The Board of County Commissioners of Brevard County, Florida, met in regular session on May 11, 1999, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Sue Carlson and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Commissioner Randy O'Brien, District 2.

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

PERMISSION TO ADVERTISE, RE: AMENDMENTS TO MERIT SYSTEM POLICY IX, EMERGENCY LEAVE

County Manager Tom Jenkins requested the item be withdrawn from the agenda as staff needs to make a correction on it and will re-submit it.

The Board withdrew permission to advertise amendments to Merit System Policy IX, Emergency Leave, from the agenda.

AUTHORIZATION TO HOLD EXECUTIVE SESSION, RE: MAXWELL CASE

County Attorney Scott Knox requested permission to schedule an executive session for the Maxwell vs. Brevard County case.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve holding an executive session prior to the May 18, 1999 Board meeting concerning the Maxwell vs. Brevard County case. Motion carried and ordered unanimously.

DISCUSSION, RE: MEETING WITH ORANGE COUNTY COMMISSION

Commissioner O'Brien stated he will not be able to attend the meeting with the Orange County Commission on June 18, 1999 as he will be out of town.

Chairman Scarborough stated it will be an informal meeting; and since the Orange County Commission will be in Brevard County and has the opportunity to meet one on one, he would like to proceed with the meeting. Commissioner O'Brien noted it is fine.

RECOGNITION, RE: SCHOOL TESTING AND MERRITT ISLAND BASEBALL TEAM

Commissioner O'Brien stated the Merritt Island baseball team is vying for State Championship. He stated all of Brevard County scored above the State average in the writing part of the testing this year which is a dramatic improvement over the past years; and the County deserves to have good schools.

RECOGNITION, RE: NATIONAL SCIENCE COMPETITION

Commissioner Higgs stated the Board needs to recognize the young people who scored well in the National Science Competition; they were recognized in the newspaper; and there have been exciting things happening on a National level for the young people in science from Palm Bay and Cocoa.

DISCUSSION, RE: LOAN SHARKING ACTIVITY

Chairman Scarborough stated it would be prudent to request the County Attorney to proceed in putting something together concerning loan sharking activity.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to direct the County Attorney to proceed in putting something together concerning loan sharking activity. Motion carried and ordered unanimously.

PRESENTATION BY BILL VEACH AND PETER JURGEL, KEEP BREVARD BEAUTIFUL, RE: TRASH BASH DISTRICT AWARD

Bill Veach, Executive Director of Keep Brevard Beautiful, introduced Peter Jurgel, Harris Sanitation; stated they came before the Board a couple of months ago requesting its support with this year's Trash Bash; they received support and are appreciative of it; and this year there were 2,300 volunteers and 270,000 pounds of trash were removed. He stated incentives included the District that had the greatest percentage increase in volunteers; the traveling award goes to the District that picked up the most trash; and Mr. Jurgel will present the awards.

Peter Jurgel, Harris Sanitation, stated as the new Manager of Harris Sanitation and USA Waste, and the major sponsor for Keep Brevard Beautiful's Trash Bash, he is pleased to present $500 in checks to Commissioner O'Brien's favorite charities; and there are five $100 checks--$100 for Crosswinds Youth Service, $100 for Salvation Army-Domestic Violence, $100 for Salvation Army-General Fund, $100 for Catholic Charities, and $100 for Prevent of Brevard, Inc.

Mr. Veach presented the Pelly Award to Commissioner O'Brien for the most trash removed in one District; and stated District 2 picked up nearly 190,000 pounds of trash.

PRESENTATION BY BILL VEACH AND PETER JURGEL, KEEP BREVARD BEAUTIFUL, RE: TRASH BASH DISTRICT AWARD

Commissioner O'Brien thanked the municipalities in his District for their participation.

Mr. Jurgel stated there was a competition for the municipalities also; and the City of Cocoa and Town of Malabar won.

PERSONAL APPEARANCE - RICHARD SWEET, PRESIDENT OF CAPE CANAVERAL CHAPTER OF THE AMERICAN SOCIETY OF SAFETY ENGINEERS, RE: RESOLUTION PROCLAIMING NATIONAL SAFETY MONTH

Commissioner Carlson read aloud a resolution proclaiming the month of June, 1999 as National Safety Month in Brevard County; and presented it to Richard Sweet, President of Cape Canaveral Chapter of the American Society of Safety Engineers.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution proclaiming the month of June, 1999 as National Safety Month in Brevard County; and urging every individual to take extra precautions and become more safety conscious every day. Motion carried and ordered unanimously.

Richard Sweet, President of Cape Canaveral Chapter of the American Society of Safety Engineers, requested everyone continue this process throughout the year; stated there were a lot of tragedies recently; and he appreciates the Board's support.

ACKNOWLEDGE PRIVATELY MAINTAINED FOR BUILDING PERMITS, RE: PARKER DRIVE

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to acknowledge Parker Drive as a privately maintained unpaved roadway thereby making the abutting lots eligible to apply for single family home building permits, with all costs associated with the maintenance of this unpaved road to be borne by the property owners. Motion carried and ordered unanimously.

CONTRACT MODIFICATION #1 WITH QUALITY MAINTENANCE AND REPAIR, INC., RE: S.R. A1A FOREST LAKE DRIVE PEDWAY PROJECT

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Contract Modification #1 with Qualified Maintenance and Repair, Inc. for the Forest Lake Drive Pedway project, decreasing the amount by $9,112.97, and authorize final payment in the amount of $4,684.55. Motion carried and ordered unanimously.

CONTRACT MODIFICATION #1 WITH TRIPLE G SERVICE CORP., INC., RE: S.R. A1A PEDWAY PROJECT, GROSSE POINT TO WAVE CREST STREET

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Contract Modification #1 with Triple G Service Corp., Inc. for S.R. A1A Pedway Project, Grosse Point to Wave Crest Street, decreasing the amount by $7,663.55, and authorize final payment in the amount of $20,222.99. Motion carried and ordered unanimously.

PERMISSION TO BID, RE: FAY LAKE WILDERNESS PARK IMPROVEMENTS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to grant permission to bid Fay Lake Wilderness Park Restroom Facility; award the bid to the lowest qualified bidder; and authorize the Chairman to execute the Agreement. Motion carried and ordered unanimously.

CHANGE ORDER NO. 2 WITH QUALITY MAINTENANCE AND REPAIR, INC., RE: SANDPOINT PARK PAVILION DECKING

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve Change Order No. 2 with Quality Maintenance and Repair, Inc., increasing the contract amount by $3,452.03 for construction of decking at the Sandpoint Park Pavilion. Motion carried and ordered unanimously.

CHANGE ORDER NO. 2 WITH TUSCANY, INC., RE: CONSTRUCTION OF DR. MARTIN LUTHER KING, JR. PUBLIC LIBRARY

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve Change Order No. 6 with Tuscany, Inc., increasing the contract amount by $1,110.17 for construction of Dr. Martin Luther King, Jr. Public Library. Motion carried and ordered unanimously.

MEMORANDUMS OF AGREEMENT WITH FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, RE: SURFACE WATER IMPROVEMENT PROJECTS IN MICCO AND INDIALANTIC

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Memorandums of Agreement #MOA038 and #MOA039 extending contract time until December 1, 1999 in order to complete work remaining under Contract #WM603 and #WM605 with Florida Department of Environmental Protection for Surface Water Improvement projects in Micco and Indialantic. Motion carried and ordered unanimously.

PERMISSION TO PURCHASE OFF GSA/STATE CONTRACT, RE: TWO CASE ROUGH TERRAIN FORKLIFTS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to grant permission to purchase two Case rough terrain forklifts off the GSA/State Contract from Coastline Equipment Co., Inc. at $33,040 each. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING PUBLIC WORKS DIRECTOR TO ENTER INTO MEMORANDUM OF AGREEMENT WITH FDOT FOR LANDSCAPE MAINTENANCE ON S.R. 520 AND PARK AND RIDE FACILITY ON S.R. 518

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to adopt Resolution authorizing the Public Works Director to enter into Memorandum of Agreement with Florida Department of Transportation to maintain the landscaping on S.R. 520 and Park and Ride Facility on S.R. 518. Motion carried and ordered unanimously.

AMENDMENTS TO EXTEND RIGHT-OF-WAY USE AGREEMENTS, RE: LOST LAKES CONDOMINIUM ASSOCIATION, INC., RIVER WALK BY THE SEA HOMEOWNERS ASSOCIATION INC., WINDOVER FARMS OF MELBOURNE HOMEOWNERS ASSOCIATION, INC., RIVER SHORES EAST PROPERTY OWNERS ASSOCIATION, INC. AND JACK HURT

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Amendments to Extend Right-of-way Use Agreements with Lost Lakes Condominium Association, Inc., River Walk by the Sea Homeowners Association, Inc., Windover Farms of Melbourne Homeowners Association, Inc. and River Shores East Property Owners Association, Inc. for a five-year term, beginning April 27, 1999 and Amendment to Agreement with Jack Hurt for a term of ten years, beginning April 27, 1999. Motion carried and ordered unanimously.

PERMISSION TO INCREASE PURCHASE ORDER #432675 TO GROLIER CO., RE: REFERENCE MATERIALS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve the increase of Purchase Order No. 432675 to Grolier Co. from $34,000 to $40,000 for reference materials and encyclopedias. Motion carried and ordered unanimously.

PERMISSION TO PURGE COMPUTER FILES, RE: CALENDAR YEAR 1991 INACTIVE PATRON RECORDS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to grant permission to purge 1,449 patron records, inactive since 1991, from the Library Services computer system. Motion carried and ordered unanimously.

RESOLUTION AND AGREEMENT WITH COMMUNITY SERVICES COUNCIL OF BREVARD, INC., RE: USE OF SOUTH MAINLAND COMMUNITY CENTER

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to adopt Resolution and execute Agreement with Community Services Council of Brevard, Inc. for use of South Mainland Community Center from June 1, 1999 to May 31, 2000 to provide nutritional lunches to eligible senior citizens at no charge, visits by the mobile health unit, and other activities of interest to senior citizens; and authorize the Parks and Recreation Department to include future contract clauses approved by the Board in the Agreement. Motion carried and ordered unanimously.

AMENDMENT TO OPTION AGREEMENT FOR SALE AND PURCHASE WITH BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, COUNTY DEED, ENVIRONMENTAL AFFIDAVIT, AND TITLE, POSSESSION AND LIEN AFFIDAVIT, RE: RUSNAK PROPERTY

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Amendment to Option Agreement for Sale and Purchase with Board of Trustees of the Internal Improvement Trust Fund, County Deed, Environmental Affidavit, and Title, Possession and Lien Affidavit for the Rusnak property. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE FOR PROPOSALS, RE: COMPUTER SYSTEM UPGRADE

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to grant permission to advertise for proposals for a lease/purchase computer system upgrade; and appoint a selection committee to make recommendations to the Board on proposals received consisting of the County Manager or designee, Court Alternative Services Director or designee, Public Safety Director or designee, Information System Analyst Rick Meshberger, Data Control Specialist Rita Callander, and a representative from Purchasing as a non-voting member. Motion carried and ordered unanimously.

AUTHORIZE RFP, AWARD TO LOWEST QUALIFIED BIDDER, AND AGREEMENT, RE: CONTINUING EDUCATION FOR FIRE/RESCUE EMERGENCY MEDICAL SERVICES WORK FORCE

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to authorize the Public Safety Department to develop and advertise a Request for Proposals (RFP) for continuing education for Fire Rescue Emergency Services Work Force; award of same to the lowest qualified bidder; and authorize the Chairman to execute an Agreement with the successful bidder. Motion carried and ordered unanimously.

AGREEMENT WITH CITY OF PALM BAY AND SPACE COAST EMERGENCY MEDICAL SERVICES, P.A. (JOHN R. McPHERSON, M.D., P.A., PRESIDENT), RE: UTILIZATION OF THE COUNTY'S MEDICAL DIRECTOR

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Agreement with City of Palm Bay and Space Coast Emergency Medical Services, P.A. (John R. McPherson, M.D., P.A., President) for utilization of the County's Medical Director. Motion carried and ordered unanimously.

CONTRACT AMENDMENT NO. 1 WITH FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, RE: STORAGE TANK SYSTEM COMPLIANCE VERIFICATION

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Contract Amendment No. 1 with Florida Department of Environmental Protection for storage tank system compliance verification. Motion carried and ordered unanimously.

MEMORANDUM OF UNDERSTANDING WITH BELLSOUTH MOBILITY, INC., RE: EMERGENCY COMMUNICATIONS

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to execute Memorandum of Understanding with BellSouth Mobility, Inc. for access to the County Public Safety Trunking System during emergencies. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve the Bills and Budget Changes, as submitted. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE EASEMENTS IN WINDOVER FARMS, UNIT FIVE - JERRY D. AND SHARON L. RUSSELL

Chairman Scarborough called for the public hearing to consider a resolution vacating public utility and drainage easements in Windover Farms, Unit Five, as petitioned by Jerry D. and Sharon L. Russell.

There being no comments or objections heard, motion was made by Commissioner Voltz, seconded by Commissioner O'Brien, to adopt Resolution vacating public utility and drainage easements in Windover Farms, Unit Five, as petitioned by Jerry D. and Sharon L. Russell. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE EASEMENTS IN CAMBRIDGE PARK, PHASE TWO - ROBERT L. AND LERETA J. GREEN

Chairman Scarborough called for the public hearing to consider a resolution vacating public utility and drainage easements in Cambridge Park, Phase Two, as petitioned by Robert L. and Lereta J. Green.

There being no comments or objections heard, motion was made by Commissioner Voltz, seconded by Commissioner O'Brien, to adopt Resolution vacating public utility and drainage easements in Cambridge Park, Phase Two, as petitioned by Robert L. and Lereta J. Green. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FOR SERVICE AREA EXTENSION BY SOUTH SHORES UTILITY ASSOCIATION, INC.

Chairman Scarborough called for the public hearing to consider request for service area extension by the South Shores Utility Association, Inc.

There being no comments or objections heard, motion was made by Commissioner O'Brien, seconded by Commissioner Voltz, to approve request by South Shores Utility Association, Inc. to expand its sewer service area. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE PROHIBITING OPEN BURNING AND USE, SALE AND DISCHARGE OF FIREWORKS DURING STATE OF LOCAL EMERGENCY

Chairman Scarborough called for the public hearing to consider an ordinance prohibiting open burning and use, sale and discharge of fireworks during state of local emergency.

PUBLIC HEARING, RE: ORDINANCE PROHIBITING OPEN BURNING AND USE, SALE AND DISCHARGE OF FIREWORKS DURING STATE OF LOCAL EMERGENCY

Public Safety Director Jack Parker stated Brevard County had recent rains and staff is relieved at that; and the Fire Index has dropped below 500.

Chief Bill Farmer advised the Fire Index is 363. Commissioner Voltz inquired what does that mean; with Mr. Farmer responding the County is approaching more toward the wetter climate. Mr. Farmer advised 800 is more toward the desert; and during the firestorm last year, Brevard County was 768.

Chairman Scarborough inquired is staff recommending the Board extend the ordinance; with Mr. Parker responding it recommends the Board adopt the ordinance. Mr. Parker stated although the County has had a lot of rain lately, the brush and foliage are still very dry; and if the rains continue, it will mean Brevard County is having a normal season and staff could then recommend suspension of the ordinance. Chief Farmer stated the canals and rivers are like the County's savings account for water; there is no water in that savings account yet; and everything is being absorbed by the plants and vegetation and it is not building up moisture.

Commissioner Higgs stated the effect of this ordinance is that if the County's index goes over 650, the sale and use of fireworks or sparklers will be prohibited before July 1, 1999; with Mr. Parker responding on or after July 1, 1999 if the index is 650 or more, the ordinance would go into effect and prohibit the use or sale of fireworks. Commissioner Higgs inquired if between now and July 1, 1999 the sales may occur; with Mr. Parker responding that is correct.

Commissioner O'Brien inquired how would the ordinance affect the Cities of Cocoa and Cocoa Beach for their fireworks displays which are over the rivers. Mr. Parker responded if the index was over 650, it would ban all use and sale, and any exceptions would have to be brought before the Board for specific approval.

Commissioner Higgs stated the Chairman or Acting Chairman can repeal the ordinance when it goes below 400, and at this point, the Chairman could repeal the ordinance. Mr. Parker responded that is correct; but because County staff is not absolutely convinced of the weather pattern, it would request the ordinance not be repealed at this time.

Commissioner Voltz stated the Board will not be here in the month of June, 1999; July 1, 1999 will be here soon; and this would be in place in the Board's absence.

PUBLIC HEARING, RE: ORDINANCE PROHIBITING OPEN BURNING AND USE, SALE AND DISCHARGE OF FIREWORKS DURING STATE OF LOCAL EMERGENCY

County Manager Tom Jenkins stated the Board can continue the item for two weeks if it desires since Brevard County is starting to receive rain; this item was geared up when the County was still in a drought condition; and since the index is currently below 400, the Board does not have to adopt the ordinance today and could continue the public hearing.

Commissioner Higgs suggested the Board continue the public hearing to see what the conditions will be on May 24 and 25, 1999, and then make a determination.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to continue the public hearing to consider an ordinance prohibiting open burning and use, sale or discharge of fireworks to May 25, 1999. Motion carried and ordered unanimously.

APPROVE SOLE SOURCE PURCHASE, RE: SII TYPE ASPHALT FOR RESURFACING OF ADAMSON ROAD

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to approve a one-time, sole source purchase of SII type asphalt from Watson Paving at $35.35 per ton for use in resurfacing Adamson Road in Cocoa. Motion carried and ordered unanimously.

INTERLOCAL AGREEMENTS WITH CITIES OF COCOA, MELBOURNE, PALM BAY AND TITUSVILLE, RE: DISBURSEMENT OF HOME INVESTMENT PARTNERSHIP PROGRAM FY 1998 FUNDS

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to execute Interlocal Agreements with Cities of Cocoa, Melbourne, Palm Bay and Titusville to provide disbursement of U.S. Department of Housing and Urban Development HOME Investment Partnership Program FY 1998 funds to the members of the HOME consortium. Motion carried and ordered unanimously.

DISCUSSION, RE: COUNTY MANAGER AND COUNTY ATTORNEY COMPENSATION SURVEY

Chairman Scarborough stated the Board received comparisons and it is important to review them when determining salaries.

Commissioner O'Brien stated he looked over the comparisons closely; he tried to use counties with populations close to Brevard County's population; he likes to see a level playing field for

DISCUSSION, RE: COUNTY MANAGER AND COUNTY ATTORNEY COMPENSATION SURVEY

County employees; and due to the large differences, he is willing to look at a 10% increase this year, with an additional 5% increase next year. He advised a 10% increase this year would bring Attorney Knox to $106,856 for the year; and the other way to do it would be to take all the numbers and average them, which he did not do.

Commissioner Carlson stated she took eight jurisdictions smaller than Brevard County and averaged the salary; and the average salary came to $121,775.

Commissioner O'Brien stated Attorney Knox has done an excellent job for Brevard County for the 12 years he has been here.

Commissioner Higgs stated she was concerned that in the body of the agreement that was presented to the Board there were significant changes concerning the disability clause and termination at the pleasure of the Board; it is now at four months; and the change was to nine months which is beyond what she is comfortable doing.

Chairman Scarborough stated Brevard County needs to have a comparable salary structure if it wants to have a quality County; and he is comfortable approving a salary of $120,000 for the County Attorney.

Commissioner Voltz inquired does the Board want to put a $4,200 car allotment for Attorney Knox, and how does the County Manager get his car allotment.

County Manager Tom Jenkins responded it is incorporated in the monthly paycheck and taxes are paid on it.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve annual salary of $120,000 for County Attorney Scott Knox.

Commissioner Voltz inquired is the car allotment included; with Chairman Scarborough responding negatively.

Commissioner Higgs stated personnel are extremely important and they have to be compensated fairly; and the Board has to be sensitive as it increases here, that it is equally fair to its other employees throughout the organization.

Commissioner Voltz concurred with Commissioner Higgs' comments and stated 2% or 3% is not sufficient.

DISCUSSION, RE: COUNTY MANAGER AND COUNTY ATTORNEY COMPENSATION SURVEY

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

Motion by Commissioner Carlson, to approve annual salary of $120,000 for County Manager Tom Jenkins.

Commissioner Voltz stated the County Manager's salary needs to be more than the County Attorney's salary as he runs the entire County and has to put up with five Commissioners telling him what to do.

Commissioner O'Brien stated the average for the County Manager is $126,428; and he is willing to move $126,000.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve annual salary of $126,000 for County Manager Tom Jenkins. Motion carried and ordered unanimously.

Commissioner Higgs stated nine months severance pay at termination for the convenience of the County in the agreements is extreme; and she is comfortable with four months. Commissioner O'Brien noted four months is insufficient time for a county manager or county attorney to find new employment; and he is willing to support six months which is fair and reasonable.

Chairman Scarborough inquired when the County terminates someone, does it give them nine months severance pay; with Mr. Jenkins responding for the convenience of the County for a department head, it is three months. Chairman Scarborough stated four months severance pay is adequate.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve including six months severance pay for the County Manager and County Attorney in the Agreements. Motion carried and ordered; Commissioners Scarborough and Higgs voted nay.

Commissioner Higgs stated on Page 3, Section 4, Disability, the proposed language is that after a period of six months, if no reasonable accommodation is possible, the Board shall have the option to terminate the agreement; and inquired how does it work currently.

Mr. Jenkins stated the Board is not obligated to pay for six months and he would only get compensated for sick and annual leave; what this says is that if he had to have by-pass surgery and was going to be out of commission for a couple of months, he would not

DISCUSSION, RE: COUNTY MANAGER AND COUNTY ATTORNEY COMPENSATION SURVEY

necessarily lose his job because he could not be here beyond four weeks; and if someone has a major illness or major surgery, they have a period of time to recuperate.

Human Resources Director Frank Abbate stated there is a Countywide Short Term Income Protection Plan (STIPP) Policy for someone who exhausts leave in those kinds of situations; and the maximum they can get is up to 12 weeks.

Commissioner Higgs stated under the County Attorney's Agreement dated August 9, 1993, it says if he is permanently disabled or otherwise unable to perform his duties for four successive weeks or 20 days over a 30-day period, the Board shall have the option to terminate; and inquired how does Attorney Knox see the new language changing the situation. Attorney Knox stated if someone gets injured, they get six months to recuperate; and if they have not recuperated, the Board can do what it feels is necessary at that point.

Mr. Jenkins stated if the County has employees out for an extended period of time, it can give them up to 12 months leave, sometimes without pay in order for them to recuperate; this basically gives a period of time to recuperate from illness or accident; they do not get any more money, except what they are otherwise entitled to; and this is something existing employees already have the ability to get which is up to six months right now.

Commissioner Higgs stated she is trying to understand the implication and difference between the 20 working days of 30 versus the disabled. County Attorney Scott Knox responded the 20 working days out of 30 is onerous if there is a serious injury and it may not be possible; and it is not fair to him or the County Manager that they could be gone in 30 days.

Commissioner Voltz inquired how does the County define illness and what is the criteria. Mr. Abbate suggested the County use the same criteria the Family Medical Leave Act provides which gives someone up to 12 weeks; stated the employer has the opportunity to have their own appointed physician make the determination; and those standards are set forth under such Act. Commissioner Voltz inquired who decides what happens after 12 weeks; with Mr. Jenkins responding it would be the Board's decision.

Chairman Scarborough and Commissioner Higgs requested additional information and clarification on Section 4, Disability, in the agreements, and staff put the terms of the agreements on the agenda at a later meeting.

Mr. Jenkins stated the existing language would prevail on an interim basis until it is amended.

DISCUSSION, RE: COUNTY MANAGER AND COUNTY ATTORNEY COMPENSATION SURVEY

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to authorize Agreements with County Manager Tom Jenkins and County Attorney Scott Knox, except Section 4, Disability; and direct staff to provide addenda to the Agreements concerning Section 4, Disability, for the May 18, 1999 Board Meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

Chairman Scarborough called for the public hearing to consider request for determination of vested rights by Oleander Power Plant.

Chairman Scarborough inquired how much time is needed by the applicant. Attorney Leonard Spielvogel, representing Oleander Power Plant, stated this is a vested rights request; hopefully the Board will see fit to grant such request; but should it not, they have to have an appeal opportunity within 30 days; and this is where they make their case today before the Board. He stated if the applicant is not allowed the opportunity to bring in everything it desires before the Board, then it does not have a record on appeal; there are five speakers; and the overall time may be approximately one hour.

Commissioner O'Brien stated in some vested hearings in the past, the applicant has been granted an extraordinary amount of time to present their case; the Board wants to be fair and equitable to all parties involved; and Oleander has some rights that may be being stripped away from them.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve one hour time element for the applicant and those who represent the applicant.

Commissioner Higgs stated she has had discussion with Mr. Wolfinger about the issue; he brought documents which she will put in the record; a full package has also been submitted to the Board by Counsel for Oleander; and going beyond 15 minutes is okay, but she is not sure one full hour is necessary. Chairman Scarborough stated one hour exceeds what the Board has ever done before.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to have a presentation until 10:30 a.m., take a break, and come back and hear public speakers. Motion carried and ordered; Commissioner Higgs voted nay.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

Commissioner Higgs inquired when will Attorney Spielvogel be giving his rebuttal; with Chairman Scarborough responding he will get the regular rebuttal of five minutes after everyone has spoken.

Attorney Spielvogel stated Oleander is requesting a determination that his client has vested rights in the project and the construction of a modern efficient power plant should be allowed to proceed; should the Board see fit to lift the moratorium, his client has no objection; and he has four other speakers coming before the Board today, including Kenneth Crooks, Rick Wolfinger, Richard Zwolak, and Elliot Loyless. He advised the stated purpose of the moratorium was to allow the public an opportunity to become acquainted with the project; that purpose has been accomplished; there are people in the audience who support his client's position; and requested those individuals in favor of the Oleander project to stand and indicate their support. He stated he will present an overview and Attorney Crooks is going to handle the legal aspects of the vested rights argument; and distributed copies of County Code Section 62-507 to the Board. Attorney Spielvogel stated the opposition's attorney submitted a memorandum to the Board which tells why he believes Oleander is not entitled to come before the Board and seek vested rights; and the argument being made by counsel for the opposition is that Oleander does not own the property, is not a property owner, and has no right to come before the Board and ask it to give Oleander vested rights. He stated his opinion is that his client has options on three parcels; Oleander spent approximately $500,000; and it has options to buy the properties. He noted the question is whether the County's Code allows the Board to consider the request and does Oleander have standing to come before the Board; the sentence in question is the same procedure speaking about the appellate procedure; and that is what Oleander is here about and is what Section 62-507 addresses, as follows: "The same procedure shall be followed whenever an individual or affected party believes vested rights have been abrogated, or that a temporary or permanent taking of property has occurred." Attorney Spielvogel stated "property owner" is not defined here; a property owner is someone who has an interest in property; an affected party has an interest in this property; and Oleander, as an option holder, is an affected property owner. He noted Page 2, Paragraph 3, Item A says, "The name, address and telephone number of the person making the appeal; Item B says "The name of the owners of the affected parcels; whoever had the wisdom to put this together recognized they were not talking about one and the same individual; and the owner of the property and the owner of the fee simple title are not necessarily the affected party or the party who is making the appeal. He stated Item E says, "A sworn statement from the aggrieved party or property owner, describing the basis of the appeal or claim"; after appearing before the Board at all the public hearings, Oleander is an aggrieved party; Page 4, Paragraph 7(a), (b), and (c) says the request for determination of vested rights shall be by application; and that is what he comes before the Board with. Attorney Spielvogel stated what he has to submit for Item (a) in the application is the name, address, and telephone number of the person making the claim and Item (b) with the names of the owners of the affected parcel; that is exactly what they have done; and there is no question that whoever drafted this had the wisdom of knowing how real estate works. He noted

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

Item (c) is a sworn statement from the aggrieved party or property owner describing the basis of the claim; when someone comes to a community and is interested in locating a business here, they are not going to go out and buy the property; they will either take an option on the property or enter into a contract; the contract will have an extended inspection period; and during that inspection period, there are a multitude of things that have to be done. Attorney Spielvogel stated there is no way he would ever suggest to clients to buy property and then figure out whether they can use it; Oleander needs to show that there was detrimental reliance and what it relied upon when it came to Brevard County seeking to locate a facility here; and what his client relied upon was the welcome it received from the County. He noted his client contacted the Economic Development Commission (EDC) and indicated it wanted to come to Brevard County; the EDC was very interested and assigned its Vice President to assist his client; and that individual located the property for Oleander and welcomed his client to the County because it met the law. Attorney Spielvogel stated the zoning permits a power plant; Oleander started meeting with representatives of the County, staff people, and officials; it did what one needs to do when one comes to Brevard County and seeks to bring a substantial business here; it took a period of years to accomplish; and his client applied for tax abatement because it was the right thing to do and the EDC encouraged it. He advised Oleander located the property and contracted for such property; it met all requirements of the County's laws, including provisions of the Comprehensive Plan; the Conservation Element amended October 15, 1996 states, "best available technology shall be utilized for all new power plants"; and Oleander brings to Brevard County the latest technology available in the industry.

Attorney Kenneth Crooks, representing Oleander Power Plant, stated the Board has been provided information documents with the petition, and he would like to be assured that all the documents have been submitted to the Board and are on the record; with Planning and Zoning Director Mel Scott responding affirmatively. Attorney Crooks stated there are a number of cases that have been cited in the petition, which he will refer to today; and submitted them to County Attorney Scott Knox. He noted also for the record are a copy of Moratorium Ordinance No. 92-02, the current Zoning Regulations in regard to industrial use and power plants, certified copies and a list of all the County's Zoning Ordinances since 1970 and applicable Ordinances relative to power plants, a copy of the Florida Department of Environmental Protection (FDEP) Notice of Intent to Issue Air Construction Permit, a copy of the Fact book, and original transcript of the Local Planning Agency (LPA) hearing on this matter that was held April 7, 1999. Attorney Crooks stated the issue today to be decided by the Board concerns protection of property rights, one of the most precious and closely guarded of the Constitutional tenets; it is a right that is enjoyed by individuals and companies alike and is protected by the First, Fifth and Fourteenth Amendments, U.S. Constitution, and Florida Constitution; most individual rights sometimes come to conflict with the responsibilities of local governments, as well as the desires and concerns of citizens' groups; and that is what they have here. He noted one of the curbs that is placed on local governments in regard to how far they can go in regulating land use and development is a doctrine of vested rights; the cornerstones of that doctrine are the items of equity and fairness; Florida Courts and legal treatises have used the

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

terms of vested rights and equitable estoppel interchangeably; and it prohibits government, and in this case Brevard County, from changing the rules in the middle of a ball game and trying to prevent a developer from using his property that until that time had been legal to do so. Attorney Crooks advised the County has set up this administrative quasi-judicial vested rights procedure; that does not mean the County Ordinance supplants the constitutional/judicial standards for the recognition of vested rights; if the matter goes beyond the hearing today, the criteria that are included in the County's Ordinance are not those which will be introduced in court; and the Board cannot limit vested rights beyond those established judicial standards. He noted in trying to show the Board today that the Oleander project is entitled to vested rights, they will show that the record indicates the petitioner has protectable property rights in the subject property; that development of a power plant on that property which is zoned IU has been legal and proper since 1991; that the developer notified Brevard County of its intentions and specifically confirmed with the proper County officials, including the County Attorney's Office, that the property was properly zoned and needed no further zoning approval to build a power plant on that property; that County officials, staff and representatives with whom the developer repeatedly met never once in a two-year period indicated that there was any problem; that there was any indication that there was going to be a moratorium prohibiting power plants on IU property; and in fact, that the developer was assured that the property was properly zoned and that a power plant could be built there. Attorney Crooks advised the County has accepted site plan applications and numerous development fees which it has not given back, and has given concurrency and preliminary site plan approvals for the Oleander project; in reliance on those particular actions and upon the current zoning of the property, the developer has incurred more than half a million dollars in cost over a two-year period in furtherance of the development; in spite of its knowledge of the Oleander project, the County has adopted an invalid moratorium Ordinance and is now attempting to extend that moratorium which is directed solely against and adversely affects only this particular project; and it is patently unfair, discriminatory, unconstitutional, and in violation of his client's basic property rights. He stated what Oleander is seeking is recognition by the Board of the developer's vested rights and direction to County staff to process the pending site plan under current regulations; it requests the Board only to do that which it would do for any other industrial project that is proposed in Brevard County; in regard to the protectable property interest, the Oleander project has options which are enforceable contracts, and in the language of those options it is predicated on developing a power plant at this specific site; and the fee simple owners have granted consent to the developer to proceed with activities necessary to develop a power plant, including the filing of this vested rights request. Attorney Crooks noted the County recognizes these property interests in that it allows such individuals and developers to submit and obtain development permits for properties that they do not necessarily have fee simple title for; the cost of these options has been significant; as the record indicates, as of September, 1998, his client has spent over $73,000 for those options; and it is hard to trivialize that amount of money, but it appears some people are trying to do that on the idea that the Oleander project does not have to buy the property. He stated if that were to occur, it would lose the $73,000 and the business opportunity to construct and operate a $200 million project; that is not a trivial matter; the issue is not whether the developer

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

can walk away from its options, but whether the developer holds a protectable interest in the subject property; and the record reflects that it does. He noted Attorney Spielvogel referred to an issue that has been addressed previously at the LPA, and that is the issue of property ownership; it has been asserted by the County Attorney's Office in a memorandum from Attorney Eden Bentley that there is no Florida case finding that one holding an option on property can assert vested rights; Counsel for the citizens' group opposing his client also asserts that only a fee simple title holder of property has standing to seek vested rights; but Florida law does not support either of those contentions. Attorney Crooks stated Attorney Spielvogel has referred to the provisions of the County's Code that are contradictory to that position; it is commonly stated that property is a bundle of rights; and what they are talking about are a number of sticks in that bundle here today. He advised the Fifth District Court of Appeals has held in the Bataglia case that all incidents of property ownership are protected from infringement by the State; the case involving the taxable status of the Government Center was First Union v. Ford, in which he successfully argued on behalf of Brevard County that it had an ownership interest in the property even though it was not the fee simple title holder, but a lessee under a Certification of Participation (COP); and that protection of property rights has been specifically granted to developers who do not have fee simple title, including option holders. Attorney Crooks stated contrary to that which was asserted by the County Attorney's memorandum, there are cases that specifically hold that an option holder can invoke equitable estoppel and vested rights; in the case of Sicolski v. City of Coral Gables, which is a Florida Supreme Court case, an option holder was allowed to invoke vested rights and equitable estoppel; there is also the City of Gainesville v. Bishop in which an option holder was granted equitable estoppel against the City of Gainesville; that protection has gone beyond that and they have cited cases such as Jones v. Steele where the court granted vested rights to a mortgage holder; and the Florida Companies v. Orange County case was a 50CA case in 1982, in which his law firm represented a mortgage lender, and the court found there was standing to raise the issue of equitable estoppel against Orange County. He stated in the City of Tamarac v. Segal, the City said the doctrine of equitable estoppel may be invoked against government on behalf of properties which did not yet own the property affected; he can cite several legal treatises, such as Jergens Meyer of University of Florida and the University of Miami law review, all which state the same thing and cite the same cases he has cited; it does not matter whether a developer is a property owner or not; and the focus is what has the County done and what was done in reliance on those actions or omissions. Attorney Crooks noted for the same reasons that a developer does not have to be a fee simple title holder, the cost associated with the actions toward development do not have to be incurred by a fee simple title holder in order to assert equitable estoppel; there is also the issue of what acts or omissions of Brevard County were relied upon by the Oleander project in order to invoke vested rights; Attorney Spielvogel has indicated several of those acts and omissions; and Arden Rathcoff, who is an important zoning expert, has stated in the law of planning and zoning, "What must be shown to be entitled to vested rights? That is that the developer has experienced a substantial change of position reflected by a substantial expenditure of money or increase in obligation pursuant to development permit, or in reliance upon the probability of its issuance." He stated in

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

other words, Oleander does not have to have a permit in order to invoke vested rights; it has to have a probability of its issuance; that clearly has occurred here; and as the record reflects and as other witnesses will indicate, the developer held numerous meetings and conferences with County Commissioners individually, County staff, and County representatives beginning in August, 1996. Attorney Crooks stated the County was fully informed of Oleander's intentions, location of the power plant, what they were going to do, the activities taken in furtherance of the development, and the County staff was involved in a number of those activities-the studies and such that were necessary in order to develop a site development plan; the Oleander representatives specifically inquired of the County and were assured by County staff that the proposed site was properly zoned for a power plant and would not need any further zoning approval to locate a power plant at that specific site; no one told them that was not the case; and as far as Oleander knew, as of December 1, 1998, its project was on course to proceed with the administrative site plan without the need to come to the Board in order to proceed with its development. He noted in regard to what actions were taken by the County, there is a memorandum in the record from Assistant County Attorney Eden Bentley and also a cover letter from Mel Scott to Attorney Spielvogel dated September 11, 1998, in which it was specifically stated that a power plant is authorized in IU without any further zoning approval; Attorney Spielvogel has also referred to the EDC's involvement with the project; he has submitted an affidavit from EDC's Vice Chairman Dennis Basile, talking about the tax abatement roll and his activities in regard to the siting of this project; and Economic Development Director Greg Lugar submitted to the Board for its December 1, 1998 meeting a County Resolution approving the processing of Oleander's tax abatement request. Attorney Crooks advised there was a pre-site plan conference with County staff on November 12, 1998; the County has accepted the site plan application package in the LDD conference notes; Brevard County approved the Oleander project for concurrency evaluation on December 7, 1998; and it has accepted and retained various fees, including more than $4,000 for site plan application fee and landscape permit fee. He noted there has been a valid existing zoning of IU which permits power plants on this property since 1991; that is what the Ordinances submitted reflect; as of December, 1998, there was a high probability of approval of the Oleander site plan and issuance of appropriate development permits; that is why the moratorium ordinance was proposed; and these acts or omissions by Brevard County are sufficient to create vested rights. He stated the developer has expended substantial sums of money in furtherance of the subject development; the record reflects that Oleander spent that substantial sum of money between August, 1996 and December, 1998; the developer submitted detailed information and invoices evidencing that it incurred more than $544,000 in direct cost attributable to this project prior to adoption of the moratorium; and a developer would not have spent half a million dollars if it had any idea the site plan was not going to be approved and that the entire project was going to be stopped by adoption of a moratorium ordinance. Attorney Crooks stated there has been argument by County staff that the Oleander project is not a permitted use in IU zoning through some convoluted reading of the conditions set forth in Section 62-1839, Brevard County Code, which refers to temporary facilities for power plants; that language cannot be reasonably construed to mean that power plants are limited to a three-year life span; that is ludicrous; and nobody builds

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

a $2 million project if the maximum life span is three years. He noted that language was put in the Code in 1991 to allow certain facilities associated with the construction of a large project, such as a power plant, on the site for a temporary period up to three years without the normal zoning and Building Code restrictions; it has nothing to do with whether a power plant can be built in an IU zoning classification; there is also the issue that has been raised concerning the red flag doctrine; and it does not apply in this particular case. Attorney Crooks stated this is not a case in which a developer finds out about a proposed zoning regulation that is going to be adverse to his interest and races to submit a permit application before its enactment; as the record reflects, a vast majority of the activities and costs associated with the Oleander project site development plan occurred over a number of months prior to December 1, 1998; and as a result, one cannot submit the red flag doctrine as a defense to this petition for vested rights. He advised the original moratorium was not properly advertised; the County tried to fix it in the second moratorium and still was not able to do it properly; the County violated both Section 125.66 and 163.319 of Florida Statutes; and as a result, the case law that had been cited in the petition provided to the County Attorney reflects that the Ordinance is void abinitio, meaning it should be acted upon as if it never occurred. Attorney Crooks stated if that is the case, the Oleander Power project should have had its site plan reviewed and probably approved by this time; unfortunately, that has not occurred; there has been discussion in regard to what was the basis for the moratorium; as Commissioner Higgs indicated in regard to the issue of the extended moratorium, the County has to have an emergency to justify a moratorium; and the last time he was before the Board on this matter, he asked what was the emergency in regard to the moratorium, but did not receive an answer. He noted there has been an attempt to try and manufacture an emergency by saying County staff suddenly realized, when asked about the power plant, that power plants are a permitted use with conditions in both BU-1 and BU-2 zoning classifications, and that was the basis for the need for this moratorium; that is hard to understand since a power plant has been a conditional use in the commercial zoning classifications since at least 1973, and has been a permitted use with conditions in those same commercial zoning classifications since 1991; and there have been 87 Zoning Ordinances adopted during that time period, many which dealt specifically with those particular zoning classifications. Attorney Crooks inquired how many County zoning personnel, County Attorneys, including himself, and County Commissioners have reviewed the Zoning Ordinances and have not made the change to BU-1 and BU-2 zoning classifications; stated it is hard to imagine that they all missed this if it was actually a problem; if it were a problem, it has nothing to do with this project as it is not in the BU-1 or BU-2 zoning classifications; and the County could have amended its Zoning Ordinances if it felt it was a problem. He stated there was no need for a moratorium; there is no basis for the emergency, except the desire to stop this particular project; there are no other power plants proposed, just this one; the Board recently decided to remove any other industrial use from the application of extended moratorium, so no other industrial project is affected, just this one; and there is no logical distinction, except the desire to deny Oleander's right to develop, to strike all the other industrial uses from the moratorium, and to keep power plants in. Attorney Crooks stated Huff v. Amato was a case involving the City of Augustine in a similar fact situation; the First District Court of Appeals

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

found there can be little doubt that the members of the City Commission adopted the subject Ordinance for the sole purpose of preventing the plaintiff from opening and operating his museum; the plaintiff was authorized by an existing Ordinance to operate a museum and had been investing large sums of money, as well as time and effort, in reliance upon the then existing Ordinance; and on the authority of the decision in the Bishop case and Sicolski case, the City of St. Augustine and its officials were equitable estopped from blocking the opening and operation of the plaintiff's museum on the property. He noted that is basically what is here; they are asking the Board to keep this matter from having to go to the court, and find that equity and fairness require the Board to find the political wherewithal to vote in favor of the vested rights application and allow the site plan submitted to be reviewed by County staff as if it were any other industrial use application; and if it satisfies all the County's criteria, they request Brevard County go forward with issuance of development permits.

Attorney Spielvogel requested additional time to allow the other three speakers to make their presentation.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to allow an additional 15 minutes for the applicant. Motion carried and ordered unanimously.

The meeting recessed at 10:26 a.m. and reconvened at 10:40 a.m.

Richard Zwolak, Environmental Planner with Golder Associates, stated Golder was retained by Constellation in 1996 to confirm that there was a site suitable for power plant development within Brevard County; both himself and Messrs. Wolfinger and Loyless have been active on the project since 1996; and showed a slide presentation and identified what activities were conducted during that time frame. He advised Constellation made a commitment to develop in Florida in 1996; it was at that time that Mr. Loyless and others began the process of identifying candidate sites for development; Golder was retained during this time frame and had its first site visit in September, 1996; and it looked at the Comprehensive Plan and Land Development Regulations, and reviewed the compatibility of the proposed project with those documents. He stated it also looked at various environmental aspects of the site, air resources, water resources, etc.; the options to purchase the three parcels that compose the project site were identified and options entered into in December, 1997 and May and August, 1998; there were a number of meetings held with various County staff as well as with the City of Cocoa; and they conducted regulatory meetings with the agencies such as the Department of Environmental Protection in 1998. Mr. Zwolak stated Oleander submitted its application for the air permit in November, 1998; at about the same time, it announced the project to the general public at an EDC function; during the Summer of 1998 and through the Fall, it developed the documents that would end up being submitted as the site plan for the proposed project; and it was submitted in mid-December, 1998. He advised a moratorium was imposed December 15, 1998; the

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

studies conducted involved all of the resources that would require environmental permits and approvals; the list before the Board identifies those resources; and the following two slides identify a number of activities that are not necessarily required by federal, State or local government, but are important if one is going to develop in a responsible way. He noted there is a lot of data that goes into the analyses to make sure a project is one that can fit in a particular location; they spent most of 1998 conducting those studies; included is a list of some of the studies conducted; and it is important to note that at the present time, the County does not require these studies, but Oleander elected to go forward with these. Mr. Zwolak stated these are the same types of studies that are typically required under performance zoning regulations; the County is looking at a new way of regulating development and ensuring compatibility with land use; and these are the types of analyses the Board will begin to see routinely in the future as a requirement if those regulations are implemented. He noted the zoning has been discussed at length; they evaluated the regulations in 1996; to his knowledge, they are the same as they were back then; the site is zoned light industrial; and it is surrounded by both light and heavy industrial zoning, and tourist commercial designation. He stated the Future Land Use classification is heavy or light industrial; that is the only industrial classification in the County for industrial projects; the surrounding area includes heavy or light industrial, as well as planned industrial and mixed use designation around the interchange; and the setbacks that the County's current zoning regulations have for light industrial vary between 15 and 40 feet. Mr. Zwolak stated part of the studies conducted in 1998 and adopted by Constellation involved acquisition of additional land for additional buffer; it is more setback than a lot of other existing facilities located in the region; and there is substantial green space to the east, west and south. He advised they submitted an application to DEP for air permits in November, 1998; the State has reviewed the project, both the technologies proposed, the fuels that are being used, and impacts the project would have on the ambient air quality that exists in the region at the present time; and it has found that the project would comply with all its regulations from an air quality perspective and controlled technology perspective. He noted there is not a question in DEP's mind that this is not a permittable project from an air quality perspective; that is why it issued its notice of intent to issue the permit; clearly, from the perspective of health, safety and welfare in looking at a power plant, air quality is a very significant concern; they have listened in many public workshops and meetings about those issues; and they have evaluated the different scenarios under which they could operate. Mr. Zwolak stated the fuel oil has been reduced for the project to no more than a thousand hours; that is a reduction of 100% over the original application; they have done a lot to improve the project; it was not required from a regulatory perspective, but it is something they have been able to do because of the site, the situation, and local input they received from a lot of citizens and environmentalists in the County; and the last few slides identify the numbers, dates and individuals that either he or other representatives of Golder Associates met with. He further showed slides of the meetings with City and County officials; and significant dates when they undertook the studies, all well before December 15, 1998.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

Elliot Loyless, independent consultant, stated what is shown on the screen is the first page of several meetings held with County staff, Commissioners, and the EDC; part of what he does is help industrial developers locate suitable sites; Constellation Power Development, which will be the owner of Oleander Power Project, asked him to look in Florida for suitable sites; what he does is first find the proper infrastructure; and he found it was fine here. He noted initiation of discussions with property owners and local government was well underway; particularly in speaking with local government, what the industrial client wants to know is are there any land use issues and how much are they going to have to pay in property taxes; and they are not looking for easy or cheap, but certainty. He advised he initiated those contacts and was able to have County staff confirm to him that as far as land use, the zoning Ordinance was clear and unambiguous; the power plants were listed as a specific use for the zoning on the property for which they had obtained options; and he was also happy to report back to Oleander that there was a property tax abatement program that was not politicized, but was a formula. Mr. Loyless noted a question he always asks is if a county anticipates any changes in its land use requirements or property taxes; he was assured over a period of 2 ? years, beginning in August, 1996, until the time of this moratorium that no changes were anticipated; and he relied on meetings with elected officials, County staff and the EDC to report back to the client that they could use the zoning in this area, it is unambiguous, there is nothing they have to do to have it rezoned, the property taxes would be reasonable, and there were no changes anticipated.

Rick Wolfinger, Project Manager for Oleander Power Project and Vice President for Constellation Power Development, advised Oleander has spent over $540,000, which is included in the list; the site is properly zoned and allows a power plant; Oleander has shown that it poses no imminent peril to the public health, safety or general welfare of Brevard County; and it has also shown it has property rights. He stated he has entered into exclusive and enforceable land options, and spent a great deal of money to obtain property rights and property ownership; the actions he relied upon on the County was the fact that it has proper zoning; it is not that anyone said anything wrong; they were simply interpreting the County's zoning; and Oleander has shown it has had a considerable amount of expenditures. Mr. Wolfinger noted he appreciates the supporters that have come out to show the Board that Oleander has a lot of support in the County to build the power plant; Mel Scott has received approximately 118 cards in support of the project; the Oleander project meets all the tests required for vesting; and it should be granted the petition to bring the project to Brevard County. He advised such project will bring construction jobs, permanent employment, and a tax base to Brevard County; and requested the Board look favorably at the petition.

Chairman Scarborough requested the County Attorney touch on the elements that need to be addressed.

County Attorney Scott Knox advised the basic thing the Board is going to be looking at is whether there is an act or remission of the County that was relied upon by Oleander; the Board has to determine whether the property owner acted in good faith; one of the issues it will have to

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

decide as part of that decision is whether or not Oleander constitutes a property owner for the purposes of this ordinance; and whether this substantially changed their position, being the property owner, based upon reliance on the act or remission of the County.

Attorney John Harris, representing Brevard Citizens Against Pollution, stated he has been retained to present legal argument in opposition to Oleander's request for a vested rights determination; he prepared a 13-page legal memorandum which was submitted to each Commissioner's office last week; the County Attorney and Attorney Crooks' office have a copy also; and submitted a copy of the memorandum as a part of the record. He advised under the Code, Section 62-507 (D), 1 through 3, to be entitled or to acquire vested rights, the applicant has to show three things; the first is if they are the property owner; the second is if they have relied in good faith on the County's acts or omissions; and the third is that substantially changed their position in such reliance. He stated a failure on any one of these three elements is absolutely fatal to their petition for vested rights; and it is his position that Oleander has failed in all three. He noted there are no sufficient acts or omissions on behalf of the County that would entitle Oleander to claim vested rights; the acts or omissions that are found to create an equitable estoppel are approving a site plan, granting a rezoning and conditional use; Attorney Spielvogel said they relied on the County's welcome; and he would hope the County would welcome any potential business to come here and check things out. Attorney Harris stated Mr. Wolfinger said Oleander relied on the existing zoning for the property; clearly under the law, one cannot do that; it does not create equitable estoppel; therefore, there are no acts or omissions. He noted the County has done no affirmative acts that would entitle Oleander to rely on the County to obtain vested rights; without any sufficient acts or omissions, there cannot be any good faith reliance; the expenditure Oleander has incurred is not done in good faith reliance on acts or omissions; and the most important element is that they are not the property owner. He advised Attorney Spielvogel pointed to Section 62-507, the County's Code dealing with criteria for creating vested rights; Paragraph (C) states, "A sworn statement from the aggrieved party or property owner described in the basis of the claim"; that absolutely draws the distinction between an aggrieved party and a property owner; however, the first three paragraphs deal with the property owner. Attorney Harris stated the property owner must act in good faith reliance and must substantially change his position; Oleander is not the property owner; there is a difference between an aggrieved party and a property owner; the first three paragraphs do not say the property owner or the aggrieved party must have acted in good faith; and the property owner or aggrieved party must have changed their position. He noted those simply limit it to the property owner; the Code does draw a distinction; all the cases cited by Attorney Crooks where somebody other than a property owner was able to use equitable estoppel remedies do not apply to the situation here; Oleander could have exercised its options no later than August of 1998; but as Attorney Spielvogel stated, it is not always advisable to do that. He stated it is not the prudent thing to do in a lot of land use cases because there are so many unknown variables; one wants to make sure he can get his project done before buying property; by doing

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

that, Oleander assumed a legal risk which is exactly what is happening today; and its expenditures would do nothing to entitle it to claim vested rights. Attorney Harris noted it was a business decision Oleander made to assume that risk by not purchasing the property last August; Oleander is asking the County to underwrite the risk it took and give it the vested rights anyway; that is not the purpose of vested rights or equitable estoppel; and it should not be granted. He requested, on behalf of the Brevard Citizens Against Pollution, the Board follow the recommendation of the LPA, determine that Oleander has completely failed to establish any entitlement to vested rights in this particular case, and deny the petition for vested rights determination.

Robert McCoy, Frank Pawela, Denise Beasley, and James Wileczek advised of their support for the request for determination of vested rights for Oleander Power Plant.

Laura Donovan, Dorothy Amstadt, and Craig Bock advised of their opposition for the request for determination of vested rights for Oleander Power Plant.

Attorney Spielvogel stated in regard to Attorney Harris' position that Oleander does not have property ownership, the one-line definition from Black's Law Dictionary, Fifth Addition, defines property and the word is commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; the Ordinance does not limit when it talks about property owner; the County read it in conjunction with affected and aggrieved party; and there is no way it wrote an Ordinance that was so narrowly construed that it did not recognize the realities. He advised Oleander is going to bring a big capital base; having 12 jobs is a blessing; it is great to have an industry that comes and offers a lot of jobs; but when they bring in a lot of people, it places a burden on the community with additional kids in school, traffic on roads, and more infrastructure; and when someone brings in an industry that has a large capital base and large tax base, but has 12 employees, it is not going to put a burden on the community. Attorney Spielvogel stated Oleander is not going to have a large obligation to create infrastructure; when the Board talks about visioning, visions require money; and Oleander takes care of its own security. He advised a study was made by Dr. Fishkind which talked about an alternate, what happens if someone came in with a $200 million investment similar to what Oleander was going to make, and what does the alternative project bring to the County in the way of contamination and pollution; and submitted copies of the study to the Board.

Chairman Scarborough inquired what is EDC's role with the County; with County Manager Tom Jenkins responding the EDC is a 501C6 Florida not-for-profit corporation, and the County has a Service Contract with the EDC where it purchases economic development services. Chairman Scarborough stated the County has an obligation to be open, and he hopes being open in the way it does business is not a vesting; and inquired has that ever been viewed by the courts when one meets with people.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

County Attorney Scott Knox stated typically the courts and case law will look at something the County has done affirmatively in approval that would lead the party seeking to claim vested rights to believe they have something they could rely upon, and then the County or city turns around and pulls the rug out from under them; and that is the way they put it in the cases. He noted one of the questions is whether or not there was such an act or omission on the part of the County, and was anything done that would have led Oleander to believe it had the right to go forward based upon an affirmative act that someone in the County did or said, or the Board did; and typically it takes the form of something of approval. He stated the first thing the Board probably needs clarification on is whether or not the power plant is allowed as a permitted use under the industrial code for industrial zoning; that issue was brought up and left unclear in his mind as to what the interpretation is at this point in time; perhaps the Board needs to ask staff if that is in fact the case; the second question is whether or not Oleander constitutes a property owner from the purposes of the Ordinance; and Attorney Spielvogel rightfully points out there are other provisions in the Ordinance that deal with affected and aggrieved parties, but these specific provisions relating to the criteria for vested rights is specified property owner. Attorney Knox noted there is some basis in the case law for tying it specifically with property owners; Attorney Crooks is correct that there have been cases where option holders have been found to have vested rights; the next issue the Board would have to consider is whether or not Oleander changed its position in reliance upon any act of omission and whether that change in position was made in good faith; and that is just one of the issues the Board has to consider for vested rights in the Ordinance. He advised the other issue the Board needs to ask staff about in addition to the power plants and whether they are permitted uses is the moratorium issue that has been brought up by Oleander; that moratorium is still in place and will not expire until August, 1999; there is an interim ordinance the Board needs to inquire about from staff which relates to site plan review process and what the impact of it might be; and it is relevant to the moratorium. Attorney Knox stated it is important that the full record be set forth in terms of what is pending out there; and it is not just the moratorium bot also an interim ordinance which shifts the site plan review process of industrial to the Board from the staff.

Chairman Scarborough stated there is a time certain at 11:30 a.m. concerning the Personal Appearance of James McDonough, Director of Florida Office of Drug Control Policy; and he would prefer to take that item and not hold anyone up.

PERSONAL APPEARANCE - JAMES McDONOUGH, DIRECTOR OF FLORIDA OFFICE OF DRUG CONTROL POLICY, RE: RESOLUTION SUPPORTING FIVE GUIDING PRINCIPLES TO DEVELOP STRATEGY FOR DRUG CONTROL

Commissioner Voltz stated James McDonough is the newest State drug czar and has come to speak to Brevard County concerning the present Administration's policy regarding drugs.

PERSONAL APPEARANCE - JAMES McDONOUGH, DIRECTOR OF FLORIDA OFFICE OF DRUG CONTROL POLICY, RE: RESOLUTION SUPPORTING FIVE GUIDING PRINCIPLES TO DEVELOP STRATEGY FOR DRUG CONTROL

Commissioner Voltz advised Mr. McDonough is the Director of the Florida Office of Drug Control Policy; appointed by the Governor, he is responsible for the coordination of all State efforts to decrease drug abuse and its consequences in Florida; from 1996 to 1999, he was Director of Strategy for the Office of National Drug Control Policy, the White House agency that leads the Nation's efforts to reduce drug abuse and its consequences on the American people; and in that capacity, he was the advisor to the Director of Office of National Drug Control Policy on the comprehensive strategy to reduce the demand for and cut the supply of drugs in America. She stated he was a key player in the conceptualization, planning, and execution of national drug policies; he is a graduate of the Massachusetts Institute of Technology and the United States Military Academy; he served a full career as a United States Army Officer before assuming his current position; and during his active military service, he held a number of key assignments, including command at every level through brigade, senior military assistant to the Supreme Allied Commander in Europe, Director of the School of Advanced Military Studies, and the principal author of the Army's central warfighting doctrine, Field Manual 100-5, Operations. Commissioner Voltz stated Mr. McDonough concluded his career in command of the Southern European Task Force Infantry Brigade with operational deployments to Africa and the Balkans; in addition to his military assignments, he served as an associate professor of political science and international affairs at the United States Military Academy, as an analyst with the Defense Nuclear Agency, and as a detailee to the U.S. State Department; in 1977, he was Editor-in-Chief of the National Defense Panel, a congressionally mandated Panel tasked with preparing a report on the challenges and opportunities of U.S. defense strategy in the next century; and he is the author of a number of professional articles and has published three books, Platoon Leader, The Defense of Hill 781, and The Limits of Glory.

James McDonough gave the Board and audience a background on his journey to Brevard County; stated in December, 1998, Governor Bush's Transition Chief called him and asked if he would consider working on Florida's drug issue; he met with Governor Bush for approximately 45 minutes; Governor Bush wants to do something about Florida's drug problem; and Florida has a severe drug problem.

*County Attorney Scott Knox's absence was noted at this time and Assistant County Attorney Eden Bentley was present.

Mr. McDonough advised Florida is a very diverse State; the problem of drug abuse is unique almost to every part of the State; what he needs to do for the State of Florida is to put out a strategy that is holistic in its view and gets out the twin concerns of demand reduction and supply reduction; such strategy needs to be laid out on a scientific basis; and the strategy then needs to be put to work by putting resources behind it. He stated he will start writing the strategy and get it out this Summer; it will be the Governor's strategy and open for public use and scrutiny; any strategy put out has a time life to it and conditions change ; he

PERSONAL APPEARANCE - JAMES McDONOUGH, DIRECTOR OF FLORIDA OFFICE OF DRUG CONTROL POLICY, RE: RESOLUTION SUPPORTING FIVE GUIDING PRINCIPALS TO DEVELOP STRATEGY FOR DRUG CONTROL

hopes the County will use the strategy and inform him what works and does not work; and he will rewrite the strategy next year and the year after that. He reiterated that Florida has a problem; but he is optimistic and believes something can be done about it; two ways to work the problem include reducing demand and reducing supply; two essential approaches to reducing demand are prevention and education, and treatment; and prevention and education begins at home by parents talking to their children about drugs. He noted treatment is a very unpopular subject for the public to deal with; those who are addicted are seen as the people who did not make it; they are actually our children; the reason why drugs have become the number one concern in the country is because virtually every family is threatened or affected by it; and there is no family that is safe in the threat of drug abuse. Mr. McDonough stated drugs are everywhere; those who need treatment are our people; approximately 80% of people in Florida who need treatment do not get it; treatment takes time, dedication, professionals and management; and it is very important and works. He noted he hopes Florida can take advantage of some of the friends he made in Washington and bring more resources here; a lot of it has to happen beyond our shores and outside of his jurisdiction, and all the way back to the source counties; internal to Florida, it needs to coordinate among different law enforcement agencies, bring in the right technology, and feed it by a good information net; and he believes drug abuse in Florida can be reduced by 50% in the long term with a balanced strategy with a scientific basis focused on demand reduction and supply reduction. He advised the 50% reduction would be the lowest historical level in 100 years; that is the goal; he will put out a plan, but Florida is going to have to do it; and it is going to take community leadership to make it happen.

*County Attorney Scott Knox's presence was noted at this time and Assistant County Attorney Eden Bentley's absence.

Commissioner Voltz stated Brevard County has no beds for juveniles in the community who have drug problems; the kids who go through the Drug Court Program have to be shipped to Orlando; finances are needed to build something for the kids who have alcohol and drug problems; and requested Mr. McDonough take that back to Tallahassee.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution welcoming James McDonough, Director of Florida Office of Drug Control Policy, and supporting Governor Bush's five guiding principles to deal with Florida's drug problems as summarized at the Florida Drug Summit of February 12, 1999. Motion carried and ordered unanimously.

Commissioner O'Brien recognized Judge Preston Silvernail and Public Defender James Russo.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

Chairman Scarborough stated the County Attorney had raised several questions he felt would be advantageous for the Board to ask staff; and requested Attorney Knox repeat the questions.

Attorney Knox stated the first issue staff can address is whether the power plants are allowed under IU zoning.

Planning and Zoning Director Mel Scott stated the simple response to that is yes; and in support of that, staff was able to recognize and identify that the Orlando Utilities plant and Port St. John facility both received IU zoning through an administrative rezoning action of the Board in 1991 and 1994 respectfully.

Attorney Knox stated the other question is related to the ordinance which is currently pending, and requested Mr. Scott explain it.

Mr. Scott stated there is another ordinance pending that will be brought before the Board on May 24, 1999 which will require all permits for industrial uses receive the review of the Board while the moratorium is in place. Attorney Knox inquired is it site plans or permits; with Mr. Scott responding site plan review.

Discussion ensued concerning the site plan review ordinance, existing performance standards, moratorium on power plants, Comprehensive Plan policies, heavy industrial and light industrial, and preliminary and final engineering for plats.

Commissioner Higgs stated Attorney Knox indicated zoning does not vest; and requested he elaborate on it.

Attorney Knox advised one of the criteria the Board has to consider is whether there is an act or omission of the County; the zoning or rezoning action in and of itself does not guarantee or vest any specific development rights; typically, the courts have found if one has an existing zoning classification, the fact that it is there and the property owner is aware of it does not necessarily guarantee the owner a right to do whatever is allowed under that zoning classification; and it has to be something other than the zoning classification that is an act or omission that causes them to act in good faith reliance such as getting a building permit, site plan approval or something other than the zoning itself.

Commissioner Higgs noted the zoning itself does not vest, and inquired does a moratorium or a delayed review process constitute under the case law an act or omission by the County or disapproval by the County; with Attorney Knox responding no, not for the purposes of this vested rights. Attorney Knox stated the site plan has been submitted and never been reviewed or acted upon one way or the other; and he does not hear anyone claim they relied upon the moratorium as any basis for claiming vested rights. Commissioner Higgs stated the County's

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

Zoning Code defines an owner, and vested rights talks about property owner; the definition in the Code talks specifically about part owner, joint owner, tenant in partnership, joint tenant or tenant by the entirety of the whole or a part of such building or land; it is in the Code as a property owner; and inquired does that definition apply and does it constitute Oleander's position as an owner. Attorney Knox responded the definition of property owner is going to be left for the Board to decide in terms of whether an option holder fits within the definition of property owner; the definitions set forth in the Code do not address option holders; he believes an option holder may have an interest in real estate, but he is not sure if it constitutes a property owner; and it is something the Board needs to decide. He stated the major question is whether or not the Board wants to expand the party affected that sets forth in the application procedure the definition of property owner as it is set forth in the actual criteria. Commissioner Higgs stated the Board is talking only to one part of the Code which deals with vested rights determination by the Code; and inquired if the applicant wanted to go elsewhere, what is their recourse and do they go to the Circuit Court. She noted in regard to the estoppel argument, the Board does not deal with that in the Code, and it deals with the definition of vested rights. Attorney Knox stated the Board is going by what is in the Code; he disagrees with what the applicant's attorney represented to the Board; he does not believe there is any difference between this Code and what the common law of estoppel was or vested rights; it is articulated in the County's Ordinance; and he believes any court looking at it is going to conclude the same thing. He noted if Oleander goes to court, the standards are not going to change from what is in the Ordinance. Commissioner Higgs inquired if the law on estoppel would be consistent with what the Board sees here; with Attorney Knox responding yes, in his opinion. Attorney Knox stated the issues the Board has to decide are whether there is a property here that fits into the County's Ordinance and whether there is an act or omission; if the Board finds there is no act or omission, there are no vested rights and no equitable estoppel; and if the Board finds there is no property owner for the purposes of the Ordinance, there is no equitable estoppel and no vested rights under this Ordinance. He noted there is clearly reliance upon what was conceived by Oleander to be an act or omission, but the question is whether or not the Board finds there is an act or omission.

Discussion proceeded concerning the Zoning Ordinance that applies to industrial usages, power plants as a usage under IU zoning, permitted uses with conditions, temporary facilities, tax abatements, and submission of site plan.

Commissioner Voltz stated Oleander had the option on the property; that is normally the way these types of businesses go through the process; she believes it would be considered as an affected party; because the project would have gone forward without the tax abatement, she believes Oleander should have vested rights; and she will support that.

Chairman Scarborough passed the gavel to Vice Chairman Higgs. He stated he does not think the vested rights acting in reliance for a specific act is there; and he will move to deny.

PUBLIC HEARING, RE: REQUEST FOR DETERMINATION OF VESTED RIGHTS FOR OLEANDER POWER PLANT

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to deny request for a vested rights determination to allow the Oleander Power Plant site plan to be reviewed irrespective of the current moratorium set forth in Ordinance No. 99-02 or any land development regulations subsequently adopted during the moratorium; and direct the County Attorney to prepare a finding of fact. Motion carried and ordered; Commissioner Voltz voted nay.

Vice Chairman Higgs passed the gavel to Chairman Scarborough.

Attorney Knox inquired if he can bring the proposed order back in two weeks; with Chairman Scarborough responding that is fine.

The meeting recessed at 12:17 p.m. for lunch with James McDonough, Director of Florida Office of Drug Control Policy, where a substance abuse community forum was held in the Florida Room, and reconvened at 1:36 p.m.

DISCUSSION/WORKSHOP, RE: LANE KENDIG, PRESENTATION OF PEFORMANCE STANDARDS FOR INDUSTRIAL USES

Assistant County Manager Peggy Busacca stated as the County was going through review of the Zoning Code, the Board became increasingly concerned there may be other areas within the Code, specifically the industrial zoning, which should be strengthened and changed; it decided performance zoning may be the avenue it wanted to proceed on; and the Board has hired Lane Kendig, Inc. to put together zoning performance standards for industrial land uses for Brevard County. She advised Mr. Kendig met with several members of the community in two different meetings, as well as Commissioners; this morning he has met with technical staff; and he is prepared today to talk to the Board about what he has learned in his tour of the community.

County Manager Tom Jenkins advised this is the first of a several step process; and today, Mr. Kendig will give the Board his preliminary thoughts on what the list of nasties would be, measurements, etc., and get the Board's feedback; and he will be back in early July, 1999 to give the Board a follow-up report.

Lane Kendig showed a slide presentation to the Board and audience concerning performance standards for industrial uses, including conventional zoning, strip commercial, urban sprawl, flooding, cluster development, high and low densities, and housing problems. He stated the notion of performance zoning is to try and address problems through zoning rather than create problems through zoning, and bring on a new era in regulation to try and make such regulations achieve what the community wants.

DISCUSSION/WORKSHOP, RE: LANE KENDIG, PRESENTATION OF PERFORMANCE STANDARDS FOR INDUSTRIAL USES

He stated if there is a small or irregular site, there are lower efficiencies, longer roads, more street frontage per dwelling unit, more impervious surface, and lower density which means higher costs of the product; the same thing happens when working around an environmentally restricted site; performance zoning includes respecting the environment, having shorter length of street per dwelling unit, lower impervious surface, and more open space; and the community wants to have zoning that allows things to happen in the best way possible.

Mr. Kendig further outlined residential performance zoning, suburban and urban areas, regulatory tools, building coverage, floor area ratio, landscaping surface ratio, green space, impervious surface ratio, building and landscape volumes, design issues, character of the neighborhood, buffer yards, berms, prairie grasses, environmental and resource protection, and agricultural preservation.

He stated buffer yards deal with intensity and presence of plant material, land forms and distance; those are the components to create a buffer between two uses; and the greater the difference between the two land uses, the bigger the buffer yard is to create a transition and decrease noise, dust, litter, etc. He noted heavy industry sits at the bottom of the scale; agriculture and residential are at the top of the scale; the further apart on the scale two uses are in terms of compatibility with each other, the bigger the buffer should be to protect it; it is one of the tools available to deal with industrial performance standards, particularly where the industry abuts a residential area or along a highway that is important to the character; and the Supreme Court has said communities should try and balance the impact of regulations on the land owner. Mr. Kendig stated roads alter the microclimate and generate extra stormwater runoff; private roads are useful in some circumstances to create an atmosphere that is important to preservation and character of the community; there is a relationship between density and the amount of people; and the two choices are to widen roads or add new ones. He noted as he viewed Brevard County yesterday in a helicopter, he noticed people love to bulldoze everything; inquired why bulldoze something that takes 30 years to grow back; stated one can force anyone who wants to be in the community to provide quality; advertising needs to be controlled; and the County has a choice in what kind of community it wants. He stated in meeting with staff and a variety of individuals, the problems that need to be regulated in terms of industrial performance standards include noise; it is best dealt with as a measured item, particularly if it is going to be applied to industrial areas; the best standards are the day/night level noise measures; and it is what the federal government uses around airports and interstate highways. Mr. Kendig stated vibration is an area that has been disappearing as a problem; the County's Ordinance includes standards for vibration measurement; they have not changed any since they were first done in the early 50's; and he would not expect much change in the County's vibration standards. He noted light and glare are among the easiest in measuring as the lighting industry is capable of providing an illumination plan for any site plan prepared; lighting fixtures come with the ability to direct light; odor will be a problem for the County; and it can be measured, but the problem is that odor is good and bad. He stated he will be coming back to the Board and suggest a

DISCUSSION/WORKSHOP, RE: LANE KENDIG, PRESENTATION OF PERFORMANCE STANDARDS FOR INDUSTRIAL USES

balance between some method of determining whether the odor is considered obnoxious to the general citizenry; and if the method is appropriate, the measurement is made to determine whether there is a violation. He stated in going only with the technical measurement, there are problems; and they need to find a balance between the two areas. Mr. Kendig stated concerning airborne and hazardous emissions, his general recommendation is that the County stay with the State emission levels; the same would be for water quality; there are both a State level and federal level upgrade in water quality regulations that are going to occur in the next three to five years; and it would be foolish to leap ahead of that. He recommended the County prohibit the transfer of any pollution rights into the County; stated the federal standards for radiation are good; and typical industrial performance standards include traffic impacts. He stated he assumes the County's concurrency regulations are working reasonably well; it may want to add something for certain kinds of industry; and that is whether access by truck is on roads that have adequate capacity to handle the truck traffic. Mr. Kendig noted the standard performance types of criteria include scale and how big is the building; an industry that is in a three-acre building with 50-foot high ceilings is going to be out of character with an adjoining residential neighborhood; and a building that is much smaller and only one story would not have much impact. He further outlined exterior storage, architectural quality of industrial parks on the exterior, and attracting good industry.

Craig Bock stated the presentation was enjoyable; from reading the paperwork, it looks as if there are performance standards at the property line; and inquired if someone had a parcel of 60 acres in the middle of a residential subdivision, put enough trees around it or hid the looks of it, and it met the State standards, could it be allowed under this type of zoning; with Mr. Kendig responding negatively. Mr. Kendig advised there are still zoning districts, particularly heavy industrial and business park type use, which need to have specific access requirements; it makes sense to continue to have zones for those things; they are not talking about reinventing any zoning districts; and they are going to be applying these performance standards to the existing matrix of the Zoning Code. Mr. Bock noted there are some specific businesses that do not belong in specific zoning.

Douglas Sphar stated there seems to be a heavy reliance on aesthetics; he would hate to see someone get a nuclear waste reclamation site put in because it looks good; the business would not be appropriate; Brevard County has unique attributes, such as the Indian River Lagoon; and it probably has more stringent stormwater and reclaimed water standards than an inland city would have. He stated it is not going to require a lot of staff effort to develop tighter air standards for Brevard County; and tighter air standards are warranted and in place already in other parts of Florida that have natural resources that need to be protected.

DISCUSSION/WORKSHOP, RE: LANE KENDIG, PRESENTATION OF PERFORMANCE STANDARDS FOR INDUSTRIAL USES

Maureen Rupe inquired in regard to emission credits, do all participating companies have to reduce their emissions each year; with Mr. Kendig responding he believes so. Mr. Kendig stated what they are concerned about is bringing an adverse emitter in Brevard County. Ms. Rupe stated Port St. John has had one review of the land use plan which was years ago; it has gone from a few hundred people to approximately 25,000; and it finds itself living with zoning that is not compatible with the growth. She noted Port St. John has a sewer plant located in light industrial that is invisible and nobody would know it is there; several times in the last few years the smell of chlorine has been a problem; this industrial area is in the middle of residential; and requested constant review of the new ordinance. Ms. Rupe stated Mr. Kendig mentioned yesterday that the new ordinance will need strong and efficient code enforcement or it will be useless; and it needs to be address as the Code Enforcement Department is understaffed. She expressed concern with the grandfathering in process of the ordinance.

Mary Tees stated if the County has an ordinance and says this is residential and this is what someone has to do to be in a residential area, then nobody should be allowed to put in a gas station on the corner; Port St. John does not want it; Brevard County needs to go with performance standards; and she is opposed to using the State standards. She noted the Florida Power and Light plant produces bad pollution in the Port St. John area; Brevard County has a fragile environment; it is a beautiful County; and the standards need to be enforceable.

Laura Donovan stated she is from Massachusetts and has been through this fight already; her mother is again going through this process; this happens in town after town; tests need to be run concerning the pollutants as they float on the water and eventually get to everybody's house; and when all the animals are gone, the people do not have a lot of time after that.

Dorothy Amstadt inquired will Mr. Kendig be addressing the effects of pollution and the health aspects. She stated someone needs to find out what happens with pollution on everybody, especially children; and the laws need to be changed to keep this in mind. Mr. Kendig stated he will try to do what he can to get an indication of where the pollution is coming from; his meetings with staff today indicate staff does not know what sectors the most serious pollution is coming from; and they suspect a majority of the pollution is coming from automobiles.

County Manager Tom Jenkins stated the Board requested staff do research on some of the major illnesses and what those causes could be; and such research is being undertaken at this time. Ms. Amstadt noted it needs to come into part of the planning and zoning issues.

Bob Waters inquired does the performance-based plan allow input from the Commissioners and public afterward. Mr. Kendig responded the first set of sessions has been to gather as much public input as possible. Chairman Scarborough stated the law requires the County to advertise

DISCUSSION/WORKSHOP, RE: LANE KENDIG, PRESENTATION OF PERFORMANCE STANDARDS FOR INDUSTRIAL USES

a public hearing to change the zoning ordinances; a change has to take place at a public hearing; input from the consultant will be made available to the public to study; if there is a need for special workshops, the County can do that; and at the public hearing, the Board will vote on the ordinance. Mr. Kendig stated after the Code is adopted, the Board, planning staff, and citizens need to continually evaluate things; almost every community is on a learning curve; and it needs to continuously reassess the ordinances.

Commissioner Higgs noted the parcel at the corner of the highway that wants to go from a single family home to a 7-Eleven will still go through a public hearing process; and the County will have additional tools to evaluate it.

Chairman Scarborough requested Mr. Kendig meet with those Commissioners he has not met with yet.

Commissioner Carlson stated Mr. Kendig alluded to mitigation banking where a polluting industry could get pollution rights or credits to go somewhere else and pollute; and inquired with the specter of deregulation in the State of Florida, how does the County go about finding out if this is one of those companies that has been given such rights and how does it address that. Mr. Kendig responded it is going to be fairly easy if the company was given rights because they are going to tell the County they have purchased rights and do not have to meet Florida air quality standards and are allowed to go to a heavier level; and recommended the Board consider prohibiting somebody from buying rights from someone else and installing them in Brevard County. He stated he believes in preserving the air quality in the County; and since it is an attainment area, he can say it is not going to allow a polluting industry that would jeopardize that to come into the community.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to direct staff to report on pollution rights and how the Board can insure that polluting industries will not be able to come into the County. Motion carried and ordered unanimously.

Commissioner Voltz inquired how often does it happen; with Mr. Kendig responding it is rare.

Discussion proceeded concerning the time and type of traffic, hours of operation, signage, defining nasties in the County, land uses, nuclear manufacturing facilities, obnoxious uses, scale and intensity of the use, how concurrency and zoning can work together, and conforming to the neighborhood character.

Commissioner O'Brien stated many of the neighborhoods on Merritt Island had smaller, older homes, many of them in bad repair, and they are evolving into brand new homes that are two and three times the size of the old structures.

DISCUSSION/WORKSHOP, RE: LANE KENDIG, PRESENTATION OF PERFORMANCE STANDARDS FOR INDUSTRIAL USES

Mr. Jenkins stated the County is looking at this issue in phases; the first phase is industrial; and if the Board and community like the concept, it can be broadened to commercial and residential.

Chairman Scarborough stated he would like to see a holistic concept rather than doing it in part; there are a lot of issues to handle in a short time frame; and if too much is put on, it is going to be overwhelming.

Mr. Jenkins stated one of the major concepts included is to create five to ten zone codes, including residential, suburban, rural, etc.; there are also subcategories; Mr. Kendig is going to summarize what he has told the Board today in writing and provide it to the Commissioners; he will continue to pursue those issues he stated today in the context of a performance based zoning code for industrial; and it will be brought back to the Board in mid-June. He noted Mr. Kendig has offered to have another town meeting; and staff will put the issue back on the agenda for the first meeting in July, 1999.

*County Attorney Scott Knox's absence was noted at this time, and Assistant County Attorney Eden Bentley was present.

Commissioner O'Brien stated the County does not want to become more restrictive in its approach, but more realistic. Mr. Jenkins stated it will end up with a more simplified system that is easier to understand and apply.

The meeting recessed at 3:40 p.m. and reconvened at 3:54 p.m.

RESOLUTION, RE: URGING FLORIDA POWER & LIGHT COMPANY TO REPOWER ITS CAPE CANAVERAL PLANT AND TAKE EARLY TECHNOLOGICAL STEPS TO ELIMINATE VISIBLE EMISSIONS FROM THE SITE

Ann Stacer, President of Port St. John Homeowners Association, stated she appreciates the improvement steps taken so far by Florida Power and Light (FP&L) Company at the Cape Canaveral Plant; and expressed appreciation to Commissioner Carlson for the proposed resolution. She noted the Association requests that the resolution include all existing and future power generating plants in Brevard County; the County use its full authority to mandate and not just urge, that all power plants stop burning fuel oils and burn natural gas whenever it is available; page 2, paragraphs 1 and 2 state, "Whereas, one of the powers of the legislative and governing body of a county is to establish and administer programs, including air pollution control; and Whereas, each county, with Florida Department of Environmental Protection approval, may establish and administer a local pollution control program"; and they would urge

RESOLUTION, RE: URGING FLORIDA POWER & LIGHT COMPANY TO REPOWER ITS CAPE CANAVERAL PLANT AND TAKE EARLY TECHNOLOGICAL STEPS TO ELIMINATE VISIBLE EMISSIONS FROM THE SITE

the Board to use those powers to mandate FP&L to cease burning fuel oils and burn natural gas whenever it is available to them. Ms. Stacer requested the social costs of polluting not be borne by the people of Brevard County alone, and the costs of improvements to stop pollution be allocated to all consumers of the area electrical power.

Mary Tees addressed health issues that the residents of Port St. John are facing; stated there is a very high instance of upper respiratory and asthma problems in children who reside in the area that is in close proximity of the FP&L plant; and it can be verified with Parrish Medical Center or Wuesthoff Hospital. She stated sooner or later everyone has breathed the smoke stacks from the plant as it permeates the entire County at one point or another, depending on how the prevailing winds are; the State of Florida has grandfathered in this particular plant; FP&L Company made so much money that the State ordered it to give back to the people; and grandfathering should not go on forever and does not mean an old plant cannot be brought up to a better standard. She stated the State's requirements are lax for the FP&L plant; such plant is lower than any of the existing plants within the State of Florida; and this plant should be made to burn a better grade of oil, natural gas, or clean its act up because it is killing everyone slowly, but surely.

Maureen Rupe stated the citizens have been used by the FP&L Company for five years; the residents have initiated most of the meetings; it has taken another plant coming into Brevard County to make FP&L even try to be good neighbors; she does not believe the Company will comply with a resolution; and it has been a waste of time for the people in the past five years. She stated the people would like to see something mandated; the Company says it is within the State guidelines, but it is still polluting; and inquired how many times have State and federal guidelines been detrimental to the citizens of the United States.

Alan Barnes expressed concern with property damage, including the paint on his car, which may be caused by emissions from the FP&L plant; stated the wildlife is also decreasing; the St. Johns River Water Management District is doing studies in the area; and he is also concerned with the health issue.

Clarence Rowe advised of his support for the resolution; stated he does not believe anyone objects to paying a few extra pennies in order to clear up the air and water pollution; it appears the different companies are laughing all the way to the bank; the people are suffering from different illnesses; and it is getting to the point where no one wants to eat the fish out of the Indian River Lagoon due to the problems. He requested the Board encourage FP&L Company to bring its equipment up to modern technology; and stated he does not have a problem paying for a better quality of life.

RESOLUTION, RE: URGING FLORIDA POWER & LIGHT COMPANY TO REPOWER ITS CAPE CANAVERAL PLANT AND TAKE EARLY TECHNOLOGICAL STEPS TO ELIMINATE VISIBLE EMISSIONS FROM THE SITE

Chairman Scarborough stated while FP&L Company has moved to a lower sulfur content, it has not moved to the extent that Orlando Utilities Commission (OUC) has; OUC was about to be sold and that is one of the reasons it is concerned in the Port St. John area; Orlando residents dealing with paying higher costs are joining Brevard County; OUC wants to be a good neighbor to the County and not have dirty air; and FP&L Company has not opted to take as friendly a position.

Commissioner Carlson stated the resolution she brought forward urges FP&L Company to take near-term technological steps to eliminate visible emissions from its Cape Canaveral Plant located in Port St. John and to convert to efficient and clean gas fired units, i.e. to repower that site at the earliest possible date. She noted the issue of deregulation is on the horizon for the utility industry; customers will soon have a choice what utility they use; there could be a considerable cost savings to increased competition to provide power; and cleaner power is the direction power plants are going, and it is the direction Brevard County wants to go. She stated she has a press release which quotes FP&L Company's President Paul Evanson as saying, "By 2008, when FP&L again plans to expand generating capacity, the primary candidate would be one of the three oil fired sites on the East Coast-the Canaveral Plant in Brevard County, the Riviera Plant in Palm Beach County, or the Port Everglades Plant in Broward County. We certainly will accelerate this timetable if the energy needs of our customers dictate we should." Commissioner Carlson stated all the pieces put together say that FP&L Company is attempting to become a more environmentally friendly citizen, but she would like to see it become more of a leader; and read the proposed resolution.

Commissioner Voltz stated FP&L Company needs to do something now and not in the year 2008. Chairman Scarborough stated the Company has shown itself over a number of years to be totally irresponsible and not a good neighbor.

Chairman Scarborough noted the resolution should include all plants.

Commissioner O'Brien stated when talking about going to natural gas, in the Winter of 78-79 the Nation experienced a severe gas shortage; if the Board encourages power plants to go strictly to gas, either there will be brownouts in the middle of January or people will not be able to afford to pay for the power; the Board needs to be careful; and FP&L Company could be requested to sweeten its bunker fuel. He noted such Company has not been forthcoming and probably not honest in its presentation to the public; and it has insulted some of the residents in Port St. John and the public in general.

Discussion ensued concerning a local pollution control program, the Oleander Plant, power usage, noise pollution, air-monitoring program, and plants using natural gas and having a backup.

RESOLUTION, RE: URGING FLORIDA POWER & LIGHT COMPANY TO REPOWER ITS CAPE CANAVERAL PLANT AND TAKE EARLY TECHNOLOGICAL STEPS TO ELIMINATE VISIBLE EMISSIONS FROM THE SITE

Chairman Scarborough stated OUC is able to do things right now without going through a 2008 analysis of whether it is going to do something in 2020; to say the Board is going to urge someone to do something in 2008 is so ambiguous and stupid that he cannot support the resolution at this time; the County has the capacity to have FP&L respond in a similar manner to what OUC has been doing for at least five years; and it needs to be more affirmative.

Commissioner Higgs noted the Board can be more affirmative, but it has never said anything to the Company definitive in a number of years; and it is good it is at least saying something.

Chairman Scarborough advised he has talked to the Company over a number of years; and the resolution needs to be strengthened.

Commissioner Carlson noted the Board can table the resolution to allow Chairman Scarborough to strengthen the language. Commissioner O'Brien stated Commissioners who see a paragraph they would like to reword, add or delete can notify the County Manager; and the resolution can be placed on the May 24, 1999 agenda.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to table Resolution urging Florida Power and Light Company to repower its Cape Canaveral Plant and take early technological steps to eliminate visible emissions from the site to the May 24, 1999 Board meeting. Motion carried and ordered unanimously.

*Commissioner Carlson's absence was noted at this time.

AUTHORIZATION TO EXERCISE OPTION AGREEMENT WITH COLLEGE PARK CHURCH OF GOD, RE: PROPERTY FOR SHARPES COMMUNITY CENTER

Walter Butler, representing the North Cocoa Civic League, requested the Board's support for a community center in Sharpes; and stated it is desperately needed in the area, not only as a center, but to be utilized as a storm shelter as well.

Commissioner Voltz stated there is enough money in Community Development Block Grant (CDBG) funds to do the whole thing. Commissioner Higgs stated it is her understanding that CDBG has recommended half of the funding; there is approximately $883,000 available in past projects that the Board could ask the CDBG Board to look at; she is interested in completing the Micco project; and there would also be funds available to go forward on the Sharpes project.

AUTHORIZATION TO EXERCISE OPTION AGREEMENT WITH COLLEGE PARK CHURCH OF GOD, RE: PROPERTY FOR SHARPES COMMUNITY CENTER

Chairman Scarborough noted he has to make a telephone call and requested a recess. The meeting recessed at 4:40 p.m. and reconvened at 4:48 p.m.

Commissioner Higgs recommended the issue be returned to the CDBG Board to request some insight on handling the funds available.

Chairman Scarborough stated Mr. Butler has worked with County staff over a number of years on different sites and he does not believe Mr. Butler has been more excited about any site than this particular one; and he is supportive of the community center.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to direct staff to send authorization to exercise Option Agreement with College Park Church of God for the Sharpes Community Center property back to the Community Development Block Grant (CDBG) Advisory Board for reconsideration at its next meeting; and schedule it on the May 18, 1999 Board meeting agenda. Motion carried and ordered unanimously.

RELEASE OF LIEN FOR SADIE JAMES, RE: REPAIR ASSISTANCE MORTGAGE

Commissioner O'Brien requested staff investigate whether this mortgage went to Casselberry because there had been red lining in Brevard County; and stated he does not have a problem with the Release of Lien.

Discussion ensued concerning interest rates, refinancing, mortgage from Crown Bank, research into credit history, delinquent credit, paying daily accrual, and the death of Sadie James' daughter.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to execute Release of Mortgage for Sadie James, who wishes to refinance her first and second mortgages and payoff a $13,000 judgment. Motion carried and ordered unanimously.

APPROVAL OF MINUTES

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve the March 16, 1999 Regular Meeting Minutes. Motion carried and ordered unanimously.

LETTER, RE: BEDS FOR JUVENILES IN BREVARD COUNTY

Commissioner Voltz stated James McDonough requested a letter concerning the need for beds for the juveniles in Brevard County; and if the Board concurs, she will gather the statistics, including what Brevard County is doing and what the problems are and send the information to the Commissioners and Mr. McDonough.

WARRANT LIST

Upon motion and vote, the meeting adjourned at 5:01 p.m.

ATTEST:

TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)