The Board of County Commissioners of Brevard County, Florida, met in special session on March 13, 1995, at 5:01 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

Chairman Higgs led the assembly in the Pledge of Allegiance.

PUBLIC HEARING, RE: VIERA DRI PROPOSAL

Chairman Higgs advised this is a continuation of the previous meeting, and unless there is a motion from the Board, it will continue discussion without opening up for public comment; and she does not have speaker cards. She stated if someone wants to make a motion that would be fine.

Motion by Commissioner Cook, seconded for discussion by Commissioner Ellis, to allow three minutes each for public comment.

Commissioner Ellis advised since it is a continuation of the last meeting and the Board policy has been three minutes on this discussion, could the Board limit this to people who did not make comments at the last meeting; with Commissioner Cook responding he would hate to do that; there would not be that much discussion anyway; and he would like to allow three minutes for someone who takes the time to drive out here. Commissioner Ellis inquired if the Board is going to re-open it and hear everybody speak who spoke at the last meeting and say the same thing again. He stated he can understand if someone did not speak the last time; but this is a continued meeting.

Chairman Higgs advised the motion is to allow public comment and limit it to three minutes each; and recommended staff frame the items, the applicant respond or discuss those items, then allow the public comments.

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

Chairman Higgs advised if someone wishes to speak and has new information that the Board would need, those people address only those items that are new; there are cards in the back and they need to fill those out and she will time the three minutes. She instructed staff to explain the outstanding items that need to be considered tonight.

Planner II Mike Konefal advised there are five outstanding items from the last meeting; (1) is Development Order changes regarding potential impact fee ordinance changes in reference to Conditions 47, 48 and 49; and the applicant provided additional language that is in the memo he gave to the Board at the last meeting. He advised (2) is the waiver of right to seek judicial action in reference to Condition 41; (3) is the regional mall issue or divesting of the regional mall; (4) is the overall vesting of the project; and (5) is the wetland buffer setback issue. He stated the memo has information about vesting options as well as the impact fee information.

Attorney Leonard Spielvogel, representing The Viera Company, advised he distributed a supplemental exhibit list, and gave copies to the Clerk to enter as new evidence. He stated their consultants are here and continue to be sworn if that pleases the Chairman and the Board, and they will introduce themselves as they approach the lectern.

Chairman Higgs inquired if the applicant had any initial comments to make; with Mr. Spielvogel responding no. Chairman Higgs instructed staff to summarize what the language involves; with Mr. Konefal responding the language is straightforward that in the event the impact fee ordinance or impact fees are eliminated by the Board, the applicant has agreed to follow any procedures that deal with that issue; if the County re-instates the impact fee ordinance, the applicant would be subject to the new impact fee ordinance, more specifically to impact fee credits, and would be eligible for credit under a new impact fee ordinance. Chairman Higgs inquired if Mr. Konefal is using the language provided in his memo of March 8, 1995; with Mr. Konefal responding yes.

. Mr. Konefal read the item as follows: "Regardless of whether Brevard County in the future repeals transportation impact fees, the applicant shall remain responsible for all transportation mitigation requirements imposed under this development order. If at any time in the future Brevard County should repeal its procedures providing for impact fee credits for road transportation improvements, the applicant shall not receive any such credit for any improvements for which credits had not been granted prior to the effective date of the County's repealing action. If Brevard County should revise its procedures for impact fee credits, the applicant shall receive such credits only under revised procedures for any road improvements for which credits had not been granted prior to the effective date of any such amendments to the Brevard County impact fee Ordinance 89-04. In addition, should Brevard County repeal the requirements for transportation impact fees and fee credits and later reinstate them, the applicant shall also be subject to any reinstated requirements as of their effective date and eligible for credits if available for improvements made after the effective date of any such reinstated requirements."

Chairman Higgs inquired if the paragraph applies to all impact fees; with Growth Management Director Gary Ridenour responding it is just the transportation impact fee; and it has been suggested that it be added to the end of Conditions 47, 48 and 49. Chairman Higgs inquired if the Board were to make some change in impact fees which impacted impact fees other than roads, what would be the procedure for dealing with that; with Mr. Ridenour responding this could be re-written to make it more generic and apply to the impact fee program as it currently stands and as it might currently stand if it were reinstated after a repeal. Chairman Higgs inquired if the County needs to do that; with Mr. Ridenour responding initially staff was led to believe the Board was more concerned about transportation impact fees because they were so high; however, if the Board so chooses to make it a generic provision, they could write it in that way.

Chairman Higgs inquired if it needs to be generic because there may not be some of the existing impact fees or others may be added; with County Attorney Scott Knox responding if the Board is looking at the possibility of repealing impact fees, it would be better to be generic to cover anything in the development order. He noted taking the word "transportation" out may be sufficient. Chairman Higgs recommended staff review the language to make it more generic.

Leroy Wright, 4045 Edgewood Place, Cocoa, representing SAVE The St. Johns River, Inc. as President, and 14,000 members of Florida Wildlife Federation, advised he sent letters to the Board expressing his concerns and the concerns of the organizations dealing with Condition 29b. of the development order regarding water quality monitoring; and requested the County be a participant on a minimum of one water quality sample during the entire year, and the sample be taken following a storm event so they can have the answers on the water quality at that time and not rely on the Water Management District or Viera Company to supply that information. He requested the Board be a party to that one event; and commended the Board for its proposed rule on the establishment of wetland buffer language. He stated they support having a minimum of 300 feet landward of any ordinary high water line or safe line determination made by the state; and they hope it will be a part of the development order. Mr. Wright advised Conditions 30a. and 30b. have to do with reuse and containment of all golf course runoff on site; it is a critical area; golf courses have a considerable amount of fertilizers and chemical pesticides applied in heavy doses throughout the year to keep the greens in good shape; those chemicals and fertilizers do not settle to the bottom and become a part of the water; they are diluted by more water; but eventually that water has to be moved and it would be moved offsite under the present situation as part of their treatment. He stated Viera's consultants may claim they are going to treat the runoff; he has seen figures that 80% of the runoff would be treated; but to deal with chemicals of this nature, the design of their system should be such as to maximize the onsite containment of that runoff; and only in a major emergencies, where there is a hurricane or something that prohibits them from physically being able to contain it, would there be an exception made. He encouraged the Board to put that in the development order as a condition for approval of the project.

Thad Altman, 361 Kilmarnock Place, Melbourne, advised it is unusual being here talking about this subject because he does not know of any public figure who has gone to bat for the Viera Company and believes in what Viera is doing for this County any more than he has; and he has the greatest respect for Viera and the Duda family and what they have done and will be doing for Brevard County. He stated that highlights how strongly he feels and how important the issue is that he has brought to the Board tonight. He stated the memo is self-explanatory; it points out how he feels Viera Boulevard and Murrell Road were built in non-compliance with the Brevard County Comprehensive Plan; and this issue is critically important because it goes to the foundation of how local governments plan and how they enforce their plans. Mr. Altman advised Viera Boulevard and Murrell Road were built with 24 feet of asphalt, not allowing for paved shoulders or bike lanes; the Comprehensive Plan, a plan that went through thousands of hours of public planning, calls for all major arterial and collector roads to have separate facilities for pedestrians and bicyclists, widened shoulders, bike lanes on the roadways with a sidewalk, etc.; and that is critical for safety of pedestrians because if a bicyclist going 20 to 25 m.p.h. on a sidewalk with children or pedestrians, there will be severe points of conflict. He stated for some reason Viera Boulevard and Murrell Road were not treated as collectors or arterial roads; and the policy was not enforced so both roads were built without a paved shoulder. Mr. Altman stated Stadium Parkway, St. Johns and St. Andrews are wide enough; there is asphalt with a small paved shoulder and when they are four-laned they will have a large paved shoulder; somewhere the decision was made to not put the paved shoulders in and to put an 8-foot bike lane; and now there are potential points of conflict. He stated recently there has been court cases that have cost the state money in terms of liability for the lack of bike lanes; it was less expensive for the developer to do this, but it was not in the public interest; even if there was an argument for doing that, the Comp Plan should have been amended; the decision should not have been made unilaterally with the developer or somewhere on the staff level, and should have gone back through the planning process through the CRG's, Bikeway Committee, the Planning and Zoning Board and ultimately this body. He stated Chairman Higgs mentioned this Board has not dropped the ball; the breakdown could have happened while he was on the Board, and he may be partially responsible, he does not know; but regardless where the mistake was made, what is important is that it is corrected, and there be quality facilities on Murrell Road and Viera Boulevard as there are on Stadium Parkway, St. Johns Street, and Lake Andrew Drive.

Chairman Higgs stated the Board will follow up on those issues.

Carl Scheuplein, 468 Dempsey Drive, Cocoa Beach, advised when the Board looks at all the things including infrastructure, schools, and all the costs involved, it should consider that they as taxpayers do not want increased taxes to support this; and it has to be self-supporting and not come back to the taxpayers in any way and ask them to pay more.

Bea Polk, 101 River Park Boulevard, Titusville, advised the chemicals that go in the water stay for years; there should be restrictions on some things that have been put in the river and she agrees with Mr. Wright. She stated she also agrees with self-support; Brevard County is being taxed to death; with layoffs they cannot take much more; and they do not mind these people building, but they should pay their way.

Lisa Scheuplein, 468 Dempsey Drive, Cocoa Beach, advised the School Board said they can take care of the funding with the building out at Viera; that is not going to happen; it has not happened in Palm Bay, Melbourne, and lots of other places; they cannot afford any more taxes for schools, fire departments, police departments or sheriff's departments; and enough is enough.

Micah Savell, 3500 South Courtenay Parkway, Merritt Island, stated he agrees that every endeavor should pay its own way; it should not be publicly funded; but there is a bureaucratic maze of paper work and hoops that everybody who is trying to work and make a contribution in the business community has to contend with. He stated Mr. Altman talked about coming back to committees repeatedly; Brevard County has been committeed to death through the years; those people have been working on the DRI for an extended period of time; it has been one meeting after another and dragged on for an unfair length of time; and from his personal experience of working through zoning and permits from all agencies, he knows there needs to be a serious redress to streamline and get quality answers and consistent responses. He stated at the Thursday night meeting, members of the School Board told him they were here to ensure they got what amounts to $5,000,000 worth of for schools; that is not something he would consider contributing; but The Viera Company have made contributions and so many efforts in the community such as the zoo and lands for preservation, and they have not been dishonest in their dealings as some people implied. He requested the Board look hard at it and take the necessary steps that are in the public interest, and give them a favorable decision tonight.

Conditions 47, 48 and 49, and Section VIII - Impact Fees

Chairman Higgs inquired if there is revised language for impact fees.

County Attorney Scott Knox recommended Item 3, page 3, and Section VIII be changed to read, "Regardless of whether Brevard County in the future repeals impact fees imposed for any purpose, the applicant shall remain responsible for all mitigation requirements imposed under this development order. If at any time in the future Brevard County should repeal its procedures providing for impact fee credits for improvements or land donations, the applicant shall not receive any such credits for improvements or donations for which credits had not been granted prior to the effective date of the County's repealing action. If Brevard County should revise its procedures for any such impact fee credits, the applicant shall receive such credits only under revised procedures for any improvements or donations for which credits had not been granted prior to the effective date of any such amendments. In addition, should Brevard County repeal impact fees and fee credits and later reinstate them, the applicant shall also be subject to any reinstated requirements as of their effective date and eligible for credits if available for improvements or donations made after the effective of such reinstated requirements."

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve the revised language regarding impact fees; and to add it at the end of Conditions 47, 48 and 49 and Section VIII. Motion carried and ordered unanimously.

Condition 41 - Waiver of Right to Seek Judicial Action

Mr. Konefal advised the next issue is the waiver of the right of The Viera Company to seek judicial action in reference to Condition 41; staff provided a two-page handout prior to the meeting; the first page is waiver of right to sue; that is something the applicant and County Attorney's office has been working on; and the language is slightly revised.

Chairman Higgs inquired what is the revision in the language for Condition 41 that the Board did not have prior to today.

Mr. Knox advised the first paragraph has been re-written to state, "In recognition of the period established in Section VI of this development order during which the Viera DRI shall not be subject to down zoning, the applicant hereby agrees to waive its right to sue the County concerning certain road improvement issues except under very limited conditions described below. The applicant further waives any right it might have to contest this waiver provision." He stated that is substantially the new language. He noted the other new language is, "However, the applicant shall have the same rights that other property owners in the County may have to institute an action to challenge arbitrary and capricious activities of the County that are in violation of the County's general Comprehensive Plan priorities, Countywide ordinances, or County regulations requiring Brevard County to plan, design, fund, or otherwise provide such road improvements, if funds are available to take such steps and they are financial feasible as determined by the County."

Commissioner O'Brien inquired if it should delete "certain roads" and leave it concerning improvement issues. Mr. Knox stated he does not have a problem with the language.

Commissioner Cook inquired if the County Attorney could clarify what certain road improvements mean; with Mr. Knox responding it is tied to the shut down provisions relating to road improvements so it should be left in there. Jack Glatting inquired if removing "certain" would help. Commissioner O'Brien stated "certain" means specific, and there is no specificity.

Chairman Higgs inquired if the applicant has no problem deleting "certain"; with Mr. Glatting responding no. Chairman Higgs stated they are waiving their right to sue the County regarding road improvement issues and not other issues such as schools; with Commissioner Ellis responding they cannot sue the County for schools. Chairman Higgs stated they can because the Board has the right to agree with the School Board that they have not met mitigation or do not have proper facilities. Chairman Higgs inquired about taking out "road"; with Mr. Knox responding Section VI relates to the shut down provision which is a road-oriented moratorium issue; and they are waiving their right to sue concerning road improvements.

Commissioner Cook inquired if waiving their right to sue can be struck down by the court at a later date; with Mr. Knox responding as long as there is some opportunity for them to sue the County, it has left their due process available to them and they cannot claim later that it was arbitrary, capricious, and otherwise unconscionable. Mr. Ridenour advised in their sufficiency document, there is a list of projects which the consultants have identified that would be required as a result of this project; and it may be a way to address the roads that would be affected by this provision. He stated they have an assessment of all the roads that would be impacted by the Viera development, so those would be potential projects that would be pulled into this particular issue.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to remove "certain" from Section VI of the Development Order for Viera DRI.

Discussion ensued regarding shut down provision, schools, list of road projects, and Comprehensive Plan priorities.

Commissioner Cook advised initially it said "general" in front of Countywide ordinances and now it says general Comprehensive Plan priorities; with Mr. Knox responding "general" can be deleted unless there is a reason for it. Commissioner Cook recommended "Comprehensive Plan priorities as amended from time to time" because they are not static. Mr. Knox suggested "any of" instead of "the County's Comprehensive Plan priorities," which should cover any changes by any means whether amended or existing. Chairman Higgs inquired if the Comprehensive Plan priorities change, will they still have to comply with those priorities.

Commissioner Scarborough amended the motion to delete "certain", add "any of" before the County's Comprehensive Plan priorities, and add "as amended from time to time"; and Commissioner Ellis accepted the amendment.

Mr. Blake recommended adding "design, fund, or otherwise provide for such road improvements, if, as determined by the County, funds are available to take such steps and they are financially feasible." He stated it makes it clear that the County's determination is whether funds are available and financially feasible, but not whether it is arbitrary and capricious because that is the courts determination. Mr. Knox stated he has no problem with that. Betsy Bowman, Attorney with Hopping, Green, Sams & Smith in Tallahassee, advised the reason they proposed moving the phrase "as determined by the County" to after the word "if" and prior to the word "funds" is to make it clear the County's determination will cover whether funds are available to take such steps and whether they are financially feasible, but the County's determination will not cover whether activities are arbitrary and capricious which is a matter of judicial determination.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to amend the motion as amended to move "as determined by the County" to after "if funds are available. . ."

Commissioner Cook stated "Comprehensive Plan priorities" is a broad umbrella that most things can fit under; there is enough caveats and broad legal terms that anyone at any time can make a judgment that the Board was either capricious or out of compliance with the Comprehensive Plan priorities or Countywide ordinances or other regulations; and if the Board wants to do it, it can, but he does not think it is ironclad. Mr. Knox advised it is in addition to Condition 41 and not a substitution. He stated Condition 41 relates to transportation, and the priority list of improvements are in the Comprehensive Plan Capital Improvements Element.

Chairman Higgs inquired if there is a significance to have "priorities" as opposed to just "Comprehensive Plan"; with Assistant County Attorney Lisa Troner responding she is not aware of any other section that lists priorities. Mr. Ridenour advised the Capital Improvements Element sets priorities for capital improvement projects by various types, such as transportation, parks and recreation, libraries, etc.; the word "priority" is not used in any other areas of the Comprehensive Plan which has primarily goals, objectives, policies, and criteria; there are date certains that could infer priorities; but what Mr. Knox is referring to is the CIE. Mr. Knox advised if the Board wants to make it specific, it can put Comprehensive Plan CIE priorities. Chairman Higgs inquired if the Comprehensive Plan is an Ordinance; with Mr. Ridenour responding it was adopted by Ordinance so the reference to Countywide ordinances should pick up the Plan. Mr. Knox stated Countywide ordinances is broad enough to cover it.

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

Regional Mall Vesting

Mr. Konefal advised the applicant has provided additional language regarding divesting of the regional mall which is the second page attached to the document the Board is currently reviewing; the applicant has significantly changed the condition; and the County Attorney's office made some small amendments.

Mr. Knox read the changed paragraph as follows: "Provided however, the 850,000 square feet and authorized 109.4 acres of retail service space for a regional mall in Phase II may be subject to a change from regional mall use to other retail services by approval of a development order amendment by affirmative vote of Brevard County Board of County Commissioners at a public hearing if another regional mall (mall with at least 500,000 square feet) located in unincorporated Brevard County has commenced physical development after 1995 pursuant to all necessary approvals and development is continuing in good faith; and the Florida Department of Community Affairs has formally objected to any Comprehensive Plan changes or otherwise objected to DRI development orders or other submittals for the regional mall based on over allocation of regional mall space elsewhere in the County." He stated it should say "Department of Community Affairs or its successor entity."

Commissioner Cook inquired if it would affect only malls of at least 500,000 square feet and none below that threshold; with Mr. Knox responding that is correct.

Commissioner Ellis inquired if the second part is predicated on a DCA objection to a regional mall based on the regional mall vested in Viera; with Mr. Knox responding that is correct. Commissioner Ellis stated it does not really say that if the reason for the objection from DCA was not just the paper mall in Viera but seven or eight other malls in Brevard County; with Mr. Knox responding if it is any over allocation of commercial space, which does not have to be this mall or a third or fourth mall that triggers DCA's objection, then the Board can revisit this mall.

Commissioner Scarborough stated similar language would have to be written into other paper DRI malls to give parity, and the Board should adopt that as a policy. He advised it requires actual commencement and physical development, which means breaking ground, so they would have a building permit; however, it also reads that they cannot move forward until the paper mall is pulled off the records so it will never get to the physical development of the other mall because this mall cannot be removed until it breaks ground and it cannot break ground until it gets off the records. He inquired how the County Attorney envisions this provision working; with Mr. Knox responding it takes two things to occur before the Board can go back and revisit this item; it has to have another mall under construction already and DCA has to file an objection to another mall some place else which is predicated on the fact there is too much commercial space; so they have to have both of those conditions.

Commissioner Cook inquired how could they be under construction without prior approval, and can vesting this mall in a DRI prohibit future applicants from going through the process. He stated the Board does not want paper malls canceling other malls; and inquired how can they commence construction; with Mr. Knox responding if a paper mall was approved in Palm Bay, got permits in the City, and started building, and DCA said they cannot have one in Cocoa because of the one in Palm Bay and Viera, then the Board can revisit the Viera mall. Commissioner Scarborough inquired if three malls are needed; with Mr. Knox responding the scenario is with two malls.

Mr. Blake advised it was their intent that it would be a two-mall scenario; if another DRI came through and DCA objected because of over allocation, they would suggest the County get DCA to approve it condition upon the removal of another mall. Chairman Higgs stated that is approval and not construction, but the language says commence physical development. Mr. Blake stated if DCA objects but would approve if another mall is divested, that mall could go forward and the County could divest the Viera mall.

Discussion ensued on several scenarios for vesting and divesting regional malls, pros and cons of the language "commence physical development", and DCA's approval of denial.

Mr. Glatting advised if a second regional mall came before the Board as a DRI for approval, the Board would place similar language in that regional mall approval; the act of construction of either malls allows the Board the option, if the conditions are necessary, to go back and divest the second regional mall so that no paper approval of either mall will stop construction; and the person who gets there first and begins construction wins the regional mall race.

Discussion continued on regional malls and the concerns of paper malls stopping construction of real malls, and the chicken and egg problem.

Peggy Busacca advised this issue may come about at the Objections, Recommendations, and Comments Report; assuming it would require a Comprehensive Plan amendment which is where DCA would object, they would have to deal with a negative comment from DCA; and at that time they could bring forward the issue of divesting this mall and the Board could weigh the two issues and put them on the same playing field. Commissioner Scarborough stated under this language they would have to break ground; with Ms. Busacca responding she is not suggesting the current language but another way to attack the problem. She stated once the County receives the ORC Report that states because of this vesting they would be in a public hearing format and at that point the Board may decide it prefers this mall over the mall that is being applied for; and those two issue could be debated because that seems to be where the issue would come to the forefront. She stated if that is where the Board wants to go, they could come up with revised language.

Mr. Knox advised the Board's discussion about this issue centers around the fact that a mall on paper finally gets into the ground and at that point there may be a problem of having too many malls; so another way to go about this is if a mall starts physical development and continues in good faith, that would trigger a substantial deviation of any other regional mall; and the Board could go back and look if there was a problem with allocation of commercial space.

Mason Blake recommended, where there is the "DCA or its successor entity has formally objected to. . ." adding language, "condition upon its approval of". He stated that was their original language because they assumed DCA will come back and say it is fine, but the County is over allocated and that it will not approve it unless the County solves its over allocation problems. He stated they thought it would be worked out with DCA giving conditional approval; the developer could move forward; and DCA would have the assurance the County can solve its over allocation problem. He stated it was their thought that any new mall the Board approves, to avoid one paper mall knocking out another, it would have a similar situation; so whoever builds first eliminates the potential of divesting their mall.

Chairman Higgs stated she does not see how they could physically begin development unless it has been through the process of the County granting the approval, and it cannot grant approval if DCA has objected in the ORC Report. She stated she does not want one paper mall to divest the first paper mall.

Commissioner Ellis recommended deleting (a) and have it understood that every mall DRI has that language in it. Mr. Blake asked for a recess to work on some language.

The meeting recessed at 6:12 p.m. and reconvened at 6:40 p.m.

Commissioner Cook inquired if public comments are closed; with Chairman Higgs responding yes, but if someone wants to make a motion to allow it, he can; however, her concern is continuing to open public comment each time a card comes in.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to allow B. B. Nelson to address the Board. Motion carried and ordered unanimously.

B. B. Nelson, 3535 Hammock Trail, Melbourne, advised the Duda family does not have all the land in this area; there are others developing commercially; and the Board should notify DCA that this may not be the only mall. He stated they do not want to stop the project; and he is in favor of it, but wants to make certain DCA understands it is not the only commercial development. He stated there are others who have been in real estate in the County for 30 years and are working on malls; and requested the Board convey that to DCA not to limit the rest of them from developing.

Chairman Higgs advised the Board will deal with other developments under the policies.

Mr. Knox advised they have come together on a concept; the language is, "If the DCA objects to a regional mall on the basis of an over allocation of regional mall space, Viera shall be jointed as a party to an administrative settlement agreement which provides that either developer is subject to being divested by the other if the developer obtains a building permit, commences construction, and continues construction in good faith."

Ms. Bowman recommended "objects to and finds in noncompliance," as a prerequisite to having a settlement agreement. She stated they also talked about five years; with Mr. Knox responding he did not see where five years made a difference; it is basically whoever gets in the ground first can divest the other, and it is subject to review at that point. Ms. Bowman read the applicant's language as follows: "Provided however, that if the Florida Department of Community Affairs has formally objected to and found in noncompliance a proposed Comprehensive Plan amendment for another regional mall (a mall of at least 500,000 square feet) located in the County outside of Viera based on the regional mall space within the Viera DRI, then the applicant agrees to enter into a settlement agreement with the County, the DCA, and the other regional mall applicant in which it agrees that which ever mall commences development first within five years of the date of that settlement will proceed and the other will be divested of its development rights."

Commissioner Scarborough inquired why do they need the five years; with Ms. Bowman responding they just talked about it. Mr. Knox stated it is the same thing in different words. Ms. Troner advised Ms. Bowman did not address what happens after five years, so it is better not to include the five years. Commissioner Cook stated striking what Commissioner Ellis said would accomplish it; with Commissioner Scarborough responding the problem in doing that is having one paper mall divest the other paper mall and not move to a real mall, whereas this creates an equality between the two malls and one is not ahead of the other. He stated the one that wins is the one that gets in the ground first, and without the five years, what Ms. Bowman said is acceptable to him. Ms. Bowman stated they could add commences development and continues in good faith if the Board wants it. Ms. Troner advised the Board needs to define what "commence development" means and if it is the building permit, submittal of the site plan, a date and time, engineering plans and fees paid, etc. Mr. Knox advised development is defined in Chapter 380, Florida Statutes.

Mr. Glatting stated if the two malls are close enough to have a DCA objection, only one mall will go into construction; whoever wins the race to get the anchor stores and obtain financing will go into construction, and the other will not; and from a practical standpoint, that is how it will work any way. Commissioner Scarborough stated Mr. Glatting is getting into the market place; so if someone has property, gets the key stores and financing, and puts the project together, he should not be stopped by a paper mall from the County. He stated Mr. Knox recommended continuing in good faith, and Ms. Bowman's language did not have that; with Ms. Bowman responding they do not object to that and it would be a good addition.

Commissioner Cook inquired if under the language another mall would not be prohibited because this mall is vested; with Commissioner Scarborough responding the other mall will come in with parity of the Viera mall and both will have equal rights to proceed. He inquired what happens if the third mall comes in; with Mr. Knox responding it carries over to any mall.

Ms. Bowman read the revised language again as follows: "Provided however, that if the Florida Department of Community Affairs has formally objected and found in noncompliance a proposed Comprehensive Plan amendment for another regional mall (a mall of at least 500,000 square feet) in the County, located outside of Viera, based on the regional mall space within the Viera DRI, then the applicant agrees to enter into a settlement agreement with the County, DCA, and any other regional mall applicants in which it agrees that whichever mall commences development and continues in good faith first will proceed, and the other will be divested of its regional mall development rights."

Mr. Knox advised development is defined in Florida States as "carrying out any building activity or mining operation, making material change to the use or appearance of any structure or land, or the dividing of land into three or more parcels," which would be applicable to a mall situation.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve the language proposed by Ms. Bowman.

Chairman Higgs inquired if payment of fees and submittal of engineering design does anything; with Mr. Knox responding not in this case.

Ms. Bowman advised they could add "commences physical development" which is used in the context of making sure there is earth moving involved.

Commissioner Cook stated he wants to make sure someone can move forward with another mall without being prohibited from doing so, and he is not sure the definition in the Florida Statutes addresses that. Mr. Knox advised the word "physical" restricts it to actually moving dirt which means they would have to have a building permit and approvals in place before they can turn dirt; that eliminates paper platting or selling off of outparcels to trigger development; and if it is made physical development, they would have to turn dirt and continue in good faith, otherwise they could be cut off.

Commissioner Ellis stated he does not understand what the whole argument is about; if the first part is deleted, leaving the public hearing if DCA objects, and putting the language in every mall DRI, when they reach a point where they have so many paper malls and another is denied, then it would come before the Board, and the Board would decide which paper mall to remove. He stated it will never get to construction or development until it has approval from DCA which may depend on the Board removing one mall and adding another; and the Board is talking paper versus paper and does not know what it is trying to resolve. Ms. Troner stated there is no guarantee DCA will agree to a settlement agreement; with Commissioner Ellis responding that being the case, if DCA will not agree to a settlement agreement, then what is the Board talking about any way. Commissioner Cook inquired if that is true; with Mr. Knox responding that means a paper mall can divest Viera's mall. Commissioner Ellis stated any paper mall is subject to divesting by another paper mall, not just Viera's mall. Mr. Knox stated it is still a paper mall that could sit for 20 years and not get built.

The Board discussed paper malls divesting other paper malls.

Ms. Bowman advised the language would not require the Board to make any decision other than to say they agree that they can have two malls subject to one going away and agree one will go away automatically if the other one commences first. Commissioner Ellis stated the second one cannot commence without DCA approval. Mr. Glatting stated it would go through the DRI process and have the same language proposed here, then both DRI's are on equal footing and the one that moves forward will divest the other mall. Commissioner Ellis stated the second mall cannot get DRI approval because of the first mall; with Ms. Bowman responding they are trying to address that situation by working out an agreement with DCA where both malls are approved because there is a requirement in the Comprehensive Plan that only one will be built; therefore there would be no over allocation of regional mall space. Commissioner Cook inquired what happens if no settlement agreement is reached; with Mr. Knox responding if DCA looks at this development order it has the right to appeal it if it does not like it; so if they look at that language and say it is okay, they would have a hard time coming back later and saying they are not going to do it. Ms. Bowman stated they would not have a basis to object if in fact the only commercial square footage that could come on line is the amount of square footage they approved; the Board is not doubling it, it is limiting it to a certain amount; and if DCA objects, it would not be legally defensible.

The Board continued discussion on paper malls divesting paper malls, incentive to developers to move forward, DCA's approval or disapproval of the language, and over allocation of commercial space.

Commissioner Cook inquired if another developer would have the same opportunity to construct a regional mall if the Board vests this mall for ten years; with Mr. Knox responding everyone will be on equal footing and all have paper approvals; but whoever gets in the ground first cuts everyone out. Commissioner Cook inquired if nothing the Board does tonight will preclude anyone else from coming forward on the same level playing field because there is concern with directing development to one area; with Mr. Knox responding the issues have been identified as to whether or not DCA agrees to what the Board is doing tonight; but if DCA agrees to the development order, staff will bring this to their attention and they would have to say yes or no to it; and once they do that, they are not on good footing to deny, and everyone will have an equal shot at it.

Commissioner Scarborough inquired if the Board should include physical construction and continue in good faith; with Mr. Knox responding that is what he would recommend. Commissioner Scarborough stated that is the way the motion will read. Commissioner Cook inquired if the language will meet the concerns; with Mr. Knox responding it commits Viera to go along with another developer of a regional mall.

Chairman Higgs called for a vote on the motion as amended to include physical development and continuing in good faith. Motion carried and ordered unanimously.

Condition 29c. - Buffer

Chairman Higgs advised there were issues brought up in the public comments and two others on the list; the vesting issue is the most complicating and she would prefer to do the less complicating ones first. She stated there was language for Condition 29c.; and inquired if that is Mr. Glatting's language; with Mr. Glatting responding if it is possible, they would like to take the vesting issue next to get it on the table and discuss it. Chairman Higgs inquired if the language is acceptable to the applicant; and if 29c. is the applicant's or staff's language; with Mr. Konefal responding it is staff's language.

Commissioner Ellis advised the language does not say where; with Mr. Konefal responding Lisa Barr prepared 29.C. and she can explain it.

Mason Blake requested the Board consider addressing 29c. after vesting since the Board just finished the mall vesting and they have a lot of people here who would like to deal with that. Chairman Higgs advised there are also items brought up by Leroy Wright, Thad Altman, and Bea Polk; with Mr. Blake responding they largely addressed those issues at Thursdays meeting; and talked to Leroy Wright during the break to advise him of how they disposed of those issues. He stated vesting is a critical issue to them. Commissioner Cook inquired why does it matter when vesting is taken up; with Chairman Higgs responding she would like to take care of this item.

Commissioner Ellis advised this is clearly outside the DRI and there are no boundaries identified; and inquired if he had a map, where would this apply.

Chairman Higgs inquired where does the buffer language apply and would it be The Viera Company's lands adjacent to the DRI; with Natural Resources Management Director Lisa Barr responding that was the original intent, and she does not have an exact latitude/longitude, but they could work that out. Commissioner Ellis stated it talks about property due west of the DRI and not radiating in all directions of the DRI; with Ms. Barr responding it would just be along the St. Johns River from the ordinary high water line of the St. Johns River extending eastward. Commissioner Ellis stated that is the east/west boundary; and inquired what is the north/south boundary; with Ms. Barr responding they could try to do it so that the DRI boundaries will set the perpendicular north/south line.

Commissioner O'Brien inquired why should this apply to Viera and not to everyone else along the river; with Chairman Higgs responding staff intends to set up a comprehensive management plan and move forward from here to set up other buffers along the St. Johns; but because this is an opportunity and challenge, they will go ahead with language now. Commissioner Ellis stated it should not move north and south of the DRI line; with Chairman Higgs responding it is the intention to treat their property as they would others. Commissioner Cook inquired if this is until a comprehensive management plan is established, and it would not be in effect after the plan is established; with Ms. Barr responding the management plan would supersede. Chairman Higgs advised the comprehensive management plan for the St. Johns Riverine System will involve all of Brevard County properties along the St. Johns. Commissioner Cook inquired if everyone will fall under the same standard at that point; with Ms. Barr responding that is correct.

Perry Reader, Executive Vice President and Chief Operating Officer of The Viera Company, advised he reviewed this with the principals of A. Duda & Sons, and it does affect their land; there were two items they would accept; but this is not acceptable to them, and he cannot commit his parent corporation to this because it is subjecting something to their property that is not consistent with anything that is currently in existence or being proposed for the remaining properties along the Johns River. He stated their intent is to cooperate; and they hope in the near future, so this can be laid to rest, that there is current thinking as to what the safeguard should be. He stated they will be the first ones to cooperate with the County to put that in place, but they find this totally unacceptable as it is currently written.

Commissioner Scarborough inquired if Mr. Reader has any suggested language; with Mr. Reader responding this is a critical issue because it deals with setback determination in an area they have not studied, so they do not know exactly where the 322 feet will affect the property; the 322 feet sounds like a finite well thought out number, yet all they can find is a recommendation through the Regional Planning Council in a form of a committee about systems like this; they have a problem with no hard facts and science related to what should be done at this point in the river for this system; so he does not have an alternative. He stated their problems are it is an arbitrary distance and not knowing exactly where that point falls 322 feet back and what would be affected. Mr. Reader advised it is too much of a task for them in a short period of time; however, they are willing to work with the Board beyond the DRI and enter into some interim protection. He stated it does not have to stay in limbo; they are prepared to move forward with that like other issues they have worked on with the County outside the DRI; and they will continue to act as good corporate citizens.

Ms. Barr advised it is not in conflict with the existing Surface Water Protection Ordinance in that there is already a shoreline protection buffer established along the St. Johns River system; what this does is establish an additional buffer zone to account for the habitat loss that is occurring throughout the whole DRI project; staff recognizes that Viera has gone through the extent of protecting habitat for listed endangered species; but there is habitat loss that is generally occurring throughout all other species. She stated as for the number, it is not arbitrary; it comes from an extensive study done by the University of Florida; it takes into account several indicator species, semi-aquatic species, edge effects, and is a fairly detailed report; so it is not arbitrary. Chairman Higgs stated she read the report and does not believe it is in any way arbitrary.

Mr. Knox advised, from a legal standpoint, he is not sure he can recommend this provision as it is written because, even though Ms. Barr identified potential impacts the development might have toward the St. Johns River, the County has not documented or quantified them in any fashion. He stated he would be more comfortable if there was a time frame on how long the County has to come up with the comprehensive management plan and that this is an interim measure and could be justified legally; but as an open-ended provision saying some day the County will do this, and in the meantime hold the property in abeyance, causes him some concerns.

Chairman Higgs inquired if "until the comprehensive management plan or five years, which ever comes first" is added, would that cure the concern; with Mr. Knox responding if a time frame is put in, it will be better.

Mr. Reader stated he did not mean to insinuate that it was arbitrary; he is sure the work of the Florida Alumni is outstanding; and he meant in terms of the time they had to react to this criteria, they do not have the information to go out in the field and evaluate the report and determine what kind of impacts it will have on them.

Commissioner Cook inquired if the Board is creating a different standard here with regard to other properties; with Mr. Knox responding the Board is creating a different standard in a sense that this condition does not exist for other properties right now, but this is a different property in a sense that it is a large-scale development and will undoubtedly have impacts down stream. He stated the County has not quantified them yet, so it makes sense to come up with some kind of management plan; but by the same token, it cannot take forever to do that and tell people to keep their properties apart. Commissioner Cook inquired if staff has to quantify that before taking action to hold their properties in abeyance; with Mr. Knox responding as an interim measure, Mr. Reader suggested picking a time frame that is reasonable to come up with the management plan, so the Board has the quantification it needs.

Commissioner O'Brien recommended a time span that says "until a comprehensive management plan is established or five years, whatever comes first." He inquired if Ms. Barr can establish a plan in five years; with Ms. Barr responding it can be done within a five-year time frame; however, the state agencies would have to get involved in that plan within the next two years to have it finalized within the five-year time frame. Commissioner O'Brien inquired if five years seem reasonable to Mr. Reader; and if the wording was changed to "until a comprehensive management plan is established for the St. Johns Riverine System or five years, whichever comes first." He stated that would mean if in five years the County does not have a plan, they do not have to have the 322-foot development setback. Mr. Reader inquired if the 322 feet would be an interim step; with Commissioner O'Brien responding it would be interim until the plan is developed or five years; and if at the end of five years there is no plan, then Viera does not have to worry about it any more and it is washed out. Mr. Reader stated they could probably live with that if instead of using the ordinary high water line they use the western boundary of the Cocoa Ranch property because they know exactly where that is right now and the impacts of that.

Commissioner Cook advised the language will not prohibit building structures for water access such as docks; with Mr. Reader responding he understands that and appreciates the consideration.

Hassan Kamal, BSE Consultants, Inc., explained an exhibit showing the Viera DRI boundaries and their relationship to the Cocoa Ranch property boundary and the line Mr. Reader referred to.

Chairman Higgs inquired if they would come eastward from that line; with Mr. Kamal responding that is correct. Chairman Higgs stated it is farther from the river than what would normally be the line; with Mr. Kamal responding that is correct. Mr. Reader stated it would be an interim step but they know exactly where it is, and it has a legal description. Ms. Barr stated it would be inconsistent with how staff would set the setback lines along any other surface water body in that they normally establish it from ordinary high water lines; if an area has a dike running along it, the ordinary high water generally runs behind that dike system; and once that is determined, the setback would apply from the ordinary high water line. Chairman Higgs inquired where would the ordinary high water line be in this regard; with Ms. Barr responding that would have to be determined in conjunction with the Florida Department of Environmental Protection.

Commissioner Cook inquired if the plan has to be developed in five years, is that going to be a problem; with Mr. Blake responding that is not a problem as they have no plans for that area; however, the reason they suggested the western boundary of their property is because it is a defined line and anything else can be disputed. He stated in the five-year interim period, while a plan is being developed, if the County wants to make a determination of where the ordinary high water line is it can; but the best route to go is the western boundary of their property which is probably landward of the ordinary high water line, so that can be disputed also. Commissioner Cook inquired if the five years will allow time for the applicant, County and agencies to develop a plan; with Ms. Blake responding they have committed to work with the County and other agencies towards developing that plan.

Chairman Higgs stated the condition says if the ordinary high water line is established landward of the Ranch's boundary by whoever would establish that within the five years and adjudicated, then they will abide by that; with Mr. Blake responding yes.

Mr. Blake advised they would like to make it clear in the language that it would not prohibit them from continuing their traditional agricultural activities that they have been maintaining in that area; with Commissioner Cook responding and it would not limit other structures that are water-related. Chairman Higgs stated the language does not limit that activity, it is just a setback for structures. Mr. Blake inquired if they can leave their fences in tact to keep cattle from getting into the river; with Chairman Higgs responding there is nothing in the condition that would direct those fences be removed. Ms. Barr stated that was not staff's intent, but they can clarify the language as they address the other issues. Mr. Blake requested staff clarify that they can have their agricultural activities.

Chairman Higgs advised the language would include five years, the setback line established landward from the western boundary of the Cocoa Ranch, or should an ordinary high water line be established and adjudicated, 322 feet from that; and with those amendments, called for a motion. Commissioner Ellis inquired if there is language where it applies to the properties due west of the DRI; with Chairman Higgs responding staff can identify parallel to the north/south boundary of the DRI.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to approve Condition 29c. with additional language of five years and building setback line landward of the western boundary of the Cocoa Ranch, or should an ordinary high water line be established and adjudicated, 322 feet from that line. Motion carried and ordered unanimously.

Vesting

Tom Holley, Financial Advisor to Brevard County, advised in response to a request from Scott Knox, he prepared a memorandum which addresses the impact of vesting on the sale of bonds by a related community development district (CDD). He stated a vested period must be reasonable; and a potential investor must be able to reasonably expect that the assessment plan which has been developed for the project will generate enough revenues to pay off debt service related to the CDD bonds. He read a paragraph from his report as follows: "To the extent that the rate of assessment is imposed variously based on approved land use and zoning, for example higher assessments are imposed on commercial property than that which is zoned single family, the projection of assessments is a function of vested land use and zoning. It may be legally difficult to apportion validly assessments on property which is scheduled for development outside the vested period." Mr. Holley advised not all the acreage gets developed in one day, but before he can develop any of it, he has to spend some money putting in improvements at the front end, such as the interchange at I-95, water mains that are of adequate capacity to serve the whole development as compared to pieces of it; and it would be inefficient and unduly costly to re-size pipes; so at the front end of a development of this size, there is a significant amount of infrastructure which must be funded to serve the entire projected development. He stated if the developers say it will take 20 years to build it out, then their plan of assessments is predicated upon the 20-year buildout; to the extent that gets cut back, their plan of assessment may have to be cut back; and that is the legal issue. He stated to the extent it gets cut back as a matter of law, then the entire initial infrastructure, the burden of paying for that, must be borne by that amount of property which has vested land use in that period of time; however, if it is extended through the whole project, that burden is spread over more parcels. Mr. Holley stated there are two consequences of that; the first is at the front end, if it is shortened beyond a reasonable period where the expectation of the assessment plan will not generate enough money, then the front end users get over-burdened and pay for everybody's benefit, and the later ones that are outside the vested period get a free ride, and that is not fundamentally fair. He stated if they could reapportion those assessments so everybody would get their fair share, then they could shorten that period and it would be reasonable from that perspective; but that is a legal question whether they can do that or not; and he is not competent to speak to that question, so he would defer that to Mr. Knox as to how reasonable is the expectation if the County does not vest the entire thing at the front end, and can the County reapportion it later on.

Commissioner Ellis inquired, when Mr. Holley said reapportion, does he mean after so many years they would reassess properties; with Mr. Holley responding that is correct, and pick up new properties which will have a new vested period. Commissioner Ellis inquired if those properties would not be assessed prior to this period; with Mr. Holley responding the question is can they legally assess properties which the County does not know the zoning of; how would it apportion that if it assesses properties more because they are commercial and it is all zoned agriculture; how would they apportion the benefit and the burden on those properties if they do not know what they are going to be; it is very difficult to do; but whether they can legally do it or not is a matter of law that he would defer to learned counsel.

Commissioner Cook advised the report states, "The perception of marketability of CDD bonds depends on many factors, only one of which is the length of the vested period." He inquired if that is just one of many considerations the investors would make at the time they purchase the bonds; with Mr. Holley responding provided that it is reasonable, but an under-capitalized developer with the longest period of vesting would not make a difference because nobody would buy the bonds. Commissioner Cook stated he understands that it is provided it is reasonable; with Mr. Holley responding that is correct, and reasonableness can be viewed from many perspectives, but the only perspective he was asked to address is what do investors think about it. He stated investors look at what is reasonable to anticipate, what are the revenues that will be generated from the assessment plan, and are they going to be enough to pay the debt service. Commissioner Cook stated another portion states, "The impact of the marketability of CDD bonds which have a reasonable vested period even if shorter than the developer's proposed buildout period should not be the deciding factor in the Commission's decision;" with Mr. Holley responding that is correct; and he stands by that, and thinks that is also the case.

Commissioner O'Brien advised if the Board vests the project for less than 20 years, then the cost of the bonds will go up; a 20-year bond may start out at 7%, but the people within the development have to pay for the bond and the interest; so if the Board reduces the vesting to 15 years, the cost of the bond may rise to 9%; and at some point the cost of the bond would be so excessive that people could not afford to live there, and it gets outside of the realm of affordability.

Commissioner Cook stated he would need a crystal ball to actually determine that; to insure the marketability of the bonds and that the developer is going to have an immensely successful project, he wants to be reasonable; but his concern is he does not know what is going to happen ten years from now or twenty years from now, and he wants a mechanism to give future boards of county commissioners and taxpayers an opportunity to revisit this issue if they need to. He stated his original proposal had been ten years with three or 13 years down the line; he cannot guarantee what the project will build out as; and as mentioned in the report from the Financial Advisor, at some point investors look beyond a certain point and consider it blue sky; so if the Board goes 10 or 13 years down the way, investors are going to look at that and understand there is a certain amount of blue sky beyond that point because no development actually concludes the way it is set up to do. He stated future boards should have the opportunity to revisit this issue if circumstances warrant that and the funding is not available for the infrastructure.

Commissioner O'Brien advised in the Comprehensive Plan there are all kinds of places to re-address things that may come up; however, if the vested time is considerably short, then it may come back to haunt future commissions in that they may have to raise taxes to cover the costs. Commissioner Cook stated it would be just the opposite; if there is such a shortfall in funds, ten or fifteen years down the line, the board may have to impact other taxpayers to pay for what is lacking; it is about $100,000,000 in offsite improvements; that is the best estimate; and he is not sure if that is accurate or not, but he is not willing to gamble everything is going to stay static for the next 21 years. He stated if the Board guarantees the developer zoning for 20 or 21 years, it may end up having to down zone properties in other areas of the County because it made this decision tonight with no mechanism to revisit this at any time. Commissioner O'Brien stated that may be true, but if it is shortened, it may subject the public outside of the DRI to higher taxes; with Commissioner Cook inquiring how would that work. Mr. Holley advised the interest rate on the bonds will be funded by the assessments; if interest rates go up, the assessments will become higher; and to the extent that money has already been spent by higher interest rates, all it is doing is taking that money and transferring it outside of Brevard County in the form of higher interest rates. He stated the ability of the CDD to respond to new conditions which require new infrastructure improvements have been reduced by the amount that they already spent, which is to say if you are going to do this at all, you want to do it as cheaply as you can. He stated that is the function the Board has taken on every other project the County is involved in; there is no benefit to this County to create conditions that will cost more money from citizens which is sent outside the County; consequently, if it wants to keep the capacity, then from a purely financial perspective, which is different from all the public policy issues that go into this, it would be prudent to keep the restrictions it places on this as normal and customary as the market is accustomed to seeing. He stated the more normal and customary the conditions are, the lower the interest rate paid on the obligations will be; and that is true of the County's bonds or anybody else's bonds. Commissioner Cook stated Mr. Holley is saying there is no amount of time that is reasonable that is not the buildout of the project, but that is not what he read in the prior report; with Mr. Holley responding he is not saying that; it may be shorter he does not know, but the shortness is going to have a relationship to the ability to legally re-assess the properties in apportion assessments to that which is outside the initial zoning; and that issue he is not competent to address because it is a legal issue. Commissioner Cook stated DRI's are the only ones that get vested; anyone else who owns property in the County does not get vested zoning; and that is the value of a DRI it is vested for a certain period of time and can rely on that. He stated at some point in the future he does not know what is going to happen; the County may have to down zone other people's properties because the Board has committed this zoning to this area for that period of time; it may impact other taxpayers in the County; plus if the funding mechanisms are not there and they run short, there should be a mechanism to re-address this issue.

Commissioner Ellis inquired if Mr. Holley has a definition of reasonable in terms of Viera; with Mr. Holley responding he does not. He stated he knows when it is not, but to actually pinpoint a spot he would need to have a plan of development to have a sense of what the flow of revenue looks like and what the debt issue will be, to know what the debt services looks like, and see the term upon which the adequacy of the revenues are. He stated none of that information was presented to him; and in requesting it, he was told by the Viera Company representatives that it was not available.

Commissioner Cook stated Mr. Holley could not talk to a bond counsel because the County's bond counsel is also the Viera Company's bond counsel; and inquired if that is true; with Mr. Holley responding he is not sure if they are necessarily the bond counsel, but they declined to answer certain questions as a function of their ongoing representation of A. Duda & Sons. Commissioner Cook stated so they could not get the County's bond counsel to comment on this; with Mr. Holley responding that is correct. Mr. Knox stated that is not exactly accurate, because he has talked to bond counsel about this and they gave him their interpretations of what questions have been asked of him to ask them. Commissioner Cook stated they apparently will not talk to Mr. Holley.

Commissioner Ellis advised the Board talked about the safeguards for the funding mechanisms and shortfalls earlier tonight; talked about Section 41 which is the ability of the applicant to sue; and read Condition 41 as follows: "If the most recent monitoring/modeling study projects that any mitigation measures required for the next year are not or will not be secured and committed in the next year, further building permits shall not be issued by Brevard County until the necessary mitigation options are provided." He stated withholding building permits is strong language and action, far stronger than down zoning; it will stop work on the project until the mitigation is done; and if the County comes into a funding shortfall situation it would be able to withhold building permits.

Commissioner Cook stated the Board would be in an even stronger position if it addressed the vesting issue; he does not want to be unreasonable; he has no problem with the zoning or the Comp Plan amendments; but his concern is the Board is making a large commitment with a project that is obviously going to have incredible offsite impacts in the County.

Commissioner Scarborough stated when the Board does a massive DRI, it is essentially creating an enclave in Brevard County where everything is vested without totally defining, but allowing people to later define; there is a degree of latitude and openness that exists; and when it vests for 20 years, it becomes something independent of all the rules and regulations everybody has to run through. He stated he understands the financing problem, but every developer goes through a financing problem; some people do not go through a CDD and have to pay higher interest because the CDD comes in with a lower interest. He stated in the Baytree CDD there was nothing about the length of buildout; there are restrictions and prohibitions on the use of bond proceeds, restrictions on the investments of proceeds and other amounts, required ownership of government unit of the bond financed facility, and rebate to the U.S. government, a certain earnings in respect to such investments; absent from that was the concept of when does it fold into ownership other than by the developer; and that was one thing the Board heard from the New York attorney that was critical. Commissioner Scarborough stated they are using a governmental process to get money tax exempt so they are becoming like a government and moving the Board out of the internal affairs for 25 years; he knows the Board is talking that this is great and it is going to have all those things; but essentially it is creating a government here with the CDD and removing itself from zoning things. He stated he does not know what is fair or right, but the Board needs to know all the vehicles it is giving them with vesting, such as concepts that are wide open, CDD tax exemption so they become a government unto themselves; and it is called developer controlled. Commissioner Ellis inquired if Commissioner Scarborough knows the statute requirements for CDD's; with Commissioner Scarborough responding yes, but the CDD is fundamentally controlled by the developer for a long period.

Mr. Blake advised Baytree is not a DRI; the developer of Baytree got his zoning; however, he did not agree to build two fire stations, donate five school sites, and do very expensive things such as monitoring/modeling annually; and the reason the statutes provide for DRI's; to be vested, is to give them some chance to recover their costs. He stated if his performa is 20 years of cost he has to pay, and he can only project ten years of income, he could not make a business decision to get there because he does not have the assurance he can spread that cost over the life of the project. He stated there has to be fundamental fairness in the capital requirements imposed on the developer. He noted Cheryl Stuart was involved with Baytree's bond closing.

Attorney Cheryl Stuart with Hopping Green Sams & Smith law firm in Tallahassee, advised under no circumstances does the existence of a CDD gets the developer out of zoning requirements or the development approval process; with Commissioner Scarborough responding he did not try to infer that, but it lets the developer borrow money tax exempt, and that is an advantage. Ms. Stuart stated the questions that are asked in any financing are what is the status of the project, what is the status of the permitting of the project, where are they with the permitting, where should they be for a project of this type, etc.; Baytree was 495 acres, less than 1/10th of the size of the Viera project; there was no expectation to have all the DRI requirements or timing; but at the time of the issuance of that debt, the market looked at several things. She stated the Baytree PUD was approved; preliminary plats were filed and approved for the first 108 lots of the 500 lots; the stormwater system was approved; master utilities were approved, and various other steps were taken, reasonable steps that would normally be taken in the course of developing and permitting a project; and it was a matter of disclosure as to which permits were received and which were not. She stated that was viewed by the market as reasonable and normal; it was exclusively a residential project with a golf course and not a large mixed use project with varying land uses; so the scale was different in terms of size and land uses. Ms. Stuart advised there were no signals of any kind, and the market evaluated that there was no indication of any kind that the developer would not have a reasonable expectation of being able to go forward and permit the project and develop it as proposed; the approvals were in place; and that is what the market looked at in Baytree. She stated Mr. Holley mentioned what is normal and reasonable for vesting of a DRI; the answer is expected buildout at the least; that is what is normal; and in this case, that is what is reasonable. She stated Mr. Holley may have indicated in his comments that there may be a shorter period in some circumstances; but he is not speculating what will go on and she is not either; in the context of a DRI project, the normal vesting is at a minimum the buildout, even DRI's of this length; that is what the market is going to look at; and as Mr. Holley indicated, if the Board does something unusual like pull back the vesting in the DRI, it would create all the problems he identified.

Chairman Higgs advised it is not her problem what the market perceives and how the applicant chooses to finance the project; however, the Board had a hearing on the CDD, chose to make no comment, and sent it forward without comment. She stated the real question is how long should the Board allow the project to go forward and what is reasonable. She stated the Board has asked of the applicant things it has not asked of others; the scrutiny has been far beyond anything the Board has looked at in her two years; 21 years does not make her feel real good, but 10 does not either; so it should be somewhere in between those two. She stated the applicants have met or exceeded almost every condition they have been asked to meet; the density reduction resulted in 22,550 units that are not a part of this project and will not be impacting the roads; and in considering less impacts outside of the DRI, they have made significant reductions in their zoning. She noted she cannot tie it to the CDD because the vesting issue is that and that alone.

Commissioner Scarborough stated the CDDis an advantage to developers who can borrow at a lower interest rate; by getting a CDD, they are able to act like a government and have a quasi-government fund; so it is not a problem but an advantage. He requested Mr. Konefal describe how the five additional years work; with Mr. Konefal responding he would prefer if Mr. Knox would do that.

County Attorney Knox advised the way the extension works is the first three years will be automatic; there is very little discretion for the Board to say yes or no; years 3 to 5, are presumed to be no substantial deviation; if they ask for an extension of buildout, and have a substantial deviation, the developer has to come back to the Board; and the three to five-year issue can be addressed by the Board if it can prove, by clear and convincing evidence, that there is a change in conditions that have occurred. Commissioner Scarborough inquired if the Board is talking about 21 years, is it really talking about a buildout of 26 years; with Commissioner Cook responding the five years are virtually automatic beyond the point of whatever the County vests the project.

Commissioner Cook advised what he proposed at the last meeting was basically to allow it to continue as long as it was connected to the Capital Improvement Projects (CIP); and that was the kicker to help the Board make sure funding is available. He stated vesting should be limited to ten years, additional years of vesting could be provided annually through the CIP process; beginning the year 2001, the CIP would cover to the year 2006 or one year past the vesting period; and in doing so, if Viera-related projects were funded, Viera would get an additional year of funding automatically. He stated limiting the vesting to ten years and using the CIP process is related to the concern as to whether there will be adequate funding to cover the offsite projects that will be necessary to accommodate Viera's impacts on roads, solid waste, etc., such as $100,000,000 in projected road improvements. Commissioner Cook advised since the CIP process requires projects to be scheduled and revenue sources identified each year for a five-year program, it is the only financial planning available that will allow the Board to determine whether there will be sufficient revenues to satisfy the funding requirements associated with such infrastructure needs; vesting beyond ten years should not be provided unless the Board can be satisfied that revenues will actually be available; and using the CIP process is the only way that provides the Board with such precise knowledge. Commissioner Scarborough inquired if Commissioner Cook's idea can be used after 15 years; with Commissioner Cook responding it would render it void or much less effective. Commissioner Cook stated if the Board goes to ten years, they will have 15 years; his concern is to tie it to the CIP to make sure funding is available; and right now the Board does not have that knowledge and does not know where the funding will come from to address those needs. Ms. Stuart stated what the CDD finances is traditionally done by government; with Commissioner Scarborough responding no, it front ends development costs that have been privately financed by developers and the County does not take public funds to put in infrastructures for a new development.

Mr. Reader advised the things they fund with the CDD funds are interchanges which are normally built by the federal government, major roads such as Murrell Road that is in the County's Comprehensive Transportation Plan as an arterial road, and intersection improvements such as the traffic light at Murrell and Barnes Boulevard; and those improvements serve the entire area and mitigate offsite impacts of the development. He stated there may be a misconception that they fund streets with houses on both sides; that is not the case; they do not build subdivision streets or gravity sewer lines, but they fund lift stations and force mains; and those are the improvements needed for large-scale projects. He advised normally 40 or 50-acre subdivisions may be developed because the County has built a lift station in the area and has capacity so they can hook up to it. Mr. Reader state the CDD is going to enter into an agreement with the County about expanding the sewer treatment plant if it is necessary; those are the kinds of things they fund from the CDD; and that is why the dollars are tax free. He stated they are solely for public purposes and not to build subdivision roads and facilities where, as a result of that construction, they are allowed to make a sale. Commissioner Cook stated Viera also got impact fee credits for Murell Road and others; with Mr. Reader responding that was before the CDD; and the impact fee credits were for a right-of-way acquisition offsite and not for the construction of the roadway.

Ms. Stuart advised from their perspective, they are looking at being given the opportunity to develop the project for its expected buildout as proposed; what they are seeking is the chance to do that; it is not a guarantee; it is an opportunity; and that perspective needs to be taken into account.

Mr. Blake advised the buildout extension is separate from vesting; the development order condition says they must develop within a certain period of time or it is a substantial deviation; and the fact that they get substantial deviation relief of three or five years is not related to vesting.

Ms. Bowman stated they proposed 21 years for the period during which there would be no down zoning; and if they change that number, the change would be presumed to be a substantial deviation under Florida Statutes. Commissioner Cook stated the five years are almost assured. Ms. Bowman advised the five years only relate to a buildout period; there is no relationship between the buildout period and how a change in the vesting period would be treated; however, a change in the vesting period would be presumed to be a substantial deviation.

Commissioner Cook stated the developer wants the entire buildout of the project; his concern is a huge development with huge offsite impacts; and tying it to the CIP process is a way to insure the funding will be available in order to meet those needs.

Mr. Glatting advised they have presented to the Board on two or three occasions the expectation of funding to offset the impacts of the project; the DRI requires them to carefully assess the impacts and establish mitigation; and for establishing that mitigation, they are given vesting. He stated they have projected federal, state and local gas tax and impact fee funds that clearly show there is adequate dollars available to offset the anticipated offsite road impacts of the project; if they have misrepresented that in any way, then they have presented false facts to the Board; and that becomes grounds for reconsideration of the project. He stated the Board has full ability to rely upon information they presented and to act if that information is not correct. Commissioner Cook stated those are projections like the County projected it would not need a new jail for 20 years when the jail was originally built. Mr. Blake stated if they are wrong, they are stopped; there is no finessing their way out of it; and they would have the DCA on their back if they tried to finesse their way out of it.

Commissioner Ellis advised there have been comments about what is an advantage, etc.; however, there is a tremendous advantage to the County to have a large master plan development. He stated it is a tremendous disadvantage to the builders who have very extremely high initial costs for infrastructure because they plan for the whole development; they also have a tremendous expensive and excruciating DRI process to go through; and millions of dollars have been spent on this DRI process. He stated he does not understand why they went through the DRI process; they could have built one subdivision at a time and would not have to build an I-95 interchange or give anything; but there are advantages to doing a large master plan development. He stated to have all the stormwater systems that work and all the road systems that work is an advantage not only to the developer but also to the County; the County has little subdivisions on Fiske Boulevard that take turns flooding each other when it rains because they were done independent of each other; the Board has a chance to have something done right; and he does not understand why it wants to road block it and break it down to have it done subdivision at a time. He stated the County has the ability to stop work on this project.

Commissioner Scarborough explained how the Viera project became a DRI from Capron Trace on the east side to the Government Center on the west side. He stated he indicated at another meeting if the numbers were right, they would have an excess of funds in the state for infrastructure; however, it does not make sense to him and he cannot rely on that. Mr. Glatting advised they presented the Board fairly clear facts; they went through great scrutiny with the County staff on the transportation analysis; and they talked for days on how they would create a balanced land use situation in a new community for the purpose of retaining trips internally within the Viera project. He stated nobody from the Regional Planning Council, FDOT, or County staff disagreed that 64% of all the traffic generated by Viera will stay within the project. Commissioner Scarborough stated Mr. Glatting talked about source of funds; he took each of the sources and asked Sue Hann exactly how they were projected out and how the County could expect those sources to pay for it; and the question is how come it has not paid for everything else and the County does not have roads in every place else that is built out. Mr. Glatting advised the other projects do not pay for the arterial road construction that Viera paid for; the offsite impact from Viera is to the interstate highway system; they have shown, based on their tax revenue and miles of travel in Viera, how much federal taxes would be achieved; and staff has agreed to that as a reasonable analysis of revenue generated by this project. Commissioner Scarborough stated staff did not agree. Chairman Higgs advised staff believes the analysis of the revenue generated by the Viera DRI is within reason; they said the revenue is reasonable; but the question is does the County get back that revenue for its road projects. She stated it has not historically gotten back the revenue, and that is the rub.

Mr. Knox advised the language of the development order, as it applies to vesting in Section VI says, "The Viera development of regional impact, as described in this development order, shall not be subject to down zoning, density reduction, or intensity reduction for a period of 26 years from the date of issuance of this development order, unless it is demonstrated that substantial changes in the conditions underlying the approval of this development order have occurred, or that this development order was based on substantially inaccurate information provided by the applicant, or that the change is clearly established by Brevard County to be essential to public health, safety and welfare." He stated there are three different criteria that the Board can look at to re-open this development order at any time, not in ten years.

Commissioner Cook stated the County may not be able to hold anyone to projections. Mr. Knox stated if the Board defines what it means by inaccurate information and include it to mean that the applicant inaccurately projected funding available for infrastructure, it can re-open this at any time it makes that finding. Commissioner Cook stated that puts the burden on the County; the burden should not be on the taxpayers; the Board has an opportunity tonight to set forth criteria that will address the needs of future funding; and his proposal with regard to the CIP is the only specific way that future boards and taxpayers can be assured the funding mechanisms will be there to meet the huge impact of this development. He stated he has nothing against the project, but he has a responsibility not only for tonight but for whoever sits on the Board four years from now.

Chairman Higgs stated Commissioner Cook's confidence in the CIP is beyond where the CIP is today. Commissioner Cook stated he is saying that is an option, and not that it is the only way; but at least it would give future boards the opportunity to re-address this issue; and that is the bottom line for him. Chairman Higgs advised Mr. Knox pointed out there is language and perhaps other language can be put in there; but she cannot tie it to the CIP knowing what she knows about that.

She stated the CIP talks about what they know they are going to pay for in the next two or three years and does not go to the projection; and they desperately need a 20-year CIP.

Growth Management Director Gary Ridenour advised the Board could insert in the three criteria after "essential to public health, safety and welfare," "A CIP process determines that there are insufficient funds to fund capacity improvements to a Viera-related offsite impacted public facility." He stated that says if it is determined there are insufficient funds, the Board would consider that to be a substantial change in conditions or it could be a change clearly established by Brevard County to be essential to the public health, safety and welfare. He stated it could be after "substantial changes in the conditions underlying the approval of this development order have occurred," or after the last condition. He stated it would serve only as an example of what a substantial change would be.

Mr. Reader stated he can appreciate Mr. Ridenour's suggestion, but they believe those protections are already in there. He stated this issue is absolutely critical to them; they have tried their absolute best, and have compromised on greenbelt, committed to the wetlands mitigation up front, got a low income housing goal set through their affordable housing program, and moved forward with the St. Johns protection and are aiming for all of them to move to greater lengths. He advised they discussed issues from taxing to agricultural preserve; they have given up their rights to sue unless it is totally arbitrary and capricious; they talked about impact fees, and have come time and time again to try and compromise; but this is one time where they need to be like every other DRI in the state. Mr. Reader advised the Board asked them to re-look at it at the first workshop; they came back and said their bond advisers said they have to sell 20-year bonds initially and cannot sell them longer than that; and they said it would take a while to get on the street and get them moving. He stated those are the most critical bonds to the project; some Commissioners may not believe they have to be concerned about where they get their financing; but they have to be concerned about a half-built project, an unbuilt project, a subdivision that is expanding by 30 or 40 acres at a time; and that is what they are going to do, but are trying not to do. He stated they need the Board's assistance; if it is traffic, there are stoppers; if it is schools, they know what the stoppers are; if it is improving the St. Johns River, they are setting an example to work and make sure they move in that direction; but they need the Board's help and need it to compromise and understand their reasons; and they respect the fact that it is a difficult judgment, but it is really important to them.

Commissioner Scarborough inquired what Commissioner Cook thinks about Mr. Ridenour's suggestion; with Commissioner Cook responding he has to look at it in writing and would hate to make a decision without a few minutes to look at what he is proposing. He stated he could consider a 12-year vesting period; and if it is tied to the automatic three to five years it would take them to 17 years which is not unreasonable. Commissioner Scarborough stated they are trying to break the link between vesting and the automatic extension because that is critical when they go to the financial market; and the County has a right to go back if it begins to impact the County with infrastructure. Commissioner Cook stated he will look at it in writing but off the top of his head he would hate to say okay; vesting is the biggest tool the County has to allow future boards to revisit this; and if Commissioner Ellis wants to make a motion and it passes, then it is over. Commissioner Scarborough recommended a recess to review Mr. Ridenour's suggestion.

The meeting recessed at 8:22 p.m. and reconvened at 8:46 p.m.

Mr. Ridenour advised he explained to Commissioner Cook the language he proposed.

Chairman Higgs inquired if the language would be inserted in Article VI; with Mr. Ridenour responding essentially it was an example of what would be essential to the public health, safety and welfare, and would be assuring there was sufficient funding for necessary improvements to Viera- related offsite impacted public facilities.

Commissioner Cook advised he reviewed it with Mr. Ridenour at the break; it does not seem to be sufficient for what he is trying to address; he thinks the strongest mechanism the Board has is the vesting; he offered it be automatic if it shows the funds are available; all he is doing is allowing future boards to take a look and find out where it is at; if the funds are available, the additional time would be automatic; and that is a much stronger card. He stated by inserting it in the development order, puts the onus back on the County, and it will have to prove all those things which is not the position the County would want to be in.

Chairman Higgs advised her concern since the outset of the process has been the ability to fund the infrastructure that will be demanded; during the break she asked the County Attorney about what can the Board do if it determines it does not have sufficient funds to fund those infrastructure improvements; and asked Mr. Knox to respond to her question on what actions the Board may take if it finds it does not have sufficient finances to fund the offsite impacts.

Mr. Knox advised presuming there is deficient capacity on one of the roadways, that situation is an automatic shut down of Viera if they are contributing 10% of the impact. Chairman Higgs inquired once they are stopped, would the County have to remedy that deficiency; with Mr. Knox responding the only way it would have to remedy that is if it has that particular improvement that needs to be addressed as one of its priorities in the Comp Plan and has money to pay for it; and if it does not, there is nothing they can do. Chairman Higgs inquired at what point can the Board do that; with Mr. Knox responding as soon as it is determined they meet the criteria of the shut down provision which means the facility is over capacity and they contributed 10% to it. Chairman Higgs stated if Post Road is over capacity and Viera caused 10% of the impact, and the County does not have the money to expand Post Road, can it stop the building and would it have to remedy the deficiency; with Mr. Knox responding yes the Board can stop them, and no it does not have to remedy it unless it has set out the money to do that in the Comp Plan and it chooses not to do that arbitrarily.

Commissioner Cook stated he can see a war of consultants on what they are or are not impacting; all of this is subject to interpretation; and the priorities ten years from now and the funding mechanisms are unknown at this time.

Commissioner O'Brien advised the Board is discussing vesting; the whole issue is a money issue; the money issue in vesting is if a project is a 12-year project, they are vested for 12 years; if it is a 20-year project, they should be vested for 20 years; and if they vest a 20-year project for 15 years the cost of the bonds would escalate considerably and put a terrible burden upon the people who invest in Viera by buying a house or business; and it could make it almost unaffordable for anyone to invest or live there. He stated if the vesting is shortened to ten years, then the 11th year there is no mechanism for further bonding by the Company, which means that there is a high probability that the citizens of Brevard County will be smacked with taxes to cover the infrastructure; and the Board is here to reduce that possibility from happening. Commissioner O'Brien stated the Board will stick its neck out if it tries for a shorter period of vesting; and at the same time, it sticks the public's neck way out for higher taxes.

Commissioner Cook inquired how would the Board stick their neck out if it is allowing another board to re-address the issue; the Board is sticking the taxpayers necks out by allowing someone a 21-year development buildout in vesting and zoning that nobody else will get; and it may end up having to down zone other people's properties in other parts of the County because it has dedicated this to one particular development.

Commissioner Ellis stated he does not know anyone else in the County who is subject to a stop work order on their building permits; for the Board to stop anyone else's building permits it would have to go through a moratorium process; so there is pretty strong language in the development order if there are deficiencies to do a stop work that the Board cannot apply anywhere else in the County. He stated if they are making a long-term investment, they would try to put all their commercial properties in along with their industrial and residential properties to help cut down the number of trips; the whole purpose of the DRI is not to build houses; they can already build all the houses they want to; the purpose of the DRI is to make a trade off of houses for commercial and industrial property; and that is what the DRI gets into. Commissioner Ellis stated that mixture is better to have; he does not want to end up with another 20 subdivisions and everyone gets on the road at 7 a.m. and comes back at 5 p.m.; there are enough areas like that now; it is a chance to really do something right from the ground up; and no one else in the County has to worry about their plat having all the building permits stopped. He stated this is the only one he knows of where there is language in the development order to stop work; they do not have to go through the moratorium language of the state; and he does not know what stronger thing the Board can get than that.

Chairman Higgs called for a motion on the vesting.

Motion by Commissioner Ellis, to approve vesting for 21 years. Motion died for lack of a second.

Motion by Commissioner Cook, to approve vesting for 10 years tied to the CIP with automatic five- year increments. Motion died for lack of a second.

Commissioner Scarborough stated he is not opposed to their having the capacity if that 21 years is important to the financing; but he is also sensitive to what Commissioner Cook is saying; and inquired if there is some way to structure something with the proper language that answers his concerns and leaves the financing for 21 years intact so they can obtain their objectives in getting their money. He inquired if there is some language Commissioner Cook could suggest where the onus would not be on the County; with Commissioner Cook responding not as part of the D.O., because the vesting is the biggest mechanism the Board has. Commissioner Scarborough stated the applicant feels the 21 years is essential, and Commissioner Cook feels the language where they can be divested is insufficient; and inquired if the County Attorney has any ideas; with County Attorney Knox responding it can switch the onus back to Viera by creating a presumption of some kind that if certain things happen it does not meet the criteria that he identified earlier. He stated if there was not sufficient funding to complete the infrastructure on the basis that it is approved in the development order, that would be presumed to be a substantial change or inaccurate information, it would be up to Viera to come back and show that it is not the case. Commissioner Scarborough inquired if that would be in line with what Commissioner Cook is looking for; with Commissioner Cook responding his concern is everything in the development order is subject to interpretation, evaluation, and any other legal type language; and he does not feel it is strong enough to meet the concerns. Commissioner Scarborough stated there is no consensus here; and inquired what the County Attorney would suggest to shift the burden; with Mr. Knox responding if the Board is specifically concerned about infrastructure funding, it could say the applicant has inaccurately projected funds available for proposed infrastructure; the information provided by the applicant shall be presumed to be in concurrence for the purposes of this development order which triggers the revisitation of the vesting. Commissioner Scarborough inquired if that addresses the CIP sufficiently; with Mr. Knox responding it does not tie it to the CIP and just says the projections they presented were inaccurate and enough to trigger a revisit of the vesting issue. He stated it calls for monitoring every year.

Chairman Higgs inquired if it said the annual monitoring of the CIP indicates that projections by the applicant of available funds were inaccurate then the County may revisit this particular item. Mr. Knox stated that is where the County would want to create the presumption that they have presented substantially inaccurate information. Commissioner Scarborough inquired if it would use the word there is a presumption that they provided inaccurate information. Chairman Higgs stated it is tied to annual monitoring of the County's available financial resources to fund the offsite infrastructure, or demanded improvements indicate insufficient funds, then continue with the language. Commissioner Scarborough stated it would have to use the words "there is a presumption" so they can bring in evidence and show the presumption was wrong. He stated Commissioner Cook was referring to the burden being placed on the County to demonstrate and affirmatively find something; whereas this information will throw the presumption to Viera if the numbers are not coming in right. Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve 21 years vesting with the creation of a presumption as the County Attorney worded it.

Commissioner Ellis stated he is not sure what the presumption issue is going to do; but the language in Condition 41 is very explicit and gives level of services for the roads; with Commissioner Scarborough responding the language will read it is 21 years unless demonstrated and affirmatively found by the Board of County Commissioners; Commissioner Cook stated the County has the burden there; but there will be numbers generated in the annual report; and the presumption would shift to Viera to show the numbers are not right. Commissioner Ellis inquired if it would be the level of PUBLIC service numbers; with Chairman Higgs responding no, it would be the projected financial numbers to fund deficient infrastructure. Commissioner Ellis inquired if they would have to have level of service numbers to determine deficiencies; with Chairman Higgs responding yes, but they are monitoring those things anyway; and if the annual monitoring indicates there is a deficiency and the County is not able to make the improvement, then there is a presumption. Commissioner Scarborough stated they have the right to overcome the presumption, but if they do not, it will automatically occur. Commissioner Ellis inquired if it ties the vesting to the same issue in Condition 41 where the building permits are tied to level of service on the road and funding ability to correct level of service deficiencies; with Chairman Higgs responding it triggers the revisit of this issue.

Mr. Knox suggested the following: "If as a result of any annual or other monitoring report, the funding projections of the applicant are found to be materially inaccurate, it shall be presumed the applicant has provided substantially inaccurate information for the purposes of this development order." Chairman Higgs inquired if that will allow the County to go back into the conditions of the development order; with Mr. Knox responding the conditions of Section VI allows the Board to go back and look at the vesting. Chairman Higgs advised it says, "The development order shall not be subject to down zoning, unit density reduction or intensity for a period of 21 years unless. . ." Mr. Knox stated substantially inaccurate information is one of the "unlesses". Commissioner Ellis inquired if it refers to funding projections; with Mr. Knox responding that is correct. Commissioner Ellis inquired what if the project builds slower than planned so the funding projections lag behind but there are no deficiencies yet; with Mr. Knox responding it would still constitute inaccurate information for the purposes of this Section. Commissioner Ellis inquired if this Section could kick in even though there were no deficiencies in the roads; with Mr. Knox responding potentially.

Ms. Bowman advised she is not sure the projections they supplied the County are broken down on an annual basis for road purposes; she is not sure the County has inaccurate information to compare to; but the larger point is it would place them at risk of divesting in year 1, 2, 3, 4, and therefore in a less secure situation from the financing standpoint than the ten-year period. Commissioner Ellis stated from what he understands, they can be divested even if there are no deficiencies. Chairman Higgs stated the Board could clear it up to say they could not be divested unless there are deficiencies; with Ms. Bowman responding in matters inconsistent with the other provisions of the development order which say if there is a deficiency they stop, then they have a number of options, they can fix it or see if someone else will fix it, but no where else in the development order until now have they said they are at risk of losing all their development rights from that point forward because of an annual deficiency. Commissioner Scarborough inquired if Ms. Bowman has suggested language; with Ms. Bowman responding she does not have anything to propose. Commissioner Scarborough inquired if Ms. Bowman had language on the creation of presumption she could suggest; with Ms. Bowman responding the problem with the presumption is that it places them at risk in year 1, 2, 3, and that is what the financial people look at. Chairman Higgs stated the presumption could not come until the tenth year. Mr. Knox advised the applicant is under the same risk under the current development order; if the Board takes the position that it is substantially inaccurate information for purposes of this development order in any year, the County can stop them; all this does is create a presumption; and they can come back and rebut that presumption instead of the County having the burden of showing that it is substantially inaccurate information.

Chairman Higgs advised there is a motion and second for 21 years with the County Attorney's language; and asked the County Attorney to read the language.

Mr. Knox advised it would be added to Section VI at the end after "public health, safety and welfare," as follows: "If as a result of any annual or other monitoring report, funding projections of the applicant are found to be materially inaccurate, it shall be presumed that the applicant has provided substantially inaccurate information for the purposes of this development order."

Chairman Higgs advised according to the initial staff comments, they felt confident in regard to transportation that at least up to year ten or between seven and ten, there is sufficient infrastructure in place; and if the concern is that it could hit them at year 1, the Board could add "after year 10." Commissioner Scarborough inquired if it would create a presumption only after year 10 and before that the burden would be on the County; with Chairman Higgs responding yes. Chairman Higgs inquired what would it do to insert "after year 10;" with Mr. Knox responding essentially it gives them ten years before the monitoring reports would cause any presumption of substantial inaccurate information. Chairman Higgs stated they may give the County inaccurate information before year 10 so that is not what she wants to do either. Mr. Knox stated it is only creating a presumption and it is their burden to show it is not; before year 10 the Board would still have an opportunity to say if they had substantially inaccurate information that would trigger a review of the development order, but the County would have to prove it instead of them. Commissioner Cook stated that goes back to his concern that the onus is on the County and how could it hold people accountable for projections. He stated there are a number of areas where it could be an impossible burden for the County to prove.

Commissioner Ellis stated under Condition 41 it is very clear and easy to prove; it has a given level of service C, and after measuring that road traffic, and if it is projected to go below level of service C, then there is a deficiency and the County could issue a stop work on the project. He stated that is clearly defined; the Comprehensive Plan defines what the maximum level of service volume is for all the road facilities; there is no projections; it is this is how much capacity the road can handle; this is the amount of capacity on the road right now; when they reach the threshold they stop work on the entire project; there is no other project in Brevard County that is subject to that; so when talking about safeguards on this, there are more safeguards on Viera then any other development in Brevard County. He stated projects come in on roads of level of service D sometimes; the Board is arguing over projections, capital improvement plan, and other things that are not concrete numbers; but in Condition 41 there are concrete numbers which is the maximum acceptable level of service on the road, the traffic count, p.m. peak hours, and all other factors involved. he stated there is language right now that is very clear of how to stop work on the project; the vesting issue does not stop work on the project; the CIP is no where near as clearcut as doing a traffic count on the road; and he does not know what more the Board wants than what is in Condition 41.

Chairman Higgs advised she agrees that language in Condition 41 and Section VI are fairly strong; she does not know that the language regarding annual monitoring would do anything other than shift the burden to the applicant to prove that the County did not have inaccurate information when it made the decision; and if it was inaccurate information, the Board is able to make that decision.

Commissioner Ellis stated Condition 41 has something that can be clearly measured, accepted level of service on the road. Chairman Higgs stated the Board is assuming that the projection of gas tax revenue, impact fee revenue and Brevard County's ability to maintain a certain percentage of that money is going to be available to fund offsite impacts; and that is information the Board is counting on to make this decision. Commissioner Ellis advised that funding is to improve level of service on those roadways; that is the purpose of why the County would improve a road; so if it is going to drop below level of service C, which would move it into deficiency, under the development order the Board can stop work on the project. He stated the language of Condition 41 says, "If the project is projected to contribute ten percent or greater, and facilities also projected to operate below applicable adopted level of service in the next year, applicant must demonstrate the necessary or adequate mitigation measures are secure and committed in the next year." He stated if mitigation measures are not or will not be secured in the next year, further building permits shall not be issued.; so it is a stop work on the project if it is approaching the deficiency. Chairman Higgs stated all that language is in there, and this simply says, if annual monitoring reports after year 10 indicate that insufficient revenues are being received, the Board has the ability to look at it. She stated it simply clarifies what is in there. Commissioner Ellis stated if the reason the Board is not receiving adequate revenue is because the project is not building as fast as it was planned, and there is no deficiency problem, would the County have language in the development order to go in and divest the property. Chairman Higgs stated if there is no problem she cannot imagine the Board re-opening this issue.

Discussion ensued regarding language in Condition 41 and other proposed language.

Mr. Glatting advised the Viera project is the only project he is aware of in Florida that has a condition to do annual monitoring of traffic and modeling of future traffic impacts with a five-year look ahead; and that is essentially a comprehensive transportation analysis done every year on the impact and traffic conditions of Viera and surrounding areas projected over the next five-year period of time. He stated they have tied that carefully with County staff into the CIP process so that they can understand whether or not there are deficiencies and if they begin to be funded in the County's funding cycle in a five-year period of time. He stated if they cannot fund those projects, and if a deficiency will occur, they know about that five years in advance; and the County has adequate time to take any measure to understand that those improvements are not going to be made and Viera is going to be shut down. Mr. Glatting advised vesting as it has been used in Florida DRI projects in every DRI and substantial deviation that have been done in Brevard County and in East Central Florida Regional Planning Council, according to State DCA personnel, have had vesting periods equal to their buildout periods; and it is done that way simply because there are all the other built-in assurances in the DRI process. He stated they have transportation monitoring and modeling to understand the major impacts offsite and where they have stop orders if the County does not meet the improvement conditions and there are deficiencies in the system; and they also are subject to concurrency which is not true of every DRI; so there are plenty of ways for the County to control the development and stopit if there are no adequate public facilities. Mr. Glatting stated Viera represents over a 20-year period of time, well over one billion dollars of construction in Brevard County; it is a substantial project; and for that project not to have certainty, it cannot proceed.

Chairman Higgs advised the motion was for 21 years and the language only clarifies those conditions in Section VI under which the Board could revisit some of those issues. Commissioner Ellis stated that is not how he understood the actual effect of the language.

Ms. Bowman stated if the County were to repeal impact fees they have used in their projections, it would be difficult to rebut the projection that assumed the impact fees were there; also it is fundamentally at odds with the way the development order is written to say they could lose development rights forever if there is no road deficiency; but they cannot rebut the presumption that their projections were inaccurate because the Board repealed impact fees they assumed to be there for future years. She stated there are practical problems with what has been suggested although she understand what the County Attorney is trying to do; however, she is not sure it works.

Commissioner Scarborough stated if this does not work, someone needs to come up with other ideas because his concern is they get to the 21 year vesting issue and it is standing alone; the Board has been told it has all the protections, but when it talks about shifting any burden, that will not work; there are other parts that address other things; but the vesting allows the Board to look at not the discontinuation of the project but the restructuring of the project which is different. Commissioner Ellis stated he does not understand that point. Commissioner Scarborough stated if the Board does not have the infrastructure to support the project as originally designed, they could restructure.

Mr. Knox suggested another sentence to take care of the problem, as follows: "The presumption may be overcome if it is shown that no foreseeable infrastructure deficiency will be caused as a consequence of the inaccurate information."

Commissioner Scarborough included that language in the motion; and Commissioner O'Brien accepted the additional language for discussion.

Commissioner Cook inquired how does that strengthen the position of the County; with Mr. Knox responding it is the burden shifting with the applicant having to show they did not cause the problem, but it does not change anything specifically. Commissioner Cook stated if the presumption does not result in a funding problem, then the inaccurate information would not be applicable; with Mr. Knox responding they can overcome it if they can show that the funding projection was not going to adversely affect the development as it was projected originally.

Ms. Bowman advised if the Board is going to take the step of saying it is not just the inaccurate information, the thing that should be required for the applicant to show is that they meet the development order condition, i.e. mitigate in the way that is required under the development order. She stated foreseeable deficiency could be anything, five years ahead of time; and under the development order they are not required to mitigate five years ahead of time. She stated if they can show they are in compliance with the development order, they would have met their burden.

Mr. Knox stated he agrees with that. Chairman Higgs inquired what does that mean; with Mr. Knox responding if it did show there was an adverse and material deficiency in the infrastructure and they overcome that by providing one of the mitigation measures set forth in the development order, then they would be allowed to go forward, and the Board would not be able to go back and divest them at that point. Chairman Higgs inquired if that says the Board cannot divest them without a deficiency; with Mr. Knox responding the Board cannot divest them unless their projections were so far off that there is going to be a deficiency they cannot cure.

Ms. Stuart inquired if the Board repeals impact fees and their projection is inaccurate because they presumed the fees would be there, would they be divested; with Mr. Knox responding if that would create an infrastructure deficiency that they cannot cure, the answer would be yes; but that needs to be addressed as to whether or not it is sufficient grounds to trigger this clause. He stated it is more a fairness issue whether or not the Board should be able to pull the plug out from under them by doing something like that. Commissioner Ellis stated that is already the case with Condition 41. Chairman Higgs advised Condition 41 would stop them but not allow the Board to go back and revisit those issues. Commissioner Ellis stated the whole zoning issue is irrelevant if they cannot build, so he does not know why the Board spent days on the zoning issue, because if they cannot get a building permit it does not matter what their zoning is. He stated the County has concrete definitions on how to stop them from pulling building permits by doing level of service measurements; when it is at the projected deficiency, the Board can stop the issuance of building permits; so it is totally irrelevant what the zoning is at that point because they cannot add anything to the road network. Chairman Higgs stated if the Board did not extend the gas tax and changed impact fees, they would not be allowed to proceed.

Mr. Blake responded that is correct. He stated if they did their monitoring/modeling and it showed a road was needed, but the County could not finance the road, did not have it in its plan, and would not put it in its plan, and there were no impact fees in that district, if they could not get the CDD to fund the road improvement, they would be stopped unless they had some other mitigation measure. He stated that is one reason they have the five-year lookout; it gives them time to look at options; but if they get to the year in which the adverse impacts occur because of the change in circumstances, and they have not dealt with it, then they are stopped. He stated making them stop development is another thing to take away the residual value of the land for what could be a temporary situation due to no impact fees and their ability to solve that; and that is where it cuts them the wrong way. He stated when it goes to vesting, the County is taking away their ability to solve it because whether it is through a CDD or they do it themselves, they do not have the residual value of the land if they solve it; they cannot finance it; so the stopping of construction is the proper way to deal with the inability of infrastructure to be available to service the project. Mr. Blake stated by going to the vesting, the Board does not alter its ability to stop development of the project, it just alters their ability to solve the problem for the County. Chairman Higgs advised throughout the language in Section VI, it talks about the County's ability to go back through public hearing to deal with substantial changes in conditions underlying the approval of the development order; and the language the Board is talking about just clarifies that condition. Mr. Blake advised it says the County has to assert that those are changed conditions, but it does not create a presumption that he made mis-representations when it is based on an occurrence the County has caused. He stated the County made his projections inaccurate, but they would be stopped.

Ms. Busacca advised the data shows there is enough money for approximately the ten-year time frame to do roadway improvements; and inquired, if a moratorium was required, does the clock continue on the 21-year period against vesting; and if so, would they have a moratorium for some ten years, would the County have used all the 21 year period, does it need to talk about the additional language, or does the 21-year time clock stop; with Mr. Knox responding it would be an unrealistic view of what a reasonable moratorium period is; it would depend on the facts and circumstances; but the judge may decide five years is reasonable instead of ten. Ms. Busacca inquired about the 21-year time limit; with Mr. Knox responding they are vested for 21 years from the date of the development order and that is it. Mr. Blake stated if they are stopped from permitting, which in effect would be a moratorium, yes, that 21-year clock continues to run.

Commissioner Ellis inquired, if they reach a moratorium stage any where in the County, is down zoning a solution to a moratorium, or are infrastructure improvements a solution to the moratorium; with Ms. Busacca responding there are three possible solutions or a combination of all three solutions; change in level of service, reduction in intensity or density that would impact the roadway, and improvements. Commissioner Ellis inquired, if they reach a moratorium where the County is not issuing any more building permits, what would be the effect of down zoning property which cannot be built on anyway; with Ms. Busacca responding the way she envisions it is that the County could perhaps make some roadway improvements, change the level of service which would give additional capacity, and do that in conjunction with reductions in densities or intensities. Commissioner Ellis inquired if the roadway improvements were such to allow a certain number of homes to be built, why would they need a down zoning to accomplish that, and could they not say they have improved the road to where they can add another 1,500 cars; with Ms. Busacca responding yes, but if the ultimate buildout on that property which fronted that would generate 3,000 cars and the additional capacity is for 1,000 cars, then they would have to reduce the ultimate buildout by the 2,000 car margin. Commissioner Ellis inquired why would they have to do that, and why would they not be able to have the 1,000 then go back into moratorium again, and at that time it may not be lifted. He stated it is the same owner with all the property; the point makes sense if there were 1,000 parcels with 1,000 owners; but in this case, there could be 1,000 parcels with one owner. Ms. Busacca stated Commissioner Ellis is assuming they are talking about roadways that are internal to the Viera project; the Board is talking about roadways external to the Viera project, so Viera is not the only property owner being affected; and the reason that she assumes they do not go back into a moratorium is because moratoriums are short-lived and not something they would want to do again. She stated she assumes it is short-term until they get the proper long-term solution in place. Commissioner Ellis stated under the wording of the development order, the moratorium would only be in place on the DRI; and when they talk about jointly used roads, other properties along those roads would not be subject to the moratorium unless the Board did the moratorium in accordance with the statutes. Ms. Busacca stated there are two possibilities for a moratorium; one would be that which is required by the modeling and monitoring program as part of the development order, and the second would be one which is required as part of a level of service standard on a road aside from the modeling and monitoring program. Commissioner Ellis stated the monitoring and modeling program reaches a moratorium stage on the DRI faster than they can reach a moratorium stage on the roadway in general for the rest of the properties on the affected roadway because in Condition 41 they reach a moratorium when they are projected to go to worst than level of service C; so they would reach a moratorium first on the DRI properties before they would hit moratorium on the rest of the properties; with Ms. Busacca responding that would be the greater likelihood; she cannot imagine that not happening; but she does not know all the circumstances that could occur. Commissioner Ellis stated since they own all the lots, they could easily build a third of the lots down zoned into larger lots; with Ms. Busacca responding she agrees with that.

Commissioner Scarborough inquired, if the Board took the original language without any amendments suggested, and the County did not continue the gas tax and stopped impact fees, could it demonstrate and affirmatively find that there has been a substantial change in the conditions; with Mr. Knox responding the Board could take that position, but he does not know if The Viera Company would agree with the Board. Commissioner Scarborough stated the contingency of fairness is the issue; and inquired what if the Board accepted that issue out, since it is already underlying and would not create a presumption in that case if the deficiency occurred because of actions by the Board of County Commissioners in abolishing gas tax. Mr. Knox stated that makes sense to him. Ms. Bowman advised if in year 10 under Condition 41, the development order is stopped, they stay stopped until they do whatever is required under the development order; there is no reasonable period; no court is going to be involved in it; so until they mitigate, the clock on their vesting continues to run. She stated there will be no court determining whether it is one year, two years, or five years until they do what is required under the development order, and they do not move forward and they have waived their right to sue the County for some unreasonable period on that time. She stated it is a different kind of moratorium that is not subject to any kind of reasonableness of period.

Commissioner Cook stated any clarification that has been suggested still puts an impossible burden on the County to realistically do anything; his proposal is to give them automatic vesting after ten years if the infrastructure was there; it allows future boards to address this issue if they have to; and it is clearcut and clean.

Commissioner Scarborough stated right now even if the Board abolishes gas tax, impact fees, etc. it can demonstrate and affirmatively find there has been a substantial change in the conditions underlying the approval; that right exists without the County doing anything; so it should not excepted it out entirely; but since it is action the Board takes, in a sense of fairness, it should not shift the burden in that case, and the County would have to show there is a problem. He stated the real issue is whose burden is it.

Commissioner Ellis stated there are no presumptions involved in Condition 41; there is an assigned level of service for roadways; they measure the cars on the road; when they reach the projection that they will go beyond that level of service, they would stop work; and there is no real burden of proof. He stated it is only a matter of putting car counters out there; it is very clear and measurable; and it is not expensive and does not require a lot of consultants. He stated that is being done throughout the County with its road network; he does not see anything stronger than a stop work order; and a stop work order has very clear and definable parameters in it.

Mr. Blake requested the motion be restated if that is possible.

Mr. Knox read the motion as follows: "If as a result of any annual or other monitoring report after year ten, the funding projections of the applicant are found to be materially inaccurate for reasons unrelated to gas tax and impact fee decisions made by the Board, it shall be presumed that the applicant has provided substantially inaccurate information for the purposes of this development order. The presumption may be overcome if it is shown that no foreseeable infrastructure deficiency will be caused as a consequence of the inaccurate information."

Chairman Higgs stated she has a problem excluding impact fees and gas tax; with Commissioner Ellis responding he does not understand how they would stop someone when there is no deficiency. Chairman Higgs stated she understands that and is not interested in doing that, but she is uncomfortable taking out the gas tax and impact fees.

Mr. Blake stated it is not acceptable to them; they must have the ability to go to the bond market and do the things that are right; they have to have the ability to build the fire stations the Board wants them to build to move it off the tax burden of the taxpayer of Brevard County; and they are not getting there and cannot get the plane off the ground with that much baggage.

Chairman Higgs inquired if the County Attorney believes that substantial changes in the conditions underlying the approval of the development order have occurred, or that substantially inaccurate information was provided by the applicant, under those conditions the Board could include the projections in regard to the County being able to change the down zoning and density in that paragraph; with Mr. Knox responding in terms of revisiting the vesting issue, yes; and if the Board wants to make it absolutely clear, it could change it to inaccurate information or projections.

Commissioner Scarborough stated if the Board wants to change the motion it can, because it has to come together on it and he has run out of ideas. Chairman Higgs stated if it says the projections are wrong, it basically says that the information that the Board based its decision upon was wrong and it wants the right to go back and look at the zoning, density and intensity. Commissioner Scarborough stated what drove him to the presumption is Commissioner Cook's argument; and inquired at what point can the Board look at the project as a whole and say it cannot be workable within the confines of Brevard County. He stated shifting the burden at some point may be almost impossible to accomplish. Commissioner Ellis reiterated the language in Condition 41 is clear and very defined and his previous comments about zoning being irrelevant if there is a stop work order.

Chairman Higgs advised the motion is as read by the County Attorney, but she wants to delete the language that exempts gas tax and impact fees.

Commissioner O'Brien stated he does not want to remove that language; it is one thing to be unfair to the applicant; to take that out would be totally unfair; and he cannot buy that at all. Commissioner Scarborough stated he will keep the motion as is then. He stated when it is impact fees or gas tax, the burden does not shift and is on the County to show that even though it was the Board's action that somehow there should be re-addressing of vesting.

Commissioner Cook restated his previous comments and stated no one is trying to be unfair to the applicant; his responsibility is not just to the people that happen to work for The Viera Company; his responsibility is to every taxpayer in this County; and this language does not accomplish what he wants to accomplish and still puts an impossible burden on the County and does not allow any future boards to address the issue.

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

Commissioner Ellis inquired what are the current standards to impose a moratorium outside the DRI process; with Mr. Knox responding the Board has a concurrency Ordinance that says they have to reach a certain level of service; and if it is below that level, they start looking at ways to stop it. Commissioner Ellis inquired how many years can they go below it before the moratorium is imposed; with Assistant County Attorney Lisa Troner responding it is before it reaches the point where the County has to stop issuing development orders. She stated there is a certain percentage that triggers the ordinance coming before the Board so that the actual time of the moratorium coincides with the refusal of development orders. She stated under Condition 41 the levels of service have to be below the minimum levels of service, so there is already in effect a moratorium if it is affecting other property owners other than Viera. Commissioner Ellis asked Ms. Troner to repeat that. Ms. Troner stated Condition 41 talks about the Viera project shall not commence beyond a certain point when service levels are below the minimum acceptable applicable adopted level of service; so that means if it is below the applicable levels of service, the County has a moratorium situation for the rest of the County regardless of Viera; if Viera is contributing 10% of the peak hour level of service C then they stop their entire development not just the portion that is contributing that deficiency; so Viera has to stop the entire development, but there is already a moratorium situation on that roadway that has affected the rest of the property owners bordering that roadway. Commissioner Ellis inquired if Ms. Troner is saying that right now there are no roads in Brevard County that operate below the applicable level of service; with Ms. Troner responding there should not be by the way the Ordinance is structure; and Mr. Ridenour responding not to his knowledge. He stated the Land Development Division monitors, through the concurrency management system, all development orders that come through the County. Commissioner Ellis inquired if there are no roads below level of service C in Brevard County right now; with Mr. Ridenour responding that would have to be his understanding. Commissioner Ellis stated Malabar Road is not level of service C. Chairman Higgs stated it is in the City of Palm Bay; with Commissioner Ellis responding it is a County road and there are County properties that abut Malabar Road that are not in the City of Palm Bay. Mr. Ridenour advised the Land Development Division monitors it; it is 110% of the maximum level of volume; they are required by the Concurrency Ordinance to bring to the Board a moratorium ordinance if there is exceeding of the level of service. Commissioner Ellis stated there are roads in the County right now that exceed levels of service. Mr. Ridenour advised there are level of service D roads. Commissioner Ellis stated if they are level of service D, they are not in moratorium right now; so it is not accurate to say that as soon as they drop below level of service C there would be an automatic moratorium because that has never been done in the County. Ms. Troner stated there are two requirements; one is the Viera project shall not commence beyond a certain point when service levels are below the minimum acceptable p.m. peak hour level of service as set forth in the Comp Plan. She stated the Comp Plan has different levels of service for different roads; so they could be C, D, E, etc. She advised when that happens, the property owners along that roadway segment that have undeveloped property and wish to have building permits are already affected by a moratorium situation. Commissioner Ellis stated that has never been done in the County; with Ms. Troner responding that may be true. Commissioner Ellis stated there are roads operating today beyond level of service C. Ms. Troner stated C does not affect the first condition unless that roadway's minimum level of service in the Comp Plan is C; C is affecting the second requirement; the first requirement is the roadway has to operate below the acceptable level of service which may be D on some roads or E; the second condition is Viera contributing 10% or greater to the peak hour level of service C; and if Viera is contributing 10%, they have to shut down their entire project, not just the development impacting that road. She stated that is her understanding of Condition 41.

Commissioner O'Brien advised the Board may have to change its way of going about this; Commissioner Cook is talking about future commissioners' ability to address this whole project; and the Board needs to define what future commissioners should address. He stated moratoriums are not part of the vesting problem, and Condition 41 is not part of vesting; vesting is about zoning, time and money, and how it is going to affect taxpayers outside of the DRI; so the Board must establish a mechanism, that the vesting could be lost at some point, and at the same time be fair to the public and the applicant. He requested input from The Viera Company to find a middle ground the Board and the applicant can accept. He stated if they are trying to hold the line to 21 years and it is a straight line, it may not fly tonight. Commissioner Ellis inquired if the vesting issue is the appropriate issue to use to insure infrastructure requirements; with Commissioner O'Brien responding it is not tonight being discussed as insurance for infrastructure problems; and the issue is longevity of the vesting so the zoning is not locked up and nobody can use it someplace else. Commissioner Ellis stated but that is not what the discussion has been for two nights; with Commissioner O'Brien responding that is because Commissioner Ellis keeps going back to the section on moratoriums when vesting is all about zoning. Commissioner Ellis stated the vesting issue for two nights has been used to insure infrastructure improvements will be done in a timely manner; and that has been the direction of the discussion. Commissioner O'Brien stated that is some of the avenues that were taken in trying to solve the problem, but he does not believe that is where the answer is; the answer lies in can the County give vested zoning for 21 years and what is that worth in dollars to the applicant and in tax dollars to the public; and if those four things can be put together, that would be the answer, but it has to be absolutely fair to all parties involved and so far he has seen unfairness on both sides. He stated the public is not getting the right deal; the Board will not get there until it starts addressing where the answer is; and he does not know where the answer is.

Chairman Higgs inquired if it is at 15 years with a review at 15 years based on the CIP for the next 5 years, then vesting for 5 more years; with Commissioner O'Brien responding that may be one of them. He stated there has to be some ground in the middle they can all agree on, including the applicant, and recommended a recess to meet with the applicant.

The meeting recessed at 10:05 p.m. and reconvened at 10:26 p.m.

Chairman Higgs inquired if the language has been worked out; with Ms. Bowman responding they have language; however, they have to make it clear that it has not been reviewed by their underwriter's counsel so they do not have his input as to its effect on financing; but they would like to present it for discussion and see where it will go with the Board. She stated in Section VI, restrictions on down zoning on page 55, there are three things that allow the Board to revisit the approved density or intensity; they suggest, that after the list of things, adding another sentence that says, "If the applicant violates Condition 41 in any year after year 2010, that shall be presumed to be a substantial change underlying the approval of the development order which can be rebutted by the applicant." She stated they would specify that if they are out of sync with the County's road improvement requirements after year 2010, that would place them at risk for the remainder of the development rights. Chairman Higgs inquired if the County Attorney could read the previous language; with Mr. Knox responding, "If as a result of any annual or other monitoring report after year ten, the funding projections are found to be materially inaccurate for reasons unrelated to losses in revenue from gas tax and impact fee decisions made by the Board, it shall be presumed that the applicant has provided substantially inaccurate information for the purposes of this development order. The presumption may be overcome if it is shown that no foreseeable infrastructure deficiency will be caused as a consequence of the inaccurate information."

Commissioner O'Brien stated the problem is the inability to define where the Board wants to go; it wants to give vesting but hold the wild card so it can divest at some point or any time it wants; and the question is where does the problem start. He stated vesting is about zoning and having the zoning for 21 years; five years from now DCA may make it tougher and other people will not be able to develop their properties because of the vesting of Viera; so the Board needs to define the problem and attack it from that point. He inquired if it is a question of transfer of power of the authority of this Board to The Viera Company in their development; and is the Board afraid of that transfer of power where they become an independent political body unto themselves. Commissioner O'Brien stated if the applicant violates Condition 41 after year 2010, it is a good start and a place to look at.

Commissioner Cook advised Ms. Troner made a comment if a road falls below a level of service building should stop regardless of this project or anything else; with Ms. Troner responding that is her understanding of the concurrency requirements. Commissioner Cook stated in order to meet concurrency, that would be a normal thing anyway; with Chairman Higgs responding but it allows the Board to have that as a violation of Condition 41 then enter into Section VI.

Mr. Knox advised when Ms. Troner read the provisions of Condition 41, she was reading the first part; there is a second part which allows the Board to hold building permits if Viera identifies a projected deficiency a year in advance and cannot provide mitigation measures at that time; so Viera can be stopped a year before anyone else. Commissioner O'Brien stated that is not the issue; the issue is zoning, time, dollars, and protection of the public; that is what the Board should be looking at; and Condition 41 can be used as a tool. Commissioner Cook stated he does not have the confidence in Condition 41 that Commissioner O'Brien has; it puts an unreasonable burden on the County to prove those things; he is the only one who put in writing what he proposed; and that is vesting plus automatic vesting through the buildout of the entire project if the funds are available to meet the infrastructure needs. He reiterated his previous statements regarding his proposal.

Commissioner Scarborough asked the County Attorney to respond to the suggestion the applicant made regarding the violations of Condition 41 and how that compares to what he suggested; with Mr. Knox responding the immediate difference is that it is a 15-year threshold; he does not like "violate" as much as "noncompliance with" the conditions of 41; and those are his initial reactions.

Chairman Higgs stated it triggers something after year 2010 which gives a 15-year window , and only the conditions in 41 would trigger that; the Board needs to move on one or the other; and she is more comfortable with Commissioner Scarborough's language even leaving in the gas tax and impact fees.

Motion by Commissioner Scarborough, to approve the County Attorney's revised language on vesting.

Commissioner O'Brien stated he cannot support it at this moment; the Board has not defined why it is doing it; with Chairman Higgs responding the Board is trying to protect the County's position that will allow some flexibility over the years in regard to the issues of down zoning, density and intensity reduction. Commissioner O'Brien inquired if that means the Board can divest later on; with Chairman Higgs responding it is protecting that option. She stated Condition 41 is extremely strong and the Board should be able to do whatever it needs to do under those provisions; however, she is not convinced that would protect the Board totally, so she would like to see some other language. She stated the presumptive angle gets the Board some protections it would not have otherwise under Section VI. She stated VI gives the Board three reasons why it can go into the alteration of the development order; the language that becomes the burden of the applicant helps out; and that is why she can agree with some additional language. Commissioner O'Brien stated Mr. Knox discussed Section VI; and inquired where does that leave the Board; with Mr. Knox responding Section VI as is has three conditions under which the Board can revisit the vesting, but the County would have to prove that it is a substantial change in conditions, that there was substantial inaccurate information, or that there is a change warranted by public health, safety and welfare; and those three standards are broad, but it is incumbent upon the County to prove that they exist in order to revisit that issue. Commissioner O'Brien inquired if Chairman Higgs wants to make it incumbent upon the applicant rather than the Board to prove those things exist. Chairman Higgs stated it says, "Unless it is demonstrated and affirmatively found by the Board of County Commissioners. . ."; and by what Mr. Knox has proposed, the presumption shifts to the applicant to prove things and not the County. Mr. Knox stated it is shifted on the basis of the projections they made for funding as long as the Board is not causing the loss of revenue as a result of its decisions on things such as gas tax and impact fees. He stated if there was a major mistake in their projections, it would trigger a presumption that there could be a problem and they would have to prove that it would not cause any deficiency. Commissioner O'Brien inquired what does Commissioner Scarborough want to accomplish; with Commissioner Scarborough responding the whole concept of the DRI is the magnitude of it, where is it going to impact;,and the speculative nature of taking numbers out to see if they can do this or that; the Board does not know how the development is going to impact things, but it should not say 21 years is okay and walk way from it. Commissioner Scarborough stated the Board knows there is going to be major impacts; its job, in reviewing a DRI, is to have a capacity to get back into the development order; and somehow he would like to do that without adversely affecting their ability to go to the financing world and get the money they need; but by the same token this is a massive project which the Board should not have an insurmountable burden to come in and try to ascertain how to make it work. He stated this is something more than concurrency; and inquired if the project is something that is compatible in its impact with the greater communities. He stated he tried to combine the two thoughts, but do not know if it will work.

Commissioner Ellis stated he does not see how the Board can say 21 years and walk away from the vesting issue; the point of Condition 41 was to stay in touch with the project, and when they approach deficiency stages to stop it and correct the deficiencies then move on; so he does not understand why the vesting issue is essentially being used as another Condition 41. Commissioner Scarborough stated one stops the project until they can move on and the other describes the project. Commissioner Ellis stated what the Board is talking about is revisiting the vesting issue after the project is stopped because of traffic deficiencies; the concern has been leaving the taxpayers on the hook if something happens; and he does not see how the taxpayers would be on the hook if it will go to a moratorium on building permits as they approach deficiency. Commissioner Scarborough stated the issue defining the project and the scope of the project is something separate from stopping the project, because if it starts again, it starts as the same thing and continues on as the same thing; and it may be advantageous to re-describe as well as eliminate. He stated Section VI provides for certain things; and all the Board is doing is triggering the language in a more affirmative sense and not adding new conditions.

Chairman Higgs advised the language as proposed by the County Attorney simply says it is not only going to be the County's burden of proof to demonstrate and affirmatively find, but that burden is shifted to the applicant to demonstrate something in this process. Mr. Knox repeated his previous comments on the funding projections. Commissioner Ellis stated to do that the Board will have to have an annual projection on revenue.

Mr. Blake stated he has not heard a reaction to their proposed language; he does not know that there is that much difference; but it is significantly better for them in terms of approaching the market. He stated if they have problems in year 10, there is a five-year moratorium if they do not get them solved; and because they have not been able to comply with 41, there would be an automatic substantial change that the Board can act on; he would like some discussion on the language they proposed, as they went through a lot of pain getting there.

Commissioner Scarborough stated he likes the County Attorney's proposal because Condition 41 is a concurrency issue that gives the Board an opportunity to re-define the scope and nature of the project, while the other is an actual deficiency in concurrency issue; and they are not directly related. Commissioner Ellis inquired, if this is not a concurrency issue, is it open at any time to re-define the project; with Commissioner Scarborough responding as it reads now, the County can demonstrate and find there has been substantial change in conditions; it is not 10 years or 15 years, and vesting is gone; and the only thing being added are certain triggers that go to broader issues as opposed to strictly a concurrency 41 issue.

Mr. Blake advised they have vesting for another 7 years in Viera East; and under that scenario, for every commitment they made and all they are planning on doing and the two million dollars they have spent on this to date, all the Board is giving them is a three-year guarantee that they cannot do anything with because the bond market will not accept it. He stated all they are getting with their proposal isanother eight years to deal with; if traffic is a problem, then the Board can divest them; but right now they are vested for 7 years without having to agree to anything different than they agreed to in their original development order. He stated their first development order for half the size of this property gave them 12 years of vesting; and inquired if the Board is giving them less now for more commitments. He stated it is not fair; not only does it not work, they will not build it because it is not fair; and requested the Board consider their proposal because it is something they may be able to make things happen with and the County is fully protected. Mr. Blake stated they have a situation where before the roads are adversely impacted they are stopped a year ahead of time; they will never have a Palm Bay situation as a result of Viera; and in their proposal, if they have traffic problems that they are concerned about because the future is uncertain and he appreciates Commissioner Cook's uncertainty, and they occur between year 10 and 15 they are stopped and the County is protected. He stated in year 15, if they have not figured out how to deal with it, the County can talk about the vesting; but it should at least give them 8 more years than they have now.

Chairman Higgs inquired, if the Board went with the County Attorney's language with the 15th year being a minimum cutoff point, would it be acceptable; with Mr. Blake responding he has not personally seen it, but he would prefer their standards which are fairly objective; it is not funds and if there was a gas tax or not; it is objective of whether there are road problems or not; and if there are road problems the Board can deal with it. Chairman Higgs inquired if that is the only trigger; with Mr. Blake responding it is objectively measured. Chairman Higgs again read conditions in the development order regarding substantial changes; and stated the Board is just shifting some responsibility towards the applicant to prove the County is not right. Mr. Blake stated their language is better from the County's perspective; either the roads are operating or they have mitigation measures in place, on time, in line, or the Board at any time prior to year 15 can stop development; after year 15 the Board has the ability to look at vesting; and it is very objective. He stated it seems to accomplish everything the Board is looking to do, which is to make sure it can look at other options if the road problems are not being handled correctly; they know they have ten years; and if at any time during the ensuing five years there are any problems, they are stopped and will never become a Palm Bay. He stated they would at least have to year 15 to work through it while things are stopped; and if they do not have it worked out by then, and there are violations in year 15 or any year thereafter, the County can look at divestment as part of the solution. He stated at least they will get something for their money and all the commitments they are going to make. He stated there is nothing fair in this world; but they have made commitment, after commitment, after commitment, concession, after concession, after concession; and if all they are going to get is three additional years than what they have now, then why do this project and why would he make any commitments for an additional three years of vesting. Mr. Blake stated the Board can protect the County with the language they are proposing, and they can make Viera happen; and it is in the best interest of the County to make Viera happen. Chairman Higgs inquired how is Viera unfairly treated under the language Mr. Knox proposed, because all it says is that the conditions in the development order apply and the applicant shares in the burden of proof; with Mr. Blake responding he has not read Mr. Knox's language so he does not know if Ms. Bowman can answer that; but their language works and accomplishes the same thing. Ms. Bowman stated a concern is the total openness of the term "foreseeable deficiency"; she does not know what that means, 5 years, 10 years, etc.; it is an undefined term; and she tried to tie it to if they show they are not violating Condition 41 that should be sufficient to rebut the presumption. Mr. Blake requested a recess to look at Mr. Knox's language; and inquired what is wrong with their proposal; with Chairman Higgs stated just tying it to 41 does not make her feel comfortable; and all she is trying to do, in the context of VI, is to say they share in the burden of those items. She state VI gives three reasons why the Board can revisit the project and asks the applicant to give part of the information that would prove that the Board is wrong and it is not totally the Board's burden to prove that it is right.

Discussion ensued on provisions of Section VI, concurrency, sharing the burden of proof, and revisiting the issue.

Mr. Blake advised they bear a considerable risk making the commitments they have made when they are subject to divestment; he realizes there are control issues, but it is not a one-way street; they have gone through the last two years and made commitments above and beyond not just any development in Brevard County but any development in the state; and they have done that sincerely and in good faith to make the project happen, working with County staff on a level, honest, hard working, cooperative basis. He stated they did all that; made that investment of time, and made those commitments because they want to see Viera happen; it is a dream they all share and think it is in the best interest of Brevard County; and they have to come up with something that will allow them to build their dream. He stated if they cannot do that, the whole thing was a wash; their language is a substantial compromise and very objective in the sense that if they are unable to meet 41 anytime in year 15 or thereafter, the Board has the ability to revisit this project. He stated he is asking for a fair extension of their vesting period for the commitments and investment they have made in this process.

Chairman Higgs stated she does not question that they have made commitments in this process; the Board also faces a burden from the state law that says local government shall not approve a development of regional impact that does not make adequate provisions for the public facilities needed to accommodate the impacts of the proposed development; all she is trying to do is ensure the Board has those provisions; and that language does it for her. Commissioner Ellis stated 41 does that; with Chairman Higgs responding it may do it for Commissioner Ellis, but it does not do it for her. Commissioner Ellis inquired what is more powerful than a moratorium on building; that is what he has asked; and he has not had an answer in two days. Chairman Higgs stated Commissioner Ellis had an answer but did not like it. Commissioner Cook stated Commissioner Ellis did not have an answer he wanted. Commissioner Ellis stated if there is a deficiency and building is stopped, clearly it does not compound the deficiency. Chairman Higgs stated if they stop building it meets the concurrency requirements, but it does not allow the Board to deal in the long-term with issues where part of this decision is based on inaccurate information. Commissioner Ellis stated in the long-term the developer must deal with the problem because he is the one under the moratorium. Chairman Higgs stated no, she has to deal with the problem because the state law says she must and she is trying to abide by the state law. Commissioner Ellis stated if the developer falls under the moratorium self-imposed under the DRI, and the County does not have the money to pay for the improvements, the burden falls on him to pay for the improvements.

Mr. Blake stated he would have to propose a mitigation, and if it is not adequate he is shut down and stays shut down. He stated it acknowledges they do not know what the future is 10 or 15 years from now; they have to do something, but do not know what it is; he explained the traffic projections they started out with were the traffic projections that are not even real because they never happened; they realistically can never happen; the same development order gives him all sorts of requirements of reducing traffic, ride share, ride pool coordinator, etc.; and in all those projections they will not give him credit for one of those things they are requiring him to do. He stated there is a bleak picture that it is not going to happen; but if it does, at least give him to year 15, eight years beyond where he started out with to work it through; and if after the end of 15 years there are traffic problems and they are not meeting 41, then the Board would be able to use divestment as one of the tools in solving that problem. He stated it is a fair solution, and the County is protected; and it will stop before the roads that are significantly affected go under their adopted level of service requirements.

Commissioner O'Brien advised they are trying to meet between 21 years and 10 years; their proposal is where the Board has to meet at; they are giving the County something and the County is giving them nothing; and they are trying to meet the County half way. He stated they are trying to negotiate something here; if they hold firm to their position and Commissioner Cook holds firm to his position and Commissioner Scarborough and Commissioner Higgs hold to their positions, there will be no solution.

Commissioner Scarborough advised there was a term known as "urban sprawl" where they are not to leave infrastructure and go out to hinterlands and build something; the reason why they can go to a project like this is because there are fundamental commitments by the developer that the larger community will not bear the impact; otherwise it becomes urban sprawl. He stated all of this is to some degree speculative; Commissioner Cook has made his point not to say 21 years and throw the entire burden on the County; there is concurrency in there; he does not want to hurt the applicant's financing because that is fundamental to their project; but by the same token it is not responsible to just say they know it all and it is going to work as they think.

Chairman Higgs inquired if Commissioner Scarborough finds their language unacceptable; with Commissioner Scarborough responding he felt comfortable with the County Attorney's proposal; and just to use concurrency again as an issue does not really touch the issue the same way. Chairman Higgs stated if she and Commissioner Scarborough can go with the language of Mr. Knox, can Commissioner O'Brien go with it; with Commissioner O'Brien providing no response. Commissioner Ellis stated if the Board is going to vote no, then it should just vote no on the DRI; and that is the way he feels about it.

Ms. Bowman advised she will try to key off what Mr. Knox has offered with the 15 years and the idea that it is not a foreseeable deficiency but something that would bring them in compliance with Condition 41. She stated the language is: "If as a result of any annual or other road monitoring report, after year 2010 the road funding projections of the applicant are found to be materially inaccurate for reasons unrelated to gas tax and impact fee decisions made by the County, it shall be presumed that the applicant has provided substantially inaccurate information for the purposes of this development order. This presumption shall be rebutted by the applicant if it is shown that the applicant has complied with Condition 41."

Mr. Knox advised what the changes do is bring it out to a 15-year window instead of the ten years the County was originally looking at and it ties the deficiency analysis to an analysis of whether or not they are in violation of Condition 41, basically saying if they can prove they have no deficiency on the road segments they projected, they are okay for the purposes of the presumption.

Chairman Higgs advised in the language in Section VI right now, the Board can at any point come forward and say that based on the County's proof a substantial change in conditions has occurred and the accuracy of the information is in question, it can revisit the down zoning; and inquired if that is correct; with Mr. Knox responding yes. Chairman Higgs stated if the Board accepts the language that is being suggested, then it loses that option before year 2010; with Mr. Knox responding no, this is in addition to that.

Ms. Bowman stated it specifies that after the year 2010 the presumption would shift and they would have to overcome it. Commissioner Scarborough inquired if it is only Condition 41; with Ms. Bowman responding if they are wrong in their projected revenues it should not matter as long as they are not causing any road problems; and that is the point they are trying to get at.

Chairman Higgs inquired if Commissioner Ellis will accept the change; with Commissioner Ellis responding no, he does not think it is right; and he does not see what reason other than concurrency would the County down zone. Commissioner Scarborough stated he still likes the County Attorney's language best. Commissioner O'Brien stated he does not think Viera can live with the County Attorney's language; it is a well planned city and the best thing for the community; the applicant is making every effort to meet the County half way; and the County Attorney's language is not going to help the County much at all because they would not be able to sell the bonds if they wanted to.

Chairman Higgs passed the gavel to Vice Chairman Ellis.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve the County Attorney's language with the year 2010 established.

Mr. Blake advised it is not acceptable; they have tried and cannot make it work; and they have tried and tried and tried to get there, but it is unacceptable. Commissioner Higgs stated all it says is the applicant has a burden of proof; with Mr. Blake responding they are willing to do that, but there is some technical things in the wording which they have tried to clean up; and Ms. Bowman can probably discuss that.

Ms. Bowman advised they are trying to narrow down the funding projections; they are talking about the road funding projections; and they are trying to be specific on that. Commissioner Higgs stated that may not be acceptable to her if that is the only project they can deal with. Vice Chairman Ellis inquired what else is there; with Commissioner Higgs responding there are others. Commissioner Scarborough stated there is health, safety and welfare; with Commissioner Ellis responding but the only projections were revenues for roads. Ms. Bowman advised the focus was on $100,000,000, so they thought it would be appropriate to limit it to the road projections; it will be very difficult for them to rebut a presumption that there is no foreseeable deficiency; that needs to be defined; and it is only fair that if they are meeting the conditions of the development order it not be grounds for losing the development rights. Commissioner Higgs stated she wants to be sure the Board has the opportunity to look at the issues based on projections and information, and that the applicant share in the burden of proof and presumption of what the figures are. Ms. Bowman stated the term "foreseeable deficiency" is too open ended; they tried to deal with it by saying the presumption shall be rebutted by the applicant if it is shown the applicant has complied with Condition 41; just because there is a foreseeable deficiency, that is not an issue; and the issue is whether they are going to take care of the road problem before it occurs and not whether there is a foreseeable deficiency. Mr. Blake stated for example, if in year 2010 they see that St. Andrews Boulevard needs to be four-laned in 2015, they may be able to put mitigation in place so that when they get to year 2015 they have the road four-laned; but even though they can mitigate, there is a foreseeable deficiency according to the County Attorney's language. Mr. Knox advised presumption may overcome if it is shown that no foreseeable infrastructure deficiency will be caused as a consequence of the inaccurate information. Ms. Bowman stated it may be foreseeable in the analysis done in the year 2010 that there may be a deficiency in year 2015; however, for the purposes of mitigating that, for certainty, they only look at funding that is provided in the first three years of the Florida DOT Work Program, but they can show that by the time they get to 2015 DOT will have fixed that road; therefore, meeting condition 41. She stated it is unfair, if the problem is going to be fixed by 2015, that there is a potential they would be unable to proceed with the development at that time. Commissioner Cook stated he reiterates his remarks about Condition 41. Commissioner Scarborough stated this does not relate to Condition 41. Commissioner Cook stated the Board is talking about the County Attorney's language; with Commissioner Scarborough responding his language is the motion. Commissioner Cook stated it relates to a degree to Condition 41; and requested the motion be restated.

Mr. Knox read the motion as follows: "If as a result of any annual or other monitoring report after year 10 the funding projections of the applicant are found to be materially inaccurate for reasons unrelated to losses in revenues from gas tax and impact fee decisions made by the Board, it shall be presumed that the applicant has provided substantially inaccurate information for the purposes of this development order. The presumption may be overcome if it is shown that no foreseeable infrastructure deficiency will be caused as a consequence of the inaccurate information." He stated he understands the applicant's problem with the language; and it may be cured if they add something like the presumption may be overcome if it is shown that no foreseeable infrastructure deficiency which cannot be mitigated will be caused as a consequence of the inaccurate information.

Mr. Blake inquired if that is year 2010; with Commissioner Higgs responding yes, and Mr. Knox stated the way it was originally read, it was 2005. Commissioner Higgs stated she said she would go to 2010. Commissioner Cook inquired if it will be extended an additional five years; with Commissioner Higgs responding she will go to 15 years. Commissioner Cook stated he cannot support that because it is too long; and the County will have an incredible burden of proof. Commissioner Scarborough inquired if Commissioner Cook would support it if it was reduced five years; with Commissioner Cook responding no, because it does not allow anyone else to revisit the issue. Commissioner Scarborough stated he is trying to find a consensus of opinion; with Commissioner Cook reiterating his concern about future boards having the opportunity to revisit the issue and the burden of proof. Mr. Blake advised the language as currently written is a restatement of Mr. Knox's language with more precision.

Vice Chairman Ellis inquired what Mr. Blake's position is on Mr. Knox's language; with Mr. Blake responding they cannot live with the motion as presented because of the language, but they have alternative language if the motion is voted down, that they would like to propose. Commissioner Higgs asked Mr. Blake to tell the Board what the alternative language is; with Mr. Blake responding it is simply a restatement to a large degree with a little bit of refinement, as follows: "If as a result of any annual or other road monitoring report, after the year 2010 the road funding projections of the applicant are found to be materially inaccurate for reasons unrelated to the loss in revenues from gas tax and impact fee decisions made by the County, it shall be presumed that the applicant has provided substantially incorrect information for the purposes of this development order. This presumption shall be rebutted by the applicant if it is shown that the applicant has complied with Condition 41." Mr. Blake stated it simply means if they are able to show that everything is working or that they have a mitigation plan that they can propose which will work for the County and complies with the development order, then the presumption goes away; and inquired if the County Attorney concurs that it is the way he drafted it in the spirit of his amendment. Mr. Knox stated it probably is; and inquired if it is basically saying they are taking concurrency and opening the door to vesting by virtue of concurrency; with Mr. Blake responding that is right. He stated the only projections they have really shown are road projections; and they are saying if they are not accurate, and they cannot fix it then the Board can consider divesting the project. He stated it makes it a lot easier on technical grounds; it allows them to make the project work; they had some wording difficulties with the other proposal that would create major problems for them; and this language fully protects the County and gives it the right to shift the burden as well as opens up vesting after a period of time which is fair. He noted the County Attorney said the language is basically a restatement of how he drafted it; it is something they can live with; and he thinks the County can live with that too. Commissioner Cook stated it is tempting, but once the project gets going, to try and pull it back by using this language will be a major undertaking on the part of the County; and that is why he viewed an automatic review as a much better mechanism. He stated it is not contingent on all the legalisms and inferences; but it is something that is there, and the Board can assure the funding is available if the project proceeds. Commissioner Higgs stated the only substantial difference is that the County's language allows more options as opposed to confining it to Condition 41, but it is not that far apart.

Mr. Blake advised all they have talked about in terms of revenue projections are roads; they have not given the County revenue projections on the mall or other things; and it is precise so they can narrow down for the purchaser of the bond what the risk is. He stated it is not a nebulous risk that they do not know what they are signing up for; they know what the roads are; roads are where they would have the problems; but at least it is narrowed down for the person making the loan and for him making the commitments what problems he has to solve if they come up.

Commissioner Higgs inquired what other projections are in the development order; with Planner II Mike Konefal responding none in the development order, but as part of the sufficiency documents, there are projections for all of the structures, sewer, water, parks, drainage, solid waste, etc.; all projections for infrastructure are part of the sufficiency documents; however, during the review, staff has been comfortable with all the funding requirements or mechanisms for all the infrastructure requirements except for transportation where staff is not comfortable that the different agencies will allocate funding toward transportation.

Vice Chairman Ellis called for a vote on the motion to approve the language of the County Attorney. Motion carried and ordered; Commissioners Scarborough, O'Brien, and Higgs voted aye; and Commissioners Cook and Ellis voted nay.

Mr. Reader advised they cannot accept that language; they came before the Board in good faith to try and work it out; they offered everything they felt they possibly could offer; they cannot go forward with this project the way it is currently proposed by the Board; and before they waste any more time, the Board's and theirs, they would like to request at least two weeks continuance so they can come back and announce what their alternatives are or what their thinking is as far as how they are going to proceed. He stated they cannot proceed currently as it exists.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to continue the public hearing on the Viera DRI until April 5, 1995, at 5:01 p.m. Motion carried and ordered unanimously.

Ms. Bowman advised Mr. Reader asked her to make clear for the record that if they are unable to reach an agreement on the key issues to them, they need to preserve all their rights on other issues that may go beyond their requirements under the DRI statutes. Chairman Higgs inquired what does that mean; with County Attorney Knox responding he thinks it means no deal, the Board gets to revisit the whole development order, and they are withholding their rights to re-address any conditions they have agreed to up to this point.

Upon motion and vote, the meeting adjourned at 11:38 p.m.

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

ATTEST:
SANDY CRAWFORD, CLERK