employees to do the same.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve payment of $450 to Scott F. Heil, Water Resources Department, who submitted a recommendation to the Employee Innovations Program, which was implemented by his Department and resulted in enhanced health/safety and operating cost savings for the County. Motion carried and ordered unanimously.

REQUEST FROM SCOTT STILWELL, RE: APPROVAL TO CREATE FLAG LOTS AND
EASEMENT LOT ACCESSING WEST CRISAFULLI ROAD

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the request of Scott Stilwell to create two flag lots and one easement lot along with two lots accessing West Crisafulli Road, for a total of six lots, subject to meeting all existing regulations administered by the reviewing agencies. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH HOWARD BENZIGER, RE: MORNINGSIDE DRIVE

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to execute Unpaved Road Agreement with Howard Benziger for a building permit off an existing right-of-way known as Morningside Drive, which has been constructed to the standards of the Unpaved Road Code of Ordinances, Section 62-102. Motion carried and ordered unanimously. (See page for Agreement.)

UNPAVED ROAD AGREEMENT WITH JEANNIE L. VIOLI, RE: SERNA AVENUE B

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to execute Unpaved Road Agreement with Jeannie L. Violi for a building permit off an existing right-of-way known as Serna Avenue B, which has been constructed to the standards of the Unpaved Road Code of Ordinances, Section 62-102. Motion carried and ordered unanimously. (See page for Agreement.)

CONTRACT WITH THE VIERA COMPANY, RE: IMPROVEMENTS IN SUMMER LAKES,
PHASE 2

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to execute Contract with The Viera Company guaranteeing infrastructure improvements in Summer Lakes, Phase 2. Motion carried and ordered unanimously. (See page for Contract.)

RESOLUTION, RE: RELEASING CONTRACT WITH THE VIERA COMPANY FOR AUBURN
LAKES, PHASE 3

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to adopt Resolution releasing the Contract with The Viera Company for improvements in Auburn Lakes, Phase 3, dated January 28, 2003, which does not relieve the developer from obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously. (See page for Resolution No. 03-186.)

PERMISSION TO FILE INJUNCTION, RE: BREVARD COUNTY V. DOMINICK MATALONE,
SR. AND JR., AND MARY MATALONE FOR CODE VIOLATION

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to authorize the County Attorney to file an injunction on behalf of Code Enforcement against Dominick Matalone, Jr.,

Dominick Matalone, Sr., and Mary Matalone for a continuing and recurring violation of Brevard County Code Section 62-2117(c)(1) by storing equipment on the property at 4450 Philodendron, Melbourne, Florida. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN AGREEMENT WITH TAYLOR PROPERTIES OF
BREVARD COUNTY, INC., RE: PROPERTY OFF COURTENAY PARKWAY

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to execute Binding Development Plan Agreement with Taylor Properties of Brevard County, Inc. for development of property off Courtenay Parkway. Motion carried and ordered unanimously. (See page for Agreement.)

BINDING DEVELOPMENT PLAN AGREEMENT WITH FURMAN ROAD, LLC, AND DIOT,
INC., RE: PROPERTY OFF FURMAN ROAD

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to execute Binding Development Plan Agreement with Furman Road, LLC and Diot, Inc. for property off of Furman Road. Motion carried and ordered unanimously. (See page for Agreement.)

ACKNOWLEDGE RECEIPT OF ORDINANCES FROM CITY OF TITUSVILLE, RE:
ANNEXATIONS ASSOCIATED WITH CITY’S CPA #03-02A AND #03-02B

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to acknowledge receipt of Ordinances CPA #03-02A annexing approximately 36 acres and CPA #03-02B annexing approximately 66 acres located along the east edge of Sisson Road, north of S.R. 405 from the City of Titusville. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ORDINANCE #24-2003 FROM CITY OF TITUSVILLE, RE:
ANNEXATION OF PROPERTY OFF SINGLETON AVENUE

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to acknowledge receipt of Ordinance #24-2003 from the City of Titusville annexing approximately .53 acre along the west side of Singleton Avenue, north of Dairy Road, associated with its Small Scale Amendment #6-2003 to its Comprehensive Plan. Motion carried and ordered unanimously.

TASK ORDER NO. 98-002-31 WITH POST, BUCKLEY, SCHUH & JERNIGAN, INC., RE:
UPPER EAU GALLIE WATERSHED STORMWATER IMPROVEMENTS

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to execute Task Order No. 98-002-31 with Post, Buckley, Schuh & Jernigan, Inc. to provide design and permitting services for the Lake Washington Road and Bahia Lane corridor improvements as part of the Upper Eau Gallie Watershed Stormwater Improvements Project. Motion carried and ordered unanimously. (See page for Task Order.)

RESOLUTION ACKNOWLEDGING PREPARATION OF PRELIMINARY ASSESSMENT
ROLL AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE: TOBY AVENUE
ROAD PAVING MSBU

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to adopt Resolution acknowledging preparation of a preliminary assessment roll for Toby Avenue Road Paving MSBU, and grant permission to advertise a public hearing on August 26, 2003 to confirm the preliminary assessment roll. Motion carried and ordered unanimously. (See page
for Resolution No. 03-187.)

APPROVAL OF AMENDMENTS, RE: FIRST TIME HOMEBUYER PROGRAM POLICY

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the amendments to the existing First Time Homebuyer Program Policy HS-007. Motion carried and ordered unanimously. (See page for Policy.)

APPROVAL OF AMENDMENTS, RE: REPAIR, REHABILITATION, AND REPLACEMENT
DEFERRED LOAN PROGRAM FOR LOW INCOME HOMEOWNERS POLICY

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve amendments to the existing Repair, Rehabilitation, and Replacement Deferred Loan Program for Low-income Homeowners Policy HS-008. Motion carried and ordered unanimously. (See page for Policy.)

APPROVAL OF PLAN AND AGREEMENT WITH FLORIDA DEPARTMENT OF COMMUNITY
AFFAIRS, RE: 2003-04 COMMUNITY ACTION AGENCY PLAN

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the 2003-04 Community Action Agency Plan and execute Agreement with Department of Community Affairs in the amount of $147,613; and approve a cash match of $2,952 and authorize the Chairperson to execute any future amendments to the Agreement and budget, contingent upon approval of the County Attorney and Risk Management. Motion carried and ordered unanimously. (See page for Agreement.)

APPROVAL OF SOLE SOURCE PURCHASE FROM TEDDER BOAT RAMP SYSTEMS,
INC., RE: BOAT RAMPS AT PARRISH PARK

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the sole source purchase of boat ramps and docks from Tedder Boat Ramp Systems, Inc. for installation at Parrish Park at a cost of $425,000; and authorize the Chairperson to execute a Contract with Tedder. Motion carried and ordered unanimously. (See page for Contract.)

PERMISSION TO BID, AWARD BID, EXECUTE CONTRACTS, AND USE STATE AND
COOPERATIVE AGREEMENTS, RE: PARK PROJECTS IN DISTRICTS 2, 3, 4,
AND 5

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to authorize advertising for bids, award of bids to lowest responsible bidders, and the Chairperson to execute associated contracts; and authorize utilization of State and Cooperative Agreements for park projects at Kiwanis Island Park, Coconut Point Park, Community Park of Rockledge, Don “Mo” Stradley Memorial Park, Fisherman’s Landing, Juan Ponce de Leon Landing Park, Kelly Park East and West, Paradise Beach Park, Spessard Holland North Beach Park, Seagull Park, SPRA Park, and Radison South Beach Access. Motion carried and ordered unanimously. (See pages for Contracts.)

APPROVAL OF ADMINISTRATIVE COST, RE: COLLECTION OF OCCUPATIONAL
LICENSE FEES

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve $230,698 as the proposed cost for the Tax Collector’s Office to collect County occupational license fees from August 1, 2003 through July 31, 2004. Motion carried and ordered unanimously.

PERMISSION TO ISSUE, RE: OPEN PURCHASE ORDERS EXCEEDING $35,000 TO
APPROVED VENDORS OF RECORD FOR FY 2003-04

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the use of vendors of record as submitted; approve the issuance of blanket purchase orders to those vendors for FY 2003-04, and authorize the Chairperson to execute Contracts exceeding $35,000; and approve competitive actions in the event of changes to the approved vendors resulting in opportunities for competitive solicitations, and/or if cooperative purchasing programs’ contracts change or expire. Motion carried and ordered unanimously. (See pages for Contracts.)

PERMISSION TO ISSUE, RE: ANNUAL SUPPLY BIDS, QUOTES, AND PROPOSALS
FOR FY 2003-04

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to grant permission for Purchasing Services to: (1) solicit competitive bids and quotes, and award same to the lowest, responsive, and most qualified suppliers; (2) solicit competitive proposals, establish selection committees, negotiate and award contracts with the best-ranked proposers, and authorize execution of the contracts; (3) exercise renewal options upon evaluation of supplier performance and recommendation from user departments and offices; and (4) authorize the Chairperson to execute contracts over $35,000 in annual value. Motion carried and ordered unanimously. (See pages for Contracts.)

AWARD OF PROPOSAL #P-1-03-26 AND CONTRACT, RE: PHARMACY ADMINISTRATOR
FOR HEALTH INSURANCE PROGRAM

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve award of Proposal #P-1-03-26, Pharmacy Administrator for Group Health Insurance Program; and authorize the Chairperson to execute the Contract with the successful firm, as recommended by
the Employee Benefits Insurance Advisory Committee. Motion carried and ordered unanimously. (See page for Contract.)

APPOINTMENT, RE: NORTH BREVARD LIBRARY DISTRICT BOARD

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to appoint Dr. Paula Potter to the North Brevard Library District Board, with term of appointment expiring December 31, 2004. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the Bills and Budget Changes. Motion carried and ordered unanimously. (See page for List of Bills and Budget Changes.)

RESOLUTION, RE: PROCLAIMING BREVARD COUNTY FIREFIGHTERS APPRECIATION
WEEK

Commissioner Higgs read aloud a resolution proclaiming Brevard County Firefighters Appreciation Week.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to adopt Resolution proclaiming the week of August 25, 2003 as Brevard County Firefighters Appreciation Week, and commending Brevard County firefighters for their efforts on behalf of the Muscular Dystrophy Association. Motion carried and ordered unanimously. (See page for Resolution No. 03-188.)

Chief Bill Farmer introduced IFF President Danny Hensler, Lieutenant Dave Hover, Muscular Dystrophy Association (MDA) Chairman, and Jody Stella with MDA; stated between the MDA campaign and United Way, firefighters last year raised more than $100,000 in donations to help the needy in Brevard County; it is due to the Board’s recognition and support; and the firefighters appreciate it.

Lieutenant Dave Hover expressed appreciation to the Board for allowing the boot drive every year; stated firefighters have been collecting money for MDA for almost 20 years; there are a lot of people in Brevard County who are helped by the MDA; and the boot drive will be held August 29 through August 31, 2003. He noted there is a lockup on September 27, 2003 where the firefighters also raise money.

Public Safety Director Jack Parker stated once a year the Board thanks the firefighters for what they do for Brevard County; the firefighters have asked the County to not thank them, but to shed light on MDA; it is another example of who the firefighters are; and what the public can do to support the firefighters is to support what is important to them, which is to put $1.00 in the boot and have the best boot drive ever in Brevard County.

Commissioner Higgs presented the Resolution to Lieutenant Hover.

RESOLUTION, RE: RECOGNIZING SOCIAL SERVICES DAYS

Commissioner Carlson read aloud a resolution recognizing Florida Association of Social Services Days in Brevard County.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution recognizing August 26 through 28, 2003 as Florida Association of Social Services Days in Brevard County; and expressing appreciation for its educational information to elected officials and the public. Motion carried and ordered unanimously. (See page for Resolution No. 03-189.)

Housing and Human Services Director Gay Williams stated she is pleased to accept the Resolution on behalf of Florida Association of Counties Social Services executives and Housing and Human Services Department; the Department is excited and honored to host in Brevard County for the first time this year’s conference August 26 through 28, 2003; the theme is “Partnering for Success”; and the Department anticipates approximately 200 attendees from across the State. She expressed appreciation to the Board, Space Coast Area Transit, Parks and Recreation, Solid Waste, and Information/Communications Systems Departments for their support; and stated the Departments and Directors have partnered with her to make the conference a pleasant, informative, and most productive one in Brevard County. She noted the conference will be held in Cocoa Beach at the Holiday Inn.

APPROVAL, RE: 2004 CATEGORY A PROMOTION AND ADVERTISING GRANT
PROGRAM HANDBOOK

Samuel Lopez, Founder and Chairman of the Florida Puerto Rican/Hispanic Chamber of Commerce, requested the Board not approve the 2004 Category A Promotion and Advertising Grant Program Handbook; stated there is still discrimination and the targets are there; and this item discriminates. He noted his Chamber of Commerce is requesting funding; the requirement is two years for the Chamber before it can apply for monies; the taxpayers of the community are paying the money; and when it sent in paperwork to the State for incorporation, it only took two or three weeks. He stated the Tourist Development Commission (TDC) wants his Chamber to wait two years to receive funding; it was not a requirement for anybody else since the inception of giving money to Chambers of Commerce; and Hispanics are still being discriminated against in Brevard County. He noted Florida TODAY newspaper is a perfect example and indicated he “helps” run the nearly one-year old Florida Puerto Rican/Hispanic Chamber of Commerce; all of a sudden he is like a janitor who “helps”; but he is the Founder and Chairman of such Chamber of Commerce. Mr. Lopez stated there was a meeting on Friday with Brevard Community College (BCC); he asked it to join the Chamber of Commerce; the District President of BCC indicated it did not have the money; but it is constructing a building at this time and it partnerships with the National Association for the Advancement of Colored People (NAACP). He noted when it comes to the Hispanic community, they are treated differently; and requested the item not be approved as it is discriminatory.

Commissioner Pritchard stated the eligibility includes being a Brevard County chamber of commerce serving Brevard County communities, and inquired does Mr. Lopez’s Chamber do that; with Mr. Lopez responding affirmatively. Commissioner Pritchard noted the language also reads, “. . . for a minimum of two years as of the application deadline”, and inquired is it the two-year provision that Mr. Lopez objects to; with Mr. Lopez responding yes. Mr. Lopez stated the two years has never been applied to any other Chamber; since the TDC found out his Chamber was going to apply for funds, all of a sudden the two years developed and was put into the handbook; and inquired why the language was not include five years ago when the other chambers came about. Commissioner Pritchard inquired how long has Mr. Lopez’s Chamber been in existence; with Mr. Lopez responding a little over one year.

Teresa Lopez, President of the Florida Puerto Rican/Hispanic Chamber of Commerce, stated the Chamber is a Statewide Chamber established to form a coalition of Chambers throughout the State of Florida; her Chamber’s mission is to promote Hispanic businesses or anyone interested in doing business with the Hispanic community; the Chamber accomplishes these goals by staging annual community and business events; and it sponsors an annual parade, which will take place this year on November 9, 2003. She noted a Hispanic art show will take place November 7, 2003 at the museum; a festival will be held on August 31, 2003 at the Wickham Pavilion; the Business Hispanic Expo will be held on March 19, 2004; and the events are held to promote and strengthen the income potential for the Chamber’s members. She stated the grant is an important element to her Chamber accomplishing its goals; and requested the Board not support the two-year restriction in applying for the grant.

Commissioner Carlson stated the Hispanic Chamber is representing a Statewide Chamber in Brevard County; and if it were to apply for grant dollars, it would have to show how it is using the dollars in Brevard County.

Commissioner Pritchard inquired does the Chamber only promote Hispanic and Puerto Rican businesses; with Ms. Lopez responding no. Ms. Lopez stated the Chamber has non-Hispanic members, including the Melbourne Airport, HealthFirst, and the School Board; and they do business networking with Hispanic businesses. Commissioner Pritchard inquired do the other Chambers of Commerce attend the Hispanic Chamber’s meetings and is there an interaction between Chambers. Ms. Lopez responded the Cocoa Beach Chamber of Commerce attended her Chamber’s first meeting; but she has not heard from the other Chambers.

Bobby Rodriguez, Vice Chairman of Florida Puerto Rican/Hispanic Chamber of Commerce, stated he supports the comments of the previous speakers; stated the Chamber is diverse and does not only promote Hispanics; the Chamber has African Americans, Anglos, and different types of ethnic groups; and the two-year waiting period was not done in the past until the Hispanic Chamber applied for funding. He requested the Board not approve the item; stated his Chamber owns its building; and it would help greatly to receive grant funding. He noted the Chamber is here to unite, not divide.

Commissioner Higgs stated she has long been an advocate of all the Chamber grants being competitive and they would not be grants, but competitive awards based on various services provided; there would not be a set amount, but a competitive amount depending on the service provided; page 1, 2.0 Eligibility, a., which is the line that seems to be a question and would require the minimum of two years, should be deleted; and the language would stay as it was in the past. She noted it is her preference that the grants not be only open to chambers of commerce.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the 2004 Category A Promotion and Advertising Grant Handbook, as revised, to delete language “for a minimum of two years” on Page 1, 2.0 Eligibility, A.

Commissioner Carlson stated Commissioner Higgs is serving on the TDC currently; she served on it a while back; the money that was dispensed for the grants was divided up and given equally; and she thought it should be competitive as well. She noted she does not know where the language talks to the fact that the County should make it competitive versus a grant; and she would like to see it come up as a discussion item for the TDC and have it bring something back to the Board. Commissioner Higgs stated she will take that message back to the TDC since there seems to be some interest in it; and if the Board is going to go forward with the grants just to the Chambers of Commerce, then the amendment would be to the proposal.

Commissioner Scarborough stated since the Chamber is a Statewide entity and not a Brevard County entity, it has to demonstrate it is accomplishing a purpose for the County. Commissioner Higgs stated the document outlines the kind of activities that are required in order to qualify; and the proposals are submitted and selected based on those. Commissioner Scarborough noted there could be any entity within the State at this particular juncture; maybe there is an Asian-specific Chamber of Commerce within the Orlando region, and it could come to Brevard County and say it is going to perform certain services; and inquired if it has one employee in the County, could it be in a posture to apply. He stated the grant itself is monitored; if it would not accrue to the benefit of Brevard County tourism, it would not be granted; and inquired how would it work.

Tourism Development Executive Director Rob Varley stated the TDC would look at the programs to see what is being done; the goal of the grant is to generate additional tourism to Brevard County; the grants were changed last year to measure individual programs instead of the overall Chamber; and all the grants are reimbursable, so if they are not approved reimbursable expenses, a chamber would not receive the money. Commissioner Scarborough noted the County is protected; the TDC knows where the money is being spent; and it not only has the allocation, but the supervision also. He stated the County could have any group within the State of Florida, which is performing a measurable function in Brevard County that could rightfully apply as well; with Mr. Varley responding yes, as long as they were doing something that was promoting tourism in the County.

Commissioner Carlson requested Mr. Varley provide an example of how a Chamber of Commerce would add to tourism. Mr. Varley responded Mr. Lopez’s Chamber of Commerce is involved in the Salsa Festival, which draws a lot of people into the area; such Festival is being considered for a separate grant under cultural; it has been a successful Festival; and such Chamber may advertise the Festival with grant dollars and create hotel packages, etc. Commissioner Carlson stated the items in the grant application are going to be all measurable as of this cycle; with Mr. Varley responding it is the goal. Mr. Varley advised the reason the two-year cycle was put in was to comply with every other grant that is done, including cultural, capital facilities, and beach grants; and the Board could approve one year if it desires.

Chairperson Colon inquired how long has the United Third Bridge been doing the Salsa Festival; with Mr. Lopez responding eight years. Chairperson Colon inquired how long has it been doing the parades; with Mr. Lopez responding seven years. Chairperson Colon noted an organization can have festivities; and inquired do they have to join a Chamber of Commerce to receive taxpayers money. She stated with Mr. Lopez’s organization, the money has been coming from that organization based on the membership and paying fees; it will be applying to the TDC for funds; and inquired is there a distinction between United Third Bridge and the Florida Puerto Rican/Hispanic Chamber of Commerce. Mr. Lopez responded the State of Florida divided the Chamber into five regions; it is to organize different Chambers, people, and associations to come into the Chamber and become members; his Chamber does the work that is required in Brevard County; and when it comes to TDC funding and getting monies for the Salsa Festival and Puerto Rican Day parade, his organization could apply for grants to the TDC, which is what was done this year. He noted it can apply to the TDC for advertisement, which it has done all along; and it felt it could do it through the Chamber since all the other chambers of commerce had the same avenue. Chairperson Colon inquired what is Mr. Lopez’s Chamber going to do with the money, is it going to apply for cultural grants and other monies also, and is it going to dip into two funds; stated she wants to be clear how it works; and it is taxpayers’ money that the Board is accountable for. She stated whether someone is Puerto Rican or Hispanic is irrelevant. Mr. Lopez stated the two entities are different; it is the first time his Chamber has applied for funding as a cultural group for eight years; sometimes there is not enough money to do advertising; and his organization is not doing anything different than what the other Chambers of Commerce and groups are doing in applying for funding, except that he is the Chairman of the United Third Bridge and Chairman of the Chamber. Chairperson Colon inquired where did the discrimination part come in. Mr. Lopez responded there has never been an exception of two years for somebody to apply for funding until his organization applied; people are treated differently; he is seeing it as his Chamber is being moved into the community; in order to exist, it needs to provide certain programs for small businesses; and his organization is making sure it is taking care of such businesses. He stated the United Third Bridge had its first expo last year, which has never happened in the community; and over 100 people participated. Chairperson Colon advised there is criteria that Mr. Lopez’s organization is going to have to follow based on the application. Mr. Lopez noted the organization intends to go by the guidelines. Chairperson Colon inquired is there anything under the guidelines now that Mr. Lopez has a problem with; with Mr. Lopez responding only the two-year provision. Chairperson Colon stated the County has been accused of discriminating upon, etc.; and requested staff comment on the issue. Mr. Varley noted the two-year provision had nothing to do with discrimination; it was strictly looking at all the grants, which said a minimum of two years; there was not a minimum requirement in the Chamber of Commerce grants; and before Palm Bay received its first Chamber grant, it was in business more than two years. He stated a new caveat was put into the handbook to allow a new Chamber first time to apply for a grant only up to $10,000; it could have been considered discrimination against the Palm Bay Chamber; but some of this is to guarantee the County that the organizations receiving grant dollars are solid organizations that will be around for a long time.

Commissioner Higgs stated the activities allowable under this category are outlined in the grant handbook; the difference in this category of promotion and advertising is that it is set aside only for Chambers of Commerce; she has objected to that for a number of years and will continue to do so; and there are a number of groups that can provide the same services. She noted competition is a good thing; the County gets better services when the competition is there; it should not be allocating them equally if the activities are not equal in their value to the TDC under the grant proposal; and the Board should make the amendment and move this forward. Commissioner Pritchard inquired how many categories of grants are there; with Mr. Varley responding four, including cultural, capital facilities, beach, and Chamber grants. Commissioner Pritchard requested staff review item e; and stated it is his understanding that the first 2% of the 7½% that is funding the Kennedy kiosk may not be being used appropriately. Commissioner Pritchard stated item 2.0 (a) says, “ . . . be a Brevard County Chamber of Commerce”; and inquired is a Florida chamber a Brevard County Chamber. Mr. Varley responded he does not know. Commissioner Scarborough stated it is old language; the added language says, “. . . serving Brevard County”; if the County wants to go to State entities, it may need to change the language of Brevard County chamber and say serving Brevard County; and it would give the latitude of going to Statewide entities who are in Brevard County serving it. He noted dropping the two years may not be the issue; and the Chamber may not qualify. Commissioner Pritchard stated perhaps the language should say, . . . “being a Chamber of Commerce serving Brevard County communities”; and the grant application would track the way the money is spent.

County Attorney Scott Knox inquired where did the eligibility criteria come from. Mr. Varley responded it was developed when the initial first two cents was established; the Chambers were instrumental in bringing the community together to support the resort tax and requested to be a part of it; and they developed the grant of $100,000 with three Chambers in existence. He noted most of the Chambers use the dollars either for advertising, visitor information centers, etc.; the Marketing Committee established the criteria and grant requirements; the document has been changed numerous times; and the TDC reviews it each year and adjusts it different ways. Attorney Knox stated the language clearly says, “ . . . a Brevard County Chamber of Commerce” and not State; and the language would require alteration. Commissioner Higgs stated one could go to multiple definitions; and if the County wants to be clearer, the language could read, “ . . . a Chamber of Commerce serving Brevard County communities with an office in Brevard County.” Commissioner Scarborough stated he has a problem with a Brevard County Chamber which is a Statewide entity. Commissioner Higgs expressed concern saying the funds are only allocated to Chambers; stated if it is a Chamber of Commerce located in Brevard County, it serves Brevard County citizens; and it qualifies under a Chamber. Commissioner Scarborough stated the Chambers have a different type of membership than the TDC; he would not have a problem in constituting a committee of the Chambers, including Mr. Lopez’s; such committee could structure something; and he does not have any problem with different ethnic group chambers. He noted the County is talking about fundamental issues; perhaps the Chambers could structure a marketing plan with the total amount, incorporating the various Chambers; and he would hate to see the Chambers not have a recognition of the unique role they play in the community. Commissioner Higgs stated the proposals need to go out and things need to happen; and reiterated the language could read, “ . . . a Chamber of Commerce serving Brevard County with an office in the County.”

Commissioner Scarborough stated it would open it up to any entity anywhere that has an office in Brevard County; and it is wide open. Commissioner Pritchard stated it provides an opportunity to enhance Brevard County to get the type of tourism it would like to have; and Orlando and the Orange County area have a huge Hispanic community. Commissioner Carlson noted perhaps Chambers across borders could unite in partnership; it could be good for Brevard County; it is better to have mutual understanding among all the Chambers; and they could look at the grant proposal. Commissioner Higgs stated the whole grant process is to promote and advertise; the County has narrowed it to one group of entities doing it; it has moved to eligible activities that are evaluated and measured; and the ones that give the County the best bang for the buck should be funded.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to include language that a Chamber of Commerce serve Brevard County communities with an office in Brevard County. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC INGRESS AND EGRESS
EASEMENTS IN SECTIONS 26 AND 27, TOWNSHIP 23S., RANGE 35E. - DOUGLAS
W. BAKER, ATTORNEY (B.D.M. FINANCIAL CORPORATION AND JACOB AARON
CORPORATION

Chairperson Colon called for the public hearing to consider a resolution vacating public ingress and egress easements in Sections 26 and 27, Township 23S., Range 35E., as petitioned by Douglas E. Baker, Attorney (B.D.M. Financial Corporation and Jacob Aaron Corporation.)

There being no comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution vacating public ingress and egress easements in Sections 26 and 27, Township 23S., Range 35E., as petitioned by Douglas W. Baker, Attorney (B.D.M. Financial Corporation and Jacob Aaron Corporation.) Motion carried and ordered unanimously. (See page for Resolution No. 03-190.)

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENTS IN
HAMPTON HOMES, UNIT 7, AND WAIVER OF FEE - MICHELE M. SCHAUT

Chairperson Colon called for the public hearing to consider a resolution vacating public utility easements in Hampton Homes, Unit 7, and waiver of fee, as petitioned by Michele M. Schaut.

Transportation Engineering Director John Denninghoff stated a couple of issues need to be addressed; and requested the item be continued to August 26, 2003.

There being no further comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Higgs, to continue the public hearing to consider resolution vacating public utility easements in Hampton Homes, Unit 7, and waiver of fee, as petitioned by Michele M. Schaut, to the August 26, 2003 meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING LAND DEVELOPMENT REGULATIONS
RELATING TO RESIDENTIAL FENCING SETBACKS AND HEIGHT

Chairperson Colon called for the public hearing to consider an ordinance amending Land Development Regulations relating to residential fencing setbacks and height.

Planning and Zoning Director Mel Scott requested the word “of” be added to the first line of page 2 of the ordinance, to read, “. . . forward-most edge of the residential structure . . .”; and stated staff has made the changes that the Board requested at the last public hearing.

There being no further comments or objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Ordinance amending Chapter 62, “Land Development Regulations,” Code of Ordinances of Brevard County, Florida; amending Section 62-2109(a)(c) and (f); providing for conflicting provisions; providing for severability; and providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code. Motion carried and ordered unanimously. (See page for Ordinance No. 03-38.)

PUBLIC HEARING, RE: ORDINANCE AMENDING ZONING CODE RELATING TO FIRST
FLOOR PARKING EXEMPTIONS IN CALCULATING BUILDING HEIGHT

Chairperson Colon called for the public hearing to consider an ordinance amending the Zoning Code relating to first floor parking exemptions in calculating building height.

Planning and Zoning Director Mel Scott stated the ordinance forwards the Board’s intention to have first floor exemptions not apply to single-family residences.

There being no further comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Ordinance amending Chapter 62, “Land Development Regulations”, Code of Ordinances of Brevard County, Florida; amending Article VI, Division 1; specifically amending Section 62-1102 “Definitions and Rules of Construction”; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida. Motion carried and ordered unanimously. (See page for Ordinance No. 03-39.)

PUBLIC HEARING, RE: ORDINANCE AMENDING ZONING CODE RELATING TO
PROCESSING COMMODITIES

Chairperson Colon called for the public hearing to consider an ordinance amending the Zoning Code relating to processing commodities.

Planning and Zoning Director Mel Scott stated the ordinance codifies the Board’s intention to have only those commodities raised on the premises to be packaged and processed on the premises.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Ordinance amending Chapter 62, “Land Development Regulations”, Code of Ordinances of Brevard County, Florida; amending Article VI, Division 4, Subdivision II; specifically amending Section 62-1334 “Agricultural Residential (AU)”; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida.

Commissioner Pritchard inquired if he has an orange grove, can he take his product to the grove up the street and have it processed there; with Mr. Scott responding yes, if the processing facility has the proper zoning. Commissioner Pritchard inquired can the person take the material to his grove and process it; with Mr. Scott responding if he has the proper zoning.

Mr. Scott stated the Ordinance would keep the produce on the site; and if someone wanted to expand his or her operations to become more industrious, he or she would have to seek the proper zoning for the facility. Commissioner Pritchard noted if someone wanted to get out of the production part of the business and into the processing part, it may require them to either rezone or move to an area that would accommodate the new facility.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously. (See page for Ordinance No. 03-40.)

PUBLIC HEARING, RE: ORDINANCE PROVIDING PROPERTY TAX REDUCTION FOR
LIVING QUARTERS FOR PARENTS OR GRANDPARENTS

Chairperson Colon called for the public hearing to consider an ordinance providing property tax reduction for living quarters for parents or grandparents.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Ordinance of the Board of County Commissioners of Brevard County, Florida, providing for property tax reduction for construction or reconstruction of homestead property to house elderly parent(s) or grandparent(s) of owner or owner’s spouse, excluding all ad valorem County tax levies for dependent special districts, municipal service taxing units, and other voter-approved millages, providing for definitions; providing for the qualifications for reduction; providing for the amount of reduction; providing for the process for claiming a reduction; providing for penalties; providing for disqualification; providing for conflicts; providing for severability; providing for an effective date and inclusion in the Code.

Commissioner Scarborough stated keeping parents and grandparents in the home is a more humane and civil way than placing them in nursing homes; the Medicaid Program is both State and federal; the State portion comes back and bites the County’s budget by bills it receives from the State of Florida; and something like this could end up creating a more humane and more fiscally-sound County. He noted a lot of people do not understand the fiscal impacts of Medicaid, but it has hurt Brevard County tremendously over the years.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously. (See page for Ordinance No. 03-41.)

PUBLIC HEARING, RE: APPEAL OF ZONING OFFICIAL INTERPRETATION FOR
TERMINATION OF LAKE WASHINGTON GOLF AND RACQUET CLUB PUD

Chairperson Colon called for the public hearing to consider appeal of the Zoning Official’s interpretation regarding termination of Lake Washington Golf and Racquet Club PUD.Attorney John Evans, representing Ben Jefferies, stated Mr. Jefferies is in the process of purchasing the Lake Washington Golf and Racquet Club; in the 1980’s, the owner of Lake Washington Golf and Racquet Club put extensive development cost of about $600,000 or $700,000 into the project; due to economic difficulties, the project was halted; and the preliminary plan was filed, but the final development plan was never filed. He inquired what is the status of the Planned Unit Development (PUD) when there is an expired preliminary development plan. He noted the goal is to allow development of Lake Washington Golf and Racquet Club PUD at a lower density than currently planned with greater open space; the applicant filed an application for a preliminary development plan that does that; staff has refused to review the plan based on its interpretation of the Code; and inquired because the developer failed to obtain a final development plan within the time frames of the Zoning Code, what is the status of the zoning pursuant to Section 62-1453. Attorney Evans stated that is the gist of the appeal; Section 62-1453 says, “Termination of PUD. Failure of developer to submit a final development plan for the entire development or stage within the time period specified in Section 62-1449 shall cause the approval of the completed preliminary development plan to be considered inactive pending the reapplication by the application or administrative action by the Board of County Commissioners, pursuant to Section 62-1152.” He noted the issue is what does inactive mean and what does the applicant have to reapply for; does he have to reapply for a preliminary development plan or reapply for the entire rezoning; what is basically the position of the parties; and Mel Scott has interpreted the Zoning Code to say there is an inactive preliminary development plan, which equates to a termination or expired PUD zoning classification. Attorney Evans stated he does not believe that Section says that, and it says because the Board has not administratively rezoned the property, the developer has the right to reapply for a preliminary development plan; the Section says it is inactive until the applicant reapplies; once he reapplies, staff has the right to review the plan and approve it if the densities are less and the open spaces are greater than the original plan; and it is allowed for in Section 62-1448. He noted staff should have considered the plan as it provides for lower densities and greater open spaces; in 1988, the Section read when the preliminary development plan expires, it shall automatically revoke approval of the completed preliminary development plan filed under Section 1.2 (g), and the site shall revert to General Use zoning classification; and that is basically what Mr. Scott has said happened, that the entire zoning has been revoked and the applicant has to start from scratch. Attorney Evans stated the Board chose to change the language on three different occasions; in 1990, it amended the Section to state, “ . . . shall cause approval of the complete preliminary development plan to be suspended, pending subsequent action by the Board of County Commissioners”; the County has gone from the zoning is void to the preliminary development plan is suspended; and in 1993, the language was amended again to read, “Prior to the approved preliminary development plan becoming inactive, the applicant may request the Board of County Commissioners to extend the deadline.” He noted the applicant can apply to the Board to ask for an extension of time; it was amended again in 1995 to read if the time has expired, it shall cause approval of the complete preliminary development plan to be considered inactive, pending reapplication by the applicant; it does not say the zoning is inactive; and it says the preliminary development plan is inactive or administrative rezoning by the Board, which never happened. Attorney Evans stated nowhere does the word “inactive” by definition mean terminated; if the County wanted the zoning to be inactive, it would have been easy to say so, and it could have said to cause the zoning to be considered inactive, but it never did that; page 27 deals with approval of final development plans; and the Section says one has to file the final development plan within three years of approval of the preliminary development plan. He noted the Section reads, “At the request of the development, the Zoning Official may extend the period required for filing of such application for successive periods of one year each, unless and until the Comprehensive Plan has been amended, causing the preliminary development plan to become inconsistent with the Comprehensive Plan”; the Code says once a preliminary development plan is approved, staff can extend it for an indefinite period of time until the development becomes inconsistent with the Comprehensive Plan; and it is totally consistent with his interpretation of termination. Attorney Evans stated the applicant should have been allowed to file a preliminary development plan that is consistent with the Codes; the County should have reconsidered it; the applicant should not have had to start over from scratch and apply for PUD zoning; and staff has improperly interpreted the Section. He noted the Code has been applied in different circumstances differently, but the Statute says what it says; it is the County’s duty and obligation to read the Statute and give it a reasonable interpretation; and it is not reasonable to say that the PUD zoning is terminated as it would have been easy to say and was not said.

Commissioner Carlson stated each time what staff has put forward is that the title block has always been termination of the PUD zone, and the basis for that is the failure of the developer, etc.; in each case that has not changed; so it is obvious that the title block says termination of PUD zone. Mr. Evans stated generally a title block does not control, but in reading the section, it terminates when it is changed. Commissioner Carlson noted she understands it could have been said in the language, but it seems self-evident. She inquired when the zoning occurred, were the time limits and constraints that existed at that time applied to the particular PUD, and was the one-year extension for the PUD zoning in place. Planning and Zoning Director Mel Scott responded that is correct. Mr. Scott stated per the Code, that was the procedure the applicant would have had to follow; he would have had to come in to extend for one year; and the Planning and Zoning Office does it regularly for PUD’s.

Commissioner Pritchard noted because the applicant did not come in, the PUD may be considered inactive pending reapplication; with Mr. Scott responding that is correct. Commissioner Pritchard stated the applicant would have had to have done something to achieve the PUD to be considered inactive pending reapplication. Mr. Scott advised the applicant did not come in to extend the active nature of the PUD per the Code; when it is not done, he or she foregoes the ability to have this recognized under the Zoning Code as an active PUD; the point of contention right now is how the provision can be read one way or the other; and the County is focusing on what does pending reapplication by the applicant mean and what action does one have to undertake to resuscitate the PUD. He inquired is it simply resubmit the preliminary development plan, which was the applicant’s contention, or is it reapply for, or have the Board administratively begin the process of rezoning the property; what is at hand is whether this is an administrative resubmittal or a public hearing rezoning; and the Board is being asked to read the provision and render an interpretation of that. He stated historically, this has been applied to mean that the applicant can either begin the rezoning process or the Board can administratively begin the rezoning process; and it has never been applied in the history of the provision to mean that the applicant could simply resubmit a preliminary development plan in year five, six, etc. Commissioner Pritchard inquired where does it say that one has to initiate something within the first year in order to continue the annual extension. Mr. Scott responded it is stated in Section 1449 that rules the Preliminary Development Plan (PDP); the PUD zoning classification is unique in the sense that it is inextricably linked to the PDP; and the zoning classification spends most of its time talking about the status of the PDP, understanding if it dies, the PUD dies as the Board is not able to approve a PUD zoning classification without a PDP.

Commissioner Carlson requested staff explain how the Board had to deal with the Sawgrass issue as it was a similar situation. Mr. Scott responded the Sawgrass property has been rezoned; the County determined that the PUD had expired; it was accepted by all parties based on the provision of the Code; and the Board reviewed the application for rezoning and ultimately decided to give the GU zoning classification. He noted the provision was implemented so that a rezoning of some sort, whether private sector initiated or public sector initiated, had to occur and did. Commissioner Carlson stated that has been in the short term; and inquired is there anything that has changed that would alter the interpretation of that today; with Mr. Scott responding not in his view. Mr. Scott stated that is the point of the issue today; there is a difference of opinion; so the Board is hearing the appeal. Commissioner Carlson stated she met with the applicant; the project is great and she hopes it is brought back for review; she studied the Code; understanding where Sawgrass was and what the County had to deal with, it was the same interpretation that led her to make the same decision there; and she tried hard to look at the perspective Mr. Evans is presenting, but had a hard time arguing for it. She noted she agreed with staff’s interpretation, which has been the interpretation she has seen being expressed and executed time and time again; and she is not able to support the appeal, even though she supports the project.

Commissioner Higgs stated when the County dealt with the PDP that Mr. Amari presented in regard to Island Pointe, there was a sense of what was adopted in the PDP was the plan that had to go and any change to it was a new mode of operating; if the Board accepts that rationale at that point, the changing of the development would put the County into the same mode and a total change; and it cannot go both ways. She noted the County did it with Sawgrass and said it was no longer there; at Island Pointe, the Board adopted the PDP and agreed that the final action occurred; and she cannot support Lake Washington being a vested plan at this point.

Commissioner Pritchard inquired has Section 62-1449 been amended since 1988; with Mr. Scott responding he does not believe so. Commissioner Pritchard stated the Section reads, “ . . . shall cause the approval of the complete preliminary development plan to be considered inactive pending the reapplication by the applicant or administrative action by the Board of County Commissioners, pursuant to Section 62-1152”; and inquired where does it say in procedures for initiation about having to do it within one year. Mr. Scott responded one has the ability to have a PDP’s active status; if it has remained fallow for three years, he or she would need to extend it for a year to enjoy the PDP approved three years ago; and the proposed project has remained completely inactive for almost 10 years. Commissioner Pritchard inquired is the analogy of Section 62-1449 related to Section 62-1152; with Mr. Scott responding affirmatively. Mr. Scott stated that is what the Board is being asked to interpret here; Section 62-1449 is a provision that talks about the PDP; the Board is being asked to determine whether or not reapplication by the applicant also refers to Section 62-1152; and it is a Section that outlines the rezoning process. Commissioner Pritchard noted Section 62-1152 does not say anything about one year or three years; with Mr. Scott responding it is in Section 62-1449. Commissioner Pritchard inquired what is the relationship from Section 62-1442 to Section 62-1152. Mr. Scott responded the County is mixing up two events that the property owner has the ability to enjoy; in Mr. Evans’ letter to the Board, he is conceding the fact that the PUD has expired; and what is at issue with the agenda item is how to resuscitate it, either by resubmitting the PDP or having the Board administratively rezone it. Commissioner Pritchard stated Section 62-1449 speaks about three years from the date of the approval of the PUD; and it says at the request of the developer that the County may extend it. Mr. Scott noted that is correct; the developer is conceding that he did not take advantage of his ability to extend the PUD one year; and now the County is discussing how to resuscitate it. Commissioner Pritchard stated the PUD was approved in 1988; it would have taken it to 1991; things could have been done; he does not see the relationship with Section 62-1449 to Section 62-1152; and it seems like Section 62-1449 is the definitive statement.

County Attorney Scott Knox stated the basic issue here is the word “reapplication”; the County has to figure out what that means; he does not see anyplace else to go with it; and in looking at the overall PUD Ordinance, the PUD Section is 62-1448 (3), which says, “Under submittal, the PUD zoning application and preliminary development plan shall be submitted concurrently to the County.” He noted when one applies for a PUD zoning, he or she has to submit a PDP; Mr. Scott’s position is once the PDP is approved and the time goes by and it expires, the applicant has to resubmit under that Section with the PUD plan; that is where the two are brought together; and if there is another section that Mr. Evans can point to where it says someone can submit a PDP under some other scenario, other than a PUD application, he would be happy to hear about it, but does not know of any. Commissioner Carlson stated Attorney Knox indicated by using the annual extensions on the PUD, it breathes the life into the PDP that is being discussed. Attorney Knox noted if one applies for an extension, it basically keeps the PDP active for the period of time he or she gets the extensions. Attorney Knox stated that was not done in this case, so there was no active PDP; Section 62-1152 is the reference to the provision that allows the Board to rezone property on its own initiative; the reapplication applies to either a PUD application submitted with a PDP as a reapplication filed by the applicant, a rezoning to something, or a PUD; and either way, it requires a rezoning.

Mr. Evans stated if the applicant followed Section 62-1449, all he would have to do is write a letter to Mr. Scott requesting a one-year extension; under the present, if the applicant has to reapply, he has to start from scratch through the PDP; staff gets to review it and make sure it complies in every respect with the current Codes; so there is a substantial difference in the two procedures. He inquired what is his client’s property zoned; stated if the PUD becomes inactive, the County has the right to say the zoning is inactive and it is going to rezone it to GU, AU, or something else; there is now a large piece of property that has no zoning; and he does not believe that is the law. He noted a judge might find the land has some zoning of some sort; he would submit that it is PUD; the official zoning map says PUD; and the applicant has that until the Board takes it away because he did not comply with the various provisions of the Code to extend it. Mr. Evans stated the applicant has an inactive PDP and has to start from scratch through the process; it is not an automatic; and if the County says it is not its interpretation, then there is a large tract of land with no zoning.

Commissioner Carlson inquired how long can someone have no zoning on a piece of property and is it legal. Attorney Knox responded Sawgrass went through zoning for a long time; that is what initiated the whole process with Sawgrass; it could not do anything until it came back and applied for whatever it applied for; and the Board awarded a zoning classification.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to support the interpretation of the Zoning Official for termination of Lake Washington Golf and Racquet Club PUD.

Commissioner Pritchard inquired what is the property zoned. Mr. Scott responded there is a provision in the Comprehensive Plan that envisions this occurrence happening; if someone were to attempt to receive a building permit for the property, the County would allow them to enjoy the GU zoning classification; staff would initiate the administrative rezoning to GU; and the County is not allowed to hold a property in never-never land where it does not have zoning. He noted the County has that provision; it happens a lot when a zoning can be nullified by an action of the Comprehensive Plan; there is a residential future land use designation on the property; and the County would administratively allow the person to enjoy the GU zoning classification. Commissioner Pritchard stated Section 62-1449 talks about the three years; the project goes back to 1988; he does not see any way of tying it all together without going through the process again; and he will support the motion.

Commissioner Carlson inquired how long has the property gone without zoning; with Mr. Scott responding it is in the same status it has been since August 12, 1991. Commissioner Carlson noted it has been over 10 years; her question to Attorney Knox was how legal it was to have zero zoning on a piece of property; and he indicated it was until it is picked up either administratively or the applicant comes in to provide the information to the Board.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

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

Commissioner Carlson stated the County may want to have an order put together that lays out its argument and why it denied the appeal for the next meeting.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to authorize preparation of an order that lays out the County’s argument for why it denied the appeal. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct the Planning and Zoning Director, County Attorney, and County Manager to report back to the Board with recommendations for alternative methods to deal with appeal of staff interpretations. Motion carried and ordered unanimously.

APPOINTMENTS OF ADDITIONAL MEMBERS, RE: BUILDING AND CONSTRUCTION
ADVISORY COMMITTEE

Assistant County Manager Peggy Busacca passed out lots to the Board members; stated two lots will have the names of two appointments that staff would ask to be made to the Building and Construction Advisory Committee; and requested the Commissioners return their nominees at a future meeting.

Commissioner Scarborough stated he drew a general public representative.

The Board drew lots to determine who would appoint two additional members to the Building and Construction Advisory Committee, with Commissioners Scarborough and Higgs to bring their appointments back at a subsequent meeting.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING, RE:
AMENDMENT TO TRANSPORTATION ELEMENT OF THE COMPREHENSIVE PLAN

Planner Todd Corwin stated the request is to amend the Comprehensive Plan and grant permission to advertise and include the amendment into the next Plan amendment cycle, which will commence in October 2003 and be adopted in February 2004; the amendment clarifies that the Pineda Extension will be designated as limited access; and there is also language providing for pedestrian access to the portion of the corridor. He noted the amendment came about per the donation Agreement between the County and The Viera Company for right-of-way of the extension.

Gordon Prentice, representing Pineda Presbyterian Church, read a letter as follows: “The purpose of this statement is to ensure that the Legislative Intent includes guaranteed access to the Pineda Causeway Extension from Pineda Presbyterian Church property, namely Lot 758. The site of the new Pineda Presbyterian Church campus faces south, onto the extension from 800 to 1,300 feet west of Wickham Road. There is no egress to the west of the property - that is Windsor Estates housing. Property to the east is up for sale. We spent $5,000 for an engineering survey to design what we thought to be assured access to the Windsor Estates entrance road to the north, but they backed out of the agreement leaving us no way to enter and leave the six acres of the new campus. Without such access, the Pineda Presbyterian Church campus cannot be built nor its six+ acres utilized. We understand that the language of the Legislative Intent (and eventually the Comprehensive Plan) provides for five access points on the extension between Wickham Road and the planned I-95 interchange. There are two full access connections now planned. (Map 2 to today’s agenda report) Since they are plus intersections, I’m told that they count as four separate access points, not two as I intuitively see it. Map 1 on this subject shows one limited access connection just west of Wickham on the south side of the extension. If granted, ours would be the sixth. During the Brevard County Board of County Commissioners meeting of April 17, 2001, Pineda Presbyterian Church’s access problems were acknowledged by no less than four Commissioners. The sense of their comments (please see pages 18 to 21 of that meeting’s minutes) was that all of the affected parties to the Alternative #4 route selection should receive the County’s best effort to ameliorate the adverse impact of the extension. With that in mind, Pastor Calvin Gittner petitioned by letter on November 7, 2002 for that assured access to the Director of Public Works. The Director of Public Works responded in the affirmative on November 22, granting a median cut at the 800’ point. The church has moved forward from that date in good faith expending precious funds toward campus development. We respectfully request that the essence of this communication be incorporated into the language of the final legislative intent document and ultimately the Comprehensive Plan. Sincerely, Gordon R. Prentice for Pineda Presbyterian Church.”

Commissioner Carlson stated it is incumbent on the Board to deal with all of the people that were impacted when the County tried to redefine the Pineda; there is the Church property and the property it is trying to sell on the corner; there is no access to such property; and the County was hoping the Church could work with Windsor Estates, but it has fallen through. She noted she does not know any other avenue to request a full access point onto Windsor Estates; by law, the County has to provide access to the property in question, which is Lot 758; and inquired how to include on the map an additional access point to provide the Church with access to its property if it cannot get it from Windsor Estates. She stated the Church has an access point right now; and requested staff discuss the location of the access point and validity of providing it.

Transportation Engineering Director John Denninghoff stated there are several items of concern associated with providing the driveway at the location; the County does not have ownership of all the property between the Church property and Pineda extension right-of-way; there is a 40-foot strip that is owned by A. Duda and Sons; so the County does not control the ability of the Church to gain access to the Pineda extension. He noted the right-of-way donation Agreement associated with the donation of the Pineda extension right-of-way stipulates that additional driveways require consent on the part of both parties; the County would need to obtain consent of A. Duda and Sons; and the reason for concern about having additional access on the Pineda extension was an effort to maintain as high a capacity as possible on the roadway, while still allowing for access for the Grand Haven Subdivision segments, which were part of the concept when A. Duda and Sons donated the property for the road right-of-way.

Assistant County Manager Peggy Busacca stated the item is permission to advertise for inclusion within the 2003 plan amendment cycle; there are several months of time that staff could try to work it out and modify the map before adoption to show access. Commissioner Carlson stated staff could work with the Church and A. Duda and Sons to see if access could be provided; the location the Church is interested in is the western corner of the property; there is a letter from Henry Minneboo saying it could get it; and the Church based its financial analysis and other dollars for other analysis on the letter. She noted she does not know if the letter was official or not, but Mr. Minneboo did things that way; unfortunately, people have based their financial concerns on those things; whatever directive is required, she would go ahead and move the item as it is permission to advertise; and requested the County work with A. Duda and Sons and the Church about access. She stated Map 1 shows an oval limited access connection, which is due west of Wickham Road and south of Pineda on the corner; and inquired how did the access occur and was it due to a letter from Mr. Minneboo to the commercial developer saying he could have access. Mr. Denninghoff stated he was not involved with it; however, his understanding of it is that a permit was issued and the driveway has been constructed; the owner applied for a permit; and it was granted. Commissioner Carlson noted she does not know if it was part of the easement agreement or not.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve the legislative intent and grant permission to advertise a public hearing to consider amending the Transportation Element of the Comprehensive Plan within the 2003B Plan Amendment package; and direct staff to work with A. Duda and Sons and the Pineda Presbyterian Church to provide an access point for the Church to the proposed Pineda Causeway Extension. Motion carried and ordered unanimously.

Commissioner Higgs inquired depending on the action the Board takes later today in regard to the Palm Bay Parkway, would it be appropriate if the County were to make a limited access road; stated it could be included in the same provision; and inquired could such action be taken this afternoon to be included in the Comprehensive Plan and policies. Mr. Corwin responded all the roadways identified in the particular Policy are already constructed; and if the Board desires, the Palm Bay Parkway could be identified as a future limited access corridor within the Policy.

CONTRACT FOR SALE AND PURCHASE WITH ACTION CAPPA, LLC, IRA PRICE,
MANAGER, RE: PINEDA CAUSEWAY EXTENSION AND REALIGNMENT PROJECT

Commissioner Carlson stated Commissioner Pritchard had a question on the item concerning assessed value of the property; the question was whether it was going to cost the County more to condemn versus paying the amount that Mr. Price was asking for, which has been negotiated; what was explicitly put in the agenda item was that the cost would probably be that or more; and requested Mr. Denninghoff provide background information for the Board.

Transportation Engineering Director John Denninghoff stated the parcel in question is a four-acre parcel, approximately 1.79 acres of which are required for the Pineda Extension; if the Board chooses, it could pursue eminent domain rights over the 1.79 acres; it could not acquire the other 2.24 acres associated with the existing parcel; and the position the seller has taken is that he will not consider selling the 1.79 acres, which is what is needed for the road corridor. He noted the County looked at the entire parcel; in the process of evaluating the cost of taking the parcel through eminent domain, the cost of the procedure process would equal the contract value of the entire parcel; the Board has two options; and it could agree to the contract as proposed, which would leave the County a 2.24-acre parcel after the road is completed. He stated such parcel is currently valued at approximately $440,000; the Board could choose to dispose of it in any manner or use it; if it were to sell the parcel at such value, it would reduce the cost of the contract to about $460,000; and the second option would be to pursue eminent domain and spend approximately $900,000, which is about the value of the contract. Mr. Denninghoff noted the County would only get the 1.79 acres and would not get the remainder parcel; therefore, it could not sell it and recoup the expenses.

Commissioner Carlson inquired how did staff come up with the cost of the eminent domain process. Mr. Denninghoff responded the estimate is developed in consultation with colleagues and associates at Department of Transportation (DOT) and County Attorney’s Office.

Commissioner Higgs inquired how many appraisals were received; with Mr. Denninghoff responding two appraisals and a review appraisal. Commissioner Higgs stated the appraisals were for BU-1 property; and inquired what was the average of the appraisals. Mr. Denninghoff responded $795,000. Commissioner Higgs inquired what was the assessed value on the tax roll; with Mr. Denninghoff responding $104,610. Commissioner Higgs inquired why is there such a difference between what is on the appraisal record and what the County is getting appraisals for; with Mr. Denninghoff responding he is not qualified to answer that as the Property Appraiser’s Office performs the assessments. Mr. Denninghoff stated a lot of the difference in value is recent in development, but not the lion’s share of it; the value of property in the Wickham and Pineda areas has increased dramatically in the last two years; and he does not know if the Property Appraiser has caught up to that at this point. Commissioner Higgs noted the instructions to the appraisers were to do it as a BU-1 parcel in that use; with Mr. Denninghoff responding that is correct. Commissioner Higgs stated there would not be any reason to value it any other way than BU-1 since that is the zoning; with Mr. Denninghoff responding that is correct. Commissioner Carlson noted the cost of condemnation is not written in the agenda item; and inquired can staff write it down so everyone knows that the cost of condemnation is going to cost the County the same amount as the property.

County Attorney Scott Knox stated staff can provide a summary for the Board; and in his estimate for the taking of the right-of-way, the claim may be in excess of the purchase price of the property of $1 million-plus.

Commissioner Carlson inquired how does it get added into the condemnation. Attorney Knox responded it would be the cost that the property owner may ask for to have the right-of-way taken; he would be looking at the value of the property taken plus damages to the remaining property; based on the sales data he saw, there was a sale for $12.00 per square foot; and the appraisers used $4.90 per square foot. He stated in looking at the difference between the two values and applying it to the property taken versus property left over, it comes up with a claim over $1 million; and that is only the value of the claim and does not include attorney’s fees and costs, which go far beyond that amount. Commissioner Carlson noted she came to the conclusion that this is a good investment for the County; not only can it resell the piece of property it is not going to be utilizing, but by holding onto it, it may be able to make above and beyond whatever Mr. Denninghoff estimated before.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to execute Contract for Sale and Purchase with Action Cappa, LLC for a four-acre property fronting the Pineda Causeway, which is needed for the chosen alignment of the Pineda Causeway Extension, at $904,575; and direct the Transportation Engineering Director to provide a written report on the costs for condemnation. Motion carried and ordered; Commissioner Colon voted nay. (See page for Contract for Sale and Purchase.)

PROPOSED ORDER, RE: DENYING HENRY SAUNDERS’ APPEAL

County Attorney Scott Knox stated this is the order he prepared consistent with the Board’s decision; the Board decided to turn down vested rights; the findings of fact and reasons for that are set forth in the order; and the conclusion that was drawn was that the application as originally submitted was containing misstatement of fact upon which the County relied in determining that the property qualified for a building permit.

Henry Saunders stated the lot in question is 75 by 280 feet; all the lots in the Subdivision are 75 feet; the lot was modified to be compatible with all the other lots in the Subdivision by the owners in 1992; Lots 9 and 10 have always been two buildable lots; and such Lots were surveyed and a fence put around them, which separated the two properties. He noted the community has always supported him building a single-family house; such community submitted at least a dozen letters in support; they feel it is the best use of the property as it is consistent with other uses in the area; and the only opposition has been one unnamed person. He stated the findings of fact says a complaint was filed, but that person has never come forward or been identified; overwhelmingly the community supports him; the findings of fact talk about the value of the property; and when he purchased the lot, the assessed value at the time was $92,000. He noted he tried to buy the lot for that, but the owners wanted $100,000 so he paid it; he has been in the real estate business for almost 29 years; he has dealt with the County many times; and he has done everything it has asked him to do. Mr. Saunders stated after the first letter he received from George Ritchie and closed on the property, he had to have a second letter; Mr. Ritchie would not sign the second letter until he met with Mel Scott; he met with Mr. Scott and submitted information; and the next correspondence he received was from Mr. Ritchie saying

Mr. Scott approved the request, so he received the letter that went to the State to allow him to get all his permitting. He noted he did everything he was told to do; he met with Mr. Scott; he received a letter allowing him to receive all his permitting; and he does not know who benefits by denying him his building permit. He reiterated the community supports him; and requested the Board reconsider and allow him to build his house.

Kristen Saunders stated the denial came from an omission or misrepresentation by his parents; and inquired what misrepresentation did her parents make. She noted the first letter to Mr. Ritchie said the property was surveyed and split into two properties; never once did her father claim to have a deed; he put all the information for the County up front and contacted it from the beginning asking what it wanted from him; and her father came up with the deeds, affidavits, and photographs as Section 62-1189 says, “If a person seeks verification of non-conforming use status under this subdivision, the person shall provide the Zoning Director with such deeds, affidavits, photographs, and other available documents as deemed necessary by the Zoning Division Director for his administrative determination of non-conforming use status in compliance with the provisions of the subdivision. Where, upon review of the submitted documents, the Zoning Division Director deems the documents insufficient to administratively approve and verify the non-conforming use status of the subject property or compliance with the provision of the subdivision, the Zoning Director is authorized to schedule a hearing.” Ms. Saunders stated the Zoning Director did not do that; he met with her father before all the permits were done; if there was a problem it should have been brought up then; and she believes her father put forth all the information requested. She inquired where did her parents go wrong and where did they omit or hide information; stated there was never anything that happened like that; as Commissioner Scarborough said at the first meeting, it was a slam dunk case unless there was fraud involved; and requested the Board show the fraud and where her parents made a mistake.

Commissioner Scarborough stated he was mistaken and under the impression that it had to be a fraudulent act; and the County Attorney did research and said it could be a mistake by the applicant. Ms. Saunders inquired what was the mistake. Commissioner Scarborough responded there is a finding of fact; within same, it is the applicant’s opportunity to say where the finding of fact had error; and inquired if the Saunders reviewed it. Ms. Saunders responded yes, and they realized the meeting with Mr. Scott was never mentioned in the finding of fact. Commissioner Scarborough stated it is not what an individual Commissioner thinks or says, it is what the Board adopts as a finding of fact by at least a three-party vote.

Commissioner Carlson stated in the findings of fact it states whatever the misrepresentations were. Commissioner Scarborough noted the findings of fact are what the Board is dealing with today; and it is not receiving evidence. Mr. Saunders inquired are the conclusions the findings of fact; and if they are wrong, should he list each one of them to tell the County where the mistakes are. He noted there are many innuendoes that need to be addressed; it makes it seem like he and his daughter are criminals; they did not create this situation; and that is the conclusion of the findings of fact. Commissioner Scarborough stated the conclusion is the conclusion; there are findings of fact contained; it would be beneficial if Mr. Saunders would go line-by-line on the findings of fact; and the Board could go from the facts to the conclusion.

Commissioner Scarborough stated Mr. Saunders is welcome to come back and address questions the Board may have as a whole; it is fine to talk to individual Commissioners, but the Board needs to decide on the findings of fact; and Mr. Saunders has a right to comment on the findings of fact, but he needs to be specific. Mr. Saunders stated if he goes line by line, all he is doing is clarifying the Board’s position; and it is not going to change its vote. Commissioner Scarborough noted if the Board cannot concur on the findings of fact, then Mr. Saunders wins. Ms. Saunders stated the original packet turned in by the attorney had several pieces of information that did not make it into the findings of fact. Commissioner Scarborough noted Mr. Saunders could ask that things be added. Attorney Knox stated the draft order he prepared was based on what he perceived the Board’s decision to be the last time it met; he goes through the record and picks out the facts that support the Board’s position; there may be other things in there that Mr. Saunders thinks are relevant that support his position that can be made as findings of fact; and that is fine. He noted the problem concerning the issue that happened with Mel Scott is that it is not in the record anywhere, unless someone can point to him somewhere in the volume where the meeting took place and what was discussed; and he cannot put it in the findings of fact if it is not in the record. Ms. Saunders noted if something is included in the package of information that the attorney originally submitted to the Board, then it can be included in the findings of fact; with Attorney Knox responding yes. Attorney Knox stated Mr. Saunders can propose new findings of fact; the Board may decide it agrees and could put those in there; and the conclusions may or may not change, depending on what is decided to be put in the findings of fact. Ms. Saunders inquired who should they submit their side of the findings of fact to; with Attorney Knox responding to him and he will get it to the Board. Commissioner Scarborough noted the information can be put on a floppy disk; the Saunders can underline what is added, strike through what they want stricken, and they can comment below in italics; and the Board will have it all in front of it to review.

Commissioner Higgs stated she does not recall hearing much about the meeting. Mr. Scott responded it was not submitted in the report that Attorney Ken Crooks provided to the Board; and that event is not in the submittal and was not part of the public hearing the Board heard. Chairperson Colon stated the applicant will have to prove that it is.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table the proposed order denying Henry Saunders’ administrative appeal to August 26, 2003. Motion carried and ordered unanimously.

WAIVER OF SECTION 62-102, ACCESS EASEMENT REQUIREMENT, RE: KEITH AND
ROBIN HURLEY

Commissioner Scarborough stated Keith Hurley met with him; and Ed Washburn does not have any problem with the item.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to waive the five-acre minimum requirement for two lots sharing the same access strip under Section 62-102 of the Code, as requested by Keith and Robin Hurley. Motion carried and ordered unanimously.

ACCEPTANCE OF ROAD RIGHT-OF-WAY DEED FROM SCREAMING EAGLE
INVESTMENTS, INC., RE: PORTION OF LAKE DRIVE

Transportation Engineering Director John Denninghoff stated the item is a right-of-way donation agreement with a property owner on Lake Drive in Cocoa; the Lake Drive road is in the property; the County has been trying to construct a sidewalk across the portion of the property; and the owner has agreed to donate the right-of-way in return for construction of a sanitary sewer connection for the parcel to a force main on the property.

Chairperson Colon inquired if there are any problems with the item; with Mr. Denninghoff responding there are no issues that he is aware of.

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to waive the boundary survey, Phase I environmental assessment, and title search; and accept a Road Right-of-way Deed for a 30-foot by 100-foot right-of-way owned by Screaming Eagle Investments, Inc., which is located at 1633 Lake Drive in Cocoa in exchange for the installation of a four-inch force main connection to the existing eight-inch City of Cocoa force main. Motion carried and ordered unanimously.

APPROVAL, RE: COMMUNITY ACTION BOARD EMERGENCY GRANT FUNDING
RECOMMENDATION

County Manager Tom Jenkins stated the only issue outstanding is not so much for the balance of this year, but for next year; these are General Fund dollars; and the County already programmed those to be carried forward in the budget as part of the General Fund cash forward.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve the recommendation of the Community Action Board to provide $41,901 in emergency grant funding to: Child Care Association for $10,000, Coalition for the Hungry and Homeless for $10,000, Community Services Council for $5,000, Project Response for $7,557, Rockledge Youth Football and Cheerleading League for $3,000, and Space Coast Center for Independent Living for $6,344; execute the Contract Amendments; and approve the remaining balance of $12,099 in unspent FY 2002-03 CBO funding be carried forward to FY 2003-2004 for reprogramming. Motion carried and ordered unanimously. (See pages for Contract Amendments.)

STAFF DIRECTION, RE: COORDINATION OF MEDICAID NON-EMERGENCY
TRANSPORTATION

Commissioner Higgs recommended staff go to Coastal Health Systems of Brevard and talk with them; and stated there is an option three to negotiate with Coastal in regard to rates and report back to the Board.

County Manager Tom Jenkins stated he spoke to one of the members of the Coastal Board asking them something similar to that; Coastal is amenable to continuing to provide the service, but it cannot do it if it is going to lose money; the offer Commissioner Scarborough made was that the Board would intervene and assist in trying to solve the problem with Coastal losing money; and if the Board is willing to do that, either through writing letters to the appropriate entities, asking the lobbyist to see if he can assist, or perhaps the County coming up with some money, those are some of the options available.

Commissioner Higgs stated the County can work with Coastal and see what the break even point is; she understands it cannot lose money; the County would have something to take to the State and know where it is; but until it knows exactly what the number is, it is not any place that is useful.

Commissioner Scarborough noted Mr. Liesenfelt advised him there were over 51,000 trips with one complaint; he can remember the County receiving complaints some years back and there were problems; it has the danger of going out to RFP and bringing somebody here who will not only cause a lot of trouble, but will harm people’s well-being and health; and the issue is important. He stated Coastal has done a good job; he does not want it to lose $100,000; and the County needs to get proactive.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct staff to meet with Coastal Health Systems of Brevard to negotiate rates for Medicaid non-emergency transportation and return to the Board. Motion carried and ordered unanimously.

Commissioner Pritchard stated the Medicaid offices in Orlando and Tallahassee have fallen short of their responsibilities of getting back to the County; they do not provide direction or indicate what service model to use for the RFP; and there has been a lack of communication. He noted the Board may want to consider writing a strongly worded letter to the directors telling them that it expects to be part of the process and such offices should respond when the County makes a request; the County operates to the best of its ability to provide a service; to have the overseeing agency as non-responsive is not helping the process; and if there is a problem with various directors, then maybe it is time they went on to something else. Commissioner Carlson stated perhaps the County can get a certified request for something to get a response back. Commissioner Higgs noted once the County knows what the dollar figure is then it should go to the Legislative Delegation and lobbyist to do whatever they can.

PROPOSED REVISION TO CITY OF TITUSVILLE ORDINANCE, RE: AMENDING
AIRPORT ZONING REGULATIONS

Parks and Recreation Director Chuck Nelson stated the City has forwarded information from the Airport Authority, which objects to the changes agreed to between the County and the City; approval of the conditions is one thing; if the City is going to consider the changes and go back to the original Ordinance, there needs to be request for continuation of the hearing for the attorneys to discuss the issues; and the second public hearing will be held tonight.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve staff’s recommended changes to the City of Titusville’s proposed revisions to the Airport Ordinance referencing the Enchanted Forest Sanctuary; and authorize the County Manager to send a letter to the Titusville City Council detailing the County’s recommended changes, and requesting if the Council does not accept the changes, the matter be tabled to allow time to work it out. Motion carried and ordered unanimously.

Commissioner Pritchard stated this is an overt attempt by the TiCo Airport Authority to use the City to once again run a heavy-handed operation; this deals with the tree-cutting part of the Enchanted Forest, which is something that was brought upon by the Authority because it extended the runway, thereby affecting the 34:1 and 20:1 glide ratio; it has created its own problem; and now it is looking for ways to address this problem. He noted the Geiger beacon is a non-directional beacon for non-precision approaches; it is used in the same fashion as an Omni, which is a radio beacon for location; anyone who is doing an instrument approach would come in from the south and do an ILS approach; and one of the reasons the Geiger non-directional beacon is out of service is to keep the community’s feet to the fire to keep the trees trimmed. He stated this is why he brought up the issue about TiCo Airport Authority and the way it is conducting business; he supports the motion; this is not the way the Authority should operate; and the City is being brought into something that it may not know what the real intention is. He noted there is a lot of information that needs to be addressed regarding the beacon, trees, glide slope, and runways at TiCo Airport; and it needs to be done by the next Legislative session.

Commissioner Carlson stated there was mention about an EIS before the runway was done; and inquired is there any violation that has occurred. County Attorney Scott Knox responded he is not in a position to say yes or no as he has not looked at the documents; but there are people who have attended meetings who have asserted it was not properly done; so he does not know if it is true or not. Commissioner Carlson requested staff provide a report to the Board on the issue.

APPROVAL, RE: FY 2003-04 BUDGET FOR BAREFOOT BAY WATER AND SEWER
DISTRICT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to recess as the Board of County Commissioners and convene as the Governing Board of the Barefoot Bay Water and Sewer District. Motion carried and ordered unanimously.

Water Resources Director Richard Martens stated the Governing Body of the Barefoot Bay Water and Sewer District needs to meet and approve a budget to forward to the Board; the budget then will be heard as part of the normal public hearing process for the County’s budget; this year, the total budget for the District is $4,787,013; and it is a balanced budget and includes no increase in water and sewer rates for the Barefoot Bay community.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution approving the proposed budget for FY 2003-04 for the Barefoot Bay Water and Sewer District; and authorize its inclusion within the FY 2003-04 County budget. Motion carried and ordered unanimously. (See page for Resolution No. 03-001.)

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adjourn as the Barefoot Bay Water and Sewer District, and reconvene as the Board of County Commissioners. Motion carried and ordered unanimously.

PERMISSION TO SEND LETTERS TO CONGRESSIONAL DELEGATION AND
CONFERENCE COMMITTEE MEMBERS, RE: MID REACH BEACH FUNDING

Virginia Barker, Environmental Management, stated yesterday afternoon she received an e-mail from the Port’s D.C. consultant advising that the letters are the right thing to do, and requesting in addition to asking for the funding, to specify that language be added to the conference report bill that says exactly what the funding is for so the Corps of Engineers knows it is supposed to spend it on the Mid-Reach project. She noted the phrase has been added to the letters.

Office of Natural Resources Management Director Conrad White requested the Board authorize a representative to meet with the Senators to insure that the funding goes forward; and stated the Senators will be in Florida during August 2003.

Commissioner Carlson stated she and Commissioner Colon are the representatives of the Mid-Reach on the Board side; and she will be happy to work with Commissioner Colon to represent the Board’s stance.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to authorize sending letters to the Congressional Delegation and key Conference Committee members supporting federal appropriations for the Mid Reach General Re-evaluation Report; and authorize Chairperson Colon and Commissioner Carlson to meet with the Senators or their staffs during the August recess. Motion carried and ordered unanimously.

APPLICATION AND ACCEPTANCE OF AWARD, REAPPOINTMENT OF ADVISORY
BOARD, AND AUTHORIZE EXECUTION OF AGREEMENTS, RE: LOCAL LAW
ENFORCEMENT BLOCK GRANT

County Manager Tom Jenkins stated one of the items requires a transfer from the General Fund Contingency of $9,342. Chairperson Colon inquired is it a problem; with Mr. Jenkins responding it is a Board decision.

Commissioner Higgs inquired is it for this year or next year; with Sergeant Wayne Butler, representing the Sheriff’s Office responding this year. Commissioner Higgs inquired is the funding needed by October 1, 2003; with Sergeant Butler responding affirmatively.

Mr. Jenkins inquired when will the funding be spent; with Sergeant Butler responding to get radios in for the project it may be after October 1, 2003 but the commitment from the Board needs to go in for the application. Commissioner Pritchard inquired how many radios; with Sergeant Butler responding 25 hand-held radios. Sergeant Butler advised it is a 10% match for 90% grant funding for the County’s portion of the award. Commissioner Pritchard stated he wants to have a sign that says the ATM is closed; the discussion has taken place this year, so it is not anything that could have been added with this year’s budget; this is what the County wants to avoid happening next year; and $9,000 is a great value for a $90,000 package, but he has a problem with the continuous coming back for funding. He noted regardless of the rate of return, it reaches a point where the County is taking money from some place to fund something else; and cautioned that next year, it is going to fall on some deaf ears. Sergeant Butler stated Commissioner Pritchard’s point is well taken; and the Sheriff advised the Board that it is his Office’s obligation to bring these opportunities before it. Commissioner Pritchard noted that is true, but it is also the Sheriff’s obligation to present a budget that is going to get him through the next year; that is what he wants to see; the Sheriff presents a budget at $55 million; but by the time it is done, it is $55 million plus. He stated he understands the obligation to bring the issues forward; but it is also the Sheriff’s obligation to do it right the first time.

Commissioner Higgs inquired would the $9,000 the Sheriff wants to purchase radios be available as a match and be eligible under the MSTU, and since the Sheriff seems to have an excess, can it come from his budget; and stated the Board could authorize taking the funds out of the MSTU instead of the General Fund. Mr. Jenkins advised the Sheriff has the funds available in the MSTU from this year.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve application, acceptance, and utilization of the Brevard County Award of the 2003 Local Law Enforcement Block Grant from the Bureau of Justice Assistance, Department of Justice; extend the authority of the LLEBG Advisory Board as established in Resolution No. 97-208, and reappoint the existing members or their designees through September 2004; authorize the County Manager or his designee to execute all agreements pertaining to the grant; and direct that the match for the grant come from MSTU funds. Motion carried and ordered unanimously.

APPROVAL, RE: FLORIDA ASSOCIATION OF COUNTIES 2003 LEGISLATIVE ISSUES
SURVEY

County Manager Tom Jenkins stated staff drafted responses for the Board’s review before they are sent to the Florida Association of Counties (FAC).

Commissioner Pritchard stated he has gone through the responses; he does not have a problem with them; but when they were photocopied, they came through hard to read.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to approve the FAC 2004 Legislative Issues Survey inputs. Motion carried and ordered unanimously.

REQUEST FROM CITY OF PALM BAY, RE: JOINT MEETING

County Manager Tom Jenkins stated he received an e-mail late yesterday afternoon from the City Manager of the City of Palm Bay regarding a possible agenda for the joint meeting; the City wants to talk about the Palm Bay Parkway, the one-cent sales tax, annexation, and growth in South Brevard.

Commissioner Higgs noted she wants the meeting to be productive; and it would be helpful if Mr. Jenkins and the City Manager could develop structured issues for the joint workshop. Mr. Jenkins stated he will provide such issues to the Board for its review.

The meeting recessed at 11:55 a.m. and reconvened at 1:03 p.m.

REQUEST OF TOM STRATTON, RE: SPEED HUMP REMOVAL ON PENNSYLVANIA
STREET

Tom Stratton, representing the Speed Hump Action Committee, stated the Committee is not contesting that speed humps slow traffic; the five Pennsylvania Street speed humps are constructed according to established traffic engineering specifications; and the residents of the neighborhood have an alternative route to ingress and egress the neighborhood and can avoid traversing Pennsylvania Street via Brandywine Lane, an increased distance of .57 miles one way. He noted the primary basis for request for removal is that the installation of the Pennsylvania Street humps occurred in direct contradiction to normal policies and procedures of speed hump installation as practiced by Traffic Engineering; in May 2001, a speed hump installation packet was sent to Mr. Santiago of Pennsylvania Street; the survey area of affected residents, as prescribed by Traffic Engineering, included 120 resident households, which meant that a minimum of 90 signatures was required to meet minimum requirements; and the affected area is outlined with a blue boundary. Mr. Stratton stated only 38 signatures favoring installation were obtained, which is 32%; the file was closed and the matter did not come before the Board; in April 2002, a second packet was mailed to Mr. Santiago by Traffic Engineering; and this time, the survey area was reduced to include only the 35 homeowners on Pennsylvania Street, between Brandywine Lane and Chicago Avenue. He noted the reduction in the survey area of affected households was 88 households excluded on adjacent streets that were previously deemed to be affected households in the May 2001 packet; the affected area in the second survey is outlined in a red boundary; during the time between the mailing of the two packets, there was no significant increase in residents in the area or a change in established traffic patterns; and with only the 35 households in the new survey area, the 75% approval was easily reached. He stated the necessary speed criteria of 60% of peak hour motorists exceeding the posted speed limit by at least 10 miles per hour was not met; but with four of the five requirements met, installation occurred; and read a March 6, 2003 interoffice memorandum between Robert Zaitooni of Traffic Engineering and Robert Medina, Aide to District 5, as follows: “Due to the rural characteristics of roadway volume, low volume, and tangent roadways, the traffic conditions on Pennsylvania Street are typical of many roadways with similar characteristics.” Mr. Stratton noted something did occur that was not typical; the modification of the survey area is, to the best of the Committee’s knowledge, totally unprecedented; the Committee reviewed the files in Traffic Engineering going back to the year 2000; there were 28 installations; and of those, 11 were similar in nature to Pennsylvania Street. He stated of the 11, the survey area was designated to include those not living on the installation street, but having to use it for access and egress to their homes. He noted Traffic Engineering has not contested that the modified survey area is dissimilar in nature to previous installations; most of the neighborhood did not know about the installation until the County trucks arrived to paint the signs on the road; at a subsequent community gathering, a great many protestations to the humps were voiced; and before any attempt to take action, the Committee decided to survey the neighborhood to determine how many households were in favor of keeping the speed humps versus removing them. Mr. Stratton stated 71% of the respondents were in favor of removal; the Committee wondered how installation could have occurred when a vast majority of the affected households were opposed to it; and after many phone calls and questions, it finally learned about the original petition attempt and the unprecedented modification of the survey area.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant an additional two minutes for Mr. Stratton to complete his comments. Motion carried and ordered unanimously.

Mr. Stratton stated when the Committee confronted Traffic Engineering as to why the deviation from established policies and procedures, the answer was it was reacting to pressure from some of the residents on Pennsylvania Street; examination of Traffic Engineering files pertaining to the installation denotes no record of any calls nor any citizen action request; staff says they can recall 10 to 12 phone calls; and the reaction by Traffic Engineering to this pressure resulted in a gerrymandered survey result and subsequent disenfranchisement of the affected residents. He noted the points for removal include that normal policies and procedures for establishing the survey area were not followed in the installation; speed humps have served to divert up to 465 vehicles to the bypass route each day, exposing all of the children at school bus stops; emergency response times have been reduced; and residents are paying a tax on time and expense to avoid the speed humps or vehicular depreciation when going over them. He stated the residents have learned of the rule bending to favor a few at the expense and exclusion of the majority; and the need to have their faith in fair and equitable administration of government needs to be restored.

Jon England stated he lives one block east of Pennsylvania Street; he opposes the speed humps due to what they do to emergency response times; increased response time is a big problem in any emergency; and time, more than anything else, is what makes the difference between life and death in a medical emergency. He noted he can walk out his front door and see the homes of three cardiac patients, which includes his own home; it is an unacceptable problem; there is not any need for it; and before the speed humps, Pennsylvania Street was no different from most streets. He stated there was an occasional speeder, which is normal; the County’s traffic survey proved there was no speeding problem; one cannot even make a general claim that the humps improve public safety; and the people who like to speed still live out there and did not move, they just use different streets. Mr. England noted his second concern is what the humps are doing to his bank account; he brought a strut with him, which is what is used on cars today; they cost about $200 a wheel installed, which is $800 for a typical car; and he cannot afford to do that very often. He stated he could drive around the speed humps, but that does not help; the added miles for a family of four would cost about $1,000 a year; it is a big transportation tax; and the people are stuck with it and did not get to vote on it. He noted the people did not even get to see the Board vote on it; the first hearing was not really a public hearing in his opinion as only 39 houses in a carefully selected area knew anything about it; as an absolute minimum, another 81 households should have been involved; they should have been involved in the survey and hearing; but they did not know about it. Mr. England stated the first sign they had was when the County truck showed up with paint and a stencil that said “hump”; the residents were told nothing could be done; the Board may have been misled in the first hearing; and this time it has a chance to see all the facts before deciding. He noted there is nothing wrong with the procedure as it is a good one; the residents urges the Board to follow it; but it needs to use it the way it has normally been used in all the other cases; and the speed humps should not have been installed in the first place as they are nothing but a big bundle of problems to the vast majority of people involved and they all should be removed. He stated the petition submitted to the Board was posted on a public bulletin board; there were signs all over the neighborhood saying the petition was on such board; everything has been done wide open; and there are signs in the neighborhood about today’s meeting. Mr. England requested the Board think about that and compare it to the way the first hearing was done where the residents were not notified.

Dennis Rape expressed concern with emergency response time and the nature of why the residents were not allowed to participate in the original survey; stated installation of the speed humps has jeopardized his family and other residents; it takes 52 seconds longer to get back to his area of the neighborhood; and time is an important issue for all emergency vehicles. He noted there is a gas plant at the other end of Ranch Road; he finds it an amazing fact that the County would try to impede emergency vehicles in getting to such plant; speed humps have created an unnecessary delay that puts residents at a much higher and unnecessary risk of danger in response for emergency vehicles; and it needs to be considered. He inquired if the County does not remove the speed humps, what can it do to help the residents regarding emergency vehicles in the neighborhood; and why did the residents not have a part in the survey concerning the speed hump installation. Mr. Rape noted normal procedure was not followed; government should represent all the residents and people in the community; and requested the Board remove the speed humps for emergency vehicle purposes. He stated if the speed humps are not removed, he would request the Board give the residents fair right to be a part of the participation process to survey all affected residents in the community.

Barbara Hiser stated she agrees with everything Mr. Stratton has presented; speeding is an issue; despite the fact that she lives on a dead end street, she has lost two beloved pets to car-related deaths; and she does not know if the cars were speeding, but she must bear that responsibility because her pets had left her yard and the speed humps would not have changed that. She noted as a registered nurse, another concern she has is response time by emergency vehicles; since Brandywine is the main route off of U.S. 192, then two feeder roads into the community itself, emergency vehicles have documented slower response time because of no other alternate routes; her major concern is the precedent that has been set by placement of speed humps with no regard to the established criteria; as a single issue voter in the County, she had no opportunity to have input into the speed humps. She stated she expects elected officials to abide by established criteria and remove the speed humps; and speeding should be addressed by other means.

Floyd Rogers stated the situation that has been created by the process in the neighborhood has split neighbors against neighbors; there are a lot of bad feelings; the rules were changed, revamped, gerrymandered, and some simply ignored; and if the situation created by a County staff member, a staff member of District 5 Commissioner’s Office, and a citizen of the community is a trend of the future, it needs to be halted now. He noted he has had numerous phone calls and meetings with his Commissioner’s Office on the subject; the true facts were never revealed to him; it saddens him because it destroyed his faith and trust in his representative; so his personal recommendation to correct this trend is that the County Manager should dismiss Mr. Thompson from Traffic Engineering and Commissioner Colon should dismiss Mr. Medina for his part in this. He stated the speed humps should be removed and back-charged to District 5’s budget for the total cost; his Commissioner will have to discipline herself if she knowingly condoned these acts and this mischief that took place; and if the discipline is not taken by his Commissioner, the voters will probably do the discipline next year. Mr. Rogers noted the information is needed in the records for any future actions if and when an attorney is required in this matter.

Judy England stated there are elderly people in the neighborhood who could not attend the meeting today due to medical doctor appointments; and submitted letters from residents unable to attend the meeting to the Board, but not the Clerk. She noted Liz Hemingway has had increased traffic in front of her home; Brandywine Lane has a blind curve; it is a real hazard; and she opposes the speed humps. She stated the community is unique; she and her husband did not pick to live on Pennsylvania Street because they knew it was one of the two through streets that came into the neighborhood; they lived on Brandywine Lane, which was then called Arizona Street; and they did not want to live on Brandywine Lane due to the hazards that are evident. She noted they chose an interior lot on a dead-end street where they knew they would not have the problems; there are two entrances and exits; the response time for emergency vehicles is vital to the citizens; and she had two heart attacks in December 2002. Ms. England stated when she wants an ambulance at her house she wants it and does not have time to wait for it to go across speed humps; the residents were excluded and did not get to participate in the survey, which seems bizarre; however, she hopes today there has been some light shed on the fact that there were some residents who were affected that were not considered. She noted she called Chairperson Colon’s Office after the speed humps were put in and expressed her concerns; and she basically felt she did not count and the only ones who counted were the 35 people.

Paula Stratton stated she would not be here today if there had not been an overwhelming opposition to the speed humps in the neighborhood survey; it was hard to make the decision to begin the process knowing how it could affect the climate in the neighborhood; Traffic Engineering, by deviating from its normal practices and procedures, has created a rift in the neighborhood that could be unrepairable; and it is sad. She noted there are many arguments for the removal of speed humps; they delay emergency response time, they cause vehicle damage, they cause increased vehicle emissions and noise, they can harm people with disabilities, they affect property values, they increase the County’s exposure to liability lawsuits, and they do not take the place of sidewalks or parks; in this case, traffic has merely been diverted; and by installing humps on Pennsylvania Street, traffic has been diverted down Brandywine Lane and Chicago Avenue, increasing the number of vehicles traveling that route by as many as 465 cars per day. Ms. Stratton inquired is it fair to do this without offering the people who live on those streets some voice; the decision to reduce the survey area was made with the knowledge that the petitioners were unable to get the signatures of 82 residents in the original survey area; in a letter from Traffic Engineering to Commissioner’s Aide of District 5, Traffic Engineering, referring to the speed study of February 27, 2002, states that the average speed was 31 miles per hour and that the results are typical of roadways with similar characteristics; and the letter was sent out weeks before Traffic Engineering made the decision to reduce the survey area. She stated during the original vote taken by the Board on July 23, 2002 there as no mention of the original survey area either during the meeting or included in the materials given to the Board prior to the meeting; no opposition was present at the meeting because no one knew; the Board has received many e-mails and documents describing the concerns with speed hump installations; and the central issue is that there is an established procedure for installing speed humps, but it was not followed. Ms. Stratton requested the Board vote to remove all of the speed humps on Pennsylvania Street.

Gary Porter stated the distance along Pennsylvania Street is .5 mile; Brandywine Lane and Chicago Avenue are one mile; there are options for residents not living on Pennsylvania Street to go between those two points; they can drive the speed limit; and it takes 70 seconds with an average speed of 25 miles per hour. He noted he drove down the same street, slowing at each speed hump at 15 miles per hour, which took him 80 seconds; avoiding the speed humps all together, it takes 132 seconds; he measured these with a stopwatch yesterday; and the residents could request that Ranch Road be extended over the ditch, cutting off Ranch Road from access to Brandywine Lane. He stated he has a picture of the culverts under Pennsylvania Street and another picture where a section of Ranch Road is blocked off; the residents who are complaining about emergency response are not asking the Board to extend Ranch Road across the ditch because they are less concerned about emergency response than they are about not having the traffic nightmare that exists on Pennsylvania Street; they have the option of requesting that Ohio and Michigan Streets be continued over; and there are seven options available. Mr. Porter noted there are no options for the residents on Pennsylvania Street; before the humps were installed on such Street, cars drove at 55 m.p.h.; joggers were forced off of the road, pedestrians were struck by cars, and family pets were killed; and on Brandywine Lane at the corner of Pennsylvania Street, one person was killed recently. He stated after the humps, there is a peaceful neighborhood street everyone would expect to have; however, some of the residents have been harassed and threatened because of the humps; he is saddened that he has to appear before the Board and argue with his neighbors about something as benign as humps on Pennsylvania Street; and he finds it unbelievable. He noted the opponents of the humps are not addressing the facts, they are whining unfair and unjust in an attempt to bully the Board into removing the humps; and this is deceitful, and he hopes the Board does not fall for it. Mr. Porter stated the opponents want the residents of Pennsylvania Street to live in the constant nightmare of speeding traffic all for the sake of 10 seconds; and it is selfish and wicked.

Karl Meyer stated he has walked his neighborhood of Brandywine Lane since 1984; he has been forced off of the road on Pennsylvania Street quite often prior to installation of the speed humps; if the opponents are complaining about going the posted speed limit, it is benign and they are shooting themselves in the foot; and they are supposed to be going the speed limit. He inquired if the speed humps make someone go 25 miles per hour on the average on Pennsylvania Street, what is the problem; stated as far as options, the canals could be cut; everybody would have to go out their own street and it could be their own problem; and Chicago Street has become a real problem with speeders. He stated Traffic Engineering needs to review the total speed limit package in the area as it is ancient and needs to be revamped; he would be in favor of additional speed humps, including on Chicago Street and Brandywine Lane; and as far as damage to cars from speed humps, that is a real stretch. Mr. Meyer requested the Board keep the speed humps.

Carmen Santiago stated she supports retaining the speed humps on Pennsylvania Street; she supports the findings and recommendations of staff; and the Board’s vote was correct and the speed humps should be retained. She noted the opponents of the speed humps state that two of the five essential criteria in the approval process were not met, but four of the five criteria were met and the fifth criteria was waived in accordance with acceptable procedure; Pennsylvania Street is located in the National Police Foundation West, which was created when I-95 bisected the area, causing an artificially constrained road system, making Brandywine Lane the only outlet; over time, area growth has resulted in a significant traffic increase, which exacerbated the traffic problem; from 1990 to 2003 alone, the west side households have grown by about 24% from 191 to 236 houses; and the road network has remained the same, channeling more and more vehicles into the constrained road system. Ms. Santiago stated Pennsylvania Street, the north section with the speed humps, is about ½ mile long and perfectly straight, just like a drag strip; it has narrow irregular shoulders, deep ditches, no sidewalks, and no pavement lines or edging markings; at its midpoint is a narrow canal bridge with side rails; and the street was obviously not constructed or intended to be a primary access route; but as the area filled with houses and the canal bridges were not completed on the other streets, most of the traffic flowed to the west to access Brandywine Lane via Pennsylvania Street rather than east via Chicago Street. She noted all other roads are dead end; all residents, including those who live on Pennsylvania Street, have the right to expect their residential street will be reasonably safe related to vehicle traffic, so they can pursue normal family and neighborhood activities; for many years that was not the case on her street; and she has lost count of the significant speeders going over 40 miles per hour. Ms. Santiago stated she has been tailgated and passed on the street while driving the posted limit of 25 miles per hour; she has seen motorcycles doing wheelies and a lot of tire marks evidencing rubber laid down by two and four-wheel vehicles; she sadly attended the funeral of a Pennsylvania Street resident who was killed by a hit-and-run driver; and the speed humps are the only thing that has ever calmed traffic and allowed Pennsylvania Street residents to pursue normal activities, such as walking and riding bicycles on or near the Street. She noted according to a traffic study prior to the speed humps, the 85th percentile speed on the Street was 38 miles per hour; now it averages about 27 miles per hour; now there is less traffic on the Street, but she does not think that actually reflects the use of the alternate route to Brandywine Lane by up to 465 vehicles, as much as the difference between the two studies; and the previous study was done in late February 2002, a time of normal work and school schedules. She stated the after was done in mid July 2003, a time when school was out and several of the neighbors and others were on vacation, so she cannot equate the reduction on one street to an increase on the other; but the important thing is that there are significantly fewer speeders on the Street; as for the two criteria questioned by the speed hump opponents, Criteria 5 requires signatures by 75% of the affected property owners; and the only ones significantly affected in the sense intended by the criteria are those who have no alternate route, the Pennsylvania Street north households. Ms. Santiago noted all of them were presented with the speed hump petition and five speed hump plan, which was carried door to door; Traffic Engineering verified that 97% supported it; none opposed it; after the speed humps were installed, those same residents expressed their approval again; and over 75% of the households wrote to Commissioner Colon thanking her. She stated all drivers continue to have free access and are welcome to use Pennsylvania Street; the speed humps do not damage road-worthy vehicles’ equipment going the speed limit; emergency vehicles have been seen using the Street at their normal speeds; and it is significant that four Brandywine Lane residents who live at the curve are in favor of the speed humps on the petition. She noted residents of Ranch Road, Pennsylvania Street south, Ohio, and Michigan Streets have also signed the petition or sent e-mails supporting the speed humps.

Ann Wren stated she supports retaining the speed humps on Pennsylvania Street; she supports the findings and recommendations of staff; she does not like speed humps personally as they are inconvenient; however, they have been proven to calm traffic on Pennsylvania Street when nothing else did. She noted such Street is more narrow than Brandywine Lane; drivers try to use the grass swale, but what makes it more dangerous is the speed; the speed humps have made the street safer for those who must live there; and the only people who must drive over such humps overwhelmingly petitioned for the speed humps and have continued to support them since. She stated drivers who do not want to drive over the speed humps have an alternative route that is available if they choose to take it; there have been many speed-related accidents and more near misses on the street and in the area; the impact of the non-use of speed humps or speed control devices has been felt in her family; and advised of a neighbor who was killed by a driver on her street. Ms. Wren stated hopefully with the speed humps on Pennsylvania Street, they can continue to prevent any future tragic events of this kind from occurring; and requested the Board stand by its original decision and keep the speed humps.

Rusty Wren stated he lives on Pennsylvania Street; his property is on the corner of Brandywine Lane and Pennsylvania Street; he works for BellSouth Telephone Company and his work schedule is random, which allows him to be home and observe the behavior on his Street at various times during the week and not only on weekends; and some of the conclusions he has heard this morning disturb him because people are basing their conclusions and opinions on things they have not seen. He noted he was home when their neighbor, Mrs. Sumner died; he saw her unconscious, not able to fight for her own life; and the speed humps have made an absolute difference. He stated he has eyewitnessed several times a night people going down Pennsylvania Street at 60, 70, and 80 miles per hour; he has witnessed people driving on Brandywine Lane going faster than cars on I-95; the issue is not about whether procedures were not followed, it is about safety, speeders, and what can be done to control the situation; and the County should not let danger reign instead of safety because a procedure was not followed. Mr. Wren noted for those who say their safety and emergency vehicles are an issue, it has been documented and verified that there are only 10 seconds difference if one does the speed limit with or without the speed humps; emergency vehicles are not going to do the speed limit and are going to go faster over the speed humps; for those who are in favor of removing the speed humps, no alternative solution has been offered and no suggestion has been made to establish a fire house at the end of West Melbourne where the community is going to be established; and no reasonable solution has been offered to solve the problem for those who live on Pennsylvania Street. He stated the residents of Pennsylvania Street are the only ones who have suffered and witnessed a fatality; the real issue is speeders, safety, and getting drivers to slow down; the speeders are of all ages; and if the County takes out the speed humps, it will be just as dangerous or probably worse because a statement will be made that the speeders win and those who want safety do not.

Wendy Rimmer stated she supports retaining the speed humps on Pennsylvania Street and the findings and recommendations of County staff; and read a letter sent to Commissioner Colon by a resident of Pennsylvania Street, who was supportive of the speed humps but could not be present today as she was killed by a hit-and-run driver on Brandywine Lane on October 29, 2002. “August 21, 2002. Dear Commissioner Colon. I would like to thank you for approving the speed humps for our street, Pennsylvania Street, between Brandywine Lane and Chicago Avenue. We have needed them for a long time. The many speeders on the streets have apparently had no concern for safety and have ignored all other attempts to make them slow down. Although the speed humps are inconvenient for us all, we believe that safety for ourselves and children is more important. We, the only ones who must drive on this street, petitioned for the speed humps and are satisfied. All others can take another street if they wish. We have lived at this address for 30 years and have observed very few people observe the 25 m.p.h. speed limit on Pennsylvania Street. We are very happy to have the speed humps installed. My husband is disabled and has poor vision. His doctors recommend walking for his health and he feels very much safer with the speed humps installed, resulting in much slower traffic. Thank you. Marie and Wayne Sumner, 2725 Pennsylvania Street.” Ms. Rimmer stated the following are the excerpts from a letter from the new owners of the Sumner’s home. “Dear Brevard County Commission. I am a new homeowner who lives on Pennsylvania Street. Our home was purchased because the previous homeowner’s wife was unfortunately killed by a speeder in this immediate area. Now she’s gone. He was forced to move into an assisted living facility and sell the lifelong dream home of 32 years. She was his only caregiver. Denise Brocker, 2725 Pennsylvania Street.” Ms. Rimmer noted speed kills and requested the Board keep the speed humps.

Brian Rimmer stated he supports retaining the speed humps on Pennsylvania Street; he supports the findings and recommendations of County staff; and read an e-mail sent to Commissioner Colon by a resident of Pennsylvania Street, who is disabled and could not attend the meeting today: “Dear Commissioner Colon. My family has lived at 2695 Pennsylvania Street since 1984, 19 years. In that time, a number of new homes have been built in our area with the attendant traffic that results. Pennsylvania Street is one of two streets that is used to enter the Subdivision. Unfortunately, it has also become a street on which many people ignore the posted speed limit. As we have no sidewalks, it has become a dangerous place to walk next to or across. I am handicapped and have almost been hit in my wheelchair just going to the mailbox. Less than a year ago, our next door neighbor was killed while walking along the side of the road near the corner of Brandywine Lane and Pennsylvania Street. I would strongly request that you vote to leave the speed humps on Pennsylvania Street. They do not create a problem to those who live on the Street and if they are removed, more lives may be lost. There are many children and others that need to be protected from people who get in a hurry and speed through the neighborhood. The speed humps help to remind us all to slow down. I understand that you were kind enough to visit our area and witness several of the speeders on Pennsylvania Street. We appreciate your support and hope you will continue to support the decision to leave the speed humps on Pennsylvania Street where they are. Sincerely, Troy J. Harvill, 2695 Pennsylvania Street.” Mr. Rimmer stated Mr. Harvill is much more concerned about the real danger posed by speeders than theoretical problems caused by speed humps; and requested the Board keep the speed humps.

Maureen Eakin stated she supports the speed humps; the survey conducted by Traffic Engineering Department is accurate; and she supports the recommendations of County staff. She noted many times she has witnessed cars traveling at excessive rates of speed while she watched her small grandson in the front yard; the neighborhood is residential with a posted speed limit of 25 m.p.h.; without the speed humps in place, it is a dangerous street on which to live and raise a family; and read a letter from Peggy Hemming of 2785 Pennsylvania Street, as follows: “Dear Commissioners. I am very concerned about the efforts to remove the speed humps on Pennsylvania Street. These humps were installed after Brevard County Traffic Engineering Department determined that there was a speeding problem on our street. The average speed before the installation was 38 m.p.h. A study done after the installation shows that the average speed is now 28 m.p.h. The posted speed is 25 m.p.h. Obviously, the speed humps are doing what they are designed to do, slow traffic. The additional time that these speed humps take is 17 seconds. My family has witnessed first hand the tragic affects of speeders on Pennsylvania Street. Our dog was killed in front of my daughter, who was standing at our mailbox. The impact was so great that the dog was thrown almost 90 feet along the front of our property. I shudder to think about the consequences had it been my daughter who stepped onto the street just at that moment. If you remove these speed humps you will be allowing these speeders to again break the law and endanger us every time they get behind the wheel. Please consider our safety before 17 seconds of driving inconvenience. Sincerely, Peggy Hemming.” Ms. Eakin requested the Board look at the factual data submitted by Traffic Engineering Department; stated she supports the findings of staff; and requested the Board keep the speed humps.

Lisa Zelnik expressed appreciation to the Board for its original decision to install the speed humps; stated the findings of County staff are correct; and the speed humps are necessary to insure the safety of residents on Pennsylvania Street. She noted she and her husband purchased their home in the year 2000; at the time she knew the posted speed limit was 25 m.p.h. and felt it was a reasonable speed for a residential street; she did not realize that the speed limit was consistently ignored; and she walks with her four-year old son and dog almost every morning on Pennsylvania Street. She stated there are no sidewalks and there are deep drainage ditches that border both sides of the Street; they walk along the edge of the Street, facing the traffic; before the speed humps were installed, cars frequently passed them well in excessive of the 25 m.p.h. posted legal speed limit; and sometimes the cars passed them so closely that they were forced off of the edge of the Street and onto the verge of the ditches. Ms. Zelnik noted she has witnessed slower moving cars being passed by others on several occasions; she saw a car in one of the ditches where the driver had lost control and gone off the road; she has been told that there have been two other cars in the same ditch; and she has seen mailboxes and garbage cans hit by drivers who have had little control over their vehicles. She stated studies done by Traffic Engineering Department support what she has witnessed; prior to installation of the speed humps, the Department found the average speed of vehicles was 38 m.p.h., which is 13 m.p.h. faster than the legally posted limit; since installation of the speed humps, there is an apparent speed reduction of 10 to 14 m.p.h.; and documentation by the Department also shows that the installation of the speed humps adds a mere 17 seconds extra travel time to the posted limit of 25 m.p.h. Ms. Zelnik noted the citizens’ safety is worth 17 seconds; for Ranch Road drivers choosing to avoid the speed humps and use Brandywine Lane, the maximum extra drive time is 52 seconds; the increased travel time for residents of Ohio and Michigan Streets is less; and the safety concerns outweigh the inconvenience of the maximum 52 second and the less than a minute drive is a choice that the drivers make. She stated the drivers can drive over the speed humps, as the residents do daily with no damage, at an appropriate speed; now that the speed humps are in place, the majority of vehicles drive at a more moderate rate, although there are still those who attempt to go halfway around each speed hump; while the speed humps are not an ideal solution, they are the only solution that has slowed the traffic to the posted speed of 25 m.p.h., which Traffic Engineering Department believes is a reasonable speed, given the condition and rural character of the Street; and the Department clearly states that Pennsylvania Street is significantly less safe at travel speeds of 30 m.p.h. or greater. Ms. Zelnik stated those who wish to remove the speed humps discussed pedestrian safety education and pedestrian walkways are a solution to the problem; nowhere do they address the primary issue of aggressive driving; Pennsylvania Street is the same density of housing, same lot size, and same setbacks from the Street as other streets; yet Pennsylvania Street is used as a highway by the drivers, racing to get to their own dead-end streets; and Pennsylvania Street is a residential street, not a major artery. She noted the speed humps serve as a reminder to drivers that people live on Pennsylvania Street as well; Traffic Engineering Department surveyed the area and determined that 220 vehicles per day were traveling 10 to 20 miles over the posted legal limit of 25 m.p.h.; there are also an additional 13 vehicles traveling each day in excessive of 20 m.p.h. over the limit; and according to the Department, it is an unusually high speeding rate when considering speed hump installation. She stated the Department measured the length of the Street and determined that five speed humps would slow the traffic to an average of 25 m.p.h., which is the posted limit; it is exactly what has happened; the speed humps have succeeded, where the calls to the Sheriff’s Department, deputies occasionally patrolling the road, and other efforts have failed; and requested the Board stand by its original decision, otherwise the residents will again be unable to safely get their mail, put out their garbage, or pull out of their own driveways without fear of being injured or worse. Ms. Zelnik noted she stands by the findings of County staff; and requested the Board do the same, keep the speed humps in place, and let the residents move on toward unity in their neighborhood.

Deborah Jones stated she and her husband moved into their house about one year ago; they picked the area because it was agricultural and they could own a horse there; as they were looking at the house and after they moved in, they noticed that the cars were going extremely fast; and she decided it was not a good idea to buy a horse. She noted she has a daughter who is nine years old and is concerned about her safety; she supports the findings and recommendations of staff, and installation of the speed humps; and requested the Board stand by its decision as she fears for the children’s safety in the area. She stated there are bus stops in the vicinity in question; the children like to ride their bicycles; and reiterated her request that the Board keep the speed humps as they are needed.

Terra Falban stated she and her husband are self-employed business owners; they have an office in their home; her husband is there throughout the day watching the traffic coming in and out of Pennsylvania Street; and they are concerned with the traffic on such Street. She noted her daughter is a freshman in high school; she does not let her daughter ride her bicycle on the Street and does not let her walk to her friend’s house on Ranch Road; she has to drive over four speed humps to get to her home; and she has a boat in her driveway that she pulls in and out over the speed humps. She stated it is an inconvenience to her and she does not like doing it, but she will do it to protect the safety of her child; her daughter walks to the school bus stop every morning and from it every afternoon; it is important to her to know that the cars are slowed down; and it forces the driver to drive more cautiously when he or she has to drive over a speed hump, and it makes the driver more aware of the surroundings and children riding bicycles and walking on Pennsylvania Street. Ms. Falban requested the Board retain the speed humps on Pennsylvania Street as it has made a difference.

Donna Wallace stated she lives on Pennsylvania Street; one of her children is diabetic and the other is asthmatic; she has probably had more emergency response visits to her home than people combined in her neighborhood; and she is not worried about the timeliness of emergency responders getting to her home, but is worried about the day-to-day basis and the safety of her children. She noted she has four boys altogether, some of which are teenagers; three of them drive; every one of them is capable of going over the speed limit; and she urges anyone in her neighborhood, if they see her children doing this, to let her know. She expressed her support for the speed humps; stated she has a radar gun, which she bought for her son who is a pitcher; she has used it on her street when she checks her mail; and prior to installation of the speed humps, some people were driving 57 and 59 m.p.h. She noted with the speed humps installed, people have been driving 29 and 30 m.p.h.; such humps have helped to deter the high speeders; and requested the Board keep the speed humps. Ms. Wallace stated she holds nothing against her neighbors and respects everything they have brought up also.

Mike Oyler stated he lives on Pennsylvania Street and supports retaining the speed humps; he supports the findings and recommendations of staff; he has lived on his street for 17 years; and when he was building his house, he noticed the rate of speed that drivers traveled down the street. He noted by the time his house was built, the street was off limits to his son walking or biking since the drivers traveled extremely fast; after the speed humps were installed, the speeding was significantly reduced; the street was transformed into a group of walkers, joggers, and bikers; and they feel more safe now. He stated his family has been active in the community; his wife has served as block captain and crime watch chairperson since its inception in neighborhood watch; he and his wife work with the community to insure the safety of the neighborhood; and they care about the safety of the children in the area. Mr. Oyler noted his neighborhood has had its share of tragedies; his next door neighbor, Marie Sumner, was hit and killed by a car; and it caused a major lifestyle change for his neighbor as Mr. Sumner had to sell the house and move out as he had nobody to take care of him. He stated he has also been a victim; while he was walking his dog a few years back on Pennsylvania Street he was hit by a car; he flew four feet into a ditch, laying face down in the mud and water; but he was the lucky one as he is able to address the Board today. He noted Traffic Engineering Department’s statistics show that the speed humps work; and requested the Board stand by its original decision to keep such humps so the residents can continue to enjoy the measure of safety for the entire neighborhood.

Dr. Sanford Zelnik stated he lives on Pennsylvania Street in West Melbourne; expressed his support of the findings of Traffic Engineering Department; and requested the Board retain the speed humps. He noted the issue boils down to whether 17 seconds of personal inconvenience should be placed ahead of the public safety of those who reside on Pennsylvania Street; it is the basic decision before the Board; and one of the Commissioners saw for herself the speeding and aggressive driving situation on the street, and that something needed to be done. He stated the report by the Department indicates the speed humps did exactly what they were intended to do; while time does not permit a complete discussion of all the rationalizations that have been given for speed hump removal, he wants to discuss the top 10 reasons that were submitted to the Board for speed hump removal from the opposition; statement one implies that the majority of homeowners were not properly consulted; and the fact is the proper procedures were followed and the public safety needs of those most affected by the traffic situation on Pennsylvania Street were addressed by this measure. Dr. Zelnik noted it is the direct safety needs that he urges the Board to place the greatest weight on as the residents have the most to lose in terms of jeopardy to personal safety if speed humps are removed; statement four indicates that studies show that as many as 85 lives would be lost due to delayed emergency response for each one saved in lower speeds; the statement, taken out of context, is reckless and irresponsible; and such statement comes from a study from Boulder, Colorado, which refers to delays in response times of over one minute. He stated it is his understanding that the additional delay in terms of emergency medical support on Pennsylvania Street is on the order of 17 seconds; he is a licensed physician in Florida and Board Certified specialist in preventive medicine in addition to family practice; he has also run an emergency room in Brevard County during his medical career; and the more pressing danger is the danger to public safety from aggressive speeds on Pennsylvania Street. Dr. Zelnik noted those in opposition have written that speed humps are also illegal; the fact is they are not illegal and are widely used throughout the country; various studies were cited by the opposition often out of context from various regions throughout the United States and Austria to support their arguments; and often these assertions have no citation in any profession periodical. He stated many assertions have no citation whatever and remind him of an attempt to throw enough mud at an issue in the hope that something will stick; the varieties and various remedies that have been installed from community to community are different based on the unique situations; it is simply not appropriate to directly translate data from larger cities, like Sarasota or Boulder, to the situation discussed here; and in the top 10 reasons for removal of the speed humps, the statement that vehicle emissions would be increased 48% might be true in a specific set of narrow circumstances in a larger city. Dr. Zelnik stated it is irresponsible to make that same statement or assertion regarding the situation on Pennsylvania Street without specific data to support that assertion; the same applies to the notion that the speed humps are in violation of the Americans with Disability Act or a harm to those who are disabled; like the allegations he has already discussed, this allegation is nothing more than the use of a loaded term without any justification or relevance to the situation here; and the speeding situation on Pennsylvania Street will be exacerbated if the speed humps are removed. He noted the devices did, by the County’s own objective Traffic Engineering Department’s analysis, exactly what they were intended to do; he hopes the Board is able to separate this fact from what really amounts to little more than pure conjecture from those opposed; it would be hard pressed to cite a reasonable defense for any removal action given the clear findings of the Department; and it is his hope that the Board is able to sort out the objective facts concerning the issues and protect the direct safety needs of the people who live on Pennsylvania Street.

Valeria Harvill stated she lives on Pennsylvania Street and supports retaining the speed humps; she supports the findings and recommendation of County staff; she is hearing impaired and her husband is in a wheelchair; and previous to installation of the speed humps, she and her husband had great difficult going to their mailbox due to speeders on the street. She noted it was next to impossible to walk safely on the roadside if they wanted to take a walk; her neighbor, Maria Sumner, was killed walking on the roadside of Brandywine Lane where there are no speed humps; it was frightening for everyone in the neighborhood, but how short the memories of her neighbors who are opposing the speed humps of the awful occurrence; and the speed humps have made a difference in her peace of mind as she walks on Pennsylvania Street on a daily basis. She stated since she cannot hear things around her, the speed humps give her a little time to react to traffic coming along the way; and requested the Board retain the decision it made and keep the speed humps.

Chairperson Colon stated when the issue was brought to her attention the residents came to her office, which put them in touch with staff; she went to the site; what is sad are the accusations against her staff and her neighbors; and the community is beautiful. She noted a lot of people were upset because she stood behind staff’s recommendations; she is truly blessed with the staff she has; they are hard workers, professional, kind, and caring; and when she did the hiring in her office, she told her staff that she was not impressed on how much they knew, but how much they would care about her bosses, which are the residents of Brevard County. She stated she is proud of her office; some of the people who made accusations have hugged her staff and mentioned how professional they were; and her staff is wonderful. Chairperson Colon noted a comment was made in regard to Dick Thompson; Mr. Thompson has been with the County for a long time; he is a man of integrity and does everything by the book; and no matter what happens, she hopes the community is put back together again.

Traffic Engineering Director Dick Thompson stated there was an initial speed hump package that only garnered 32% of the vote; approximately one year later, the second petition was carried, which was significantly less; it went from 120 residences to 38; and in the ensuing year between the first package and the second package, there were numerous calls from residents. He noted in February 2002, at the request of the Road and Bridge Director, staff performed a survey to gather some data for their use in determining the feasibility of answering a constituent’s request for piping the canal that creates the dead-ends on Ranch Road and Ohio Street; as a result of the study, it was determined that there were 220 vehicles exceeding the speed limit during a 24-hour period of greater than 10 m.p.h.; there were 13 drivers driving in excess of 20 m.p.h. over the posted speed limit in the 24-hour period; and it has been said that the study indicated that the speed of the traffic and rural character of the road was not an issue, but he maintains that when there are 35 driveways in a half mile, it is a residential area, even though the road is constructed of rural geometric makeup, and urban as far as density of the residences. Mr. Thompson stated because there was substantial and persistent interest on the part of those directly affected by speeding vehicles, which were the residents on Pennsylvania Street between Chicago Avenue and Brandywine Lane, and because staff felt the criteria were met, it established the lesser geographical area for affected residents and narrowed it down to those living only on the portion of Brandywine Lane; the second speed hump package was carried as it had 97% approval; and by narrowing it down, there were other residents who did not have an opportunity to vote on it.

Transportation Engineering Director John Denninghoff stated one of the reports that was prepared by staff contained an error in it when originally produced; it was distributed to the Board and referred to the percentage of approval on the original survey as being 57%; it was an error and should have been 32%; and the page was revised and redistributed. He noted the error occurred only at that point in time; it was not an error that was involved during the process of the original approval of the speed humps; and in the Board’s decision-making process and staff’s procedures, the error was completely uninvolved and did not exist.

Commissioner Carlson inquired when staff did the analysis in regard to the culverts over Ohio Street and Ranch Road, was there anything that led it to the conclusion that Pennsylvania Street was shouldering the majority of the traffic as the roads were not connected to Brandywine Lane. Mr. Thompson responded he did not analyze the traffic volumes on Brandywine Lane at that point to have a comparison between Brandywine Lane and Pennsylvania Street; it was roughly 875 vehicles at that time, which was well within the limits allowed for speed humps and is what he primarily looked at; it is not uncommon for speed hump packages to have multiple attempts at having tried to obtain the minimum of 75% approval; and people lose interest and abandon the packages or do not meet the deadline of 120 days. He noted it was not uncommon that staff did not bring up at that time that there had been a previous speed hump attempt; and it is his error perhaps that he did not do that.

Commissioner Carlson inquired based on Mr. Thompson’s analysis, would Mr. Denninghoff be led to the conclusion that Pennsylvania Street was shouldering a majority of the traffic; with Mr. Denninghoff responding yes, prior to the speed humps.

Commissioner Pritchard stated it appears from the data that due to the speed humps, the County has halved the traffic on Pennsylvania Street and doubled the traffic on Brandywine Lane. Mr. Denninghoff stated the characterization as far as Pennsylvania Street is concerned is probably accurate; it is probably less than half and maybe 40%; but he does not know how much additional traffic is on Brandywine Lane as there was not a before survey. Commissioner Pritchard noted the neighborhood is unusual as there are only two points of access, Brandywine Lane and Pennsylvania Street; the County should have looked at the initial study because of the focus it had on the entire neighborhood that was affected; and inquired why did staff go to the second, more focused study with just the people who were on the affected portion of Pennsylvania Street. Mr. Thompson responded the second study was reviewed due to the severity of speeding on the roadway and the County was getting more than the normal amount of calls requesting assistance on the roadway. Commissioner Pritchard inquired how long is Pennsylvania Street; with Mr. Thompson responding 2,600 feet from Brandywine Lane to Chicago Avenue. Commissioner Pritchard inquired would it be a reasonable assumption that the traffic would increase on Brandywine Lane as another point of access; with Mr. Thompson responding affirmatively. Commissioner Pritchard stated five speed humps were put on Pennsylvania Street, and inquired was there a study done on Brandywine Lane or Chicago Avenue; with Mr. Thompson responding negatively. Commissioner Pritchard noted he can see what the affect is going to be; people are going to avoid Pennsylvania Street and speed on Brandywine Lane and Chicago Avenue to make up for lost time; there are pros and cons on speed humps; and inquired if a neighborhood agreement could be reached that would remove a couple of speed humps on Pennsylvania Street and add a couple of speed humps on Brandywine Lane and Chicago Avenue to have a calming affect on the neighborhood. Mr. Denninghoff stated when speed humps are spread out it diminishes their affect; if there is too much space between the speed humps on Pennsylvania Street, the travel speeds could be increased; and staff has not studied Brandywine Lane and Chicago Avenue as to how best to deal with speeding there as it has not received any requests for speed humps prior to this point. Commissioner Pritchard noted there had to have been an increase in traffic and speed on Brandywine Lane because of what happened to Pennsylvania Street; it is tough to juggle Pennsylvania Street, Brandywine Lane, and Chicago Avenue; and inquired if people are speeding and hitting speeds of 50 m.p.h. plus on a 25 m.p.h. street, then what position is the Board taking by diverting traffic to other roads and creating the same problem there. He inquired what is the solution; stated if the solution is to go to the original demographic area that was polled, then Pennsylvania Street’s speed humps will be removed; and it puts the people on Pennsylvania Street back to living on a thoroughfare.

Commissioner Carlson noted the analysis that occurred that brought Mr. Thompson to the conclusion of doing the smaller area was in regard to putting bridges over the canals.

Mr. Denninghoff stated the speed and volume study that was performed was associated with the idea of connecting the streets across the canal. Commissioner Carlson inquired what were the conclusions; with Mr. Denninghoff responding he is not sure as Road and Bridge Department was looking at that. Commissioner Carlson stated it would have been interesting to have at the meeting; inquired if the two points of entry were opened and distributed the traffic, would it make any difference or would the Brandywine Lane traffic still use Pennsylvania Street as it is the first real cut; and stated it would be nice to know if the study prevailed as far as putting the connections in. Mr. Denninghoff noted the cost is probably going to be between $50,000 and $100,000 per connection, at a minimum. Commissioner Carlson stated there needs to be some solution in the realm of putting the culverts in and continuing with the speed humps currently until the solution has evolved and include the entire community in the solution; and that would be her only suggestion.

Commissioner Pritchard inquired where would the funding come from if the County were to build three culverts, which could cost $225,000, and is the community willing to partner in it; stated Commissioner Carlson has a good idea with having the community and staff become part of the process to see what can be done to resolve the issue; and the need for controlling traffic speed is important in everybody’s neighborhood.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to keep the speed humps on Pennsylvania Street in the National Police Foundation Subdivision; and direct staff to work with the neighborhood using the analysis that was already started by Road and Bridge Department on the crossings over the canals, to see if there is a recommendation in terms of the cost and who pays for it.

Commissioner Carlson noted such crossings may not be the best solution and the request may be for sidewalks when everyone sits down and meets. Commissioner Scarborough stated if Commissioner Carlson wants to bring a report back to the Board, he would like to get all of the different thoughts; the discussion has been culverts, sidewalks, and speed humps on other roads as well; everything needs to be analyzed in a comprehensive report; and it would not hurt. He noted from such report, the Board would have an indication of the options available. Chairperson Colon stated the residents do not want the openings of the canals as they enjoy the safety of the dead ends; it is difficult; that is where the whole controversy came in because of most of the traffic going through Pennsylvania Street; and the issue of putting the overpass and opening the streets has come up. Mr. Thompson noted Road and Bridge Department had Traffic Engineering Department do a study due to the previous request of one or more residents wanting to open Ohio Street and Ranch Road at the time; and there are always pros and cons to do that. Commissioner Carlson stated by bringing the community together, they can sit down and talk about what the best thing is for the entire community and not just the one segment, which has been alienated; the best way to do it is bring everyone together to review the options; it is a question of what the residents want and they will decide; and through Chairperson Colon’s office, staff, and everybody else, they will come to the right conclusions.

Chairperson Colon inquired was there any concern with opening the canals when Ms. Stratton went around the neighborhood. Ms. Stratton responded she did not specifically address that issue; her instinct would be that the residents bought on a dead-end street and knew what they were buying in; the residents probably would not want the canals opened; but that is her guess and she has no consensus about it.

Commissioner Higgs stated she shares the concern of the Board that it looks first to public safety; there are other things that people can talk about; she is happy to consider the issues; but until there is something that she feels comfortable that the Board is doing its first job with public safety, she is not ready to support removal of the speed humps.

Commissioner Carlson reiterated the motion is to have the community come together, but keep the speed humps until a solution is found, and soliciting the solution through staff, Chairperson Colon’s office, and the community at large.

Commissioner Carlson stated she would like to add to the motion that staff bring back a process for special cases that Mr. Thompson has observed so there is a procedure that justifies Mr. Thompson going outside the bounds of what the County did and brought it here today. Commissioner Higgs noted she is not sure it is outside of the bounds. Commissioner Carlson stated she is not sure it is either, but there should be something in the Code that says Mr. Thompson can do that; and the County needs to know where Mr. Thompson’s vested authority is. Commissioner Higgs stated the affected area is not defined, so Mr. Thompson’s professional judgment was what was the affected area; other people have a different attitude; but she does not see that Mr. Thompson went outside what the Policy said; and such Policy does not define it any more explicitly. Commissioner Carlson noted perhaps the County has to define it when there is a special circumstance of a high level of speeders, etc. Commissioner Higgs stated the County needs some definition there.

Chairperson Colon stated the motion is to keep the speed humps and allow the dialogue of the community to see if there are other ways of alleviating some of the speeding and have a better balance; and reiterated the opposition of opening the canals, which is of great concern to the residents.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

The meeting recessed at 2:52 p.m. and reconvened at 3:08 p.m.

PUBLIC HEARING, RE: FINDINGS OF FACT DENYING APPEAL OF MICHELINA
CONDOS/RAY’S CONDOS SITE PLAN

Chairperson Colon called for the public hearing to consider the findings of fact denying appeal of Michelina Condos/Ray’s Condos Site Plan.

Carole Pope requested the Board deny the order and overturn the staff approval of the site plan for Michelina Condos, based on the fact that the procedure and Codes, in effect as of April 2001, are not met; stated the order is factually incorrect on Page 18 in stating there is substantial evidence of record showing the criteria of Section 62-3202 site plan approval has been met; placing an eight-story building 14 feet from the walls of her one-story buildings and forming a concrete wall 80 feet high for the entire south side of her buildings on the contiguous property is not in compliance with the Ordinance; and the applicant has 200 feet of oceanfront and proposes a building with an 84-foot front on the ocean in a position creating the most negative effect on the only contiguous property. She provided information to the Board, but not the Clerk; stated the mark-ups include one inch equals ten feet; and showed her two buildings, the Michelina Condos location, and the ocean. She stated the Code specifically not met includes Sections 62-1373 (7) (d), 62-1373 (5) (c), 62-1901 (b) and (c), 62-1902 (7), 62-3201 (1), and 62-3202 (2) and (3) (e), (f), and (g); Section 62-1373 (5) (c) is a relatively minor concern, considering the overall incompatible relationship; but it is a fact that the side setback on corner lots on the oceanfront shall be 15 feet; the space shown on the site plan is 10 feet; however, a movement of five feet south will not place the site plan in compliance by itself. Ms. Pope noted Section 62-1374 (7) (d) states, “Where any structure of a building exceeds 35 feet in height, all conditions enumerated in Division 5, Subdivision 3, Conditional Use Chapter, shall be fully satisfied”; it means that conditions enumerated in Section 62-1901 containing the approval procedures and general standards of review, and Section 62-1902, the additional building height, must be fully satisfied; the argument put forward in the order on Page 10, that Section 62-1901 is not dispositive or controlling is totally incorrect; and Section 62-1901 is the criteria for evaluating any provisions listed for the rest of the Chapter, including Section 62-1902 on height. She inquired how can the County apply the conditions of Subdivision 3 as required in the zoning as of April 2001 without using the procedures and standards of review; stated the requirement to use Section 62-1901 is also confirmed by Assistant County Manager Peggy Busacca in her letter of June 17, 2003, which preceded the order; the third paragraph in Ms. Busacca’s letter states, “If additional height was listed as a conditional use, Section 62-1901 would have been required”; and at the time the site plan was submitted, additional height was listed as a conditional use. Ms. Pope noted the order makes the erroneous claim on Page 16, the third line from the bottom; Section 62-1902 (7) (d) requires additional height be met; however, if that was only the intent of (7) (d), it should have been specified, similar to the language of the current Code, which identifies a specific paragraph to be addressed; Section 62-1373 (7) (d) states, “All conditions of the Conditional Use Chapter”; and the basic language of Section 1373 (7) (d) was enacted in 1986. She stated she spoke to Thad Altman after the last meeting about the Ordinance; it was Mr. Altman’s intent to try to get 35 feet as the absolute maximum on oceanfront lots, but he had to be satisfied with 35 feet with conditional uses; amendments in 1991 added additional height to the list of conditional uses in the RU-2-30 zone, required all structures over 35 feet to satisfy all conditions enumerated in the Conditional Use Chapter, and added the procedure for approval and standards of review that were still in effect in April 2001; and in 1999, the performance based standards of Section 62-1901 (c) (1) were added to the standards of review, which precluded conditional uses from devaluing abutting property more than 15%. Ms. Pope noted applying the criteria of Section 62-1901, the site plan containing a building higher than 35 feet should have been reviewed in advertised public hearings by both the Planning and Zoning Board and County Commission, considering character of the land use of the surrounding property, impact to the proposed use, and compatibility to the surrounding neighborhood; while the Board does not review ordinary site plans, it did and still does review conditional uses; additional height was a conditional use until May 2001 after the site plan was submitted; and the standards of review shown on Page 11, Section 1901 (c) (1) required that the site plan should not result in a substantial and adverse impact on adjacent and nearby properties, be compatible with the character of adjacent and nearby property, and not cause a substantial diminution in value of abutting residential property. She stated she and her husband’s property is the only abutting residential property and the substantial diminution is greater than 15%; the proposed building is totally incompatible with the surrounding area of Avon-by-the-Sea as proven by the aerial; there will be a number of people who will testify about the incompatibility; and she has an appraiser who will testify that the proposed location of the Michelina Condominium next to her one-story buildings will cause a diminution of greater than 15%, which is an irrefutable presumption, according to Section 1901 (c) (1) (c). Ms. Pope noted the order is also wrong on Page 17, line 6, where it states, “ . . . as specific conditions set forth in Section 62-1902 were applied and satisfied”; neither the testimony of staff or the order have discussed how they claim the site plan meets Section 1902 (7), which is, “The spatial relationship between the proposed building or structure and existing buildings or structures located on properties contiguous to the proposed building site shall be compatible so as to maximize the preservation of privacy and minimize interference with sunlight and air to those contiguous properties and occupants thereof”; the proposed Michelina Condo does the opposite; and it minimizes and maximizes interference with sunlight and air to the only contiguous property. She stated the shading effect of the structure is devastating; the location of the structure about 40 feet seaward of her building will block prevailing winds; the venturi wind effect created by minor storms could tear her roof off; and the Board may hear many spins on the use of contiguous, but Blacks Law Dictionary defines contiguous as, “touching at a point or along a boundary.” Ms. Pope noted the Dictionary of Modern Legal Usage defines contiguous as, “not merely close to or near, but adjacent”; throughout the Codes of Brevard County, the term contiguous has consistently been interchangeable with abutting; in the case of Section 62-1902 (7), the term should mean abutting to also coincide with the terminology of Section 62-1901 (c) (1) (c); and she has submitted 13 pages to the Board detailing the inaccuracies of the proposed order. She stated there is no way the site plan can meet the requirements of Section 62-3202 (2), conformity with applicable Ordinances and in harmony with adjacent and surrounding land use character, not just zoning, as the order is stated; (3) (e), which requires compatibility, adequate light and air; (f) open space and setbacks so as not to interfere with the use of surrounding property; and (g) reasonable measures to preserve natural and scenic vistas. She noted she believes staff allowed a threshold up to 60 feet, according to the April 2001 Code; then it switched to the new Code, which refers to a chapter for additional height that is not a conditional use, adopted after the site plan was submitted; staff apparently went back to Section 62-1902, the old Code for the breezeway, but never addressed either the spatial relationship to (7) (d) or used the new setback provision of 1 to 125; and it is obvious that this is a mistake when Mr. and Mrs. Ray will reap a substantial profit with whatever they place on their property, considering they have only $375,000 invested. Ms. Pope stated that is the Rays' right and she is not saying they should not develop their property or try to maximize their profit; however, she and her husband’s property is more than just a significant investment; it is a property they enjoy and love in the unique low density community of Avon-by-the-Sea; and one of the nicest things about Avon-by-the-Sea is the fact that as one walks or rides their bicycle through the community, the skyline is not dominated by the high-rise buildings that have succeeded in walling off the ocean and sky in Cape Canaveral, Cocoa Beach, and further south. She requested the Board enforce its Codes that are meant to insure fair and controlled growth; and stated she and her husband should not have to suffer a loss of their property by the mistakes of County staff or to subsidize the profit of the developer.

Attorney Richard Amari, representing the applicants, provided a written opinion from Maxwell Appraisal and Consulting Group and a second opinion by All Brevard Certified Appraisals, Inc. testifying to the fact that the affect of the condominium to Mrs. Pope’s property will increase the value of her property; and Exhibit C, a report by Allen Engineering, to the Clerk; stated the report deals with the fact that the building on the site plan was located on the northernmost portion of the property because it had to be; it expresses the reasons why the building had to be located there to address the Land Development Regulations; and the report also addresses the shading affects of the building going from 35 feet height to 60 feet height. He presented a petition signed by 554 people in support of the site plan to the Clerk and a handout to the Board; stated a site plan was submitted on April 4, 2001; the initial site plan that was submitted by Cliff and Maria Ray was for the construction of 66 units on 2.04 acres of property, a density of 30 units per acre, which is what the RU-2-30 zoning for the property allows. Attorney Amari noted the Planning and Zoning Office required several revisions to the site plan in order to comply with the height and breezeway requirements; working with staff, the Rays came back and revised the site plan; a revised site plan was submitted on September 20, 2002 reducing the density from 66 units to 39 units; and that is quite relevant. He stated the Rays go to a developed density from 30 units per acre, which is permitted by zoning, to 19 units per acre, which is less than two-thirds the allowed density; the site plan was approved by staff on December 30, 2002; on March 13, 2003, 73 days after the site plan was approved, Mrs. Pope and Mr. DiChristopher appealed the site plan; and his applicants object to the appeal and continue to object that the Board hear the appeal on the basis that it is not timely. He noted Section 62-3204 (f) (5) of the Code, required the appeal within 30 days of site plan approval; the appeal was late and the Board should not be hearing it now; he understands the County Attorney does not agree with him because the Board, on a prior occasion, has ruled or already set precedent that the appeal by the Popes and DiChristophers is governed by Section 62-3207; but he does not agree with that and continues to object; and the criteria for site plan review approval is set forth in Section 62-3202. Attorney Amari stated Page 6 in the handout he provided to the Board sets forth the criteria for site plan review; there were things staff had to review; Subparagraph 3 (a) includes ingress and egress; and it is the reason the Rays’ engineer testifies that the building has to be located to the north side of the site as ingress and egress have to come off of Harding Avenue. He noted the Rays have to have the parking lot adjacent and cannot put it on the other side of the property as they are not allowed to access through the alleyway, pursuant to the County’s Land Development Regulations; drainage of property, location of water and sewer services, and offstreet parking are considered; Subparagraph (e) states, “The proposed design of the property shall be in conformity with and compatible to the character of the surrounding property”; and staff had to test for compatibility and conformity. He stated the property to the south is Discovery Beach, which is an eight-story time-share developed at 40 units per acre; the property to the north, owned by the Popes, is multifamily, zoned for 15 units to the acre; the property to the west, owned by the DiChristophers, is zoned for 30 units to the acre; and they are high density, multifamily uses. Attorney Amari noted the property developed on the site plan will be generally consistent with high density, multifamily residential uses, which are prevalent on the beaches; the height differences between the Rays’ property and the contiguous Pope property is not uncommon to what is on Cocoa Beach in character; and provided pictures to the Board, but not the Clerk, illustrating there are buildings on the beaches that are tall and right next to shorter buildings. He stated it is the standard that has been developed on the beaches; Section 62-1373 sets forth the permitted uses for RU-2-30 properties, which are high density, multifamily residential uses; Subparagraph 7 is Structural Height Standards, which sets forth the height standards for the Rays’ property that governs its site plan; and Subparagraph C is the paragraph that applies to the Rays, where the property abuts any other land located in the RU-2-15 district. He noted the maximum height threshold for the structure is 60 feet, which is important; the Rays get it as a matter of right; the next paragraph is the one that Ms. Pope eluded to where a structure exceeds 35 feet in height; there is no terminology for maximum height threshold and it says if one is going over 35 feet, he or she must satisfy certain conditions; and Ms. Pope would have the County believe that it means the Rays must apply for and go through the Conditional Use Permit (CUP) process. Attorney Amari stated there are two constructions of the Ordinance, either Ms. Pope is right or he is right; if one takes Ms. Pope’s construction of the Ordinance, it renders the next paragraph meaningless or nonsensical; Subparagraph E says, “Structures or buildings may be requested to exceed the maximum height threshold”; and the Rays have already established that the maximum height threshold is 60 feet. He noted if the Rays want to exceed 60 feet then they have to get a CUP; if Ms. Pope’s construction of the Ordinance was correct, every time one went over 35 feet, he or she would have to apply for a CUP; and Subparagraph E would not need to exist. He inquired why would the Rays be asked to address a construction of the Ordinance which renders it nonsensical; stated it does not make sense; the correct reading of the Ordinance is that one has a matter or right to go 60 feet; and if someone goes more than 35 feet, he or she must meet certain conditions. He noted he provided the Board an outline of the County’s Code index; Division 5, Specific Criteria for Permitted Uses with Conditions and Conditional Uses, Subdivision 3, lists all of the conditional uses; Section 62-1902 is now reserved; at the time the site plan was applied, the Section was titled, “Additional Building Height”; and the Rays have to meet conditions in Division 5, which relate to additional building height. Attorney Amari stated the only other construction would be every condition that is listed in Subdivision 5, which includes bed and breakfast inns, boarding of horses, cement concrete and concrete building products, cemeteries and mausoleums, etc.; there are several conditions in Division 5 that have nothing to do with building height; and there is a specific section that has to do with additional building height. He noted the Rays do not have to apply for a CUP; they simply need to meet certain conditions, which are set forth in Section 62-1902; the Rays had to provide a topographic survey and meet certain breezeway requirements, which they did; and Ms. Pope is incorrect in saying that the Rays had to meet additional setback requirements as Subparagraph 4 only applies to properties not subject to the breezeway requirements. He stated the Rays were subject to the breezeway requirements and had to meet them; they had to have wet pipe sprinkler and alarm systems, and adequate firefighting equipment access, which they have done; the Rays have met every one of the conditions; and the only condition that is relevant to the discussion that Ms. Pope points to is Subparagraph 7, which states, “The spatial relationship between the proposed building and existing buildings on contiguous properties must maximize the preservation of privacy and minimize interference with sunlight and air to those contiguous properties and occupants thereof”. Attorney Amari noted Ms. Pope would have the County believe that her property is the only contiguous property; she cited to the Board Blacks Law Dictionary; he also attached the Blacks Law definition for the Board; and the word “contiguous” means in close proximity. He stated Section 62-2808 includes a definition that uses the term “contiguous”; it says, “. . . including property on the other side of public streets”; Florida Statutes, Section 171.021 talks about annexation of properties; and cities can only annex properties that are contiguous to their borders. He noted it is clear that the definition of contiguous includes properties on the other side of the public street; whenever the law talks about contiguous, it includes properties located on the other side of the street; however, it does not really matter because what is most important is what is the affect; and the 45-foot line shows the shading affect to Ms. Pope’s property. He stated the Rays can go to that line without meeting any conditions as they clearly have the right to do that; the only thing that is not already shaded is one-quarter of Ms. Pope’s rooftop; the right corner of her building already shades the remainder of her property; and the only thing that will be in the sun, once the 45 feet is there, is the top quarter of Ms. Pope’s roof. Attorney Amari noted by going from 45 feet to 69 feet, the Rays do not create any additional invasion to Ms. Pope’s sunlight or her privacy; the Rays are putting up a six-foot concrete block wall; they will protect Ms. Pope’s privacy in that respect; and staff took into consideration the maximizing of Ms. Pope’s privacy, as the shading affect shows that. He requested the Board deny the appeal; and stated either himself or his clients have meet with each Commissioner, and there were ex-party communications.

Greg Devlin stated he is present to speak on behalf of the Rays, his friends and business associates; he does not know any of the people who are opposing the project and does not have any animosity toward them; he is a firm believer that every property owner has an equal right to happiness, no matter how big or small the property is; and he is confused about today’s public hearing. He inquired is the County taking a step backwards by going through the public hearing after an approval on a discussed site plan has already been granted; stated while he feels the County may be putting his friends through an unnecessary burden, he welcomes the opportunity to speak on behalf of a great family and an exciting new project called Michelina; Brevard County is lucky to have developers like the Rays; and all counties across the nation should be so lucky. He noted typically the Rays live in their developments when they are finished; obviously, they would not want any hard feelings with their surrounding neighbors if they are going to live on the property when it is built; sometimes in life one cannot make everyone happy no matter what one does; and that is when the rules and legalities of the development process have to determine the outcome. Mr. Devlin stated he has personally visited the site and has seen the site plan; he finds it hard to believe that the taxable values of any surrounding properties would be devalued as a result of this development; the proposed project will be beautiful; and the project has been well thought out. He noted as the Board considers the final outcome of the project, it needs to ask itself how many developers would have set their buildings on an east/west line when typically a north/south line is used on Cocoa beach to create more oceanfront views; some developers do not care about what the adjacent property owners think, but the Rays do; it is obvious that the Rays took into consideration their surrounding neighbors when laying out the site plan; but he can see why some opposing property owners would have a fear of the new development. He stated it is not because the value of their property will be lower; it is the fact that higher property values bring higher property taxes; and maybe that is what the opposing property owners fear. He noted he is a former owner of a large tree moving company in the County called Treemendous Trees; the company was capable of moving 12-inch diameter oaks, maples, elms, and any size palm tree up to 20,000 pounds; he has moved thousands of trees in the County and surrounding areas, 350 of which were on the Cocoa Beach golf course; but only a few of his customers fell into the category of the Rays. Mr. Devlin stated as a tree mover, he encountered all kinds of developers and people who wanted to move trees; some people want the cheapest price for a tree, slam it in the ground, and go; the Rays were and still are different; and they always take into consideration the people that live near their developments. He noted the Rays take into consideration the environmental aspects of their properties before they create their site plans; the Rays would not have him run over plants, brush, and smaller trees to move a tree; they would carefully review the entire property, site plans, and environmental habitat before he moved anything to insure they could save the most possible trees and plants for the development; and that is the kind of people the Rays are. He stated the Ray family has had him come back to relocate trees he had previously moved to accommodate the wishes of a nearby homeowner; the Rays are people who care and go the extra mile; they have done that with the project before the Board today; and in all the years he has known the Rays, he does not know of a single time where they built their development to the maximum size allowable. Mr. Devlin noted the proposed Michelina project is an example of this principle, 66 units allowed and 39 units proposed; the Rays are more concerned about the environment, their neighbors, and total aesthetics of each project than they are about the profits; the County is lucky to have the Rays as residents; and whatever is supposed to happen in life normally does, and truth and justice will prevail. He stated he hopes the Board will quickly review the information today, see past the rhetoric, and grant the Rays the right to pursue their dream of completing this fantastic new Brevard County development.

James Murphy stated he supports Mr. Devlin’s comments; stated he has known Mr. Ray for about 30 years; Mr. Ray has never hurt anybody; and requested the Board approved the plan as it has already approved it.

Thomas Rienne provided pictures to the Board, but not the Clerk; stated he disagrees with the order on Page 18, Paragraph 21, that all criteria for site plan approval have been met; Section 62-3202 (a), (2), (3), (e), (f), and (g) have not been met; and Section 62-3222 requires that the site plan is in conformity with the requirements of the Article and other applicable ordinances, articles, and laws, and that such plan and use are in harmony with the adjacent and surrounding land use and with the land and use character in the proposed area. He noted Item (3) (e) states, “The proposed design of the property shall be in conformity with the compatible character of the surrounding property to insure safety and adequate light and air, and convenience for those persons utilizing such property”; (3) (f) Open Space, states, “Setbacks shall be compatible with the established and potential use of surrounding property, both public and private”; and (3) (g) requires developments to preserve natural features. He stated the site plan proposes the condominium to be located exactly on the Brevard County Coastal Setback Line, which is located about 70 feet seaward of the 1986 Florida Coastal Construction Line and 25 feet landward of the 1981 Coastal Control Line; in addition, the developer plans to extend the decks out another 10 feet into the Brevard County Coastal Setback Line; that is probably another 10 feet of heavy shading to harm the native vegetation; and the intense development of the Michelina Condos does not comply with Section 62-4206 (c), development of the County’s coastal barriers through construction of beachfront structures significantly impacts upon the beach dune system. Mr. Rienne stated structures located on the dunes deprive the shifting frontal dune of the equilibrium necessary for the beach dune system to function in its capacity of the beach dune system during a severe storm event or hurricane, and could result in substantial loss of property and possible loss of life; with the County’s limited number of evacuation routes and coastal barrier congested roadways network, problems can exist to the evacuation of the coastal barrier inhabitants during an emergency; the developer has violated the County Coastal Setback Line; and picture 4 shows where native vegetation was killed on the right hand side of the property and sod was placed on the left hand side with St. Augustine grass from the Coastal Setback line seaward to the edge of the dune. He noted St. Augustine grass is an invasive species and will spread throughout the dune, choking out the beneficial sea oats that are enormously effective in preventing erosion; the County sent the Rays a letter over one month ago, but the St. Augustine grass is still there; the Rays are in violation from a 1993 summons; and they paid a fine, but have not fixed the native vegetation. Mr. Rienne stated according to the permitting process, sod is not a substitute for native vegetation; and pictures 2 and 3 show the difference of the encroachment the developers had on the dunes.

Stan Walden stated he lives in Avon-by-the-Sea, which is between Cocoa Beach and Cape Canaveral, and is the President of the Homeowners Association there; he delivered a packet yesterday to each Commissioner containing petitions and letters from Association members in opposition of the project; and read the letter he wrote to the Board, as follows: “My name is Stan Walden. I live at 216 Roosevelt Avenue in Avon-by-the-Sea between the Cities of Cocoa Beach and Cape Canaveral. I moved here because it is a quaint, charming, low-density community where my family and I can enjoy the beauty of why we moved to the beach in the first place, love over the natural ocean scenery, sound of the waves breaking, and the fresh smell of the ocean, especially in the early morning. It’s a shame that some developer, Cliff Ray, will be so greedy as to disregard the major opinion of his neighbors in Avon-by-the-Sea who want to maintain the character of our community. This character is specifically spelled out on Page 13, number 17, 18, and 18 (e) of Section 62-3202 of the County Codes for general site plan approval. The provisions of Section 62-3202 of the Code set forth the criteria and the standards for review of a site plan. 18, the general standards for site plan approval as set forth in Section 62-3202, requires that a site development plan submitted for any development shall provide that the proposed lot sizes, lot coverage, density, setback provisions, and other factors are in conformity with the requirements of the Article and other applicable Ordinances, Articles, and laws, and that such plan and use are in harmony with the adjacent and surrounding land use and with land use character in the proposed area. Section 62-3202 sets forth several specific factors that must be met in order to obtain approval. The evidence presented by the appellants and by witnesses in opposition to the appellants’ position focused on non-conformity or conformity. Respectively, where the following specific standards go, review of site plan as set forth in Section 62-3202 (e), the proposed design of the property shall be in conformity with and compatible to the character of the surrounding property and shall insure safety and adequate light, air, and convenience for those persons utilizing such property.” Mr. Walden stated Attorney Amari indicated that the height of the proposed building is compatible with the other beach areas; he would like to correct that; Avon-by-the-Sea does not have tall eight-story buildings, except on the other end of Avon-by-the-Sea close to Cape Canaveral; the rest of Avon-by-the-Sea is low density area; and Sections 62-1902, 62-3201, 62-1373, and 62-1401 were not met as well. He noted such building is in violation of Florida Statute 187.201 and the U.S. Coastal Resources Act of 1982; if the Board was to personally survey the site and pretend it is its home and neighborhood, it would not think twice about rejecting the site plan; on July 26, 2003, the majority of the Association’s members were opposed to the site plan; and the development clearly does not meet the criteria of being compatible with the character of Avon-by-the Sea, only that of Cocoa Beach, which his community has been trying to avoid.

Gene Gadd stated he is opposed to the project; he loves Brevard County and is a fourth generation resident; and inquired was one set of zoning issues used or two sets. He noted he has owned a few businesses and commercial properties; he has also dealt with Brevard County government and city governments; unfortunately, he has seen this happen on numerous occasions with overlapping zones, ordinances, and two different sets of zoning issues; and sometimes it seems like there is favoritism involved, depending on what side someone is on. He stated his opposition is to the due process that has been done with the Ordinance; at the end of the day, the property is going to get developed; the issue is one standard of zoning needs to be met; and if it was followed, it seems like there are a lot of cloudy issues. He noted unfortunately, if one form of zoning was used, is correct, and the County’s decision based on proper zoning was used, then the building is going to get built within the parameters that have already been laid forth; it seems strange that a public hearing would be held afterwards as normally they are held before the Board approves something; a lot of residents of Avon-by-the-Sea feel they were left out of the process; and proper procedures had to be done, but he does not know if they were or not. Mr. Gadd stated throughout the years there seem to be overlaps and double standards; one person is saying this zoning is correct and another person is saying that zoning is correct, and it may end up in a court of law; the appeal should be upheld; and the Board needs to re-look at the issue and make sure everything was done properly and proper procedure is done for everybody involved.

Commissioner Scarborough noted the item was never a zoning issue; staff had reviewed some plans; Ms. Pope indicated that staff did not follow the Code, and therefore, did not get to the overall zoning compatibility issue; and there are some compatibility questions. He stated the word “contiguous” becomes relevant as it is one of the words that is used as opposed to talking the nature of all of Avon-by-the-Sea; and it is the contiguous that comes into more of the play than the site plan review.

Roger Dobson stated he is a resident of Merritt Island, but owns property two blocks from the subject property, which is in Cocoa Beach and consists of buildings that are one-story, two-story, and seven-story; the Code is clear that staff was authorized to approve the site plan; if not, an appeal was not timely filed within 30 days; and the houses on Harding Avenue and Discovery Beach Resort are contiguous, have a bearing on the decision, and need to be considered in the context they are, in addition to Ms. Pope’s properties. He encouraged the Board to deny the appeal.

James Pope stated his wife, Carole, has already presented their position on the Codes, regulations, etc.; he has been around the State and in Brevard County for a long time; he believes Mr. Ray is purposely trying to destroy his property; and if Mr. Ray followed the regulations, he would not be in this position of conflict to argument right now. He noted even Mr. Ray’s attorney pointed out that the sketch shows the shade of the building; Mr. Ray knew from the outset it was not a good neighborly thing to do; it has never been discussed that those things were going to take place; and Mr. Ray never approached him to discuss what he intended to do next door. He stated Mr. Ray keeps harassing his tenants by saying he is going to buy the property and tear the buildings down, but the property is not for sale; he is a registered professional engineer of the State of Florida; he has to follow the Codes and regulations; and the Board is under the same guidance and bound under those regulations. He noted in his case, his license would be taken, he would be fined, and he would be kicked out of his business; and he talked to Professor Pinelli at Florida Institute of Technology, who told him that the calculations show that the venturi effect of the building 80-foot tall and ten-foot from his eave drop, which is when the wind narrows down to a small area and the velocity has increased extraordinarily high, is a tremendous hazard to his structure. Mr. Pope stated his structure was built in the 1950’s and was not built to the strong Codes as today’s structures are; his building would consistently be ripped apart; the engineers who came up with the site plan should have figured out that there is a tremendous wind load; and at this particular arrangement of the building, he gets no sun. He noted Florida has a Solar Energy Center, which is trying to promote use of alternative energies, less fossil fuel use, use of one’s own fuel, and use of the sun; he is completely denied that as his building is essentially totally wrapped up with shade; it is not healthy; and his grass and flowers die since he does not get any sunshine. He stated the Board needs to act on this issue; there has been no physical construction made at this point in time; the Board needs to make a change now before physical construction takes place; and it is the duty of the Board to protect the people like him and be sure that the regulations are followed. Mr. Pope noted everyone needs to be well protected; and requested the Board do so. He stated his property is being completely ruined by this particular structure so close to his property; the Board needs to go back and look at the Code Regulations; and his assessment is that such Regulations are not being followed.

Reverend Danielle Morris stated about four years ago, she and her husband bought a condo in Brevard County as a second home; they fell in love with Cocoa Beach and its people; they decided to make it their primary residence and began looking for something a little larger; and Michelina was exactly what they had dreamed of. She noted in May 2002, they put down $50,000 of their savings and purchased a condominium; they were told that the County had approved all permits in May 2002 and that ground breaking would begin in August 2002; with a blueprint of their condo in hand and assurances that site permits had been approved by the County, she contacted a decorator and spent time and money looking at structural things that could be changed as the building progressed; and she has already chosen furniture, appliances, paintings, and fabrics, anticipating their moving in approximately 18 months. She stated she and her husband have let it be known that their current residence at Cape Canaveral will be coming on the market soon; they have already seen some interest; they anticipate selling their current residence in the early spring to give their entire attention to the final details of building, decorating, and moving into their new primary residence; and she is confused as to why the issue is being discussed today. She noted she and her husband carefully reviewed the videotape of the last Board meeting several times; to make sure they understood the legality of what occurred, they shared the tape with a government planning and zoning expert and their attorney; it was clear to everyone at the end of the meeting that the protest levied was turned down and the original approval of the site plan sanctioned by staff was upheld; and suddenly, not only is the destiny of the 30 to 39 people who have made a financial commitment to live at Michelina at stake, but the future of those who live in the surrounding areas, people who will greatly benefit by increased property values. Reverend Morris stated the Board is aware that beachfront property values continue to escalate as do the property taxes paid to the County; she and her husband’s current condo has increased in value significantly in the last four years; the price for beachfront property will continue to increase; and prices in the County currently are lower than any other Florida areas, such as New Smyrna Beach and Daytona Beach, and significantly lower than areas in South Florida. She noted beachfront property in the County will continue to increase to the level of comparable properties; already an increase is demonstrated by current asking prices of condos at Artesia, which is a year old, and at Michelina, which has increased by $50,000 since pre-construction price; future benefit of the Brevard County community is also at stake; and a conservative tax increase to the County, based on 30 or so people who will live at Michelina, will be approximately $300,000 a year. She stated the spending power to the businesses of Brevard County is also significant; the Economic Development Commission in Orlando estimates a new development’s impact can be as high as 7% its tax base, which is over $2 million; this is money that goes directly into area restaurants, surf shops, building suppliers, appliance dealers, and other Cocoa Beach residents; and homeowners surrounding proposed Michelina have testified that Mr. Ray has already been a good neighbor. Reverend Morris noted Mr. Ray has made sure that ocean views have not been obstructed; he has shown sensitivity to his neighbors in the condo design and landscaping, even though such modifications and the positioning of the building on the site cost him financially; residents have also testified that the condo development will aid in eliminating the ongoing problem with vagrants, and will beautify their neighborhood and increase the value of their properties, which is also a benefit to the County to increase property taxes; and the Board has already made the right decision. She stated the County approved the site plan and the Board upheld staff’s decision with its denial of the objections at the last Board meeting; requested the Board reconfirm that which it has already wisely upheld, deny the petition again, and reinforce its own conclusion that Michelina is in the best interest of the community.

Chairperson Colon advised that Dewey Siljestrom, Ted Kleban, Carol Turba, Ebrahim Sarkarati, Eric Rasmussen, Virginia Sarkarati, Sandy Powell, Paula Savage, Pam Sisk, Joy Laurent, Gaurav Malhotra, Scott McCauley, David Spain, Thomas Sills, John Regan, Kyle Nylander, Kris Lee-Scott, Millard Gulley, Henry Taylor, Aric Ray, Lisa Moore, David Kabboord, Charlie Boyd, Brenda Jo Griggs, Alyssa Parker, Billy Parker, Cynthia Boyd, Douglas Labnon, William R. Watson, Eus Perakis, Helen Perakis, Marj Hershey, Richard Cote, James Lasley, Anna Ryan, Vernon Thomas, Jr., Safi Kurz, Raymond Eason, John Fahnestock, Paul Chen, Gem Gurgan, Linda Chen, Russell Rush, Susan Rush, Bob Osman, Kay Adams, Gina Levit, Jennifer McCoy, Fred Styer, Debbie Kocol, Brenda Fuentes, Michele Ray, Lona Bell, Carole Smith, Nell Gehrke, and Scott Griggs support the Michelina Condos.

George Chelk stated he and his wife support low density in the area and condos no more than two stories, which is not what the Michelina Condos are; the high-rise Michelina stands for everything they dislike, including more people, more traffic in the area, and more trash on the beach; the County does not clean up the beach in Avon-by-the-Sea; and the residents have to clean it up themselves. He noted the residents try to protect the environment and wildlife in the area of Avon-by-the-Sea; since the beginning of the Michelina project, residents have witnessed the loss of sea oats and sea grapes on the beach; scrub jays have disappeared in the area; and the residents like the wildlife and try to protect it.

Robert Levit stated the Commissioners are local residents of Brevard County and have been chosen by their peers to rule in the best interest of the residents who live here or plan to live here; he and his wife and their two children made a decision to move to the Cocoa Beach area, and after a long and tedious search, chose to purchase their home at the Michelina Condominiums; they were cautious in their decision, since it involved pooling their life’s assets and savings; and they were impressed by the obvious attention to detail in the design and placement of the structure. He noted he and his wife gave a non-refundable deposit to the Rays for the purchase, only after being satisfied that the County had approved the site plan; after walking the property with the Rays, they were so taken with the location and beauty of the property that he convinced his 77-year old father to move from Texas, retire here, and purchase one of the residences at the Michelina Condos; they are not only financially committed to the project, but emotionally committed as well; and the complex is not a time-share or rental property, but residences. Mr. Levit stated he has reviewed the tapes of the previous two public hearings; the County made a ruling following the rules governing the County’s laws; the County Attorney has also reviewed the Codes and staff’s findings; and the site plan was approved. He noted the issue has been appealed in front of the Board, and it was ruled that the site plan was fair; the appeal was denied; now here it is again; and it is a travesty for the Board to allow someone to take so much of the Board’s time and thousands of dollars of taxpayers’ money to revisit an issue that has been previously reviewed and ruled upon. He stated Ms. Pope has made a mockery of the system as this is not the first development that she has attempted to shut down, nor is it the second or third; inquired at what point does the Board take a stand on its decision; noted as Cocoa Beach develops in population and cultural growth, it is the Board’s responsibility to insure that this controlled growth maintains the health, safety, and welfare of the City’s residents and visitors; and the Michelina Condominiums are a fine example and a benefit to the process. Mr. Levit stated the structure will be both compatible and complimentary to the neighborhood.

James Lewis, Jr., stated he lives in Ocean Woods in Cape Canaveral and has known the Rays over 20 years; the Rays have gone through several different developments; all of their developments have been in harmony with the communities; and one of their most recent developments is definitely an asset to the community. He noted he has also reviewed the tapes and finds it hard to believe that the issue is being discussed today; the Rays went through a typical site plan approval and met staff’s and the Board’s approval; so he does not understand why everyone is here today. He stated the Rays are quality developers; the County has a quality plan; and the Board should grant the proposal as it stands from the Rays for developing the project.

Kim Hitchins noted she spoke at the last public hearing on the issue and was pleased at the Board’s decision; she is surprised that she is back again today on the same subject; and read a letter to the Board, as follows: “We’ve lived at 140 Harding for five years, and the time that we’ve lived in Avon-by-the-Sea we’ve seen numerous changes on our street, all of which have enhanced the appearance and quality of living in our neighborhood. In early March, we saw the signs for the future development of Michelina, the condominium complex that’s slated to be built at the end of Harding. We knew that growth was inevitable and we were thrilled to see that the builder’s placement of the structure takes into consideration all of the residents who live on Harding Avenue who will be directly impacted by this building. All of our neighbors who live on Harding Avenue east of Ridgewood have an ocean view that will not be obstructed by the current configuration of Michelina. Not only does the existing site plan insure our residents will maintain their ocean view, it will also provide an aesthetic look for the neighborhood. One of the primary reasons we all built or purchased our homes was to enjoy these ocean views the property provides. And I’m certain we would all be less than pleased to have these views obstructed. If the approved plan were altered to move the structure parallel to the ocean or closer to Harding Avenue, not only would the residents be severely impacted by their loss of ocean view, but the overall appearance at the end of the street would be negatively impacted. Two structures standing so close together would cause an alley effect between the proposed building and the existing condominium, which is Discovery Beach. The bottom line is that we are excited for the future development of Michelina, based on the approved site plan and look forward to seeing the beautification of this property, as well as the overall property value of the surrounding areas increase. We are thankful that the builders took into account the current residents’ existing structures and improving Harding Avenue as a whole. Thank you.”

Maria Ray stated she and her husband have gone through all the rules and regulations of the County, and have followed everything it asked them to do; the County should make the decisions when things arise; and they do not want to follow the rules and regulations of Ms. Pope. She noted Ms. Pope is a person who brings nothing but trouble to people’s lives; there will be 30 nice families at Michelina; she and her husband are for the environment and do not destroy it; and people are accusing them of doing something that is not true. She requested the Board deny the appeal.

David Smith stated he and his wife purchased a unit at Michelina; he is a State certified general contractor and owns a mid-size construction and design firm in Orlando; he also serves as the Vice-Chair of the Orange County Development Advisory Board (DAB); and the DAB is a volunteer organization of citizens in Orange County that are appointed by the County Commission. He noted the DAB meets with county staff and reviews specific revisions or new ordinances that affect the Orange County development process; he understands the things that Brevard County is trying to grapple with today; sometimes the situations become extremely complicated; and over the past 32 years of his profession he has probably been involved with building in almost every county in the State of Florida, including Brevard County. He stated during those times, he has become tremendously impressed with the professional attitude and talent of the various development staffs and legal counsels in the counties, especially in Brevard County; they are the Board’s eyes and ears; they are the people to interpret the Codes and Ordinances for the Board; and it needs to place its trust in them. He noted they are on the front line daily, interpreting and enforcing the regulations in the best interest of all development in the County; and implored the Board to listen and take heed to the recommendations of its staff. Mr. Smith stated by opening up the public hearing again, the County has caused one to wonder as a developer that once he or she gets an approved site plan, will he or she be able to move forward with a building permit without having to fear that the permit process is rescinded; it is in opposition to the entire process that Michelina has already gone through; it is extraordinary and unusual for something like this to occur; and in studying the site plan with Allen Engineering, it is making the best use of the property. He noted the Rays have taken into consideration all the surrounding property owners and have tried to create as much of a minimal impact as they possibly can; in looking at the surrounding properties to the north and northwest, the proposed development is going to not only enhance, but improve the overall neighborhood; it cannot help but improve the property values and tax base in the area; and he foresees that there is going to be continuing development, which is inevitable. He stated people who have purchased units at Michelina have planned their life’s retirement moving there; they expect to be able to move in about one year from the end of this coming year; and implored the Board to ignore the distractions of the opposition, follow staff’s guidelines and recommendations, and deny the proposed appeal.

Mary Herring stated she lives in Avon-by-the-Sea; and expressed her dissatisfaction with the approved order for the Michelina Condominium on Harding Avenue. She noted she objects to the fact that the County seems to give preference to those living on Harding Avenue; inquired does she have less rights because she rents her home; stated everyone should have equal rights, opportunity to be heard, and be represented by elected officials; and the proposed building 80 feet high would be 14 feet from her bedroom window and totally block sunlight and air. She noted one of the Harding Avenue residents mentioned there are already tall trees blocking the sun, which is an outrageous comparison; and inquired who would not rather have a tall tree with its cooling effects and allowing the breezes to flow through as opposed to an 80-foot high concrete wall; stated her building is on the north side, which will be shaded by the condo; and she is disappointed that the Board did not consider the feelings of all the community. She noted she has been a long-time resident even though she does not own her home; she has just as much right as the people on Harding Avenue to view the ocean, have sun, and have a cool ocean breeze; and expressed concern that the Board only seems to consider the impact of the Harding Avenue residents. Ms. Herring stated she may not have as much money as the homeowners on Harding Avenue appear to flaunt, but her vote in the ballot box carries just as much weight; and requested the Board allow all of the residents in the area to have an equal say on how the project will affect their community. She noted in the summer she is blessed with an ocean breeze from the south, which will be deleted; she cannot begin to imagine how the building so close to her home will impact the environment; the sea grapes have been cut down and the sea oats destroyed, which were a buffer in the event of a hurricane; and she enjoyed feeding the scrub jays, which are no longer here as a result of the land clearing. She stated advertised public hearings should have been held so the opinions of all residents could be heard and considered; the building is not compatible with the low density one and two-story buildings that are the majority of the structures and is damaging to the property where she lives; and requested the Board disapprove the order. Ms. Herring noted she is a Florida native and is tired of developers ruining the State, especially the coastline.

Lin Hacker stated she is a resident on Harding Avenue; she heard the definition of contiguous and believes her family’s property is contiguous; she supports the approved site plan of Michelina; and the structure will increase property values, not only on Harding Avenue, but the surrounding areas as well. She noted she welcomes the growth that Michelina brings into the area; she has seen a lot of changes in the area over the last several years; the proposed project may also help reduce some of the vagrant issues on the beach and Harding Avenue; and the County has taken into consideration all of the residents, not only on Harding Avenue, but throughout the area. Ms. Hacker requested the Board consider the overwhelming support for the building and uphold the approved site plan.

Grett Peterick stated she also represents Rich Fitz Simmons, her partner; their house is located on the northwest corner of Wilson Avenue and Turtlebeach Lane facing south-southeast; this position affords a significant view of the Ray property, which is quite lovely at this time; and presented a photograph to the Board, but not the Clerk, showing what their view looks like right now. She noted after the condo is built, it will be 80 feet high and have a 209-foot wide stucco wall with windows from their view; not only will it provide an extremely ugly view, but will create a huge shadow during much of the winter; positioning a building this large at the extreme north end of the property has much more impact on the residents to the north than those on Harding Avenue; and she had the opportunity to demonstrate to Mr. Ray what the building would look like from where she lives. She stated it is a monstrosity from her point of view; they purchased their house in 1999, thinking it was going to be their perfect retirement home; they have spent quite a lot of time and money fixing its flaws and would be happy to live there for many years; and they are not focused on increased property values as they had not considered selling. Ms. Peterick noted the original approval of the site plan was based on personal comments of people living on Harding Avenue; in a transcript from May 6, 2003, Robert Kramer stated “Our permanent residence at 326 Harding Avenue is one of the five homes Cliff spoke about. I stress, we are permanent residents”; on June 16, 2003 this permanent residence was deeded to a new owner and now stands empty; and she does not believe it is a permanent residence. She stated 324 Harding Avenue had a for sale sign up and down for two years; inquired is that about the time the original site plan was filed; noted a letter to the Board states, “We live all year round, take care of, look out for, and it is truly our home”; and the homeowner wants the condo as far north as possible for the homeowners on Harding Avenue that live here, love it, and pay high taxes. She inquired should the opinion of a permanent resident on Harding Avenue carry more weight than the other residents of the community, whether they are homeowners or renters who consider Avon-by-the-Sea their home; and when the County evaluates a site plan, are the adverse impacts on adjacent and nearby properties supposed to be considered. Ms. Peterick stated the condo’s impact is neither compatible nor harmonious with the surrounding general character of the area; it will not maximize the preservation of privacy and minimize interference with sunlight and air to those contiguous properties and occupants thereof; its effect will be quite the opposite for all of the surrounding properties; and just like the Harding Avenue residents, she and Rich live here, love it, and pay taxes, so their dissatisfaction with the Michelina site plan should be considered too. She requested the Board review the plan with the low density character of the community in mind.

Bert Oxborrow stated he also represents Linda Springer; and read a letter, as follows: “I’m opposed to the building of the Michelina Condominium on the oceanfront between Wilson and Harding Avenues in Cocoa Beach. I’m a current resident of Avon-by-the-Sea, and I’m concerned about the possibilities of drastic changes to the area and the increased traffic the addition of multifamily dwelling brings. I value my view of the beach, access, and tranquility, as this is my little piece of paradise. Please don’t develop and ruin the area and its charm.”

Shelley Sullivan stated she lives on Wilson Avenue and rents from Carole Pope; she does not have any plans of moving anytime soon; she loves where she lives; and the Popes are great people to rent from and she can only say good things about Ms. Pope. She noted the Michelina Condominium is going to be 14 feet from the back wall of her house; she has a wooded area in her backyard where her son likes to play; and she loves the wooded area and it is one of the reasons she chose to rent the property because it is so beautiful. She stated she lives two houses from the beach; she is opposed to the Michelina proposal; she is a student at University of Central Florida and her husband is a physical therapist at Cape Canaveral Hospital; and they do not want to see their property disturbed by the building of the condo. Ms. Sullivan noted the community is quiet and peaceful at this point, which is why they love the area.

Tom Hacker stated he and his family live on Harding Avenue and own a home there; it is part of a beautiful string of custom homes; he agrees with the subject of incompatibility; and Michelina is not compatible with some of the surrounding properties as the condominium will be beautiful and other properties in the area are in utter disrepair. He noted the neighborhood needs the Michelina development; requested the Board rule in favor of the majority of the families that plan to reside in the neighborhood and those that have built their homes as opposed to those whose sole interest is investment property or capital investment; and urged the Board to deny the appeal.

David Young stated he has been a resident in the area for 27 years, a registered voter for 26 years, and a former veteran from the United States Coast Guard; Section 62-1902, Subdivision 3, Conditional Use, Additional Building Height, states, “The spatial relationship between the proposed building or structure or existing buildings or structures located on properties contingent to the proposed building site shall be compatible so as to maximize the preservation of privacy and minimize the interference with sunlight and air to those contingent properties and occupants thereof”; his family has an enclosed outside shower; when coming off the beach, they strip down and wash the sand off so they do not track it into the house and cause any plumbing problems; they like to barbecue while having company in the privacy of their property; but with an 80-foot tall building, there will be 30 or 40 people watching them in their backyard. He noted paragraph 14 refers to sunlight and air; there will be no air or breeze with an 80-foot building; there will be limited sunlight; and Page 13, Conclusions of Law, Article 18.E. states, “The proposed property design of the property shall be in conformity with the compatibility to the character of the surrounding property and shall insure safety, adequate light, air, and convenience for the persons utilizing such property.” Mr. Young stated with an 80-foot building, there will be no sunlight three-quarters of the time out of the year; if the project goes forth, if a fire were to break out in the rear of the building, there would be little or no access to the rear of the building; the fire department would have no choice but to enter from the front, causing a backdraft because the air to the building will be coming off of Wilson Avenue; and at times, it can be strong and devastating, injuring the firefighter or injuring the tenants they are trying to save.

Mike DiChristopher stated he owns the property immediately to the west of Mr. Ray and Ms. Pope; and read a letter, as follows: I’m here today to say that I am not in favor of the current site plan as proposed. Each Commissioner has a copy of my letter sent August 6, explaining two alternative site plans suggested to me by Mr. Cliff Ray. The two alternative plans would be more acceptable to me because they address more closely compatibility and additional side setback from the Pope’s property. The first proposal would be wider, but a shorter building. The second proposed site plan would be an eight-story building located on the south boundary line. The second alternative would need a variance to the side setback for the site plan to work, and possibly even a vacation of the alleyway, so I think with County staff’s help, working with the Rays, the building could be moved to the south and that plan could possibly work with the Board of Adjustment variance so that Mr. Cliff Ray wouldn’t lose any parking.” Mr. DiChristopher stated one issue Ms. Pope may demonstrate is that none of the people on Harding Avenue will lose a view of the ocean; and she has pictures to show that.

William P. Pardue, Jr. stated he is an appraiser and has been active in the Central Florida area for almost 50 years; he lives and works in Orlando; and provided a copy of his qualifications to the Board, but not the Clerk. He noted he was first asked to come into this case not for or against any proposed development; he does not have an opinion as to for or against the development; he is here to answer the question of the effect on the Pope property as a result of the development; and he looked at the Popes’ property from a standpoint of experience appraising oceanfront property along Florida’s entire East Coast, from Jacksonville down to the Florida Keys. He stated he answered the Popes immediately that their property would be placed in the shade, which would create a significantly lower value; everyone likes shade, but shade comes with its problems; grass will not grow in the shade; and the Popes are going to have a lot of shade on their property. He noted it will affect their property badly; it puts their property in a minority of properties; there are other properties that have the same problem, but the Popes’ property is never going to get any sun in the winter; and there is no balance. Mr. Pardue stated homogeneous or similar properties create more value than when they are all mixed up in a hodgepodge; the proposed property will certainly be a heterogeneous, not homogeneous mixture; it leaves the Pope property like a shriveled up apple in a barrel of nice shiny fresh apples; the principle of homogeneity is violated; and the shriveled up apple is not going to be picked by anybody as it will be different. He noted the Popes’ property will be a big loss; inquired if one puts more shiny apples in with the bad apple, is it going to make the bad apple more valuable; stated he does not need to answer that; and to assert that the Pope property is going to increase in value as a result of the condominium is patently absurd. He noted how much damage is there going to be is a judgment call that appraisers will have to make; his judgment is that the damage is more than minor and more than significant, but less than major or irreconcilable; the Pope property still has value, but his conclusion is that the damage would be more than 30%; and it can be proven, if necessary, with a market study. He stated the percentage is higher than the County’s Ordinance at 15%; and presented copies of his letter he wrote to Ms. Pope, a map showing the location, longitude and latitude of the property, and the physical effects of building height to shadow to the Board, but not the Clerk.

Rachelle Raphael stated she and her husband live on Harding Avenue, one of the contiguous properties by definition; they have invested their life savings and future in their current home; her husband has been an employee of NASA for 25 years and will continue for quite some time, so they do not plan on moving; and the Michelina Condo is an asset to the neighborhood. She noted its current location and approved site plan make the best use of the land, as well as consider the needs of those on Harding Avenue; the Rays removed a lot of pepper trees, which are invasive growth; they have also cleaned up the land and made it less compatible for the homeless population in Avon-by-the-Sea; and once the building is constructed, she is sure that the landscaping put back in will be compatible with Florida native growth. She stated the orientation of the building with the narrow perspective to the east minimizes light impact and light pollution on the beaches; there is a benefit to the sea turtle population and there are nests on the coastline during the nesting season; should the building be oriented otherwise with a horizontal view toward the east, the light impact and pollution to the ocean would be greatly increased; and as far as meeting the site plan to the south of the property, it will cause an impact on homes that are already preexisting. Ms. Raphael noted the homes on Wilson Avenue are not as established as the two and three-story homes that start at $350,000 and go up from there; the home that was mentioned that was empty is only in transition right now; the new owners are present today; and they are planning on taking permanent residence. She stated the past homeowners spoke and then sold their home; at the time they spoke, they had no existing contract on the home; she is privy to the reasons for their moving; and they had their personal reasons and were saddened by having to leave the wonderful neighborhood. She requested the Board keep the existing approved site plan as it has met all the County’s approvals; people have purchased their homes based on the site plan’s current existence; and she cannot imagine what kind of impact it would have on the residents and the Rays if such plan was changed now.

Lori Johnson stated she is speaking today on behalf of Michelina Condominiums and the Rays; the facts supporting the Rays are well within the law to begin construction; she is a fourth generation Floridian and an aerospace engineer; and she grew up in Cocoa Beach and remembers when the first condos were erected. She noted growth is a fact of life in Brevard County that everyone must accept, but growth is not the issue here as the Rays’ property already has been developed in that a house sits on the land and has been occupied for several years; the Rays are legally entitled to develop the property for multifamily use and continue to construct far fewer units than is allowed by law; she would like to see newly constructed condos be well-built and as attractive as possible; and she hopes that reasonable attempts would be made by the developers to address the concerns of affected residents.

She stated the Rays have fulfilled the criteria; she has seen many of their construction efforts; they pay great attention to construction quality and aesthetics of structure and landscaping; and her mother lives in one of the beautiful townhomes that the Rays built. She noted non-residents who have never contributed to the County tax base, perform many condo developments in the County; some of the developers run roughshod over the locals, asking for and often receiving all manner of special privileges from certain city officials, resulting in, at times, appearances of impropriety and lack of concern for longtime paying residents; on the contrary, the Rays have contributed to the tax base of the County for years and are asking for no special variances or privileges on their project; and they have raised two children here and care about the quality of life in Brevard. Ms. Johnson stated the Rays’ property is already built on so this is not a pristine piece of oceanfront land; the Rays solicited input from all pertinent Parks and Recreation and environmental officials regarding their site; they were told it is not a threat to any flora or fauna; and the public should be aware that the environmental topic is moot for this venue. She noted she met the Rays 28 years ago when she was married to her first husband; all four of them were living in an incredibly run-down shabby little apartment in Cape Canaveral; Mr. Ray started out swinging a hammer taking any carpentry job he could find and Ms. Ray was sweating right along there with him; and the Rays define the classic American success story. She stated they are not trust fund babies and were not born with silver spoons in their mouths; they are not northerners coming down carpetbagging the south; they earn their money the good old-fashioned way; and she has personally witnessed their sacrifice and ingenuity. She noted the Rays are the most honest, hardworking, and kindest people she has ever met; there was a quote by Ms. Pope in an article on Michelina that appeared in Florida TODAY, which stated, “It looks to me like the developer said to himself, how can I make my neighbors as mad as possible"; knowing the character of the Rays, if the statement was not so completely ludicrous and off-base, she would have laughed out loud; however, mostly she felt irrated. Ms. Johnson stated she wonders which neighbors Ms. Pope was referring to; Ms. Pope does not reside on the property, but her tenants live in the duplexes; the vast majority of the neighbors in the area are in favor of construction of the project, knowing that the property values will increase; and if Ms. Pope would apply some foresight, she would realize that her property value would benefit greatly once the Michelina is completed. She noted the duplexes are rather run down; she lives in a part of Melbourne that is the fastest growing part of the County; the only people benefiting from this issue are the lawyers involved; and she would like to see it put to bed and the construction be done.

The meeting recessed at 5:14 p.m. and reconvened at 5:28 p.m.

James Trifelus stated his primary residence is in Newark, Ohio; however, he and his wife have been Brevard County property owners since August 1999; they have grown to very much like the area and intend to make Brevard County their home; and it is for this reason that they intend to purchase a residence at the Michelina Condominium project. He noted he is also speaking on behalf of four other homebuyers who will be purchasing at the Michelina Condominium; the other four buyers are his father and mother, Dr. and Mrs. Nick Trifelus of Newark, Ohio; his brother and his wife, Michael and Candy Trifelus of Columbus, Ohio; James Shahean of Powell, Ohio; and the Honorable and Mrs. Gregory L. Frost, United States Federal District Judge, Southern District of Ohio, Columbus, Ohio. He stated in Ohio, he is a licensed practicing attorney registered with the Supreme Court of Ohio; in Florida, he is a licensed real estate agent registered with the State of Florida; however, he comes before the Board today as a concerned homebuyer who is asking the Board to make a decision based on what is right, just, and what is legal. He noted the Board has heard from many people today regarding the concerns and issues that are important to them, but it must also consider the concerns that are important to the prospective homebuyers as well; they have expended much time, effort, and money in coming to a decision to purchase at Michelina; part of that process includes a review of all documents, plans, and government approvals, one of which includes the site plan that is at issue today; and it is his understanding that the site plan was approved by the County nine months ago and is only now at issue. Mr. Trifelus stated the new proposed homebuyers contracted in good faith to purchase; they relied upon the constructive representations made by Brevard County that the site plan was acceptable, legal, and approved according to law; the decision was made to purchase at Michelina as opposed to purchasing elsewhere; and those other options to purchase elsewhere are now not available. He noted the proposed homebuyers are now told that the County is being asked to rescind its prior approval and force a change in the existing site plan; some would argue that a few feet here or there would make no difference; however, a change of the existing site plan, even by a few feet, forces a change of the entire building, including the number of units, the floor plans, and layout of the building; and the costs will dramatically increase to himself and all other purchasers. He stated to force a change in the existing site plan nine months after approval will cause irreparable harm to himself, the four other homeowners on whose behalf he speaks, and the other prospective purchasers, all of whom in good faith have relied on the County’s prior approval as part of their decision-making process; and requested the Board deny the appeal to rescind the existing site plan and allow the County’s prior approval to stand.

Michele Ray stated she is completely in defense of turning the site plan over or changing it; her father has been called a greedy developer; this is the first big project he has ever done; and he has always built small single-family homes before that, all of which she has lived in because of financial ties. She noted her family has had to live in the homes in order to pay back loans and wait for the houses to sell; her parents do not own a computer and are not extremely wealthy developers that come into small towns and ignore people’s wants, needs, or considerations; her parents are extremely intelligent people, but they have had to struggle and save to get to this point; and nothing has been handed to them. She stated her parents have never sued anyone in the community and they have never been sued; they have never been arrested or caused any kind of conflict or unnecessary use of tax dollars or time; in all the homes they have lived in, they continue to be on good terms with the people who purchased the homes and live in them; and they are quality homes. Ms. Ray read a letter from Brevard County addressed to her mother, as follows: “As we’ve discussed several times over the past few years, Brevard County does not have funds to purchase your property located at 422 Harding Avenue between Cape Canaveral and Cocoa Beach. I also previously discussed the possibility with our Environmentally Endangered Lands Manager who advised the property did not meet the criteria of their program. Your efforts to suggest the purchase by the County for park purposes are appreciated.” She noted there are no endangered species on the land; they have not harmed any of the animals or plants because there is nothing endangered there; she is frustrated and at a loss as to why everyone is here today; and it seems that there is no end in sight. She stated the systems seems to be vulnerable to being misused and abused; it saddens her greatly; this has gone from an accused technical problem with the site plan to an attack on her father’s character; and she is appalled and saddened that she has to stand here and defend not only what is already rightfully theirs, which is the right to build the condo on their land that her family has paid taxes on for 15 years, according to the site plan, which the County has already approved.

Brett Hitchins stated he is an executive officer in the Association for Avon-by-the-Sea, but is not representing the Association today; he lives on Harding Avenue and has been there for five years; he likes the area, feels he can contribute to the area, and Michelina can as well; and his neighbors have made a significant effort in improving the area and have had some communities work with the County to improve the area of Avon-by-the-Sea. He noted Michelina is going to enhance not only the beauty of the area, but the attitude of Avon-by-the-Sea; people who live there try and improve the area and clean it up; there was a lot of consideration in the site plan; and the Commissioners have their jobs because the people trust their decision-making. He requested the Board continue to support the decision it made in the past and not consider changing what has already been approved as the Michelina site plan.

Frank Laurent stated he and his wife purchased a residence on Barlow Avenue, which is one block south of Harding Avenue; his mother-in-law purchased a residence adjacent to them; he has discussed the issue with a number of people who are on both sides of the fence; and some people in the community are in favor of no growth, no development, and no improvement in the area. He noted he respects their right to their opinion on the issue; however, after reviewing the potential alternatives that might occur if the project is stalled or if the site plan is overturned, he and his family are very much in favor of the Michelina Condos; such condos have been developed and will be constructed and managed by dedicated individuals who are long-term residents of Brevard County; and they have a good reputation and are not some investment group out of New Jersey or Texas, which means more of the investment and funding will come into and circulate within the County. He stated that translates into a greater economic advantage to the citizens of the County and specifically to the community where it is located; the 39 units that are proposed will be purchased as residences, not some 60 time-shares that will be divided among a thousand families to show up two weeks out of the year to shoot fireworks on the beach; the families that buy the units will share a common interest in the overall welfare and development of the community; and the development also represents another step in removing the overgrown acreage and some of the surrounding acreage that has been an attractive nuisance, which tends to collect vagrants, drifters, and unfortunately, an occasional corpse. Mr. Laurent noted the residents support any improvement that contributes to the solution of this problem; the east-west layout is an appealing alternative to the usual north-south full frontage view; for the number of units being proposed, this layout maximizes an open beachfront and visual landscape; and in spite of some generalizations from Mr. Pardue, the Michelina Condos will increase property values. He stated this issue was initially introduced in the May 6, 2003 Board meeting by Attorney Torpy, who represented the Popes and Mr. DiChristopher; he opened by emphatically stating that his clients were not opposed to the project, but had a concern with the process; the result was that the Board and staff reviewed the process by which a project was approved and it was determined that the process was properly and legally executed; and therefore, the appeal was denied. He noted he has reviewed the Code and Ordinances of record, and agrees with the decision; he is not a lawyer, but a retired professional registered engineer; in the next meeting, some people were allowed to address the findings of fact; and Ms. Pope, who was not opposed to the project, got up and leveled the barrage of oppositions. He stated Mr. DiChristopher withdrew his opposition, but has since changed his mind; he appreciates the earnest desire of the Board to hear all the community input, but the residents have been led onto a slippery slope; and urged the Board to review the process and find some way to close the gate after a site plan has been approved and all appeals have been dealt with properly. Mr. Laurent noted the opponents still have additional paths to seek recourse; they can take it outside of this forum; and requested the Board allow the process to follow its rightful intended path and allow the project to go forward. He stated if Mr. Pardue does not think grass grows in the shade, he would invite him to come over every weekend to help cut his mother-in-law’s lawn because the grass grows in a place where there is not any sun whatsoever.

Janice Harrison stated she and her husband live on Harding Avenue; she would like to dispute a comment made by a previous speaker that her house is empty; she and her husband are in the house; and they have been here three times since they purchased the house on June 16, 2003. She noted they are bringing as much as they can from Cobb County, Georgia; she came down with her husband in January 2003 on a golf week; she fell in love with Cocoa Beach and the house; and the Kramers, who previously owned the home, assured them that the Rays were building a beautiful condominium on the northern side of the property. She stated they can see the ocean, hear it, and feel the breeze from it, which is why the purchased the house; the neighbors are friendly; they were blindsided to the fact that what they were told when they bought this home has now been appealed; and they disagree with it and want the site plan that has already been approved by the County to continue.

Scott McKenney stated he lives on Willow Green Drive in Cocoa Beach and has been there for almost 10 years; he has been a property and business owner in Brevard County for 25 years; he has also chosen to purchase his retirement home at Michelina; and he has liquidated assets and given up attractive property options to buy at Michelina, comfortable in the knowledge that if and when the County approved the site plan and project, that his home would in fact be built. He noted if he could turn back the clock, he would like to see all the beaches of Florida free of structures over two stories, but this option is no longer possible; to protect the public good in Brevard County, laws and regulations covering development are in place and those who wish to may develop beachfront property in accordance with these requirements; nowhere does it say that these laws apply to everywhere in the County, except Avon-by-the-Sea; and such area cannot hope to be singled out as the only area, which can choose which laws and regulations it wishes to recognize. He stated the Rays and Mr. Boyd have done everything that was required of them in a timely and complete manner; County staff has studied, researched, and approved the Michelina project; the County Attorney has reviewed the issue and has no problem with the Board’s approval of the project; and after having reviewed the video of the last Board meeting, the Board has also reviewed and approved the project. Mr. McKenney noted under these circumstances, what baffles him is why everyone is here today discussing the issue.

Cliff Ray stated the first thing he would like to address is the shadow effect and the way he positioned the structure on the site; every consideration was given to all of the surrounding properties; if the building is moved 30 or 40 feet away from the Popes' property, it is still going to cast a shadow on the houses and make a tremendous negative impact on properties to the west; and there would also be a negative impact to Discovery. He noted it is not that he does not care about the Popes’ property; it would be absolutely negative energy and pointless to intentionally devalue their property; when the project is completed, the Popes’ property is going to increase in value; and he did not notify the Popes about the site plan because he is not required to and it is his right to develop the site. He stated it was his understanding when he submitted the site plan that he was entitled to build it without notifying the public; Ms. Pope has a reputation of being very controversial; he felt no matter what he built that he would be in a battle with her; and unfortunately, partially because of her reputation, she was not notified. He noted he has already lessened the density on the site and has taken the overall site into consideration; he has experimented with this for years to determine where to place a building; it is not that rental property has a less value, but the constitution of rental property is it generates income; and Michelina will be primary residences that capitalize and are designed to capture the view. Mr. Ray stated Ms. Pope’s property is not designed to catch the view to the south, nor is she entitled to a view to the south; the lots along the coast are divided into 50-foot wide lots; even placing a two-story single-family home on his property would still cast a shadow on Ms. Pope’s property in the wintertime; and inquired is he supposed to forfeit two lots in order that Ms. Pope’s property will not be in the shade, thereby making a tremendous negative impact to property to the south. He noted the Code includes maximum consideration to contiguous properties; he has done that, considering all the different variables; he needs to be able to develop the site to within some reasonableness that it was zoned for; and if it is zoned for a single-family house or 60 units per acre, he should be able to build or what is the point of the Code. He stated he showed some of the people the tape from the last Board meeting, which is why many of them are present today; he has known the Laurents for seven days; they came to the meeting because they viewed the tape and said this is wrong; and they do not have a view no matter where he puts the building. He noted when the Board asked staff if Ms. Pope’s argument was valid, they said no; the Board did not listen to them as it wanted to give every reasonable person an opportunity; that is what it is doing to Ms. Pope; but the problem is Ms. Pope is not reasonable.

William Harrison presented pictures to the Board, but not the Clerk; stated he started coming to Cocoa Beach about two years ago to play golf and comes two or three times a year; this past January, he finally talked his wife into coming down with him on one of the trips; and they loved the area. He noted they looked at condos, townhomes, and houses; they looked at numerous places and found a beautiful house on Harding Avenue; the previous owner, Mr. Kramer, told them that a condominium was going to be built on the north end; he showed them the site plan and documents, and they were overjoyed; and they closed on their house on June 16, 2003. He stated they have two other homes , one in the Blue Ridge Mountains and one in Kennesaw,

Georgia; about a month ago, they put their Kennesaw house up for sale; the house on Harding Avenue will be their permanent residence; and they have been trying to move things there, but still have to watch two other homes. He noted he and his wife were told that the site plan had been approved; they trusted the Board and put a lot of money into their house on Harding Avenue; their property may not be worth as much if something is changed with the Michelina Condo; and Michelina needs to be built as it will improve the value of the land.

Ms. Pope presented a letter from Helen Hodge to the Board, but not the Clerk. Chairperson Colon inquired is Ms. Hodge for or against Michelina; with Ms. Pope responding she is against it. Ms. Pope stated the proposed building will totally block Ms. Hodge’s view; a lot more needs to be considered than just a few people on Harding Avenue if expanding contiguous; a lot of people today indicated they are looking forward to moving to the area and that is because of the low density, where they will put themselves up in the air to take advantage of the low density that everybody else is currently enjoying; and unfortunately, her view of the building will not be as good as their view of her building, which is part of the problem. She noted the proposed building will not be contiguous; the only residents of Avon-by-the-Sea, except for maybe one or two people, are the residents on Harding Avenue; the Board did not hear other residents of Avon-by-the-Sea speaking in favor of the project; the people on Harding Avenue discussed the aesthetic appeal of their houses; and presented a picture to the Board, but not the Clerk. Ms. Pope stated those residents’ view is actually down the street; picture one is looking west toward the houses; the chart shows the houses staggered, so they are looking down Harding Avenue; and they are not going to lose what view they do have, which is very little. She noted picture two was taken from the dune crossover area looking back at the houses; one can barely see the houses in the distance, except for the three-story house; but that is not really the problem here; and the law is the law. She stated the definition from Black’s Law, which she got from Cocoa Library, reads, “Contiguous: touching at a point or along a boundary”; the definition she read earlier from the Dictionary of Modern Legal Language of 1995 is totally different; she could quote the Board many sections of its Code where contiguous is the abutting property; and that is the way it has always treated it. She noted the common terms of legal at Black’s Law even dispute the use of contiguous United States because it says how can that many states be contiguous, and only a few of them can be; it normally does mean the totally abutting property; Attorney Amari said the height is not uncommon in the beach area, but it is not in Avon-by-the-Sea; and there is only one high-rise in Avon-by-the-Sea, and it was permitted prior to the 1986 Code that required the 35-foot height limit with conditions. Ms. Pope stated the house at the corner of Wilson and Ridgewood is three stories; the property was zoned RU-2-30, but they were building a single-family residence; most of the land there is zoned RU-2-15; and RU-2-30 is still way below that zoning, and they build single-family, duplexes, and very low density. She noted Richard and Janice Sherlock asked to go higher than 35 feet so they could get a better view two blocks away from the ocean; they were told by staff in 1989 that they had to get a CUP to go over 35 feet in RU-2-30; and contrary to what Attorney Amari said, Section 62-1373 does not give 60 units as a matter of right. She stated it gives 60 units, subject to conditions; if over 35 feet, one has to meet all the requirements of the Conditional Use Chapter; if he or she has to satisfy all the conditions of the Conditional Use Chapter, they have to get a CUP or at least follow the procedures and standards of review in Section 62-1901; and such Section states, “Substantial diminution shall be irrebuttably presumed to have occurred if abutting property suffers a 15% reduction.” She noted the Board heard the testimony from the appraiser that the diminution of the value of her property will be at least 30%; that is irrebuttable; it is the law; and it is something that was put into place in 1996. Ms. Pope stated the Board has also heard the testimony of potential purchasers, but should be reminded that a building permit was not issued; they have been buying subject to a site plan permit, not a building permit; the Rays do not have such permit yet; and she and her husband will also suffer a loss of income. She noted her newest tenants rented with the understanding that they will be moving if the project is allowed to be built in the close proximity; it is not necessarily the building itself, but the location of it on the property; the building could be moved further south so it is not so close to her property; and the pool could be moved and parking could be to the back. She stated it still would not be compatible with the surrounding neighborhood; the sod that was placed is all seaward and there is only a tiny fringe of sea oats; she and her husband have natural vegetation going all the way back as a protection to their property; and it protects them in the event of storms. Ms. Pope stated the Rays have sodded the whole area, which is basically illegal; it will invade the dune area and choke out all the sea oats; and requested the Board simply apply the Codes. She noted it is unfortunate that the issue has reached this level; she and her husband do not like it any better than anybody else, but they have to protect their property as well and their significant investment; and if the Board reviews its Codes, it will find that the site plan must be turned down.

Chairperson Colon stated for the record, Jeanne Dickson and Steven Webster are in support of the Michelina site plan; and the petition consisting of 554 signatures in support of Michelina will be given to the Clerk for the record.

Attorney Amari stated he needs to dispel some misconceptions and rumors that have been wildly bandied about tonight. He inquired what is the height of the proposed Michelina building; with Joyce Gumpher, Project Engineer with Allen Engineering, responding 69.33 feet. Attorney Amari noted it is not anywhere near the 80 feet that has been bandied about tonight; Ms. Pope indicated that the setback requirements along Wilson Street should have been 10 feet and not 15 feet; and inquired what is the setback. Ms. Gumpher responded on the north property line it is 10 feet. Attorney Amari inquired when Ms. Gumpher reviewed the site plan with staff, did she have to take into consideration the issue of compatibility with the surrounding properties and not just the contiguous property; with Ms. Gumpher responding affirmatively. Attorney Amari inquired is that because the site plan review requirements, Section 62-3202 (e), require the design to be in conformity with and compatible to the character of the surrounding property; with Ms. Gumpher responding affirmatively. Attorney Amari inquired does the term “surrounding property”, in Ms. Gumpher’s professional opinion as an engineer, include those single-family homes on Harding Avenue; with Ms. Gumpher responding yes, and the property on the south side of Harding Avenue. Attorney Amari stated the Board has heard testimony from Ms. Pope today that there is going to be the venturi effect on the windloads, which is hearsay testimony as the Board did not hear from the expert. He inquired is windload a factor to be considered in the site plan review process; with Ms. Gumpher responding negatively. Attorney Amari noted it is not one of the criteria set forth in the Code; with Ms. Gumpher responding that is correct. Attorney Amari stated the Board heard testimony from one gentleman who indicated there would be a problem with fire access to the north side of the property. He inquired in the review of the site plan, did the County review the fire access and has it been satisfied that there is adequate fire access; with Ms. Gumpher responding affirmatively. Ms. Gumpher stated yesterday she called Brevard County Fire Prevention and spoke with the reviewer of the project to make sure and go through again that there were no problems fire protection-wise. Attorney Amari stated Mr. Pardue, the appraiser who testified that Michelina is going to reduce value, based his testimony on the additional shade factor; the problem is that the Rays are entitled to build a 35-foot tall building there without any conditions, and the expert testimony today is once the Rays go to that 35 feet height, they already shade the Popes’ building; however, the entire building and property is already in the shade. He noted the northern lots of Ms. Pope’s property are shaded by her own property; once the Rays go to the 35-foot height, they already shade all of her building except for one-quarter of the roof; going between 35 feet and 60 feet does not create any additional invasion of privacy; and that is the issue here. He stated Ms. Pope is wrong about the question of contiguity; the only point to being the contiguous property is that if one is contiguous and the Rays go above 35 feet, they have to look at whether they would maximize privacy and minimize invasion of light; the shading study has shown that the Rays have done that; so it does not matter if Ms. Pope is the only contiguous property. Attorney Amari noted one is supposed to look at surrounding properties as well as contiguous properties, so it is a non-issue; the woman on the other side of Ms. Pope’s property in not contiguous by her definition; apparently, the Sherlocks were told they needed a CUP to go higher than 35 feet; and that is hearsay. He stated staff tells the Rays what is required and that is the bottom line; they play by the rules that are given; the rules are that staff approves the site plan; and inquired what should be the standard of the Board’s review here. He noted the Code does not say, but he submits it is similar to an appellate court that the Board is asked to determine if its staff is clearly erroneous in its approval of the site plan; the testimony shows and points to the fact that staff was correct in approving the site plan; and unless they were clearly erroneous, they did their job. He stated the Board should let that job stand because if it does not, then there is no reliability in the Code or Ordinances; when developers come to the County they want to know what the rules are; they can play by the rules; but they need to understand what they are and not have them changed on them. Attorney Amari stated the appeal should be denied because it is not timely and the arguments on contiguous property and the Rays having to get a CUP are wrong; the Rays have two appraisers who did not testify, but put written opinion testimony in the record; such testimony is that there will be an increase in value; the issue of value is only important if the County finds that the Rays should have gone to get a CUP; and if the Rays did not have to get a CUP, it is not relevant even if there is a diminution of value of Ms. Pope’s property.

Planning and Zoning Director Mel Scott stated staff has reviewed the research that Attorney Amari has done; it does not have anything additional to add to the record; staff’s review is clearly in the record; and it approved the site plan and concurs with the points that Attorney Amari has made in this particular argument.

Commissioner Carlson requested Mr. Scott explain how staff addressed the compatibility issue in the site plan process. Mr. Scott responded the issue of compatibility is one that has been wrestled with already by the time a project gets to site plan review; issues in compatibility were addressed when the property was given its RU-2-30 zoning classification; issues of compatibility are addressed in large part in that rezoning arena; and the County will have specific leverage and make sure the building conforms to provisions in the Code when there are specific numerical-based decisions in such Code. He noted when the County gets to a condition that talks about compatibility or spatial relationships, it will have less absolute leverage to effect change; it is something the County has the ability to comment on; and the testimony heard today demonstrates that while there may be someone who is not completely satisfied to the north, there are many that benefit to the west and south. Commissioner Carlson inquired when the site plan was originally submitted April 1, 2003 and the Rays came in with a height over 60 feet, what did the applicant do. Mr. Scott responded the County denied the submittal. Commissioner Carlson inquired was there an option for the Rays to go forward with the CUP for higher than 60 feet; with Mr. Scott responding negatively. Mr. Scott stated the option would exist, but that was never exercised as the Rays never made application. Commissioner Carlson noted she has gone through the trails that Attorney Amari and Ms. Pope have provided; and she supports what staff has said because it is the only reasonable avenue that she can make sense of, given the patchworking of the Code and given the fact that there was no CUP in existence at the time. She inquired what is the status of the coastal setback for this piece of property, and some of the accusations of the oceanfront having sod there, which is in violation.

Planner Cindy Fox responded there was a landscaping plan submitted and approved with the site plan. Commissioner Carlson stated a comment was made that there was sod on the other side of the coastal setback line, which is not allowed.

Sherry Williams, Environmental Permitting, stated a complaint has been filed with Office of Natural Resources Management, and staff is investigating it.

Commissioner Carlson inquired is the building the appropriate setback from the coastal line; with Ms. Williams responding yes, it meets the 25-foot Brevard County setback line from the coastal construction line.

Chairperson Colon stated from the last time the Board voted on the item, the findings of fact were sent out and an order was put together; and inquired is there anything new or was anything received by the individuals putting the appeal through in regard to anything they were not in agreement with from the order.

County Attorney Scott Knox responded if Chairperson Colon is asking him if he would go back and change the order, the answer is yes as there is new information that came in today that needs to be incorporated into the order; and there is new evidence presented that needs to be addressed.

Commissioner Scarborough stated there was an item earlier and the Board passed a motion to explore the possibilities of moving into where the County would have a committee; it could work in two ways; if Mr. Ray had been denied and wanted to proceed and challenge what staff does, there would be an ability for him to do so; and petitions in a zoning issue are supposed to be given the minimal weight. He noted the court of law basically when the Board looks at it, there is a diminution in the quality of its analysis; it is extremely dangerous to look at this in any way in a zoning capacity; whether someone likes a project or not is irrelevant; and the issues have been spelled out fairly well by Ms. Pope and Attorney Amari as to specific sections the staff should follow. He stated there is a fundamental flaw, and this is not the way this should be handled; everybody agrees on all sides; this is not the way it should happen; and perhaps as the County proceeds forward, it can define how it can move forward. He noted another issue is vested rights; if the Board agreed with Ms. Pope, it would have the problem of coming in and facing a vested rights hearing immediately thereafter; it would be right back into the issue of someone acting in reliance on something the County has done and because of that certain things have begun to occur; and the County has bought itself out of a vested rights before. Commissioner Scarborough stated the County has even paid attorneys’ fees in some cases in vested rights; he has a lot of questions about this, but the Board is already taking some action and will probably take additional action; it will probably be discussing the process because when a staff decision occurs, the Board is not supposed to be having a public hearing even in a zoning sense; and it is supposed to be talking about some defined measures. He noted in regard to the provision of spatial relationships between properties, buildings on adjoining properties, minimizing and maximizing certain elements like privacy, light, etc., the questions that come to his mind are whether the Board has adequately defined what it wants that staff can adequately apply, how is it applying that currently, is it inconsistently applied with what the County currently does, and does staff make recommendations to the Board to approve a more defined criteria. He stated the County has already gone through a zoning matter; it has talked about compatibility; it is now to the point of how to put buildings on a piece of property; and he does not think there is any argument that Ms. Pope’s property is contiguous, but by the same token, staff is not barred from looking at what makes sense. He noted if a person is trying to be creative, the County wants to work with a creative site plan; the Board is trying to be fair with the process; Ms. Pope will be the last one to suffer through it if the Board is able to accomplish what he hopes; and that is to move this to more of a special master or a committee of experts independent to review. Commissioner Scarborough stated where the County needs to define, it can do so; another big issue is when the vested rights kicks in, there is a secondary problem and the County will have a second hearing; and inquired how does it afford an opportunity to the adjoining property owner to be heard. He noted Attorney Amari made the point of the 30 days; the reason the County found difficulty with the 30 days is normally the clock does not start ticking in legal actions until there is the knowledge that one should respond to something; that is why there is service of process and things like this so a person knows they are being sued; and they have a right to respond. Commissioner Scarborough stated the Board played with that and was going to notice everybody in the community; it got to be problematic for the developer, so the County backed off that idea; so there is still the issue with the vested rights and the community over here; and it is not his job to go back and design the special relationship. He noted if the Board goes that far, it may be running the risk of inviting a continual review of the staff; it has to go with a presumption that staff is fundamentally correct, unless there is something that is so strikingly difficult to deal with, such as the spatial relationship, that it is totally unreasonable; he is willing to listen to other people argue about the spatial relationships being totally out of the ballpark; but unless the County goes there, he is going to have difficulty moving this thing when he sees it the second time as a vested right.

Chairperson Colon stated one of the things that was clear to her when this came before the Board was that there was nothing complicated about the issue; it was simple; the site plan was submitted and approved by staff; and everything was done by the book. She noted here the County goes again discussing whether staff has done anything that was out of line in that consideration; that is not the case here; she does not want the Board to make it more complicated than it is; and the County had a full-blown public hearing. She inquired when does it end; stated there is going to be someone who is going to be happy and someone who is not going to be happy; if staff had done anything that was incorrect and illegal, the Board would have been looking at this; and the County Attorney was quite comfortable with the decision the Board had taken and went to the findings of fact. She noted the Board felt it would give one more public hearing; it is not fair to the citizens, staff, developers, and everyone involved; the Board has been more than fair for there to have been an opportunity for the individuals who are appealing this to have been heard; and anything other than approval today would be a great injustice to everyone involved. Chairperson Colon stated if someone wants to challenge this in court, then so be it; that is what the findings of fact are for; the County is prepared as it is comfortable that staff did everything by the book; and there is nothing new that has come up since the first time she heard the issue. She noted the right thing for the Board to do is move the issue forward; there is always going to be someone who is going to be upset; and this item is a perfect example of something that was done correctly.

Commissioner Higgs stated when the Board first heard the appeal of the item, she had asked for a brief on the various points as she wanted the opportunity to thoughtfully go over it; sitting here for hours listening, it is sometimes difficult to get into the meat of the issue; so when several people have asked why the item is being discussed today, it is because the Board is trying to understand the issue; and her job is to try to understand the issues and not just take the experts’ opinion. She noted she will challenge staff and the County Attorney, and try to understand what the law is and what it says so that when she is challenged, she can say this is what made sense to her; in looking at this issue, she asked Ms. Pope, her attorney, and Attorney Amari to tell her why this made sense in certain ways; the item was not a zoning or Comprehensive Plan issue, or whether or not she liked condominiums, or 15 or 30 units; and it was whether or not the project met the guidelines of the law. She stated that was the issue today and whether staff had properly applied the law consistent with the way they have done it in the past; through the submittals she has seen and the testimony, it is her belief that staff and the Board have properly applied the law; she finds no fault in this and will support the opinion; and it is not an easy process for the County to go through and has been painful for everyone. Commissioner Higgs noted it was a useful process that is necessary under due process of the law; one has the right to appeal to the Board if he or she does not like what has been done; and it is the Board’s job to look at it. She stated someone has the right beyond the Board to do some other appeal; it is the American system; and if one does not think there is a right in an open forum to challenge application of the law, then the County is in sad shape. She noted nobody on the Board meant to do anything more than challenge whether or not the law was applied; she is satisfied that it was; she has looked at it as closely as she can and the law has been applied; and she will vote to support it.

Commissioner Pritchard stated the site plan was approved; Chairperson Colon posed the question when does it end; it ends today; and he will move to approve the findings of fact and deny the appeal.

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to adopt Resolution approving the Findings of Fact denying the appeal of the site plan approval for Michelina Condos/Ray’s Condos. Motion carried and ordered unanimously. (See page for Resolution No. 03-192.)

Commissioner Scarborough stated there was an earlier motion to look at the process; comments were made on this issue and the events; and suggested staff come back and incorporate the suggestions.

APPROVAL OF STUDY GROUP, RE: CREATION OF DOG BEACH AT CANOVA BEACH
PARK

The Board authorized rescheduling consideration of creation of a dog beach at Canova Beach Park to a time certain at the August 26, 2003 Board meeting.

DISCUSSION, RE: PALM BAY PARKWAY ACCESS MANAGEMENT

The Board authorized rescheduling consideration of Palm Bay Parkway access management to a later meeting.

PRESENTATION BY STEVEN WEBSTER, EXECUTIVE DIRECTOR OF FLORIDA MARINE
CONTRACTORS ASSOCIATION, RE: PERMITS FOR DOCKS

The Board took no action on presentation by Steven Webster, Executive Director of Florida Marine Contractors Association regarding permits for docks as Mr. Webster did not appear.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 6:34 p.m.

ATTEST:
__________________________________
JACKIE COLON, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
_____________________
SCOTT ELLIS, CLERK

(S E A L)