January 27, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on January 27, 2004, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Commissioner Ron Pritchard, District 2.

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

REPORT, RE: FORM FOR SUPERVISOR OF ELECTIONS

County Manager Tom Jenkins advised Supervisor of Elections Fred Galey needs a form signed by the Chair so he can receive matching funds from the State for voter education.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the Chair to sign a form for the Supervisor of Elections to receive matching funds from the State for voter education. Motion carried and ordered unanimously.

REPORT, RE: ARTICLE V EFFECT ON LAW LIBRARIES

Commissioner Pritchard advised when Article V goes into effect, the funding for law libraries will cease; the Board needs to come up with alternatives to fund the law library; and he would like for this item to come back as an Agenda item in about 30 days with an anticipated method so that the Board can insure the public law library will continue to operate.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to instruct staff to come up with alternatives to fund the law library after July 1, 2004 and to put it back on the Agenda in 30 days with an anticipated method that the Board can consider to insure the public law library will continue its operation. Motion carried and ordered unanimously.

REPORT, RE: FRIENDS OF WICKHAM PARK

Commissioner Pritchard advised the internal auditor looked into Friends of Wickham Park and the Wickham Park Advisory Committee, and recommended the oversight of the Friends of Wickham Park Trust Fund be added to the responsibilities of the already existing Wickham Park Advisory Committee and that the Friends of Wickham Park Advisory Committee be dissolved as it duplicates the responsibilities of the Wickham Park Advisory Committee. He stated he does not know much about the operations of those two entities, but since the auditor recommended it, he thought the Board should review it and perhaps have it come back as an Agenda item.

Commissioner Carlson stated she agrees it needs to come back to the Board with a report so it can see what it may want to do.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to instruct staff to return with a report in 30 days on the recommendation of the internal auditor that the oversight of the Friends of Wickham Park trust fund be added to the responsibilities of the Wickham Park Advisory Committee, and that the Friends of Wickham Park Committee be dissolved. Motion carried and ordered unanimously.

REPORT, RE: VALKARIA AIRPORT MASTER PLAN

Commissioner Pritchard stated at the last meeting he mentioned the Valkaria Airport Master Plan and thought there was going to be a report coming back from County staff as to the status or non-status of the plan, but when he got the memorandum from the Clerk to the Board’s office, it said, “The Board acknowledged his report on lack of a master plan for Valkaria Airport restricting its ability to apply for grant funding, and directed staff to return with a report on the status and effect of the master plan, that was not approved by the Board, as an Agenda item for the next meeting.” He stated he is not sure if the master plan was not approved or bringing it back as an Agenda item was not approved, and is looking for clarification.

County Manager Tom Jenkins stated he thinks what the Board told staff to do is provide it with a report and if any Commissioner chose to put it on the Agenda at a later date, any Commissioner could put it on.

Commissioner Pritchard stated that being the case, he would like to have a report. Mr. Jenkins stated staff is in the process of doing the report.

REPORT, RE: SPACE TRAGEDIES

Commissioner Pritchard stated this is not a good time of the year for NASA; January 27, 1967, Apollo I was destroyed by fire and Virgil “Gus” Grissom, Ed White, and Roger Chaffe died; January 28, 1986, the Challenger exploded and America lost Commander Frances Scobie, pilot Michael Smith, mission specialists Judy Resnik, Ellison Onazuka, and Ronald McNair and payload specialist Gregory Jarvis and Sharon Christa McAluff, the first teacher in space; and last year on February 1st, it was the Columbia when the orbiter disintegrated upon entering the atmosphere over Texas and hot gases penetrated a breach on the left wing, killing all the crew members, Commander Rick Husband, pilot Willy McCool, mission specialists Kalpana Chawla, David Brown, Michael Anderson, and Laurel Clark, and payload specialist Ilan Ramon. He requested a moment of silence for the crews and all those who have lost their lives on the ventures to outer space.

The Board observed a moment of silence to remember the crews lost on ventures to outer
space.

REPORT, RE: POLITICIAN PLANS MARATHON RUN

Commissioner Pritchard advised the Florida TODAY had a story about a politician who plans to run in the women’s only More Marathon in New York Central Park on March 21; Commissioner Higgs ran two marathons in the late 1970’s; she runs every day, carving out time from her demanding schedule of Commission meetings and public events; and she runs because she enjoys it and to keep ahead of her heart. He stated the article says she figures she is capable of completing the March marathon in under five and a half hours; if she did it in four and a half hours 25 years ago, she would be pleased if she could do it in five and a half hours; and she is not going for speed, just to finish the race. He noted it matches his morning exercise program of one sit-up, one leg lift, and maybe a cruise out to get the newspaper; but in the spirit of what Commissioner Higgs is attempting, they need to insure she has all the items she will need for the trip. He stated since it is a marathon in New York, and from here to New York would be a perfect training ground, they went to Triple A and picked up a Trip Tic that starts at her home in Melbourne Beach, carries her all the way up to New York City; and once she gets to New York City, they have a map of the City so she can find her way around, and a tour book as well after she is done with the marathon. Commissioner Pritchard stated they were concerned she might have traffic problems running up the highway, so they got her a red safety vest; just in case she breaks into a sweat, they got her a portable mini-fan; and if she runs into a pack of cars, loses direction, or needs a magnifying glass so she can read the signs, and in case she wants to know what the temperature is, they have a four-function whistle with a compass for her. He stated the compass always points north, so if she turns it around, she can find her way home. He stated because she will be running at night in the City, they thought she might like to have a headlight, so she would be able to see and light her way; and they tried to get her a tee shirt for the marathon, but they do not have them yet, so they thought to put the fear of intimidation into all her competitors in the race, they got her a tee-shirt from the actual New York marathon, from Staten Island through Brooklyn, and upper and lower Manhattan, and whether or not they want to challenge her about that, she can wear it in good health. He stated they wish her well.

Chair Higgs thanked Commissioner Pritchard and his staff; stated she appreciates it and it will inspire her, as now her reputation is on the line so the motivation has increased twofold. She stated that is okay because she is going to make it to the end no matter how slow and how long it takes; and again thanked Commissioner Pritchard for the items and well wishes.

GUEST SPEAKER - LUZ BUENO, CONSUL TO MEXICO, RE: IDENTIFICATION CARDS

Chair Higgs advised the Board is honored to have the Consul of Mexico Ms. Luz Bueno here representing her nation in Central Florida, and she has come to speak to the Board.

Consul Luz Bueno advised one of their main responsibilities is to improve relations between her country and the people in Florida; they are very interested in talking with the Board and are working very hard to be with all the important people in Florida and with all the people because all the people is important. She stated they have many Mexicans living here and working here; they are here to protect their rights, to see how they are doing and to help them; and also to promote their culture because knowledge makes better relations between people and countries. She stated where two nations are friends, they want to improve the knowledge between their countries and she is interested in also talking about the consulate identification card. She stated as she said earlier, many Mexicans are living and working here, and probably some of them do not have the proper documents to live here, but they are working; they are feeding and building America because they are working in fields and construction; and they are here doing a good job and helping the economy. Ms. Bueno stated after 9/11, the Mexican Government thought it was important for them to have an ID that would be reliable for the authorities here; they cannot get Florida drivers’ licenses or ID’s from Florida, but the Mexican Government issues a Consulate ID that they wear at the Consulate; and her Government decided to improve it in two ways and make it a document that is difficult to forge. She stated it has 13 security features that make it almost impossible to forge; and they ask for birth certificates and valid Mexican ID and proof that they are living in the United States. She stated they keep all the information in a database; their consulate in Europe is doing the same thing; they are connected; and a person who goes to Los Angeles can come and ask for the document because they have a national database and keep copies of all the documents. She stated that is important because they believe the security serves as identification of people; if they know who it is, they are more secure than if they do not know; and if the police can see those documents and see who the person is, it is better for the police and the person. Ms. Bueno stated another issue is that Mexicans could not open bank accounts, but now with the ID they can use it as a valid document to open bank accounts, which means security for everybody because they use to keep their money in their pockets and the criminals knew that, so they were perfect victims for criminals. She noted now they keep their money in banks. She stated Mexico has people who live to save money; in Los Angeles in the first three months that the Wells Fargo Bank allowed Mexicans to open accounts, it received $12 million because Mexicans came to America looking for a better future; and they save money for their families and their future and are good business for banks. She stated the consulate ID has nothing to do with immigration status or drivers’ license; it is only a reliable identification; more than a hundred cities and counties have accepted it as valid identification; and requested the Board consider accepting it as a valid identification, which would mean security for all the people in the County.

Chair Higgs thanked Ms. Bueno for telling the Board about the identification; and advised her the Board will ask its staff to give a report on how it would use the information she has given it, how that can be facilitated by the Board, and to move forward on that. She stated the Board is honored she is here; Mexico is a great partner with the United States; and the Board appreciates her recognizing Brevard County as an important part of her constituency.

Commissioner Pritchard advised Ms. Bueno has affidavits from several cities, sheriffs departments, etc. that are supporting the use of the identification card; and inquired if those agencies imprint their logo showing the acceptance of it. He stated it could be so easy, for people who are unfamiliar with the identification, to not recognize it as an authentic identification; and it would be a little more specific by including the logos. Ms. Bueno stated she does not know, and cannot answer the question, but she can ask all the places that have accepted it to send the Board that information. Commissioner Pritchard stated County staff can do that. Ms. Bueno thanked the Board for accepting her and stated she hopes it is the beginning of a good friendship.

Chair Higgs instructed the County Manager to give the Board a report on the identification document.

REPORT, RE: HELP AMERICA VOTE ACT

Supervisor of Elections Fred Galey advised the Help America Vote Act (HAVA), is a law that requires touch screen or ADA certified machines in each polling place or polling location; if it is done in each polling place, it is estimated to cost $1,000; if they can do it in each polling location, it may cost about $700,000; and it will impact his Office as far as storage and the technician. He stated they were asked by the State to certify the touch screen or help in the certification of the touch screen for the Diebold; they bought the company that manufactured the machines and worked with them in November and early December on some certifications; they still have some issues; and they will help them complete that. He stated there is an option from Vogue Elections, which is to use the machines that they have, insert the ballot and it brings up both an image of the ballot, and an accumark, which marks the ballot the same as a touch screen but also has the language capability. He stated it will read the ballot to people who have a sight impairment; all the touch screens will do that also; but they are not yet certified by the State; however, they are also looking to see if the certification is required for those because they do not do tabulation only marking. Mr. Galey advised those machines cost about $5,000 each just like the touch screens so they are no cheaper; it is just another option; but it is an expensive option that is going to be required by the State. He stated HAVA funding is supposed to be $5.8 billion for the entire United States; they have under-funded it by about 60%; and he does not know what will trickle down to Brevard County, but the requirement is not until 2006. He stated there was a decision about two weeks ago requiring Jacksonville to have them within four months; the Florida Association of Supervisors of Elections, in executive session, is going to have its lawyer intervene there because to try and do that in four months is not impossible but is very expensive. He stated it has gone through a lot of issues that will create problems; he does not think the Jacksonville ruling will stand up, but who knows what happens when it gets into the legal system; but if Brevard County had to do it in four months, it does not have a certified machine and would probably have to get a blended system, which would be their voting machines and a touch screen from another company, which is certified by the State. Mr. Galey stated that would require considerable expense because they would not be able to talk to each other since they are different companies; they would have to run the touch screens in each one of his offices; there are a lot of law changes going on; and they are trying to stay ahead of them. He stated in each case it creates additional expense, just as the accessibility of polling places did; he read a report that said the State of Kansas is going to lose 300 polling places because of the handicap accessibility issue; while they are increasing polling places with disability access, they are decreasing availability of polling locations for the majority of voters; and Florida has some of the same issues. He stated to bring all their machines up to speed for everything they require will be an expense to Brevard County; they will also have to switch two or three polling places; and they will do that by 2006.

Commissioner Carlson inquired if the County can provide free van service for those who need that type of voting machinery; with Mr. Galey responding the County could provide free van service, but the HAVA requires them to be able to go to the polling place and vote unassisted. He stated unassisted means to get them to the machine, get them in position, and if they have sight impairment, the machine will enlarge the ballot like the big E on the eye chart so they can read it. He stated if they are hearing impaired, it will read the ballot to them so they can vote. He stated the County would have to get van service to get them there; it would have to pave the parking lot if it is unpaved; it was suggested that mats be used, but the State does not like mats; however, there is a national organization that says mats are good. He noted he thinks Kansas is going to use mats to temporarily cover gravel, stones, etc. Commissioner Carlson inquired if the County could have a few facilities that are ADA compliant and bring those voters to that facility where they can be unassisted; with Mr. Galey responding he thought it would be a good idea, but the law requires one in every polling place; that is the HAVA requirement; he thought of having a machine in each of his offices throughout the County to allow voting under the early voting concept and ADA requirement and not having one in every polling place or location, but that does not meet the requirements of the law. Commissioner Carlson inquired if Mr. Galey sees any relief for the counties that purchased their equipment right before the 2000 election getting some benefit; with Mr. Galey responding the HAVA has funding for replacing equipment; they did receive some rebate and will get more when they purchase the HAVA machines; but what percentage is still undetermined. He stated he had hoped they would get full funding, but there was under-funding at the national level so until it trickles down through the State, they will not know. Mr. Galey stated Paul Degegoria who was a supervisor of elections in St. Louis, and who he met through different events, received training from Jane Carroll who was in Broward County before retiring and from Betty Carter who is in Orange County; and he was appointed to the National Election Commission and has close connections with Florida. He stated he spoke to their State Association two weeks ago, and is going to help allocate those payments to the different states based upon a state plan, which every state has to submit to the Commission. He stated they are reviewing those; and the states will get so much money, then it will come down to the local level to offset some of the costs; but one way or another, it will be an unfunded requirement. Commissioner Carlson inquired if Mr. Galey is estimating the cost at $1.3 million; with Mr. Galey responding that is his estimate for one machine in each polling place and additional storage space. He stated as they continue to grow, they will be pushing out of their space; and they are mailing absentee ballots to people who call. Commissioner Carlson inquired how soon will the Board know a better estimate; with Mr. Galey responding he will have it in his 2005 budget because they have to have them in place by January 2006; and at that time he will have a solid estimate of the cost. He stated depending on what trickles down from the national level, they will see what it is going to cost. He stated his office will do what they have to do to meet the requirements of the law; he had hoped to get permission to have location or curbside voting, which he has not received. He stated if they have a person with difficulty, they could take the machine from the precinct to the car and let them vote with two witnesses of opposite parties; voting absentee is a very good option; and they have taken ballots to homes, stayed there while they voted, and brought them back to save millions of dollars. He stated his budget will show their planning and potential and what it will cost; he hopes it will have some kind of estimate from the State by then, but he does not know how much; and it will be a percentage, but not 100%. Commissioner Carlson inquired if Mr. Galey foresees any resources he can apply to it; with Mr. Galey responding no, any funds he gets from the State will be applied to it, but other than that, his office generates very little revenue; and they cannot charge for voting or even for parking. Mr. Galey advised March 9, 2004 is the Democratic Presidential Preference Primary Election; they are trying to get the word out because they are going to have independents and Republicans showing up, but their names are not going to be on the books because it is for Democrats only to choose their candidate to run in the General Election.

REPORT, RE: SENIORS v. CRIME

Commissioner Carlson advised a senior sleuth is here to report on Seniors v. Crime; and she has a brochure, which she will distribute. She gave brochures to the Commissioners but not the Clerk.

Lucy Kline with Seniors v. Crime Project of the Attorney General’s Office, advised she started with a storefront as a volunteer putting in four hours a week when it opened in April last year; and in October 2003, she had the honor of being appointed the storefront manager. She stated the Florida Legislature, in 1989, ordered a task force to be formed because senior citizens were being targeted for scams and subjected to high-pressure tactics by sales people and false advertising at an alarming rate. She stated seniors are often targeted because many live alone, are lonely, and love the opportunity to talk to someone; scam artists use that situation, and seniors will stay on the phone with someone who calls or welcome them into their homes because they are lonely and need the social connection; and as a result, the task force formed the Seniors Versus Crimes Project of the Attorney General’s Office. She stated among the things done was to create storefronts where senior citizens who felt they were taken or scammed can come and speak to other seniors; the reason for that is because seniors who have been taken are often too embarrassed to admit it to their families or law enforcement, but they would be comfortable talking to another senior who could relate to their feelings; and on April 4, 2003, the program finally came to Brevard County. Ms. Kline stated with the opening of Seniors v. Crime storefront at Merritt Square Mall, within the Sunflower House, which is another nonprofit agency for seniors, seniors come in to speak to a volunteer who is known as a senior sleuth; senior sleuths cannot give legal advice, but can act as advocates for the seniors and as mediators between the seniors and the persons or businesses that the seniors feel have taken advantage of them; and often it is just a misunderstanding and they can mediate a settlement that leaves both parties happy. She stated it is a win/win situation; some problems are solved in an hour; some are worked on for weeks before they can close a case satisfactorily; and unfortunately, they cannot solve all the problems. She stated when they cannot solve the problem, they have resources of information to suggest to seniors what steps they would want to take, such as small claims court, turning it over to law enforcement if it is a legal crime, or advising them to see an attorney if it is a problem worth the cost of legal advice. She stated some times they have seniors who could not be helped materially, but they need someone to talk to who would understand them; and they are grateful for the storefront being there just to have someone to listen to them. Ms. Kline stated it is a very worthwhile feeling when they can recoup $50 to $1,200 for a senior, which they have done before, or when they leave with a happier look because someone was there to listen. She stated nobody seems to know they are there; it is open every Thursday and Friday from 10:00 a.m. to 2:00 p.m.; and when they get more volunteer sleuths, they plan to expand their hours. She stated her purpose in coming here today was to distribute brochures, thank Commissioner Carlson for having made them for her, and to let constituents know they are there. She stated they are there to help seniors who feel they have been had in any way; they are at the eastern end of the Merritt Square Mall, just outside of J. C. Penney’s within the Sunflower House; and the phone number is 449-0007. She noted there is an answering machine if they are not open, and they will call the person back.

Commissioner Carlson thanked Ms. Kline for her efforts and stated it is a worthwhile project.

Commissioner Colon advised she holds town meetings in District 5 and there is a wonderful turn out at the meetings; and inquired if Ms. Kline would mind coming to one of those meetings to speak to the people; with Ms. Kline responding she would be happy to do that. Commissioner Colon advised the next town meeting is February 14 at Melbourne Library on Fee Avenue.

RESOLUTION, RE: RECOGNIZING BREVARD COUNTY SCHOOL CROSSING GUARDS

Commissioner Pritchard advised many people pass by school intersections several times a day; the school intersection he goes by frequently is Divine Mercy; and he always sees a friendly crossing guard who waves and adds a brightness to the morning drive. He stated the other guards are the same; one day a guard at Merritt Island High School took his hand, stopped traffic, and walked him across the street; so he really appreciates their performance, dedication, and loyalty. He stated there are 64 crossing guards; the program has provided a non-incident environment for students under their care; and the purpose of the resolution is to provide recognition and express appreciation for their commitment and involvement in the safety of children and citizens. Commissioner Pritchard read aloud a resolution proclaiming the week of February 2, 2004 as Brevard County Crossing Guard Appreciation Week.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution proclaiming the week of February 2, 2004 as Brevard County Crossing Guard Appreciation Week, in recognition of their outstanding service to the community. Motion carried and ordered unanimously. (See page for Resolution No. 04-016.)

A representative of the Crossing Guards Program thanked the Board for its vote of confidence in what they do; stated they are a fantastic team; and after close to ten years it is rewarding to know they have had no accidents and no one has been hurt. He stated it is hard to express how satisfying it is to know they have been a part of the safety and wellbeing of children as they grow up; and reiterated his appreciation for the Board’s support and recognition of the guards.

Chair Higgs stated the Board appreciates everything they do and Jack Parker for a job well done. She requested applause for the crossing guards; and everyone applauded.

Commissioner Pritchard presented the Resolution to the representative and Public Safety Director Jack Parker.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: TRAFFORD DRIVE
EXTENSION AND SCHOOL SITE

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final engineering and preliminary plat approval for Trafford Drive Extension and school site, subject to minor engineering changes as applicable and developer responsible for obtaining required jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: AUBURN
LAKES SUBDIVISION, PHASE 4

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final plat approval for Auburn Lakes Subdivision, Phase 4, subject to minor changes if necessary, receipt of all documents for recording, and developer responsible for obtaining all required jurisdictional permits; and execute Contract with The Viera Company guaranteeing infrastructure improvements in the Subdivision. Motion carried and ordered unanimously. (See page
for Contract.)

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: WINGATE
ESTATES, PHASE 5

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final plat approval for Wingate Estates, Phase 5, subject to minor changes if necessary, receipt of all documents for recording, and developer responsible for obtaining all required jurisdictional permits; and execute Contract with The Viera Company guaranteeing infrastructure improvements in the Subdivision. Motion carried and ordered unanimously. (See page
for Contract.)

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE: DRAINAGE
BASIN V

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final plat approval for Drainage Basin V, subject to minor changes if necessary, receipt of all documents for recording, and developer responsible for obtaining required jurisdictional permits; and execute Contract with The Viera Company guaranteeing infrastructure improvements in Drainage Basin V-Stormwater Management System. Motion carried and ordered unanimously. (See page for Contract.)

FINAL PLAT APPROVAL, RE: MALABAR LAKES WEST SUBDIVISION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant final plat approval for Malabar Lakes West Subdivision, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining required jurisdictional permits. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN WITH MERRITT ISLAND STORAGE, LTD., RE:
PROPERTY LOCATED AT FORTENBERRY ROAD AND PLUMOSA STREET

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Binding Development Plan Agreement with Merritt Island Storage, Ltd. setting forth conditions for use of property at Fortenberry Road and Plumosa Street. Motion carried and ordered unanimously. (See page for Agreement.)

BINDING DEVELOPMENT PLAN WITH MOA INVESTMENTS, INC., RE: PROPERTY
LOCATED IN BRANDYWINE ESTATES

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Binding Development Plan Agreement with MOA Investments, Inc. setting forth conditions for use of property located in Brandywine Estates. Motion carried and ordered unanimously. (See page
for Agreement.)

BINDING DEVELOPMENT PLAN WITH ATHAN AND JOYCE KARTSONIS, RE: PROPERTY
LOCATED WEST OF N. RIVERSIDE DRIVE AND NORTH OF WATSON DRIVE

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Binding Development Plan Agreement with Athan and Joyce Kartsonis setting forth conditions for use of property located west of North Riverside Drive and north of Watson Drive. Motion carried and ordered unanimously. (See page for Agreement.)

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS, RE: CONTINUING
ENGINEERING CONSULTING SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant permission to advertise request for proposals (RFP’s) for five engineering consulting firms to perform stormwater-related engineering consulting services; and appoint Ronald Jones, Michael Powers, Edward Lyons, and Peggy Busacca to the Selection Committee. Motion carried and ordered unanimously.

AGREEMENT WITH BRPH CONSTRUCTION SERVICES, RE: MANAGEMENT SERVICES
FOR CONSTRUCTION OF IMPROVEMENTS AT MELBOURNE SHORES STORMWATER
TREATMENT PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Agreement with BRPH Construction Services, Inc. to manage construction of the Melbourne Shores Stormwater Treatment Project; and approve associated Capital Improvement Program revision and Budget Change Request for the project. Motion carried and ordered unanimously. (See pages for Agreement and Budget Change Request.)

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

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Use Agreement with The Viera Company for installation and maintenance of landscaping and irrigation improvements within the public right-of-way of Wickham Road west of Lake Andrew Drive. Motion carried and ordered unanimously. (See page for Agreement.)

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: RESOLUTION PROVIDING
UNIFORM METHOD OF COLLECTING NON-AD VALOREM ASSESSMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant permission to advertise a public hearing to consider a resolution providing a uniform method of collecting non-ad valorem assessments for Municipal Service Benefit Units (MSBU’s). Motion carried and ordered unanimously.

PERMISSION TO INCREASE PURCHASE ORDER TO TRAFFIC CONTROL DEVICES,
RE: DAIRY ROAD AND SINGLETON AVENUE INTERSECTION IMPROVEMENTS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to grant permission to increase Purchase Order #4500025630 to Traffic Control Devices, in the amount of $65,142.76 for the Dairy Road and Singleton Avenue intersection improvement project. Motion carried and ordered unanimously.

ACCEPT EASEMENTS FROM SCHOOL BOARD AND KENNETH AND ANNA ATKINSON,
AND WAIVE TITLE SEARCHES, RE: RELOCATION OF LIFT STATION ON SEA PARK
ELEMENTARY SCHOOL PROPERTY

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to accept Ingress/Egress and Utility Easements from the School Board of Brevard County/Sea Park Elementary School, and Sanitary Sewer and Temporary Construction Easements from Kenneth and Anna Atkinson for relocation of a lift station on Sea Park Elementary School property; and waive title searches and Phase I environmental assessments. Motion carried and ordered unanimously. (See pages for Easements.)

INTERLOCAL AGREEMENTS WITH CITIES OF MELBOURNE AND WEST MELBOURNE,
AND TASK ORDER NO. SWR-002 WITH EDWARDS AND KELCEY, RE: SOUTH
WICKHAM ROAD WIDENING PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Interlocal Agreements with the Cities of Melbourne and West Melbourne, and Task Order No. SWR-002 with Edwards and Kelcey for design and relocation of utilities in conjunction with the South Wickham Road widening project, from US 192 to Nasa Boulevard. Motion carried and ordered unanimously. (See pages for Agreements and Task Order No. SWR-002.)

ACCEPT GRANT AND APPROVE BUDGET CHANGE REQUEST, RE: FLORIDA TRAFFIC
AND BICYCLE SAFETY EDUCATION PROGRAM GRANT

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to accept $2,000 grant from the Florida Traffic and Bicycle Safety Education Program; and approve a Budget Change Request to establish a revenue and expenditure budget for the Brevard County Traffic and Bicycle Safety Program. Motion carried and ordered unanimously. (See page for Budget Change Request.)

AUTHORIZE REQUEST, RE: REIMBURSEMENT TO EEL PROGRAM FOR PURCHASE
OF PROPERTIES IN ARCHIE CARR NATIONAL WILDLIFE REFUGE

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to authorize the EEL Program staff to submit federal Senate and House appropriation requests for reimbursement of its purchase of properties in the Archie Carr National Wildlife Refuge; and authorize the County’s federal lobbyist, Ed Pauley, to work with the EEL staff and U.S. Congress on the appropriation request. Motion carried and ordered unanimously.

RESOLUTION AND AGREEMENT WITH TITUSVILLE AREA MODEL RAILROAD CLUB,
INC., RE: USE OF GIBSON COMMUNITY CENTER

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution and execute Agreement with Titusville Area Model Railroad Club, Inc. for use of a portion of the Gibson Community Center from January 27, 2004 through January 31, 2004. Motion carried and ordered unanimously. (See pages for Resolution No. 04-017 and Agreement.)

APPROVAL, RE: NAMING SIMMONS FIELD BATTING CAGE AT McLARTY PARK
AS ALBERT J. GANDOLFI BATTING CAGE

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve naming the Simmons Field batting cage at McLarty Park as the Albert J. Gandolfi batting cage in honor of Mr. Gandolfi who was very active with Rockledge Little League. Motion carried and ordered unanimously.

AMENDMENT NO. 2 TO AGREEMENT WITH CITY OF ROCKLEDGE, RE: CONSTRUCTION
OF RESTROOM/CONCESSION/STORAGE FACILITY AT ROCKLEDGE PARK

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Amendment No. 2 to Agreement with the City of Rockledge, for construction of a restroom/concession/ storage facility at Rockledge Park, and approve Budget Change Request accepting the transfer of $50,000 from the City for the project. Motion carried and ordered unanimously. (See pages
for Amendment No. 2 and Budget Change Request.)

AGREEMENT WITH MERRITT ISLAND VOLUNTEER FIRE DEPARTMENT, RE:
REPAYMENT FOR USE OF SPACE AT FIRE STATION 41

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Agreement with Merritt Island Volunteer Fire Department for payment of $165,000 by the Volunteers to the County for access to 1,428 square feet of area to be known as the Volunteer Area at Fire Station 41. Motion carried and ordered unanimously. (See page for Agreement.)

APPROVAL OF UPGRADE, RE: FIRE RESCUE SUPPLY DRIVER POSITION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve upgrade of Fire Rescue Supply Driver position from part-time to fulltime. Motion carried and ordered unanimously.

PURCHASE OF SERVICE AGREEMENT WITH COMMUNITY SERVICE COUNCIL OF
BREVARD, INC., RE: SCAT SERVICES FOR SENIORS AT LUNCH PROGRAM

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to execute Purchase of Service Agreement with Community Service Council of Brevard, Inc. for transportation services to the Seniors at Lunch Program participants from January 1, 2004 through December 31, 2005 at $95,388. Motion carried and ordered unanimously. (See page for Agreement.)

AWARD OF BID #B-4-04-11 AND CONTRACT TO MAXWELL CONTRACTING, INC.,
RE: CONSTRUCTION OF JORDAN BLASS DRIVE REUSE LINE EXTENSION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to award Bid #B-4-04-11, Construction of Jordan Blass Drive Reuse Line Extension, to Maxwell Contract, Inc. for $97,000; and execute Contract with the Contractor for the project. Motion carried and ordered unanimously. (See page for Contract.)

RESOLUTION, RE: AUTHORIZE HEALTH FACILITIES AUTHORITY TO ISSUE HEALTH
CARE REVENUE BONDS, SERIES 2004 (WUESTHOFF HEALTH SYSTEMS PROJECT)

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution approving the issuance by Brevard County Health Facilities Authority of not to exceed $24,700,000 Revenue Bonds (Wuesthoff Health Systems, Inc. Project), Series 2004, in accordance with Section 147 of the Internal Revenue Code of 1986, as amended. Motion carried and ordered unanimously. (See page for Resolution No. 04-018.)

APPROVAL OF REQUEST, RE: USE OF STATE FORFEITURE FUNDS TO PURCHASE
ID SYSTEM FOR SHERIFF’S DEPARTMENT

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve the use of State forfeiture funds to purchase a photo identification system in the amount of $5,950 to aid in enhancing and accelerating the process of finding lost or missing children. Motion carried and ordered unanimously.

APPROVAL, RE: LETTER OF SUPPORT OF ST. JOHNS RIVER WATER MANAGEMENT
DISTRICT EAST CENTRAL FLORIDA INTEGRATED WATER RESOURCES PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve a letter of support to Congressional representatives for the St. Johns River Water Management District East Central Florida Integrated Water Resources Project. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to appoint and/or reappoint Cindy Earp to the Art in Public Places Committee, with term expiring December 31, 2004; Jerry Abrams to the Brevard Commission on Aging, with term expiring December 31, 2004; Bob Brown and Julia “Tibby” Parker to the Environmentally Endangered Lands Procedure Committee, with term expiring December 31, 2004; and Barbara Arthur to the Employee Benefits Advisory Committee, with term expiring December 31, 2004. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve bills and Budget Change Request as submitted. Motion carried and ordered unanimously. (See pages
for List of Bills and Budget Change Request.)

REQUEST FROM REPRESENTATIVE THAD ALTMAN, RE: RENAMING PARADISE BEACH
PARK AS HOWARD E. FUTCH MEMORIAL PARK

Representative Thad Altman advised, having been where the Commissioners are now, he knows that one of the sobering and awesome responsibilities they have as elected officials is naming parks because when they put a name on a park, it creates a landmark and makes a special statement to the public; and he is here today to request the Board consider naming one of the County parks after the late Howard Futch. He stated Howard Futch served as a State Senator and had a wonderful career in the Florida House of Representatives, but a lot of people did not realize he also represented Brevard County in the East Central Florida Regional Planning Council (RPC). He stated Mr. Futch was a staunch supporter of local government and played a key role in crafting the first regional comprehensive plan in the State at the RPC. Representative Altman advised Howard Futch not only represented Brevard County in Tallahassee, but also served in his community in Virginia on the School Board and served his country in the military. He stated prior to being elected, he was involved in the Republican Party; and as a public official he had a strong reputation of being nonpartisan and was able to work with Democrats and Republicans alike. He stated Mr. Futch truly was a leader; and the park he is requesting be renamed is Paradise Beach Park in Commissioner Colon’s District. He stated it would be appropriate to name that Park after Howard Futch because he was so involved in coastal issues; two of his children were world-class surfers; he was involved in the Legislature working to make the beaches safer for the public to use; and it would be a fitting tribute to a great man and a great Brevardian to name one of the busiest and most popular beachfront park after him.

Chair Higgs thanked Representative Altman for the recommendation; and stated it is helpful to have someone in the State House recognize what the counties deal with.

Mike Fitzgerald stated he is her in support of Representative Altman’s attempt to rename Paradise Beach Park after the late Senator Howard Futch. He stated Mr. Futch was a great leader in the community who championed many causes to make the community a much better place. He stated the Board may ask why this Park; it is not only the District he lived in, but it is the area today where his family resides, his wife, children, and grandchildren; and it would be appropriate that they can see that their husband, father, and grandfather is recognized for all the great work he has done in the community. He stated everyone has a favorite story about Howard Futch that has been told over and over in all his eulogies, but he has one that has not been told and would like to tell it today. He stated about two years ago, some genius in Tallahassee came up with a bill that was going to take money away from Alzheimer’s patients and give it to HIV/AIDS patients; Mr. Futch always said do not rob Peter to pay Paul, and as such he jettisoned that bill as soon as possible; and some people may think he was not sensitive to people with HIV/AIDS, but that is far from the truth. Mr. Fitzgerald stated when he ran the Probation Department for the County, he went to Howard Futch and asked him if he could pass a bill that would require people convicted of certain crimes to attend an HIV/AIDS awareness class at their own expense; Mr. Futch took that bill, and in his fashion passed it through every single committee unanimously; and since that bill was passed, in Brevard County alone, they have raised over $400,000 for private organizations to extend their HIV/AIDS education, and up to 12,000 people have been put through this class. He stated other counties in the State emulate that class; he was in St. Lucie County last week talking to the Chief Judge and they are going to be doing the same thing; so Howard Futch’s legacy continues and his sensitivity to HIV/AIDS was always great. He stated Howard was also a veteran of the Korean War; it is the forgotten war; and requested the Board not forget the work of Howard Futch and please name the Park after him.

Commissioner Colon thanked Representative Altman and Mr. Fitzgerald for coming forward today; stated it would be an honor for her, being that the Park is in her District, to rename it after Mr. Futch. She stated everyone has a favorite story about him; and he was a class act, nonpartisan, and a man she could say she loved very much. She stated she spoke to Mrs. Futch two weeks ago to see how she was doing, and she is also very classy and is basically carrying on her life the way Howard Futch would have liked her to. She stated it is the least the Board can do to show its appreciation for all the hard work and how he fought for Brevard County; and she will make the motion to rename Paradise Beach Park, which would be so perfect. She stated they are in the process of construction right now at the Park, so when it is reopened, it would be appropriate to have the Howard Futch Memorial Park sign.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to rename Paradise Beach Park as the Howard E. Futch Memorial Park.

Commissioner Pritchard stated he wants to tell his Howard Futch story. He stated he considered Howard a mentor when he decided to run for office; he went to him and asked if he had any suggestions; and the suggestion he gave, which would go to anyone who aspires to political office, is “tell the truth, be yourself, hell they’re going to find out anyway.” He stated truer words were never spoken; and that was Howard Futch, so he is proud to second the motion.

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

CITIZEN REQUEST - MAUREEN RUPE, PARTNERSHIP FOR A SUSTAINABLE FUTURE,
INC., RE: ST. SEBASTIAN RIVER BUFFER PRESERVE

Maureen Rupe, representing Partnership for a Sustainable Future, and Chair of the Natural Resource Committee of the Space Coast League of Women Voters, advised both organizations strongly support protection of the St. Sebastian River Buffer Preserve; and since it was absorbed into the Sebastian Inlet State Park on January 1, 2004, its management shifted from the natural resource-based Aquatic Preserve Program to the recreation-based State Park System. She stated the decision was made in Tallahassee without public notice and opportunity to comment by users of the sites, local governments, land management experts, current land managers, and all the taxpayers who paid for the lands. She stated the Buffer Preserve has management to restore and preserve its natural habitat, protect its wildlife, and provide a buffer to preserve water quality of the St. Sebastian River; and there was no active recreation, only natural resource-based recreation such as hiking and nature observation. She stated the Sebastian Inlet State Park has management to provide active recreational opportunities to users who may not share any interest in passive nature-based activities. Ms. Rupe advised the Buffer Preserve’s mission, use, and expertise of its staff are different from the Sebastian Inlet State Park and should be managed separately; the State Park has stiff entry fees, RV campsites, high-priced privately-owned tourist cabins, and is visited by vast numbers of people every week; and they wonder if that is the future for the Buffer Preserve. She stated visitors to the Buffer Preserve go there to enjoy the tranquility, experience wildlife in a natural setting, and see what old Florida was like; and when the goals become increasing attendance and revenue and decreasing costs, those experiences will be lost along with the reason most taxpayers supported the purchase in the first place. She noted this sudden change in emphasis without input from management staff is expected to result in a large turnover; and it will be a significant loss of experts with local experience. She stated the Buffer Preserve is over 22,000 continuous acres on the mainland bordering the St. Sebastian River; and it also affects 420 acres on the Barrier Island and Mullet Creek. She requested the Board understand the new management plan, ask the State Department of Environmental Protection to ensure the public is kept informed of meeting dates and times for any discussion of the plan so they can participate with their ideas and input; and that the Board prepare and send a letter to the Department of Environmental Protection urging it to keep the Preserve under separate management.

Amy Tidd of Rockledge advised they do not need to lose their quiet and undisturbed natural areas; they need those areas as much as the high-impact State parks; and natural areas require one type of management, while State parks cater to huge numbers of visitors and require another kind of management. She stated putting the Preserve under the State Park System is like mixing hiking with motor-cross; they are best kept separate; and requested the Board communicate that by letter to the Department of Environmental Protection.

Douglas Sphar advised the Department has taken the management responsibility for the St. Sebastian River Buffer Preserve from the Water Management District and assigned the responsibility to the Sebastian Inlet State Park; the transfer does not make sense given the vast difference in the two properties; the State Park has a focus of providing recreational opportunities to park visitors and intensive recreation-oriented infrastructure; and the main objective of the State Park staff is to provide quality recreational experiences for park visitors. He stated that contrasts with the Buffer Preserve, which was purchased for the primary purpose of managing a natural resource; its recreational facilities are primitive and focus on passive nature-based activities; and the staff expertise at the Preserve is an area of resource management. He stated his concern is the Buffer Preserve will become a poor cousin across the lagoon as staff and resources are diverted to serve the needs of the more prominent Inlet Park. Mr. Sphar stated the alignment of the Buffer Preserve was done swiftly by the State without public notice or comment and without advance notice to staffs of the various Preserves; the manager of Sebastian Preserve got a phone call at 1:00 p.m. saying it happened and had no advanced warning; so the State was not sensitive to the needs of personnel. He stated the Department of Environmental Protection has budget problems and probably was looking to economize through efficiency of scale; with that in mind, he suggests the Board recommend that for management staffing purposes, the Buffer Preserve be combined with the Tosahatchee State Preserve. He stated the Tosahatchee Preserve borders the St. Johns River, from Osceola County line to the south, to SR 50 to the north and mostly on the west bank; but there are 3,000 acres on the eastern Brevard County side; and as with the Buffer Preserve, Tosahatchee’s main mission is resource preservation and management. He stated the Tosahatchee has limited, primitive recreational facilities; has requirements for the same resource manual skills of staff as the Buffer Preserve; and in fact the staffs and two properties support one another for things like prescribed burns; and travel between the two properties is I-95 and the Beeline compared to fighting the beach roads and causeways to travel between the Inlet and Buffer Preserve. He stated last year he talked to the manager of the Tosahatchee Preserve and he thought it would be a good idea to merge the two properties for management purposes; it makes sense as it has the same preservation focus, same recreational focus, and same staff skill mix; and requested when the Board writes the letter to the Department of Environmental Protection it consider proposing the option of combining the Buffer Preserve with the Tosahatchee Preserve for management purposes.

Suzanne Valencia of West Melbourne inquired who at the State level decided to do this; has that person or persons been to the Buffer Preserve; and do they have any idea what it is like. She stated they know Sebastian Inlet State Park, if not the busiest State Park in Florida, is in the top two; that has major implications for a preserve if they are managed together; and she has concerns about the river. She stated she has been canoeing on the St. Sebastian River and had jet skis come out of nowhere with all the noise and pollution; they are a danger to people who are trying to enjoy passive recreation; and inquired if that is going to happen, and is it going to be included in the program. She urged the Board to ask those questions and join Indian River County in seeking a different plan for the Buffer Preserve. She noted she concurs with Mr. Sphar that the two preserves managed together make more sense than a preserve and a State park.

Beth McMillen of Palm Bay, Environmental Resource Manager with Marine Resources Council, advised the St. Sebastian River Buffer Preserve was absorbed into the Sebastian Inlet State Park on January 1, 2004; its management was shifted from the natural resource-based Aquatic Preserve Program to the recreation-based State Park System; and the decision was made in Tallahassee without public notice, opportunity for comment by the users of the site or the local governments that helped purchase it, land management experts, current land managers, or the taxpayers who paid for the lands. She stated the absorption of the Buffer Preserve into the Inlet State Park will result in one State Park with strongly contrasting goals and needs; the large number of recreational users of the Inlet park are expected to draw funding and staff away from the less visited Preserve with its rare and endangered population of scrub jays, indigo snakes, manatees, and seven species of fish found nowhere else in the world. Ms. McMillen advised the Buffer Preserve was purchased for conservation; the merger is expected to reduce conservation staff funding and increase visitor fees; Sebastian Inlet State park has stiff entrance fees, RV campsites, high-priced privately run tourist cabins, and is visited by vast numbers of people every week. She stated the visitors to the Buffer Preserve go there to enjoy the tranquility, to experience wildlife in a natural setting, and see what old Florida was like; the St. Sebastian Buffer Preserve’s mission, users, and the expertise of its staff are very different from the Sebastian Inlet State Park; and they should be managed separately. She stated the Preserve is over 21,000 acres on the mainland bordering the St. Sebastian River and its aquatic preserve; and they question if it makes sense to attempt to manage it in conjunction with a State park on the ocean with a different focus and connected only by water or 45-minuted drive. She encouraged the Board to write to Florida Department of Environmental Protection and the Florida Secretary of Land and Recreation and urge that the St. Sebastian River Buffer Preserve be managed according to its current management plan with current staffing and funding intact and to stress that the Preserve should be managed separately and not treated as an appendage to the Sebastian Inlet State Park; and that in the future, the County and public be given an opportunity to provide feedback before any sweeping changes to the public lands are authorized by the State.

Beverly Pinyerd of Viera advised she agrees with everything that has been mentioned today; she has been to the Buffer Preserve for a Christmas bird count for the Audubon Society; and it is very primitive and natural. She stated the two parks have conflicting missions; one is a preserve and the other encourages recreation that varies from camping and fishing to motorized equipment; and her concern is in economizing there could be a reduction in qualified staff. She inquired, as the County is affected by more and more development and population increases, will there be more users of the State Park and would that cause an intrusion into the Preserve.

Chair Higgs inquired if there were any questions from the Board; with Commissioner Scarborough responding he would like to hear comments from the Chair. Chair Higgs stated the public has raised good questions, particularly the partnership issue in regard to the acquisition of those properties by Brevard County and Indian River County, and the lack of citizen involvement and participation. She stated the letter to Department of Environmental Protection should include keeping citizens involved about the process and advising them of what is going on; and citizens have made good points and continue to raise the issue of preserves being managed separately from recreational facilities in terms of goals. She stated the request should be supported in terms of a letter to Department of Environmental Protection.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to authorize a letter from the Board to Department of Environmental Protection with copies to the Brevard Legislative Delegation on the lack of citizen involvement in the process of absorption of the Preserve into the recreation-based Sebastian Inlet State Park System; and request it be maintained separate from active recreational facilities.

Commissioner Carlson stated she agrees the letter needs to request separate management plans that would utilize existing plans or in combination with the Tosahatchee or other Preserves that are similarly managed. She stated that was the intent of the taxpayers when they passed P-2000, Florida Forever, and it was surprising to see the push for partnership end with a unilateral decision by Department of Environmental Protection because it is cost-cutting; so she would support the motion and hopefully get the letter out as soon as possible.

Commissioner Pritchard inquired who manages the Toho Preserve; with Mr. Sphar responding they are all part of Department of Environmental Protection Parks and Recreation, but divided into two parts, recreational park system and preserve system; and the Tosahatchee is in the preserve system and Sebastian Inlet State Park in the recreation system. He stated they all report to Mike Bullock, Director of the Parks Service. Commissioner Pritchard inquired what would be the difference of having the Preserve fall under the same management as the Toho Preserve; with Chair Higgs responding it is not the Toho but Tosahatchee. Commissioner Pritchard noted he thought Toho was an abbreviation for Tosahatchee. Mr. Sphar stated the former manager of the Buffer Preserve, Keith Fisher, was appointed staff biologist at Tosahatchee State Preserve; and they interchange personnel regularly for prescribed burns. He stated the scale of economy would be they could have one office staff; Tosahatchee has a half-time person and may go to fulltime; the Buffer Preserve biology staff can support one another; there is a high need for burn specialists; and both properties rely on burns. He stated Tosahatchee has highly-qualified burn specialists and various equipment like graders, bull dozers, rotochoppers, and all the things that could be shared between the two facilities. Commissioner Pritchard inquired why the Parks Service did not consider the issues Mr. Sphar brought forward that make sense; with Mr. Sphar responding Captain Matthews, manager of the Tosahatchee Preserve, broached that proposal to Mr. Bullock. Commissioner Pritchard stated someone inquired how many people in Tallahassee have visited the Preserve; it is probably close to zero; and typical with what usually happens with managing resources is the ax falls and they find out about it afterwards. He stated he supports the letter and recommends it emulate paragraphs 1 and 3 of the Indian River County letter.

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

ACKNOWLEDGEMENT, RE: REVISED ANNEXATION AND COMPREHENSIVE PLAN
AMENDMENT BY CITY OF TITUSVILLE

Commissioner Scarborough stated the Board received a comprehensive report at the last meeting because as the item was progressing through Titusville, Planning and Zoning Director Mel Scott met with the public and the public had questions of the County’s role and how Comprehensive Plan amendments and annexations occur. He stated Titusville has taken some action; it is going to Department of Community Affairs; and requested Mr. Scott refresh everybody’s memory of where they are and where they are going.

Planning and Zoning Director Mel Scott advised the City of Titusville has elected to forward to the Department of Community Affairs nine annexations accompanied by amendments to its Comprehensive Plan. He stated typically the Board simply recognizes reports on annexations and staff shares them with respective city councils, this report could be sent, if it were the intention of the Board, to the Department of Community Affairs; and if so, what the Department of Community Affairs would do with the report would be at the stage it collects comments from a number of agencies, such as Department of Transportation, Department of Environmental Protection, and the local governments. He stated Department of Community Affairs then plays the role of deciding which comments, if any, to give standing to in its objections, recommendations, and comments report. He stated the role the report could play would be that Department of Community Affairs would benefit from the insight and decide to incorporate them, some or none at all, into its ORC report.

Commissioner Scarborough stated the information provided here was the information received last week, which was also provided to the City of Titusville; so it has the benefits of the report. He stated Mr. Scott made a suggestion because of the time factor of getting things to Department of Community Affairs; and inquired if he would share that with the audience. Mr. Scott advised staff received a letter from Department of Community Affairs yesterday and it is a seven-day later date than he expected it to be; staff has until February 20 to send comments to Department of Community Affairs for its consideration as part of its ORC review; so while staff would be ready to transmit this report today, potentially the Board would have another public hearing on February 10 to take that opportunity, but it may find that not to be necessary. Commissioner Scarborough stated Mr. Scott suggested, rather than take comments today, to have staff reintegrate it into their comments, take the comments intact, receive them, send them on to Department of Community Affairs and take a transcript from the Clerk and forward the comments because it is a comments stage. He requested Mr. Scott explain how Comprehensive Plan amendments proceed at Department of Community Affairs. Mr. Scott stated the proposed amendments to local Comprehensive Plans are a two-step process; local governments transmit those proposed amendments to the State for its review; that is what is happening now; the City of Titusville elected to submit the proposed amendment to the State; and it will receive back a report from Department of Community Affairs identifying objections it may have, which have to be addressed, and recommendations and comments, which city councils and local governments have the discretion to address or not. Mr. Scott stated when objections come back from the State, if they are not addressed to the satisfaction of Department of Community Affairs, they can form the basis for the proposed amendments being found not in compliance, which means they do not become effective. He stated staff is at the stage of deciding whether or not to send comments to Department of Community Affairs as it reviews the proposed amendments; the City of Titusville will have an opportunity and a formal public hearing again to decide whether or not to adopt them as submitted originally, adopt them with changes, or not adopt them at all. Commissioner Scarborough stated it would be prudent to take the public comments intact rather than trying to wordsmith everything, and forward that as an attachment to staff’s report to Department of Community Affairs; and with that thought in mind, they may want to think that they are not only addressing their neighbors and the Board, but professional planners at the State level if that is what occurs at the end of the day. Mr. Scott stated the public may wish to focus their comments on the State planners who will be receiving them and have to follow Florida law on issues of compatibility, environmental impact, transportation implications, ability or lack thereof to provide urban services, timing of the proposed development, its density, urban sprawl issues, and whether or not it is fiscally sound. He stated those are the kinds of things the State planners are allowed to review the proposal against.

Chair Higgs inquired if someone were to challenge it through the courts and not through Department of Community Affairs and that process, would it come after the actual adoption of the amendments; with County Attorney Scott Knox responding that is correct. Mr. Knox advised in order to do that, someone other than the County needs to appear to make comments or written objections to the City of Titusville; so if anyone is interested in pursuing that kind of an action, that is what they have to do. Chair Higgs inquired if the County wished to take that avenue, would it be after the adoption process and not at this stage; with Mr. Knox responding that is correct.

Commissioner Scarborough stated it is good for the County to comment at this stage. Mr. Knox stated there are three different things being discussed, so he would like to clarify exactly where the Board is; there is an annexation issue in the City of Titusville; that requires an adoption of the ordinance; and the Board would have to file suit within 30 days after that adoption took place. He stated there are land use amendments that are different; the Department of Community Affairs looks at those and say whether the City is in compliance or not in compliance; and the County, as an affected party since it is the abutting local jurisdiction, could file a petition for review by the Department of Community Affairs under Chapter 120. Mr. Knox stated there is also a third element, which is the rezoning request; that is the subject of a lawsuit; the Board would have to file a suit for injunction under the Statutes; and that has to be done within 30 days of the adoption of the ordinance. He stated there are actually three things going on potentially, depending upon what actually happens. Chair Higgs requested the County Attorney keep the Board advised of timeframes that would be necessary if anyone chooses to use those avenues. Mr. Knox stated he is working with the Planning staff to make sure they keep the Board abreast of that. Commissioner Scarborough requested Mr. Scott touch on those three things, where the County is with each of them because what is argued about annexation is different, what action the City has taken, and what the County could say in opposition to the action taken. Mr. Scott advised it is estimated that the annexation and the Comprehensive Plan will be back before the City Council in April or May; that is where the two main parts are in the process; and the City Council has not committed to whether or not it is going to roll the rezoning actions into the Comprehensive Plan amendments or take them separately after the Comprehensive Plan amendments become effective. Mr. Knox stated if the Board is going to ask staff to forward its report to Department of Community Affairs for comments, he would recommend staff and he work together and go through the Titusville Comprehensive Plan to figure out if there are additional grounds for objecting based upon what is in the City’s Comprehensive Plan.

Jack Blankenship of Mims, representing Mims Community Group, advised they are opposed to the annexation primarily because of the rezoning of revised Amendment CPA04-01D and E, which is at the intersection of Parrish Road and Singleton Avenue to proposed R2, multifamily that would permit up to nine units per acre. He stated property in D has been approved by the City for 87 patio homes on 38 acres; and property in E has been approved for 50 patio homes on 14.8 acres, which gives them 138 units at the intersection. He stated plans were also submitted to the City for another 101 new units and a proposed subdivision called The Oaks in Meadow Woods; the two developments would give them 238 units within a half to three-quarters of a mile; the new subdivision is planned north of American Village around Holder Road; and that is not very far from the intersection of Parrish Road and Singleton Avenue. Mr. Blankenship stated multifamily housing or patio homes are inconsistent with the neighborhoods and existing development; they do not exist in the area; and the incompatibility with existing land uses will cause increased traffic on Singleton Avenue, Holder Road, and also Parrish Road. He stated it will also cause overcrowding of their schools; according to the School Board, Madison Middle School and Astronaut High School are not projected to have available capacity; and the annexation of property in D would create an enclave to the south, which is inconsistent with Florida Statutes Chapter 171.044(5) that states, “Land shall not be annexed through voluntary annexation when such annexation results in the creation of enclaves." He stated the residents of Mims is not opposed to the City of Titusville’s development or growth in North Titusville; however, they hope it would be consistent with current County standards of one home per acre, which is what is in their area, and with appropriate planning and vision for entire North Brevard, but not multifamily nor patio homes.

Thelma Roper of Titusville advised she listened to all the arguments at the City Council meetings; and it is not a good idea. She stated the roads are not sufficient for that kind of development at this time; they are already building patio homes off U.S. 1 on Parrish Road; it is the same group doing the development; and as far as the Mims annexation, the types of development described at the City Council meetings are not consistent with good growth or good development in the area. She stated most of the cluster housing built in that area was done in the 1950’s to 1970’s; people moved out to Mims to get away from small lots and homes and have a minimum of an acre of their own; so the type of development they are putting in there is not wise and does leave enclaves. She stated the whole idea is that Titusville wants the water rights and the North Brevard water wells; and it will be pushing northward to get the wells as fast as it can. She stated the City needs the water and needs to tax the people; and she does not think the people should have to be subjected to that because the City has not planned properly up to this point. She stated if the City can come up with better planning to where it is utilizing stuff properly, it might not be so objectionable.

Mollie Farace of Titusville stated she lives on the opposite side of Parrish Road in the Westwood Subdivision and her biggest objection is what they know, what they have seen, and what they have learned from being in that area. She stated on the opposite side of the road is Dairy Plaza which floods; it has been there for a few years on property that was an old cow pasture; and on Parrish Road is another cow pasture that floods. She stated the County has to fix the road and the lights constantly; it is an ongoing problem because it floods; their homes have been there since 1958 and they flood; and their septic tanks do not work when it floods. She stated if the 137 proposed homes are built, they are going to flood; and inquired how long would the people stay there, and if they do not stay, what will the neighbors be left with. Ms. Farace stated Madison Middle School is overcrowded; her daughter attends Astronaut High School, and in some of her classes there are 40 students; and in 1970, when they moved there, they were lucky to have six students in a class. She stated the developer wants to be in the City; he does not want to pay the impact fees; and if he wants to come into their neighborhood, he should pay the impact fees and be willing to be in the County and not build 137 homes. She stated they are talking about annexing a cow pasture and making the same situation that exists at Winn-Dixie Shopping Plaza; businesses have a tendency to stay, but people have a tendency to move when they are in a home that is constantly flooding; but most of them grew up in their homes and inherited the homes so they are used to it. She stated they were talking about people from Orlando buying those homes; they are not going to stick around; and the County is going to be impacted and would up their taxes because it did not look ahead. She stated the City says it does not have enough water; and inquired how is it going to have enough water for those homes. She stated it does not make sense to any of them; they are totally against it for that particular reason; and if it made some sense, they would be willing to meet with the developer and say build the homes. She stated the developer will not talk to them; they saw the three homes he built on Old Dixie Highway; they were built in three months; and if a storm comes through, those homes will be gone. She stated the cow pasture gets a lot of wind and a lot of tornadoes go down Singleton Avenue; those homes are going to get hit; and they are going to be impacted again; and she does not want the County spending money because it made a mistake.

The meeting recessed at 10:35 a.m. and reconvened at 10:45 a.m.

Commissioner Scarborough stated at the break he tried to clarify whether or not the City had done anything but transmit to Department of Community Affairs; there were some comments that perhaps the City had taken some action, annexation, etc.; and requested Mr. Scott address that. Mr. Scott stated the annexation ordinances that were presented as part of the package were not adopted and will be adopted as part of the adoption hearing on the Comprehensive Plan amendments in April or May timeframe. Commissioner Scarborough stated therefore the Board cannot bring a lawsuit against the City until action takes place; all it has to do today is to comment to Department of Community Affairs; and he wanted to make that clear because there were some questions from people on the precise action.

Michael Myjak of Titusville advised he has a Titusville address but lives and votes in the County; he is not represented by any Titusville Councilpersons and is not permitted to volunteer for a seat on the City’s local planning agency or environmental commission. He stated he represents the homeowners in Rambling Acres Subdivision, Osprey Point Homeowners Association, and approximately 400 or so other homeowners along Fox Lake Road, Carpenter Road, and Parrish Road, where a growing coalition of North Brevard Homeowners Alliance can be contacted at homeowners/net.us. He stated a few years ago the City of Titusville embarked on a grand annexation, a land grab in his opinion, of unprecedented proportions in Brevard County; it stated its objective was to obtain all of the lands from Parrish Road to King’s Highway, and from the Indian River to the St. Johns River. He stated if it was not for some diligent investigative work by several residents in his area and the identification of conflicts of interest between Councilman Ken Ward, his brothers and his father Loys Ward, the principal petitioners behind this voluntary annexation effort, they would not be here talking simply about 100 acres and maybe 100 homes along Fox Lake or a few hundred homes along Parrish Road and would be talking instead of close to 700 acres and an estimated 1,700 homes along those areas. He stated the City calls them patio homes; he calls them zero lot line homes; and the City basically would extend its boundary to the edge of Fox Lake, and open up approximately 4,000 acres on the other side of Fox Lake and the west side of South Lake to the River. Mr. Myjak advised, as citizens of Brevard County, they are here to tell the Board they are not against development per se; however, they are against irresponsible, uncontrolled, and unplanned growth; the City of Titusville has yet to adopt a vision for any areas outside of its boundaries; and they have asked the City to develop a vision before continuing with any further annexation. He stated the side effect of unrestrained and irresponsible growth is their quality of life will be diminished; their natural resources will be raped; their property values will also diminish; and existing levels of service will decline while the tax base increases. He stated CPA2004-01F proposes to place small patio homes, currently zoned R1B at 5.81 units per acre, on 73 acres zoned SEU, 40 of which are wet, leaving approximately 30 units to be built under SEU or 37 under the open space Ordinance. He stated 2004-01E proposes to increase residential land use from five to 74 units, and 01D from 13 to 356 units according to the zoning in the annexation proposal; it is incompatible with the Brevard County Future Land Use Map; and when placed at the doorstep of acre-plus lots with estate homes ranging from 3,000 to 8,000 square feet, it certainly devalues their homes. Mr. Myjak stated it materially and adversely impacts the established character of their low-density residential neighborhood; besides inconsistent zoning, there are concurrency issues; transportation issues go unaddressed; and educational concerns are being ignored. He stated in the County’s report, the issue regarding class size reduction has not been accounted for, so the estimates on current and overcrowded situations are actually worse than they appear to be. He stated this is the first ongoing war of annexation in their area; and the result will be a massive restructuring of wetlands in the St. Johns ecosystem in the northern part of Brevard County, the very place where their groundwater recharge exists. He stated at the very least they ask that the Board lodge a complaint with Department of Community Affairs and claim that the annexation request would constitute a material breech with Brevard County’s existing Future Land Use Map. He requested the Board consider empowering the citizens of Brevard County with a voting referendum enabling residents and neighboring communities to decide for themselves if cities and developers alone have the right to annex their neighborhoods.

Attorney John Evans, representing Bob Holloway, who owns 74 acres at the intersection of Fox Lake Road and Carpenter Road, advised he would like to clarify some misstatements. He stated Titusville will enact impact fees in March for residential units; everybody who is in the annexations will pay impact fees; so it is not a big scheme to avoid impact fees. He stated there are no patio homes scheduled on his client’s property; and they have proposed one unit per acre overall density and will have 74 homes for the 74 acres. He stated there is plenty of water and sewer capacity in the City; and Carpenter and Fox Lake Roads operate at level of service A, so there is tons of traffic availability for those areas. He encouraged the Board to send its report to the State as it has good comments on those things; he has no problem with the truth and with staff commenting on it; and as it relates to Holloway’s property, staff generally agrees that they are consistent with the County’s Land Use Plan. Mr. Evans stated staff has some concerns regarding school concurrency and how they got to the overall one unit per acre; the City does not have an open space ordinance; if it had one, they would be willing to develop under that ordinance; and there is talk that perhaps the City will have an open space ordinance. He stated the reason they sought R-1B density is because with a cap of 2,000 square-foot homes and a cap of 80-foot lots that is the only way to get to what an open space ordinance would do. He stated they have agreed to leave about 40 acres open and preserved forever; and reiterated the County should send a report to the State.

Steve Jack of Mims advised he moved out of Titusville about six years ago because he did not want to be congested; he no longer liked driving over the rough streets that are still unpaved; and if a person uses very little water, it is $60 a month up to $80 a month. He stated Mr. Evans was at the Council meeting he was at less than a month ago where a lady from the Water Department said they were buying water from Cocoa every day; so the City does not have its own water; and that is why it wants to come to Mims and get the wells. He stated the City plans to put in wells west of I-95; if that happens, all the people who are east of I-95 are going to get saltwater intrusion; and it happened in an area off SR 405 when they started building in that area. He stated his biggest concern is the site off Parrish Road; there are 71 acres there, 34 of which are wetlands; about 15 years ago he used to ride his bike down there and knew what was going on; he loved the area and that is why he moved out there; and the County’s restriction is one single-family residence per acre, which they would have no objection to. He stated he has been an activist for about 30 years to do what is right for the people; he is not a landowner trying to sell his land; he is not a developer; he is not an attorney trying to help developers and builders; and he is not a surveyor who would benefit by all the property going into the City. He stated there is much confusion on Titusville City Council; he told Mayor Swank about the dump being out there and he was not concerned and said it was the property owner’s problem; and yesterday they had a response from DEA. Mr. Jack stated in 1987 the Department issued a consent order to close the unpermitted disposal site; the closure agreement was to remove waste materials other than C&D in the water to upland or dispose off-site; the remaining waste was to be covered with two feet of clean dirt; but that does not get it. He stated he has worked with waste management; and they haul it off, clean it up, and do not cover it up; file review showed a consent order closure requested based on the consent order executed, and all conditions were met; it said, “This site should be evaluated for groundwater quality to ensure no impact to the environment”; and requested the Board, before it goes any further, to stop everything and get Environmental Protection Agency in there to check the water. He stated as he was driving down the road two or three days ago, he looked back at a 45-degree angle; they used to have a guard sitting out there; day after day they took truckloads of materials in there, which was building materials; and at that time a lot of it was asbestos. He stated he does not know if there is asbestos in there, but knows all that stuff is supposed to be cleaned up; they have very stringent rules; he used to sign the waste manifest; and whoever signed the waste manifest 50 years ago, if they find something that is there that should not be, is the one who is responsible and not the corporation that he worked for. He stated he also received a copy of a stop order issued to a property owner in Mims to cease dumping solid and hazardous waste on his land; and the property was never properly cleaned up, because he lives out there and has seen things come in but not go out. He stated in Port St. John someone was pouring fuel oil in his back yard; a neighbor reported it to Environmental Protection Agency and Environmental Protection Agency made him dig up his whole back yard and replace it with fresh dirt; so if there is gasoline there, it has to be going down into the wetland and into the aquifer.

Julian Lindenauer of Mims advised he moved to Mims from South Florida where he was a resident since 1947, to get away from urban sprawl, crowded conditions, and high crime; healthy growth has taken place in his neighborhood; he lives a couple of houses down from Parrish Road and Singleton Avenue; and in Mims, healthy growth is taking place where homes are being built on one acre and existing trees are not being cut down. He stated he has seen where the cookie-cutter homes, called patio homes, are being built and multi-level housing; it crowds things up; multifamily homes could be duplexes, triplexes, quadruplexes, high-rise apartments, etc.; they have their place within a city, but they have no place within an area such as Mims where they will definitely impact and have an adverse effect on surrounding areas. He stated it will drive the wildlife away, and overcrowd the schools; and it is happening all over the State where developers are coming in, avoiding County officials, not talking to the people, and going to city councils and getting their okay to build those high-intensity homes because cities have lower restrictions and lower standards. He inquired if the Board wants to keep Florida green with trees or green with developers’ money, which eventually will turn the whole State into a big concrete jungle.

Laura Ward of Titusville requested everyone who came to the meeting on the issue to stand; and half of the room stood up. She stated the Florida State Comprehensive Plan spells out some things that should be looked at; the State wants Comprehensive Plan amendments to discourage urban sprawl, and give primary indicators to identify what urban sprawl might be; and under the primary indicators #4 says, “it might be urban sprawl if as a result of premature or poorly planned conservation or rural land to other uses, it fails to adequately protect and conserve natural resources such as wetlands, floodplains, native vegetation, environmentally-sensitive areas, natural groundwater, aquifer-recharge areas, lakes, rivers, etc., and other significant natural systems.” She stated the City’s CPA on Fox Lake and Carpenter Roads may fall into that category; and some of that also relates to the Parrish Road annexation. She stated #9 says, “if it fails to provide a clear separation between rural and urban uses”; the annexation proposed on Fox Lake and Carpenter Roads is the first to jump I-95, which is primarily a wetland area; so it is not providing a clear separation there. She stated #13 says, “if it results in a loss of significant amounts of functional open space”; the Fox Lake/Carpenter Roads annexation falls into that category; and she does not know what Department of Community Affairs would think, but that is what she thinks. Ms. Ward stated policies of the State are that this sort of development should identify and protect the functions of water recharge areas, provide incentives for their conservation, and ensure that new development is compatible with existing local and regional water supplies”; and there has been no fiscal analysis of whether or not the proposed annexations and the growth they are opening up would be growth that would pay for itself.

John Williams of Titusville stated Carpenter Road is a very nice area that is rural in nature; almost all of the homes sit on one acre; almost all of the homes are 2,000 to 5,000 square feet in size; and developers, surveyors, and landowners of properties adjacent to them have captured City government in Titusville; and anything they proposed to the City in any form was passed, by a vote of three to two, with the same three supporting and the same two opposing. He stated the City Government has done this without regard to the impact of increased development on schools in the area; Astronaut High would serve the new high-density communities and is already 12 to 15% overcrowded; and nobody has addressed what might happen if they added 4,000 new students to the rolls. He stated John Evans just told the Board one of his clients has 74 acres and wants to build one house on 74 lots; but that is not exactly true, as Mr. Evans well knows, because much of the 74 acres are lowlands, wetlands, and unbuildable, so they would have 74 homes crowded perhaps on 20 acres . He stated the area will change dramatically; the homes will be much smaller than what they have; and the subdivision will be more densely compacted and much different in character than the homes they have there now. He stated if the Board goes along with the annexation and accepts the zoning requested or perhaps directed by the cabal of developers, attorneys and site development construction community, then it would alter forever in a negative way the character of their neighborhood. Mr. Williams stated four or five years ago in the same area, they had the notorious Hogan/Delta illegal dump operation; through the efforts of the Board and its attorney, and the specific efforts of Commissioner Scarborough, they were able to close that dump down. He stated the Florida Department of Environmental Protection swooped in with a massive raid and found gross illegalities and dumping of contaminants, arrested the leadership, and charged them with felonies. He stated they were convicted; and Delta Recycling, a South Florida company that proposed to bring them a trash mountain, went out of business and Mr. Hogan died. He stated again they need the Board’s help and that of the State to listen to the people; 95% in his estimation whose properties would be annexed oppose it; and they need the Board’s protection.

Walter Pine of Titusville stated the Board has heard the issues a number of times; it is clear that the motivations are with the City; there is cash flow and water; and with the developers there is no doubt that their intent is to enhance profits and they are entitled to it. He stated with the homeowners, the issue is their expectations and balancing of rights with the two groups that have rights; the City of Titusville is clearly having some problems here; some of the developments are going to create runoff; they are going to have problems with water; they are going to have problems with roads, etc; and the question is whether the roads are going to remain County or going to be City roads. He stated he does not see anything that tells them all of the story; if they are going to remain County roads, then the County has to pay for their maintenance; so that is an impact to the County. He stated the infrastructure costs of a lot of cities are reverting to counties now; they see it with Cocoa and its fire department; if the Board would check with the Association of Cities, it would find that this is happening all over the State; so if it gives up the impact fees and allows those to occur and then ten years from now or five years from now or next year the City has financial problems and asks the County to take over the infrastructure costs, it will not have gotten the money to build up the infrastructure as it should. He stated there is a question of whether the impact fees of the County and the City will be the same, whether they are making money there, the motivation is there; the developers have the right to seek the most profit, that is what they do; there is nothing wrong with that; but the homeowners also have a right to protection; and they have the right to have their rights balanced with what is going on. Mr. Pine stated one of the big arguments on the annexations is the signatures on the water bills and the agreement to be annexed; there have been numerous complaints where those have been coerced, pressured, or obtained in ways that are inappropriate; and he just heard somebody talking about how the elderly are often influenced by those types of activities and tactics. He stated Councilman Ken Ward clearly stated he had a conflict of interest in this and did not vote on it when it failed; however, when it was brought back up, he voted on it. He stated under Rule 13, when something is brought back up for reconsideration, the Council reconsiders it as it was originally motioned; it does not change it; it was one motion before and it was changed; so they have a problem and some wrongs in the process. He stated the property rights of the owners and developers cannot be protected when the City Council and its staff are doing wrong; the law is supposed to stop them from doing wrong; the things he just mentioned are wrong; and in most of the cases, they are in violation of the law. He stated now it is being brought to the Board; they all know the old saying, “two wrongs don’t make a right”; and if the Board votes to pass or support this in any way, it would prove that two wrongs make a right in the eyes of the Board. He stated the question is whether the Board has the option of a lawsuit; the Environmental Protection Agency issue is very appropriate, but there are other issues, such as whether or not it was brought to the Board in a manner that was consistent with the law; there is such a thing in the State as fraud; and if it was presented to the Board in a fashion other than it actually exists with the intent of influencing it, that should clearly be looked into. He stated the financial stability of the City should be looked into if the Board is going to be passing lands to the City, which might later pass the responsibility for that infrastructure back to the Board; it would want to know if the City is financially stable; and it should be done by an independent means not their own auditor because their auditor depends on them to hire him next year to have an income. Mr. Pine stated the Board should know whether the City is going to go bankrupt next year because if it does, guess who gets to pick up the bill, the County; so there are a lot of questions. He stated there are some wrongs that need to be looked at; and he would propose or suggest that the Board do nothing that would further this activity, the annexations, until the rights of the individuals have been protected and the wrongs have been corrected.

Bea Polk of Titusville stated she went to a lot of meetings, but none like those at City Hall; they never accept anything the public has to say; they already make up their minds; and there were three to two votes regardless of what people say. She stated her concern is water; the City admits it needs water; and it is trying to bring in part of the County to get the water system in Mims. She stated she asked that question but received no answer. She stated the schools are already full; and inquired who will pay for it, not just the City but the whole County, and why was the School Board not brought to those meetings. She stated three City Councilmen had made up their minds so they did not ask what was going to happen to the rest of the City; there is money to be made; and inquired why are they worried more about the dollar than they are about the land and water. She inquired are they going to crowd the schools and put them on double sessions; did anyone check to see if that will happen; and she wants to ask the Board because her property will be the next area brought into the City because the City will not stop. She stated she asked the City what it can give her that the County does not already give her; the City will not give her as much except to raise her taxes; and inquired if the City has water problems now, what will it be in five years when all the area is built up and where will it get the water. Ms. Polk stated an expert told her if they put the deep wells down, it would not hurt the other wells; she wants proof of that; they put those wells down in Scottsmoor; they are going to drain those wells so Mims will have to supply them with water; and inquired where will the Board get the water to give the rest of the County residents. She stated water is one of the main problems; and inquired why should they build and build when they do not have water. She stated another concern is the sewer bills; she attended the meeting in Orlando when they were hit with sewer bills; she asked the State why they were going for a $60,000,000 bond issue instead of a $30,000,000 issue; and she said because they were going to take in South Titusville. She stated she said they would have a fight when they got to Port St. John; so instead of going there, they are going north and west. She stated the City’s problems should not be the problems of the citizens in the County; and inquired where is the County going to get water for North Brevard if they keep building and building. Ms. Polk stated the one unit per acre was passed because they needed water back then; that was years ago and they still do not have water; now they are going to build four or five units on an acre; and inquired what impact is that going to make on the rest of the County. She stated they will need another high school that will cost millions of dollars; they are going to need another elementary school and junior high school; and that question was asked but no one seemed to care. She stated she understands why people want to sell their land and make more homes, it is for more money; but water is a critical issue; and they should not let money rule.

Chair Higgs urged the public to concentrate on facts as requested by the Planning Office and try to deal with those issues that are new and not go over the same territory.

Michael Stone of Titusville advised he represents the Mims Community Group to state their concerns and opposition to the annexation plans of the City of Titusville and rezoning of 71 acres on the southwest side of Parrish Road and Singleton Avenue. He stated leaving Titusville on Singleton Avenue going north, leaves behind Kirby Street, which is where the City limits end; and it leaves behind dense population of a municipality. He stated the road is lined with homes that are not mansions but elegant, and all are on multiple acre tracts; there are some enclaves of multiple units per acre homes from the 1940’s to 1960’s; but the 71 acres is archived in the Natural Resources Management Office in the national wetlands inventory as environmentally-sensitive because 60% of the land is wetlands and 70% is considered to be in the floodplain and home to many different species of protected wildlife. Mr. Stone stated the proposed building of 137 housing units, in conjunction with the other 101 homes previously discussed, will impact the schools far more immediately than a person coming out into the area wanting to build a dream home on an acre lot where two or three homes may be built in a year. He stated they are looking at close to 250 homes in a very short time, which would definitely have an impact on the schools almost immediately. He stated from staff’s report, they understand the schools in that area are running over capacity; they also understand 135% capacity is needed before the School Board considers adding another school; so they are looking at something that could be forced upon them rather than quickly address the issues given light of the classroom reduction size as well. He stated they want to put 78 units on 30 plus acres; and inquired about the water situation and what will be done about that. He stated the north side of Parrish Road is a low-lying area; the developer has to put the water runoff somewhere; the City of Titusville claimed the land next to its wells as an area of critical concern; and that area backs up to the 71 acres he talked about, so that is something else that needs to be considered. He stated they are not opposed to developing the land; most of them live on at least an acre; they have U.S. 1 on one side and I-95 on the other; and down the middle are the nice homes on multiple-acre lots. He requested future development be consistent with existing character of the area and zoning of the County along North Singleton Avenue; and help them ensure the corridor remains at least one-acre lots.

Don Page of Titusville stated Titusville City Council is out of control in its haste to acquire as many rooftops as possible and as fast as possible; and that is a result of the large debt it has incurred in the past few years, such as debts for water management requirements and the oversized sewer plant it built. He stated since the law prevents substantial tax increases on existing homes, new rooftops will provide a larger tax base; the City approved over 2,000 new rooftops in the last quarter of 2003; and they are all within the City limits. He stated a large percentage of the rooftops are patio homes; the City does not appear to understand the impact on City services with that kind of rapid growth; it has refused to use the Fishkind Study to determine the cost impact of low-value homes; and instead it is purchasing a different program because it does not like the answer it got from the Fishkind Report. Mr. Page stated the majority of those opposed to what the City is doing are opposed to the approach of so many developments with high-density, low-value homes and not approaching areas for executive or high-value, low-density projects. He stated the County has protected the area of South Carpenter and Fox Lake Roads with low-density, high-value SEU zoning; many high-value homes have been built in the area; and land developers now want to come in and put high-density projects in the area and change the existing protection provided by the County. He stated the developers can do it by convincing Titusville City Council to annex the property into the City and place high-density zoning on the undeveloped areas, thereby providing more rooftops to the City; and what the City Council does not seem to realize is a necessary balance is required of high-value and low-value taxable homes that will provide a positive cash flow when looking at the impact of the cost to provide City services. Mr. Page stated the Fishkind Study would show the City where the break-even value is for homes paying their own way for City services; he is not sure what the Board can do to help them in this situation, but hopes it will take the comments into consideration when evaluating the submittal. He stated he avoided discussing the impact on water, roads, and schools caused by high-density development because others were going to talk about that.

Kim Lucks of Scottsmoor advised she moved to Scottsmoor after spending the better part of 20 years in Titusville; she is the Chairman of the Water Committee for the Scottsmoor Community Association; and water is what they want to talk about. She stated Titusville is currently using nearly a million gallons of water per day from the City of Cocoa; it is also in conflict with East Orlando on how much water it is getting out of their well fields; the City applied for a consumptive use water permit to develop a well field near the northern boundary of Brevard County between U.S. 1 and I-95; and the surface landowner, Massey Ferguson, has also applied for that, as has Volusia County. She stated Titusville is currently in violation of its conditional use permit on the amount of water it recycles; and because of that violation, the St. Johns River Water Management District will not consider its well field application until it comes into compliance. She stated the annexation today is West Mims; next year the City will be talking about Walkabout Golf Course; that is where it intends to use the recycled water; and it will lay the pipes up to the recycled water in the same utility trench as the pipes to the well field. Ms. Lucks stated Tamp/Clearwater/St. Petersburg went through a similar situation several years ago, which was a well field development nightmare; due to the depression of groundwater, there was saltwater intrusion that dried up the agriculture uses and caused unemployment, sinkholes, and depressed property values; and they finally figured out there was a better way. She stated Florida is surrounded by water; it happens to be saltwater; and the St. Johns River Water Management District recently released a study done by an engineering firm in Orlando that looked at the power plants from Daytona to Vero Beach for a heat source for water demineralization. She stated the results of the study are shown on the sheet she distributed to the Commissioners. She stated if they produce 10,000,000 gallons a day, it is slightly over $3 per 1,000 gallons; and up to 30,000,000 gallons per day goes down to $2.70 per 1,000 gallons. Ms. Lucks stated Thornton, Colorado, a suburb of Denver, gets approximately eight inches of moisture a year so water is precious there; and they have a lot of people. She stated on the other side is Titusville; and she does not have the hook-up fees for Titusville, but utilizing the typical value used for a family of four, it is approximately $100 for both places. She stated one of the things Titusville is doing in its water rates is charging approximately $2.00 per 1,000 gallons for virgin water; for the recycled water it charges $4.00 per 1,000 gallons; so it is encouraging the use of the wrong water by its pricing structure. She stated at a cost of less than $3.00 per 1,000 gallons calculated by the engineering study from St. Johns River Water Management District for demineralized seawater, there is a water source that everybody has been screaming about; and the recommendation is to utilize the power plant in Port St. John for the heat source. She stated regarding pollution of demineralization, Tampa has a contract with people who make taffy and utilize the concentrated saltwater for brine; so the City is getting rid of it instead of putting it back into the environment.

Commissioner Scarborough stated utilization of the plant in Port St. John is proceeding; they had a meeting Friday; and St. Johns River Water Management District is in the process of going through an RFP. He stated he would take the names of anyone interested in the subject and make sure they are included with the names of people who are being forwarded information directly from St. Johns River Water Management District as the project proceeds. He noted it is sort of a collateral issue, but there may be people who are interested in that; and they can call his office at 264-6750 if they wish to be included.

Diane Holden of Titusville advised they have resided in the South Carpenter Road area for the last 23 years; they picked the area because of its rural nature, large lots, and nice homes set in a quiet and natural setting; and they live in Evergreen Subdivision, which consists of minimum one-acre usable land lots and severe deed restrictions to control unnecessary land clearing and tree cutting. She stated the homes in Evergreen range from $250,000 to well over $1,000,000; the reason they have that value is the result of the attributes mentioned; South Carpenter Road area outside the City limits of Titusville is comprised of properties on a minimum of one-acre lots; and their expectations when they paid a premium for their property was that the land not built on yet, west of I-95 and south of the City limits on South Carpenter Road and Fox Lake Road, would be developed using the same standards because of the same County zoning. She stated that is a reasonable expectation; they understood that sometime in the future the rest of the area would be developed and accepted that; most of the neighbors are not anti-growth; but they favor controlled and reasonable growth. Ms. Holden stated the annexation of several hundred acres in the South Carpenter Road area into the City of Titusville puts that assumption at great risk; the development plan already approved and being sent to the State by the City proposes zoning that in no case restricts development to one unit per usable acre; and the worse case has been already cited at one unit per gross acre, which does not sound bad until one examines the property that consists of 74 acres with all but 23 acres being wetlands. She stated after constructing roads, drainage, and so forth, the area for building housing units would probably be no more than 15 acres; and the approved City zoning will allow 74 units on approximately 15 acres or almost five units per acre, which is five times as dense as the surrounding properties. Ms. Holden stated the City Council approved the proposal on a three-to-two vote over strong objections of the whole South Carpenter Road community; if the City had gone forward with a proposal for those parcels to be developed using one unit per usable acre minimum, there probably would have been no objections whatsoever from the community; and it would solve the concerns being expressed about overcrowded schools, lack of adequate infrastructure, traffic, pollution, and so forth. She stated the City chose to send forward a proposal that brings all those issues into play; and as a mother and grandmother she is concerned about students who are already forced to use portable classrooms. She stated some of the citizens have stated that those outside the City limits should have no say in City affairs, but she begs to differ, because anything that occurs within the City affects each of them who live adjacent to and do business within the City of Titusville. She stated as County residents they are extremely concerned by the annexation attempt and ask the Board to take appropriate steps to resist the annexation and to register an objection to the State about the high-density development plan.

Brad Downs of Titusville advised he lives just north of the Holloway property in the Fox Lake and Carpenter Roads area; Dr. Williams discussed the dump in his conversation and he heard rumors that the City may consider reopening the dump; and requested the Board be vigilant and give them whatever help it can give when it becomes City property and the City is free to do with it what it wants to do, not what the citizens want. He stated those who play chess understand it is a game of strategy; the player must determine what his/her opponent is up to and reason several moves ahead before understanding what is going on; and he is here to discuss strategy. Mr. Downs stated the discussion of gross acres used in the various submittals would allow 5.8 homes per gross acre on roughly 74 acres; the gross acre allows the submittal to put all of those houses on the buildable portion of that property; and that will crowd the homes considerably considering at least one-third of the Holloway property is unbuildable. He stated they were promised that his intention is to put 72 homes on that property; that would still be a crowded situation; however, they only have his pledge to do that, but the submittal is for 5.8 houses per acre. He stated that is a vast difference from the sensible County requirement of one home on a one-acre lot; and that is not the same as putting a certain number of houses on gross acreage and no control over the size of the lots that the homes will appear on. Mr. Downs stated they are concerned with the property that is being placed in simultaneously for annexation and zoning change as being a strategic move to rezone the property to avoid impact fees and cause them great grief financially, environmentally, and with the quality of life and their homes in the area. He stated the County’s intention should be carried forward in the City; the process of annexation and rezoning should be separated; those are different aspects of a situation that are considered by different people; and the request for annexation should be an agreement between the County to release the property and the City to accept it. He stated to simultaneously inject a zoning change is a strategic move; the Board should watch it very carefully; to learn chess one has to play with the master; and in the game of politics, they are playing with the master, which is very painful. He stated they need the Board’s help.

Bill Tootill of Titusville stated he has lived off South Carpenter Road for 15 years and before that worked for GE elsewhere as a project manager doing large facilities; and one thing he learned was that he had to look at how things are, not the way he wished they were. He stated he has gone through this whole issue with the City and its proposed annexation; the issue that keeps jumping out at him is of planning; three things he looked at; one he was told there is a lot of sewer capacity; and that is probably true, but the question is how did the City get that capacity. He stated the City was under the gun from the regulatory agencies for lack of performance and built a large facility in a hurry; it cost the City a lot of money; and it is probably one of the classic examples of an organization doing something with no planning upfront. Mr. Tootill stated another issue is water; in Florida where the pressures of growth are going on, water is a really big deal; New Smyrna and Orange County are talking about desalinization; Brevard County talked about desalinization; folks in Titusville are saying it has plenty of water; and the disconnect is the City is not planning and looking out five, ten, or fifteen years in the future. He stated unfortunately, once water is screwed up, it is lost; and if the aquifer is poisoned, it is done. He stated another issue that jumped out when he attended the City Council meetings was the issue of schools; it is probably one of the biggest things that impacts all of their taxes and is necessary to educate the young people in the area; but if it is brought up to the City Council of Titusville, it says it does not have to deal with schools, and that the County and School Board take care of that. He stated he sees a complete and utter lack of planning in Titusville; the Council does not listen because he does not have standing and lives in the County; he cannot get angry about that because it has a constituency to support; and he does not happen to be in it right now, so he came to talk to the Board because he is the Board’s constituency and is grateful for having the chance to have his say. Mr. Tootill stated there is a lack of consensus in the north part of Brevard County; for consensus there has to be several things; there has to be an opportunity to make statements; the people one speaks to have to make a sincere attempt to listen; and he does not agree 100% with what is going to be agreed to, but he can live with the decision. He noted that is the definition of consensus. He stated the process on the annexation issue has not been by consensus; a small group of people have an agenda of their own that they are trying to accomplish and push through; unfortunately there are a lot of folks who oppose that and have not had a chance to be listened to; and he is here because he thinks he will be listened to. He stated he hopes the Board and its Planning staff who deal with these issues on a day-to-day basis look long and hard at everything that is going on in Titusville; and thanked the Board for listening to him and for the work it is going to do in the future.

Commissioner Scarborough stated it would be tragic if this issue appears to be County against City; but for one vote, this discussion would not have taken place; and to say that the degradation of the water supply or using desalinization plants at higher-cost for water, degradation of roads, the tax base, and schools do not happen to the person in the City is not a correct statement. He stated what the Board is talking about is how Florida operates with growth and the Comprehensive Plan; and within that context, he would like to ask Mr. Scott if the Board has until February 20, 2004 to send something to Department of Community Affairs. Mr. Scott stated it has to be received by Department of Community Affairs by February 20. Commissioner Scarborough inquired if it would be advantageous to go back over the City and State Comprehensive Plans rather than proceeding forward at this moment, receive the public comments, let Mr. Scott put the report together, and it come back on the Agenda before transmittal to the State; with Mr. Scott responding it would have to come to the Board on February 10, 2004. Commissioner Scarborough inquired if it would be better to have the consensus of the Board to allow Mr. Scott to transmit the comments; with Mr. Scott responding that would be much better.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to authorize staff to prepare and transmit a report on the annexation and Comprehensive Plan amendments by the City of Titusville to Department of Community Affairs. Motion carried and ordered unanimously.

RESOLUTION, RE: REVISED FINDINGS OF FACT FOR SAWGRASS SOUTH AT SUNTREE

Chair Higgs advised the Board has the findings of fact in front of it; she has a number of cards from people who wish to speak; it is her understanding at this point the Board is dealing only with the findings of fact; and unless it reopens the public hearing, she should not recognize the speakers on the issue. County Attorney Scott Knox responding that is basically correct. Chair Higgs inquired how is it not basically correct; with Mr. Knox responding the status of the item is the last time the Board met, it took additional testimony on the eagle’s nest issue and decided not to change its original action to deny the plat and ordered him to come back with another proposed set of findings of fact, which is what is before the Board today. He stated typically in the past, with the exception of this case, the Board has not opened up findings of fact for discussion. Chair Higgs stated it is her understanding that unless the Board takes some action to reopen the findings of fact for discussion, it will be discussing it without public comment.

Commissioner Carlson stated it has been brought to her attention that there may be a change in perspective on the part of citizens who are out there; the Citizens for Responsible Growth sent her a letter, it was sent to the Chair on January 10, 2004 regarding their concerns and cited six specific concerns and responses to date; and the last page says, “CFRG has no objections to the approval of the final engineering plan as submitted and modified by Board actions up to September 16, 2003 and with the promised staff actions as outlined in paragraphs 1 through 6, provided the following conditions are in effect: (1) responses addressing these concerns as detailed; (2) it is determined that the bald eagle’s nest in 17B is clearly documented by County Natural Resources personnel and County experts to be abandoned.” She stated it goes on to talk to a statement that at the September 16 meeting, Natural Resources staff member Donna Oddy said nothing in staff’s comments would identify the nest to be abandoned and further observation might be requested. She stated she does not know if the Board might want to use the letter to potentially open it up; she had discussions with the homeowners and the developer; and inquired if she were to ask a question of the applicant’s attorney, would that be appropriate or would it be construed as opening the hearing up. Mr. Knox stated the applicant is someone the Board can talk to without opening up the public area again. Commissioner Carlson stated she has an email that states the Board addressed the six items in the letter and asked the Sawgrass Land Development Company if it had objections to any of those items and if the Board made a motion on those or anything else; and they said they did not and she would like to confirm that by asking the attorney. Mr. Knox stated the context in which the question will be asked is if the Board were to rescind the prior denial and approve it with additional conditions. Commissioner Carlson stated right, and she also has a question to staff if there is not a clear issue of abandonment, then she does not think the Board can go forward with any rescinding.

Chair Higgs advised Commissioner Scarborough has not returned to the room; and recommended a short recess to await his presence.

The meeting recessed at ll:55 a.m., and reconvened at 11:57 a.m.

Commissioner Carlson stated she does not know if Commissioner Scarborough caught the conversation while he was out, but it has come to her attention from a letter dated January 10, 2004 from the Citizens for Responsible Growth that outlined their lack of objection of the current findings of fact from the six points the Board looked at on September 16, which were specific points that the Board had long discussions on and that would have been adapted to the BDP for the plat. She stated she can read it again or pass a copy to Commissioner Scarborough; with Chair Higgs responding it is in the findings of fact. Commissioner Carlson stated hopefully everyone read it so she will not reiterate. She stated she talked with Mr. Knox in regard to the abandonment issue; the second item on the last page of the CFRG letter states there was an understanding that 17B was abandoned; but Mr. Knox brought to her attention that the Corps, when it applies its guidelines, is going to be observing the nest for the next five years as a requirement, and it would be the one to determine abandonment or not. Commissioner Carlson inquired if that is right; with Mr. Knox responding, it is his understanding the U.S. Fish and Wildlife permit requires monitoring of the nest for five years to determine whether or not it is going to be used again; if it is used again, they will not be able to do anything with the site; and at this point, the site is protected until it is determined what will happen with the nest. Commissioner Carlson stated the consideration of rescinding the current findings of fact and applying the six topics, which she can go through individually and talk to the Board on, might be a consideration at this time; and she would like to hear from the other Commissioners on that. She stated her staff has talked to the Homeowners Association and developer, and it would be nice to confirm with the developer that he is aware of those things and that the email that she has dated January 26, 2004 from Elizabeth Kennedy with Sawgrass Land Development company has no objections to the items listed in the email she sent to them, based on their review of all the actions and requests that were asked for from the citizens in that area.

Commissioner Pritchard stated he would like to hear from the attorney for the developer regarding that question. Chair Higgs requested waiting on that because once the Board opens it up, it needs to hear all the speakers; and she would think if the Board is considering findings of fact and chooses not to adopt the findings of fact today, then its next step would be to put it on a future agenda to rescind the previous denial of the plat. Mr. Knox stated that is not necessary; and the Board can do that today if it wants to. Chair Higgs stated it is not advertised; with Mr. Knox responding advertising is not required, as it is a plat approval and not a public hearing.

Chair Higgs advised she would feel uncomfortable moving forward on the plat without opening up the item for public comments because she has speaker cards on the item; and in viewing the findings of fact, her vote to deny the plat was on the premise the eagles were using 16B, but the evidence today is that they are occupying 17B; so she is willing to reconsider and support a motion not to adopt the findings of fact, but ask staff to come back with all the conditions on approval of the plat at a hearing where everybody again has a chance to speak. She stated she wants to have a clean process and see all the things in writing so she can evaluate them; and without going to other discussions, that would be the cleanest way to do it and afford everyone the opportunity to know the issues before the Board. She noted the issue today is the consideration of the findings of fact.

Commissioner Carlson stated she has no problem listening to the rest of the cards because it would be nice to also get the perspective on the record as far as what she received through email communication.

Commissioner Pritchard inquired if the Board moves to not approve the current findings of fact, what would be the next step; with Mr. Knox responding it would have to take action on the plat because that is what is before the Board. Mr. Knox stated the Board either has to approve the plat, approve it with conditions; and if it is going to reject the findings of fact, it is not going to deny it any longer, so it is going to be one of those two options. Commissioner Pritchard inquired if the Board denies the objection to the plat, what would happen. He stated the Board voted to deny the construction of the Subdivision so it did not approve the plat; with Mr. Knox responding if the Board wants to approve it with conditions for example, it would have to rescind the original motion to deny. Commissioner Pritchard inquired what if the Board approves it without conditions; with Mr. Knox responding then it can approve it as it sits. Commissioner Pritchard inquired what would happen at this point and does it come back again; with Mr. Knox responding no, typically the Board moves approval and that is the end of it. Commissioner Pritchard stated he thought Mr. Knox said earlier that the Board could ask the attorney for the developer a question without opening the public hearing; with Mr. Knox responding yes, because they are the applicants, but the hearing has been closed to the public. Commissioner Pritchard stated that was his point about asking the attorney for the developer if he had any comments about the letter, that it did not open the meeting to a public hearing, but it might answer a few questions that are going to develop in his concerns and that of the Board.

Commissioner Colon stated this issue is getting too confusing; she does not want to muddy the waters, so she wants to make sure the Board is perfectly clear that the best way to do it, if it is not comfortable with the findings of fact today, is not to take action to adopt them and to come back with a much cleaner report, and allow public comments from both sides. She stated if the Board opened discussion today, she is positive it would still come back at a later meeting.

Commissioner Carlson inquired if that would be a better course of action; with Mr. Knox responding the Board at this point has a choice to make; it can either move to rescind the prior action so it can reopen the hearing and take additional comments and conditions at a subsequent hearing; or it can go forward and adopt the findings of fact and get it over with. Commissioner Carlson inquired if the Board can act without public comment; with Mr. Knox responding yes. Commissioner Carlson inquired if the Board could actually rescind its previous motion and request conditions come back and be applied to the plat at a later date, then take other public comments; with Mr. Knox responding if the Board rescinds it, it can ask staff to come back with proposed conditions for the Board to consider; and it would be part of the Agenda and people could comment on whatever conditions they wanted to. Commissioner Carlson stated with that she will make a motion to rescind the findings of fact. Chair Higgs stated the Board has not adopted the findings of fact so it cannot rescind it. Mr. Knox advised the motion would be to rescind the denial of the plat.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to rescind the motion of September 16, 2003 denying final engineering and plat approval for Sawgrass South at Suntree.

Chair Higgs inquired if the motion passes, will the plat be approved without additional conditions; with Mr. Knox responding no, it leaves it with no action to deny or approve it. Chair Higgs inquired if the Board is rescinding the denial and nothing else; with Mr. Knox responding it would take the Board back to square one where it has not taken action on the plat. Chair Higgs stated she wants to make sure that it is clear no action would be taken on the plat.

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

Commissioner Carlson requested staff bring back the plat with conditions; and inquired if she needs to stipulate those conditions in a motion; with Chair Higgs responding Commissioner Carlson could just say all those that the Board will consider and all those recommended and perceived in the letter.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to direct staff to bring back the plat for Sawgrass South at Suntree with conditions on February 10, 2004. Motion carried and ordered unanimously.

Chair Higgs announced if anyone has conditions or other items for the Board to consider, they should get those to staff as early as possible to include in the Board’s agenda package.

The meeting recessed at 12:07 p.m., and reconvened at 1:08 p.m.

CONSIDERATION, RE: UNTIMELY REQUEST FOR VESTED RIGHTS DETERMINATION
OF COURTNEY ROBERTS

Chair Higgs requested County Attorney Scott Knox frame the issues before the Board and the format the Board normally uses.

County Attorney Scott Knox advised the Board is considering the timeliness of a vested rights determination application filed by Courtney Roberts; he outlined what he considers to be the law and the issues the Board is considering in a memorandum, which Commissioners have in their packets; and what he concluded after reviewing the long subject is that the 30-day period in which people have to file vested rights claims after they determine that their rights had been abrogated, is jurisdictional in the sense that the Board does not get to consider it, if it is not filed in a timely fashion. He stated there is no waiver provision in the Ordinance; consequently, it cannot waive the 30-day period; and based upon that law, the Board’s decision relates to when the person, in this case Mr. Roberts, knew or should have known that his vested rights were abrogated and when he had access to the facts that would give him rise to a vested rights claim based upon that abrogation of vested rights. He stated several items were presented to help the Board deliberate about when it was that Mr. Roberts should have determined that he had a vested rights claim; among those were the March 25, 2003 stop work order, the August 8 letter from Mr. Torpy to Mel Scott, Mel Scott’s response of August 27, the October 6 or 9 letter from Mr. Roberts to Mr. Brown, and Mr. Brown’s response to that letter in October 2003. Mr. Knox advised there were other items in the packet the last time that the Board may want to consider; Mr. White wrote an August 27 letter addressing the subject of what was known and what vested rights application ought to be filed or not filed; and those are issues the Board needs to look at and try to determine which of facts established in those documents would allow Mr. Roberts to know that he was entitled to file a vested rights claim; and once the Board determines what that timeframe is, then it will know when the 30 days began to run. Mr. Knox advised the other option the Board may want to keep open, in the event it decides it was not timely filed is the fact that Mr. Roberts’ claim seems to be based upon a letter that was written by Lisa Barr, now Lisa Toland, back in 1993; and that letter went to the issue of whether or not there were two lots involved in the property, and if there are two lots, he can have two houses on the property. He stated that issue was raised by Mr. Roberts in his October letter, but has never been addressed by staff; staff did not come back and say no, he cannot build two houses on two lots because he does not have two lots; and if staff were to say that, he could not build two houses on two lots because he is only entitled to have one lot there, then Mr. Roberts would be entitled at that point to file for an administrative appeal before this Board where it would consider whether or not Mr. Roberts has two lots or not. He stated if he has two lots, he can build two houses; and if he does not, the staff position is he can build one house.

Chair Higgs inquired if the essential action that occurred was the stop work order on approved plans for some construction; with Mr. Knox responding the Board sits as a quasi-judicial body on this, so he would say it is the Board’s call on what it thinks was the event that abrogated the vested rights that Mr. Roberts is claiming. He noted that may be the event the Board decides on or it may be something else.

Commissioner Colon stated today the Board is in a position of bringing back the findings of fact; basically at that point the Board had determined that it was not going to open public comment; but what has happened since was she heard testimony from his attorney, County staff, and Mr. Roberts for almost two hours; and based on the evidence she personally saw, she feels the Board should allow Mr. Roberts to present his case. She stated it would not be prudent for the Board to move forward today based on what she has seen; and Mr. Roberts needs to meet with each Commissioner because the paperwork he showed her that staff signed off on leads her to believe he probably has a case. She stated Mr. Roberts’ attorney did a good job at the last meeting presenting his case; based on what was given to the Commissioners, they did not feel they had a case; but Mr. Roberts came to her office and showed her all the paperwork; and she feels it would be an injustice not to allow him to give the Board an opportunity to hear a lot of the things that were not presented.

Commissioner Scarborough inquired if the Board determines it was not filed timely, would it come back and be heard on essentially the same factual issue; with Mr. Knox responding there is slightly a different set of facts; Mr. Torpy’s claim he received this morning was he is of the position that the October letter from Mr. Roberts is the basis for a vested rights claim because Mr. Roberts relied on the August 1993 letter and by requesting a revision to his building plan, it allowed him to build a separate house on the second lot; and having that turned down, it somehow triggered his vested rights claim.

Chair Higgs requested Mr. Knox repeat his previous statement; with Mr. Knox responding Mr. Torpy's position is that his client asked for approval of a revised building plan that would allow him to build a separate house on a second lot. Chair Higgs inquired if that had been submitted; with Mr. Knox responding that has not been submitted that he knows of. Chair Higgs inquired if there is only one set of plans that the Building Official said were not built; with Mr. Knox responding right, and Mr. Brown’s response to the request was basically that he would not lift the stop work order. Mr. Knox stated it did not get down to the issue of whether or not Mr. Roberts could or could not submit a revised set of plans; if that issue were decided to say no he could not, he can then appeal that to the Board as an administrative interpretation that the Board would have to consider. He stated Mr. Torpy’s position today is that because Mr. Roberts made that request for revised set of plans and because Mr. Brown did not lift the stop work order, he is basically claiming he is entitled to go forward because of the 1993 letter without regard to whether or not his revised plans are out there.

Commissioner Scarborough inquired if Mr. Knox is saying because of the denial, Mr. Roberts would have different grounds in proceeding; with Mr. Knox responding yes, he would essentially be arguing that he is entitled to have two lots because of what happened in 1993 on the interpretation that he had and the events that led up to that interpretation.

Commissioner Pritchard requested Mr. Knox repeat the previous statement about the 1993 determination in the letter from Ms. Barr; with Mr. Knox responding in a 1993 letter, Lisa Barr said that Mr. Roberts had two lots; and if that is the case, then Mr. Roberts would have the right to build two distinct houses, one on each lot. Mr. Knox stated what has happened at this point is Mr. Roberts is attempting to build an addition to the existing house on one lot, but now wants to make that a separate house as opposed to one house with an addition; and in order to do that, he has to show that he has two lots or has vested rights to have two different houses on one lot. Commissioner Pritchard stated the issue of one or two lots hinges on a memorandum from Lisa Barr Toland that Mr. Roberts has a copy of, which could not be located in the Natural Resources’ files, but he had something he relied upon. Mr. Knox stated that is something the Board has to decide if it gets around to hearing the vested rights determination; that letter is 11 years old; and the records retention in the County and State is less than 11 years. Commissioner Pritchard stated a problem he has with the whole situation is that it has become a he said/she said; some of the documentation is present in one file and absent in another; and it is time to give an open process to the entire issue to determine whether or not Mr. and Mrs. Roberts have a right to build two houses as they profess they have, and if not, what vested rights would the Board be considering, the right to build two houses on two lots or the addition on one lot, and are there setback requirements of 50 feet or 25 feet. He stated the question of timeliness is so convoluted it is difficult to track; going back to March, one can say one thing; then in June there is an email from Mel Scott saying Mr. Roberts is left with a vested rights request; and inquired since he said that in June, how can March be the trigger date. He stated then it goes to October where the question was posed; then they filed a vested rights determination application in October because they reached the end of their limit, as Mr. Torpy said, and a lot of the information they were seeking was not forthcoming; and in a recent letter he said the same thing, that he has not received any written explanation why the public records seem to be missing. He stated there are accusations flying both ways; so it is time to start afresh with a hearing for vested rights determination so that the Board can listen to everything that comes in and make a decision at that point.

Mr. Knox stated there are two ways the Board can proceed; one is to determine he has timely filed and has a vested rights application that needs to be heard; and that has to be based upon the facts that are before the Board. He stated it cannot be based upon some desire to hear Mr. Roberts because the Board does not have that option or the right to waive the time period because it is not in the Ordinance; so that leaves the Board determining what the event was that should have triggered Mr. Roberts coming in to apply for vested rights, and decide that based on the evidence it has already received. Mr. Knox stated the other option, if the Board decides not to proceed with vested rights, is to have Mr. Roberts come back on the administrative appeal of whether or not he has two lots; so there are two ways the Board can get to the same place; and it has to decide one or the other to get there.

Chair Higgs requested staff explain the action that took place that stopped the work, and if they could show the plans to the Board because it was never really seen in public.

Chief Building Official Carroll Brown advised Mr. Roberts applied for a permit in February 2002; when he submitted the application and plans, which were rolled up at the time, he applied to build an auxiliary building for recreation, a garage, and a master bedroom; and based on that, it was coded as an accessory building. He stated when staff started to do the review process and looked at the plans, they said it did not look like an accessory building and looked more like a single-family dwelling; so they coded it as a single-family dwelling so that it would be accurately reviewed by all the various agencies. He stated during the process, he was not prepared to answer every question because he did not bring all the voluminous files with him; but in summary, when they recorded it and it went through, it was put on hold because it was obvious there were some problems in that the building was too large. He stated there were questions about setbacks and some Natural Resources issues. Mr. Brown advised the proposed recreation building had a kitchen in it; there were some overhang problems with balconies; there were Natural Resources issues; and that went on until July 2002 when staff set up a meeting with Mr. Roberts and appropriate agencies to review the situation of what was happening and what he really was doing in the way of construction. He stated Mr. Roberts and the various agency people were there; it was discussed that there were concerns about the balcony overhangs and setbacks, two lots, and whatever; and Mr. Roberts asked what he needed to do to move the project forward. He stated they spread the plans out and each agency went over them with Mr. Roberts, at which time Mr. Roberts modified the drawings on the spot, circled them, and dated them as to what he needed to do to satisfy the agencies; and he crossed out and eliminated a balcony, met the requirements of zoning on not having a second kitchen, and crossed out and initialed a refrigerator and other things. He stated additionally there was a note put on the plans that he agreed that the house, proposed recreation building, and existing house would have matching roofs.

Commissioner Scarborough stated the Board has denied a full hearing on this issue and now it is taking testimony from staff; if it is going to take testimony from staff, it best open the whole thing; and he has a real dilemma with the process. He stated Mr. Knox said the Board did not have authority to waive; he talked to Mr. Roberts and told him he has a difficult time finding the factual basis on the 30 days; however, the whole issue is moot because he has a right to hear this thing; and without making it a bigger mess, the Board is going to hear it one way or another because they have right to be heard on the two-lot issue. He stated he knows how the hearings go; they talk about the issues; in the end the Board hears anybody who wants to say anything about it; and ultimately the net result is going to be the same. He stated he wishes there was a clean way he could get through this without having to deal with the fact that he is waiving something that he is not granted the legal authority to waive. Chair Higgs stated she believes the Board will hear the two-lot issue; and from what she has seen, the Building Official acted properly in stopping work on the plans that were there. Commissioner Scarborough stated he is not supposed to hear that; and inquired if it is a jurisdictional issue or substantive issue; with Mr. Knox responding jurisdictional.

Chair Higgs stated it is proper to hear the issue of appeal on the lots; timeliness on the issue can be heard by the Board; she does not believe it was timely filed in regard to the building permit; but she does believe the administrative process to hear the lot issue is where the Board ought to go and hear it fully. She stated it has gotten confused about whether or not it is hearing a building permit issue or some other thing; and that is what is confusing.

Mr. Knox advised the Board needs to decide whether it is a timely filed vested rights application; if it is not, it can forget about vested rights; and the Board may hear the whole thing in either context, but the reason it is important that the Board determine if it is vested rights or not is that there are different sets of standards applied to it. He stated for an administrative interpretation, there are broader standards, so the Board needs to decide what set of standards it is going to be governed by; and the issue to first resolve is whether or not it is a timely filed vested rights application. He stated he received a phone call from one of the attorneys who is interested in this issue; and if that attorney is involved, with Mr. Torpy on one side and Mr. Nohrr on the other side, the issue of whether or not the Board has jurisdiction to hear vested rights claim is going to be an important issue. He stated if the Board does not have jurisdiction, it cannot hear the claim no matter what it does; so the Board should put it in the right context before moving on.

Chair Higgs advised the item before the Board is the timeliness issue; and the Board could listen to testimony on that point and make a ruling on it. Commissioner Carlson inquired if the Board can hear testimony on the timeliness issue today; with Mr. Knox responding whatever the Board thinks it needs to decide the issue of when Mr. Roberts knew or should have known he had a vested rights claim; and that is what it needs to focus on right now. He stated whatever the Board needs to hear to make that determination is what it should hear today. Commissioner Carlson stated Mr. Knox also said the Board needs to focus on the two-lot issue; with Mr. Knox responding that is going to be for another day; it will come back to the Board because staff will probably say Mr. Roberts cannot have two lots there; and he will appeal that to the Board.

Commissioner Pritchard inquired if the Board says the request for vested rights was timely, what would it move ahead with; with Mr. Knox responding if the Board decides that issue today, Mr. Roberts will have to come back in the future with the whole presentation on what the criteria are and whether he met them or not. Commissioner Pritchard inquired if the Board votes to say it was untimely, where is the administrative appeal process; with Mr. Knox responding if the Board decides it was not timely filed, it would not have to worry about vested rights anymore; at that point the Board could ask staff if Mr. Roberts could have two lots and two houses at that location; and if the answer is no, that will trigger him to file for an administrative appeal. Commissioner Pritchard stated if Mr. Roberts prevails and can have two lots at that location, what does that have to do with vested rights; with Mr. Knox responding nothing.

Commissioner Colon stated to be fair to both sides, the Board must start from scratch in regards to this issue; it should vote that it was timely to allow the process to continue; she does not want to go ahead and give her opinion without hearing all the testimony; but what she has heard, two hours worth of testimony in her office, leads her to believe that she does not agree with what staff has shared based on what she saw; and it is a complex issue. She stated the Board should move forward and say it was timely filed so it can proceed; and it must hear the testimony to be fair to both sides. She stated she does not agree with the paperwork that she was shown; it is confusing and muddying the waters because there were two permits that were requested, not one; and one was for expansion of the building and the second one for a stand-alone home. She stated the Board needs to hear exactly when the waters got muddied in the whole process; and it owes that to the applicant and the citizens.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to determine that the vested rights determination application was timely filed by Courtney Roberts.

Commissioner Scarborough stated he cannot support it because the Board does not have jurisdiction to waive it; he does not have a factual basis to find that it was timely; and it is not that he would not want to hear it, and would hope the Board would be able to fully resolve the issues through another methodology. Chair Higgs inquired what approach would Commissioner Scarborough suggest; with Commissioner Scarborough responding Mr. Roberts is going to be able to raise essentially the same discussion after the vote is taken either way. Chair Higgs stated she cannot vote on the timeliness until she hears the rest of the testimony; and if she is going to listen to the timeliness issue, she wants to hear it all. Commissioner Scarborough stated if people want to speak to the timeliness, that is fine. Chair Higgs stated there is a large number of people who want to listen to that; and the confusion the last time was what was the Board hearing and where was it going. Commissioner Carlson stated if the Board is going to open it up for public comments, it needs to make sure they speak only to the timeliness issue because this is not a vested rights hearing.

Chair Higgs stated she can ask people to speak to that issue, but cannot control it; and requested Mr. Knox clarify what rules would apply of the standard operating procedure with the applicant given ten minutes to make a presentation and five minutes to rebut, and the Board being able to extend the time and ask questions. She stated it needs to be consistent with its format; she cannot support the motion and wants to hear all the testimony; and since everybody is here, she would like to do that today.

Mr. Knox advised Commissioner Colon heard from Mr. Roberts; Mr. Roberts probably did not know this, but when the Board sits in a quasi-judicial capacity, it is not supposed to talk to parties like Mr. Roberts or anybody else about the issue; it is supposed to hear all of it at the meeting; and when it does come here, after Commissioners had that kind of experience, they need to reveal it as Commissioner Colon did. He stated Commissioners should try to avoid that if they can because the evidence that they hear in their offices may or may not be the same as they hear at the meeting; and if somebody thinks that Commissioners based their decisions on something they heard somewhere else, they can attack the decision.

Chair Higgs stated she set up seeing the plans, but they are here on the record and she wants all to see those as well; but her desire is to proceed to allow testimony. Commissioner Scarborough stated since both sides are represented by attorneys, the Board should begin with the attorneys, because the issue is essentially timeliness, which is a legal argument; and perhaps by framing it, the people will fall into that discussion more so than otherwise. Chair Higgs inquired if the applicant and the other side get the same rules; with Commissioner Scarborough responding that is fine with him. Chair Higgs stated she will proceed and allow Mr. Torpy ten minutes and five minutes for rebuttal; and any other changes to that will come by vote of the Board.

Attorney Richard Torpy, representing Courtney and Carol Roberts, advised at the last meeting the Board asked for a memorandum on the issues of timeliness; and he had it delivered to Mr. Knox’s office on Friday, and would like to give a copy to the Commissioners. He stated for the record he must interpose an objection to the process simply because staff had the opportunity to speak to the Board unbridled outside of the context of the Commission Room, but there are time limits imposed upon everyone else. He stated that is in violation of the quasi-judicial proceeding. He stated the stop work order that was issued stopped construction based on a building permit for an addition; that was the only building permit issued to the Roberts; and that was stopped in March. He stated based on their review of the public records, they determined it was not the building permit Mr. Roberts wanted to begin with; he asked for a single-family residence on his second lot; and read a portion of an email from Mel Scot to Mr. Roberts dated July 2, 2003, saying, “for a second home to be constructed on this property, you must either confirm that Lot 7 was subdivided prior to September 8, 1988 or pursue a vested rights case.” Mr. Torpy stated if they could have proven that Mr. Roberts’ second lot was created prior to September 1988, they would not have had to seek a vested rights determination; and in fact they would not have had a vested right at all because under the current County Code, they could have just applied the Code and he would have been able to build his single-family residence subject to the 25-foot coastal buffer provision. He stated that is the issue, not whether there are one or two lots; and it is what the setback would be from the river and how far back the house has to be. He stated currently the structure that is there is only 25 feet from the coastal setback; and if they could have proven the lot was created prior to September 1988, they would not have had to seek a vested rights determination. He stated because of the loss of public records that they believed had that documentation, they could not prove that case; all they had was Ms. Barr’s letter, but staff disagreed with her opinion; they need the substantive documents behind Ms. Barr’s opinion; and they made the determination that they could not prove that and needed to have a vested rights case; so they asked the Building Official to lift the stop work order, but more importantly, to modify the existing building permit for three things. He stated they did that in their October letter, requesting (1) allow the construction of a single-family residence on Parcel 2; (2) allow the completion of the room addition on Parcel 1; and (3) to remove a breezeway that had been constructed between the two residences. He stated that was the request his clients made in October 2003; it was the first time they made that request; and it was denied by Mr. Brown on October 20, 2003. Mr. Torpy stated their position was that they were entitled, not to build a room addition as has been permitted, but to build a separate single-family house; and that is what they asked for in October 2003 for the first time of the Chief Building Official. He stated the decision by Mr. Carroll Brown not to allow them to modify their building permit was the decision that triggered their vested rights because they believe that denial was wrong and was based on his interpretation of the County Code. Mr. Torpy stated at the same time they filed the vested rights application, they filed for an appeal of that decision by Mr. Brown, which was sent to the Board of Adjustment; and County staff objected to the Board of Adjustment having jurisdiction to hear vested rights issues. He stated the point is simple; they do not need to look at the time the stop work order was issued because all that did was stop work on the room addition; no vested rights were raised; they do not need to look at Mr. Scott’s August 27 letter because all he was doing there was responding to his criticisms and questions relating to the failure of staff to provide public records; and they need to focus on the letter that Mr. Roberts sent to Mr. Brown in October 2003 asking him to modify the building permit and to allow him to build a single-family residence on Parcel 2. He stated Mr. Brown’s denial of that is the only event that triggered their vested rights application; the vested rights application has to be based on some administrative interpretation by a staff member of the Administrative Code; and Mr. Brown, although Mr. Knox tells the Board he did not interpret anything and he did not research the issue of modifying the building permit, is simply not accurate; he did research that issue because he required Mr. Brown to send him a clarifying letter and when he sent the clarifying letter, which came later in October, he specifically said he was not granting the request because of the issue raised by Planning and Zoning of when the lot was created and whether they could apply the current County Code, so he did interpret Code in his capacity as the Building Official when he denied the request to modify the building permit. He stated that is what they sought the vested rights on; that is what they also filed the administrative appeal on; and both were filed within a week of Mr. Brown’s letter denying their request; so it was timely filed. He requested the Board find that it was filed timely based on the date of the interpretation rendered by Carroll Brown on October 20, 2003 and allow his client to get to the merits of the case; and he can present the Board the same information that Commissioner Colon heard so it can understand the merits of the vested rights case.

Chair Higgs stated in Mr. Torpy’s letter of October 16, it says, “they requested for you to lift the stop work order and allow completion of a single-family residence on the property they own”; but what she saw in the permit was for an addition; and Mr. Torpy seemed to say they were permitted to do an addition. Mr. Torpy stated he can answer that question but not without getting into extreme detail on the permitting process that Mr. Brown was put through in 2003; and when he gets to the vested rights case, he will be able to answer that question for Chair Higgs in detail. Mr. Torpy stated to address the timeliness, staff was asked to modify the building permit and allow his client to construct a single-family residence and that was denied and triggered the vested rights application. Chair Higgs inquired if a plan for the single-family home was submitted; with Mr. Torpy responding the answer to that question is yes, but without getting into a long convoluted road of facts, he cannot fully answer it. Chair Higgs inquired if the single-family residence was never permitted; with Mr. Torpy responding no, and inquired if the Board wants him to present the evidence on that issue now, because he was told he cannot do that. He stated Chair Higgs is asking him about substantive facts, which will support the process they went through and the vested rights issue; that has nothing to do with timeliness; the issue presented is whether or not his client can building a single-family residence subject to a 25-foot setback, not whether he can just build a single-family residence because the setback is a real critical issue. He stated that is what he asked Mr. Brown to allow them to do in October 2003; that is what he opined could not be done based on an application of current Brevard County Code; and he is seeking both an appeal of that interpretation through the administrative appeal that he filed and the vested rights determination based on information he uncovered in the public records process.

Mr. Knox inquired where Mr. Brown responded specifically to the questions that Mr. Torpy raised about revising the building permit application because he cannot find it. Mr. Torpy stated the letter dated October 20, 2003 was sent to him and simply said no they will not lift the stop work order; he sent another letter to Mr. Brown asking him to specify why the request was denied; and on October 26, 2003 he received a clarifying letter specifying why, but had already filed his vested rights determination application prior to receiving that letter because he had the information he needed to know, which was a denial by the Building Official of their request. Mr. Knox inquired if Mr. Torpy filed an appeal of that interpretation with the Building Board; with Mr. Torpy responding he filed two documents because he filed the appeal of Mr. Brown’s decision with the Contractors and Licensing Board sitting in its appellate capacity, and on the same day filed a vested rights application because implicit in Mr. Brown’s denial was his belief and several others’ belief that in order for Mr. Brown to say they could have the second house subject to the 25-foot setback, it would require review of the equitable estoppel issues. Mr. Knox inquired if the appeal that was filed with the Building Board goes to the issue of whether or not they qualify to build a second single-family residence on the property; with Mr. Torpy responding it goes right to the issue of whether they qualify to build a separate single-family residence subject to a 25-foot setback. Mr. Knox inquired if it derives from the setback issue; with Mr. Torpy responding yes, and what happened with that was he filed the notice of appeal to the County Commission in the style of a civil case; that was sent on an agenda before the Board of Adjustment, Contractors and Licensing Board of Adjustment and Appeals by staff; and he also filed the vested rights petition, which is more in a letter form; and that was set before the Board of County Commissioners. He stated that raised the jurisdictional issue, one of the very jurisdictional issues that the Board is talking about today because both documents were identical, just styled differently, meaning the heading was different, but the acts and allegations were identical. He stated the County Attorney’s office objected to the Contractor Board of Appeals having jurisdiction to hear the equitable estoppel and vested rights issues, which required him to file and go in front of a judge to try and get clarification of which board could hear those issues. He stated it is his belief that the Board of County Commissioners has jurisdiction to hear all the issues raised in the Roberts’ case, both from a timeliness standpoint and from a substantive matter standpoint.

Attorney Philip Nohrr advised he is a late entry into this issue and does not have all the facts, but in his preview of the case, the early discussion of the Board was a correct discussion. He stated it is a question of jurisdiction on vested rights; there is a separate issue on the two lots that has to be addressed; and maybe the determining factor is which way the Board decides to go. He stated when the Board gets to the issue of whether or not it was filed timely, and the County Attorney has already told the Board what the Code says and it is jurisdictional, the question is 30 days from when. He stated in listening to the arguments, there was a stop work order issue in March; that to him is the action; they can talk about Mel Scott’s letter of August and Mr. Scott trying to say he can have 30 days to apply, but in all candor if the Board accepts the statement that it is jurisdictional and it cannot be waived, then there is a question of whether the August 27 letter matters at all. He stated it is the stop work order in March that triggers this no matter what the good intentions of staff were in trying to point out some avenues for Mr. and Mrs. Roberts to proceed by suggesting the 30 days; and had the jurisdictional issue been raised, in his mind there would be an issue as to whether they could appeal from that time because it goes back to March. Mr. Nohrr stated to his knowledge there is no building permit for the single-family residence; he may be wrong on that, but he does not want to get into that because he does not have the facts; and where the Board ought to go is the vested rights application to the extent it has been filed and should be denied, and go with the administrative hearing on the procedure as to whether it is one or two lots. He stated the Board should address what the letter from Lisa Barr really meant, what was filed, and if there are inequitable issues involved; and to do otherwise will end up weakening and perhaps severely damaging the vested rights Code. He stated he is not denying the Roberts their right to be heard and neither are his clients; but on the narrow issue of vested rights, they do not think it was timely filed. He stated the real issue may be whether or not there are one or two lots; and if there is only one lot and they attempted to make it two lots and did not succeed, that will be a different issue. He stated that is what the Board is here today to talk about; he is not prepared to talk about that; he was prepared to talk about the issue of vested rights and the timeliness of the application; the 30 days goes back to March when the stop work order was issued; and if the Board wants to start moving from there, it will have a problem. He stated Mel Scott’s letter lays it out, says file the vested rights appeal, then do discovery; so they do not believe it was timely filed.

Courtney Roberts stated he has been admonished by staff prior to this meeting to make sure he only talks to the timeliness of his application, so he will talk about dates and things that happened to the dates. He stated any documents he references in his discussion will be available and presented at the vested rights hearing; and he is not going to present any of those today. He stated in March 1986, the prior owner of the property divided it into two separate lots; documentation exists in the County to prove that; in February 1993, both lots were sold by the prior owner to him and his wife under two separate deeds, one for Parcel 1 and the other for Parcel 2; and in November 1993, public testimony before the Zoning Board of Adjustment validated that they were separate legal lots. He stated Assistant County Attorney Eden Bentley testified to that; Zoning Official Rick Enos said they were fully conforming legal lots in 1993; and that is on the public records. Mr. Roberts stated between 1993 and 2002, they developed construction plans for the property; and they developed two separate plans, one for a bedroom addition on Parcel 1, which is where the existing house is, and the other for a single-family residence, a custom built home on Parcel 2. He stated separate numbered plans were submitted in the permitting process; in September 2002, a building permit was issued for a single-family residence on Parcel 2, which is one of the sets of drawings, and a bedroom enlargement addition on Parcel 1, which is the other set of drawings; and those were combined into one permit by the staff at a meeting Mr. Brown referred to earlier. He stated a great deal of information shared with the Board by Mr. Brown is not accurate; and the documentation will prove that at the vested rights hearing. He stated on March 25, 2003, he received a stop work order that cited explicitly “not building per plan”; a few days later, they were able to get a meeting with the County staff and were told there were red lines on the plan that the inspectors could not inspect and they needed to clean up those plans and give them a clean copy where all the red lines were incorporated into what is called an “as-built” plan; and they agreed to do that with the understanding and express statement by staff that it was not reopening the permitting of the property. Mr. Roberts stated the permitting issues indicated they could continue to build as long as they were in compliance with the Code; they did that and submitted them back to the County; the County reviewed the cleaned up plans and had a couple of things it wanted changed on them; but finally staff said the plans are okay, they can read them, and he is not in violation and is building according to the plans. He inquired if he could start up again and they said no, Zoning raised some other issues; and he received a copy of five items on a piece of paper that had one guy’s name on it and no letterhead or signature. He stated he believes he received it on March 28; and among the things included, one said he had to remove the electrical, kitchen, and three other things from the drawings. He stated the effect of that would have converted the plan that had already been approved and permitted for a single-family residence to an attachment. Mr. Roberts advised the light is red, and inquired if he has to end his presentation. Chair Higgs inquired if there is a motion to allow Mr. Roberts additional time to testify.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to allow Courtney Roberts five additional minutes to complete his presentation. Motion carried and ordered unanimously.

Mr. Roberts stated the point of this milestone is they have resolved the circumstances that initiated the stop work order by giving staff a clean set of plans that showed the as-built configuration; the Board asked Mr. Brown to validate that; the stop work order had been satisfied; however, it was being held in place because Planning and Zoning was requiring him to change plans that had already been approved in his permit procedure, which would have converted the single-family residence to an addition; and what gets confusing is the addition on the back of the existing house was incorporated in the same permit that allowed them to build a single-family residence on the adjacent property. He stated it is being said that the whole house was supposed to be an addition to the existing house; the existing house is a one-story 2,000 square-foot home; the new house is two stories and will probably be 5,000 square feet; and that would not conform with the zoning requirements for an addition and would violate several of them. He noted the bottom line is they again tried to resolve the problems. Mr. Roberts stated the email by Mel Scott dated July 2, 2003 says, “for a second home to be constructed on this property, you must either confirm that Lot 7 was subdivided prior to 1988 or pursue a vested rights case”; he knew he could prove it was divided before 1988 by the documentation that was used by the County to give them the 25-foot setback waiver in 1993; that had already been approved and established; and they knew all those documents existed in the Department of Natural Resources. He stated unfortunately, over the next several months, they could not obtain those documents; people would say they were lost, sent to Archives, or had been destroyed either inadvertently or on the timeliness basis; but those documents were not available. He stated that happened in July after the email from Mr. Scott saying they had to do either one or the other; it was not a vested rights case, which is basically an appeal of last resort, until it is determined whether he is in compliance with the current Code; and if County staff had kept the documentation that proved the property was divided before 1988, the vested rights case would not have occurred. Mr. Roberts stated what happened was, because those documents were not available, the County said the determination that was done in 1993 is no longer valid because they cannot prove that what it was based on was legitimate information. He stated the County had the documentation; the County proved it in 1993; and the County turned around in 2003, after they have the house three-quarters built, and said it is going to rescind authorization for the 25-foot setback, which means he has to have a 50-foot setback if it is a separate lot; however, if he made an addition to the existing house, he would be grandfathered in for the 25-foot setback. He stated if he makes an addition to the house, staff could make him tear it down because it does not meet the Zoning Regulations and Ordinances for what an addition is. He inquired if the Board understands what is happening; stated he has a Catch-22 situation; if he complies with the requirements and pulls out the electrical meter and kitchen and tries to reclassify it as an addition, it will not meet the requirements as an addition; an addition has to have an enclosed connection between the existing structure and the addition; and all they have is a roofed walkway between the two structures, which they were told, after they get their certificate of occupancy, it could go away and did not matter. He stated the staff knows that; they know that happened; the staff has told them that happened; and they put a covered walkway between the two buildings at the direction of Zoning and a separate drawing that was added to the permit application. He stated the bottom line is Mr. Brown, in October, after they realized they could not get the documents the County had in 1993, denied their request to re-correct the permit back to a single-family residence as it had been at one time, but was changed by the County to an addition; and then they wanted him to change the whole design after they changed it to an addition.

Joel Brown stated he lives cattycorner and across the street from the construction; he heard a bunch of malarkey and sent facts to Commissioner Pritchard earlier giving the history of how this thing was created; and there are no documents that are not available to Mr. Roberts because he has copies of all the documents. He stated the lot was sold by Mr. Bryan to Mr. Roberts; they divided it into Lot 7.1 and 7.2; that is documented in the County records; other documents that he pulled out at the same time said that in 1993 Mr. Roberts borrowed money to build a house; and there are no other County records with regard to the lot. He stated his wife was a realtor; he spent two hours in Titusville pulling out County records regarding the lot; the only documentation is the fact that the lots were deeded to Mr. Roberts in 1993; and there is nothing prior to that. Mr. Brown stated at the Board of Adjustment hearing in 1993, there was a letter issued; he gave copies of to Commissioner Pritchard and nine documents that he forwarded to give the Board the history of the property; and the letter said it was an unbuildable lot. He stated also in 1993, his neighbor, his wife, and the present owner living next door tried to buy the lot and house; it was up for sale by Mr. Bryan; the purchase by Mr. Bryan is documented in the County records way back in the 1970’s; and he sent Commissioner Pritchard a copy of it. He stated prior to that, there is a record showing another gentleman purchased it in the 1960’s right after the house was built; and those are the only County records that are available and show that the lot was purchased after 1988 and it was an unbuildable lot. He stated it was also documented recently, in 1992, when Mr. Roberts went to the County and wanted to build a house; he was informed it was an unbuildable lot; after several arguments in which he participated, he was told that Mr. Roberts could build, because of the grandfather clause, an addition next door; so the County issued him a permit to build an addition and nothing more than that. Mr. Brown stated that addition did not conform to the Codes in any way, both Building and Zoning Codes; it had by last count, at least seven major violations; it was not built as an addition; he sent several letters to the Building Department telling them they should get after the Code violations; and that was ten years ago and he continued to build the addition. He stated Mr. Roberts put in an electrical panel, which he cannot do for an addition; the documentation on building the addition appears in the Zoning documents; and the vested rights should be denied. He stated the stop work order was issued on the basis that there were at least seven violations; plans that were issued for an addition had all those violations; so he feels there was an intention to deceive by submitting all the plans so that later he could come back to the County and say he can make a few changes and make it a residence. Mr. Brown stated they have gone through this issue for ten years now; the Codes have not been enforced; it is time the County take some action and get it resolved; and the Code violations should not have been allowed. He stated there was an oversight on the part of the party; the plans that he looked at for the addition were very poor; they would never be accepted by the County to do a good look at what was required for an addition; so the County blew it and did not approve something that would be approved as an addition. He stated he feels all the attempts to build a residence have been circumventing the County; and at the 1993 meeting, Mr. Roberts said, “I bought these lots in order to build a residence on this property. I felt confident that I would receive a variation on the setback requirements.” He stated this project has been pursued for ten years; the County should enforce its Codes; that is what they are there for; he has been building in the County for 40 years; and he has never seen Code violations as they have experienced now. He stated the County made a mistake by issuing a permit on plants that were not proper.

Commissioner Colon requested Mr. Brown tell her specifically about the two lots. Mr. Brown stated Mr. Bryan had Lot 7 with a single-family 2,000 square-foot home on what is now parcel 7.1. Commissioner Colon inquired if Mr. Brown knows what year Mr. Bryan built the house; with Mr. Brown responding it is in the County records, and he bought it from another gentleman in the 1980's. Commissioner Colon inquired about the lot next to it; with Mr. Brown responding there was no lot next to it at that time. Commissioner Colon inquired when did the citizens get involved in Mr. Roberts’ case; with Mr. Brown responding the house was built in the 1950’s; the owner sold it to Mr. Bryan sometime in the 1970’s; in the early 1980’s, Mr. Bryan started looking at building another house on that little parcel; and he had his surveyor make up some drawings. He stated the surveyor at that time said yes, he can make it into two lots; then Mr. Roberts, as well as other residents, including Ms. Roberts became interested in buying the house; in 1993, he purchased the lot with two deeds for Parcels 7.1 and 7.2; and that is how the deeds were recorded in 1993. Commissioner Colon inquired if there were a few of the neighbors who wanted to buy the property; with Mr. Brown responding his wife, Dan McClure who lives on Lot 10, and the present person who moved in next door.

Alma McLaughlin stated they moved from Pennsylvania approximately eight years ago and could have bought anywhere and lived anywhere, but they chose Snug Harbor because of the lot sizes. She stated they looked at the homes in the area, which are older; all the property owners had one-third to one-fourth of an acre of property; they have 100 to 400 feet on the water; and when they bought the house, they did not like it at all and spent over $200,000 fixing it up. She stated what they bought into was the development of Snug Harbor, an old development with large lots; and they were sure the lots were going to stay the same size. She stated now the lots are changing; she did not know they could take a lot and subdivide it; she understands Mr. Roberts has a lot separated into two pieces; and she does not have a problem with that, but it is an unbuildable parcel. Ms. McLaughlin stated her understanding is that he took out a permit for an addition; she does not have a problem with an addition either; but now he has changed his mind and would like to build a home; and to her the motivation is simply greed. She stated if he is allowed to set this precedent of dividing his lot in two at his whim in 1993, they are going to see a lot of other large lots be divided; they are all going to see small lots with big houses like Miami and Fort Lauderdale; and that is not what they want to see for Snug Harbor. She stated when Mr. Roberts took out the permit, they looked at the footer in 2002, went to the Building and Zoning Departments and were assured by Land and Resources there would never be a single-family home on that parcel because it cannot meet the Code unless it is a very narrow house. She stated it must be 50 feet off the river because it was deeded in 1993; they met with a lot of employees at Land and Building, Natural Resources, Code Enforcement, and they have been wonderful; but two weeks ago she heard them denigrated, and it bothered her because she knows they all work very hard to try to get people to comply with the Codes; and Brevard County is growing and a lot of people are coming here, so it is difficult to keep up with everything. Ms. McLaughlin stated to the timeliness issue, the item was on the Agenda in December about two weeks before Christmas; she went to the neighbors who were affected by the building and asked them if they would sign a letter about it being untimely; and inquired if each Commissioner received those letters. She stated a lot of homeowners in Snug Harbor who have lived there a lot longer than she has are upset about this issue; they are not happy that their lifestyle is going to change; people are going to be knocking down older homes, cutting lots up in two, and building two homes where there should only be one; so she respectfully requests the Board deny the timeliness. She stated Mr. Roberts received notice verbally in June from Mel Scott that he should go for vested rights; he also received a letter on that; to her it is cut and dry if it is in print; so he did not apply in a timely manner.

Dr. Ralph Swanson advised he lives three houses from the subject property; and he built the first house on West Point Drive in 1962, so he has a vested interest on what is going on in Snug Harbor. He stated there has been no real action taken on this subject; and because there has been no action over the last year, the property values are being affected in their area. He stated the laws concerning the Building Codes, building permits, and zoning are clear; they are designed to protect property owners, stabilize insurance rates, and maintain property values to name a few; Mr. Roberts, as do all citizens, must obey the law; there should be no waivers of special consideration given; and he either complied with the law or he did not. Dr. Swanson stated the inference in the letter notifying him of the December meeting implied the Board would consider whether or not a single-family residence could be constructed on the property; and it seemed strange to him when the law states that a 50-foot setback is required for new construction and a 50-foot setback is not possible on the property. He stated a County clerk issued permits that were not correct; with due respect to Mr. Roberts, he does not feel that can be a basis for proceeding with construction; a mistake may or may not have been made by members of the County staff; but that does not negate the law, so this issue is irrelevant. He stated the subject of vested rights is also irrelevant and a ploy to continue to defer action by the Board; and should the Board make any determination, which would bypass the law, and approve special considerations, a variance, or a waiver for Mr. Roberts, it would be a very dangerous legal precedent and he would strongly object to it. Dr. Swanson stated County staff associated with Building Codes, permits, and zoning requirements, have all the information needed to inform Mr. Roberts what he must do to comply with the law as well as a time line for accomplishment; all must obey building regulations for many good reasons; and requested the Board make a firm determination as to what has to be done and eliminate further pointless discussions and meetings on the issues.

David Mathias stated he will try to speak directly to the timeliness of the request and not get off on too many tangents; Mr. Nohrr did a very good job explaining their perspective on that issue; from a legal perspective, it is jurisdictional; the County Attorney said it is jurisdiction and the Board’s responsibility is basically to apply the facts as it understands them, to determine whether there is an argument or the request was timely or not timely filed. He stated Mr. Torpy is arguing that the stop work order in March applied somehow to a room addition and therefore got him confused that it only applied to a room addition and not the entire structure that is on the property now; and his response to that suggestion, if that is where he was going, is that the pictures of the house show it is quite large. He presented pictures to the Board, but not the Clerk. He stated in March 2003, construction stopped on the structure and there is no more hammering, workers, etc.; so whether the stop work order applies to simply the room addition to the smaller house that was also going on or on the structure, it is clear Mr. Roberts felt the stop order applied to the structure because all work stopped on that structure. He stated from a practical perspective, that is when the 30 days should have run; regardless whether Mel Scott’s letter of August 27 was a right thing or wrong thing to do, in an effort to be accommodating to Mr. Roberts, Mr. Scott put on paper that he had 30 days; and Mr. Torpy should know what requirements are in the Code. He stated the application was not timely filed within even the 30 days authorized by the letter from Mr. Scott; the argument is in October Mr. Roberts requested the prior work order be rescinded and failure to rescind that work order should somehow trigger another 30 days; and Mr. Norman did a good job of explaining why trying to follow that argument is dangerous. He stated what that would say is that any time a person disagrees with a County action, the Board’s action, or County staff action, at any point in the future, they can come back and say please change your mind; and when the Board says no, then the clock starts running again; and that would mean there is no clock. He stated the 30 days in the Code or any situation would mean there is no timeframe or deadline to do something if they ask to change their mind and it restarts the clock; and that is a very dangerous precedent. Mr. Mathias stated prior to the December meeting on this issue, he submitted a letter to the Board and hopes it is in their packets; and it explains his more practical perspectives on why it is important to try and follow the Code, do the right thing, and follow the Ordinances that it adopts.

Bruce Wechsler inquired, as the next scheduled speaker, if someone could go before him and he be able to go afterwards; with Chair Higgs responding if the Board wishes to do that, it can by a motion.

Commissioner Scarborough stated he is hearing a great deal that goes to the substantive things and very little to the issue of timeliness; it is horribly frustrating because while the Board is trying to define the issue, it is being very generous about how comments are made; and when the 20 or so cards that are left are over, the Board is probably going to, in one manner or another, be proceeding to a full hearing on this issue and all those people will be coming back to testify again. He stated the Board is supposed to be ignoring 99% of the comments being made because if it does not, it is not following procedure; it is going to make a decision; and if it makes a decision one way or another, then it is going to come back and have to hear the whole thing over again.

Commissioner Carlson stated she agrees with Commissioner Scarborough that jurisdictionally the Board has a problem; Item #24 of Mr. Torpy’s October 27 letter talks about the vested rights issue; it says, “On March 25, 2003, Brevard County issued a stop work order on the construction of a single-family residence on Parcel 2, a copy of which is attached. Prior to the issuance of the stop work order, Roberts had constructed, pursuant to a building permit issued by Brevard County. . .plumbing, framing, swimming pool of their new single-family residence, a substantial portion of which is located within the 25-foot reduction of the 50-foot setback from the Banana River.” She stated it is obvious that would be an issue of vested rights; the Board is talking about the date; but she agrees that March 25 is the day to deal with; and the Board will listen to all of this again in an administrative appeal hearing, so she will move that it is not a timely vested rights application and go on with the appeal because it would hear the same arguments in both cases.

Motion by Commissioner Carlson, to determine the vested rights application was untimely filed by Courtney Roberts.

Commissioner Scarborough stated if the Board makes a determination of denial, it needs to listen to the people to see if there is something that comes up that would say no. Commissioner Carlson stated the Board will come to the end of the public comments and look back at all the dates, etc. Commissioner Scarborough stated he is going to make a motion that is probably going to be a problem for some.

Chair Higgs stated there is already a motion on the floor; and called for a second to the motion; no response was heard; and she declared the motion died for lack of a second.

Commissioner Scarborough stated he is going to make a motion, the Board does not have the jurisdictional question that the issue is rendered moot by the fact that the petitioner has a right to be heard and that the manner of receiving testimony by the Board would remove any question as to the nature of the hearings; so it would go ahead and proceed immediately into the next discussion because if it cannot differentiate between jurisdiction and the 30 days, it is not going to be able to differentiate between the subtleties that Mr. Knox described between the two types of hearings. He stated the Board is going to have to take all testimony; so why have these people testify now and come back and have to re-testify at another occasion. He stated it is an idle gesture. Commissioner Carlson stated she wants to hear from the County Attorney.

Mr. Knox advised there is an appeal pending with the Building Board that addresses the very issue of the setback under the Comprehensive Plan, which is the issue whether the two lots were timely divided or not. He stated that issue should be transferred to the Board of County Commissioners, then it will have everything in front of it. He stated what the Board ought to do is hold a hearing on everything and defer any decisions until the end; it can decide whether it was timely or not after it has heard everything; and then it can decide whether the appeal was proper and get it all sorted out.

Commissioner Scarborough stated that is his motion; and Commissioner Carlson seconded the motion.

Chair Higgs inquired if the Board is saying it is not going to rule on anything today; with Mr. Knox responding that is correct. Chair Higgs stated if she is going to make any decision today, she wants to hear from everybody; and if the motion is to continue this, add issues, change the notice, etc., she is concerned about whether the Board can make changes. She stated she wants to finish the issue on timeliness; she is not going to support the motion; but understands what the Board is trying to do; and her concern is she has already taken testimony. Commissioner Scarborough stated he appreciates what the Chair is saying, but 99% of what the Board is going to hear is going to bear on the final substantive issues and the minimal amount on the timeliness; therefore, what the Board is doing is a disservice to the hearing by hearing it twice as opposed to going and putting everything on the table. He stated that is what the people want the Board to do; and apparently that is where it is going to be ultimately. Chair Higgs stated the frustrating thing the last time was when she tried to get to the issue and the Board could not get there.

Commissioner Colon stated it goes back to what she stated at the beginning that there was going to be a lot of testimony that was going to be given today that was quite complex, not cut and dry. She stated she also shared with the Board that it needs to make the decision right away so that they can start from scratch; at this point it has no choice but to finish public comments and let the people know they have to come back because the Board is going to have to open up the public hearing; and that is about as simple as it is. She stated the people are welcomed to speak to the Board today and maybe cannot change their schedules for the next time; if the 20 people here need to speak today, that is their choice; but an hour and a half ago she stated very clearly that this was such a complex issue that both sides need to be heard because there were things that the Board had not heard at the last meeting. She stated it needs to be fair and find out who cannot be here for the next meeting and wants to be heard today.

Chair Higgs stated the Board has heard public comments for an hour and a half on this subject; and it will take a short break and be back.

The meeting recessed at 2:37 p.m., and reconvened at 2:49 p.m.

Commissioner Scarborough inquired if the Board can decide anything more than whether the request for vested rights was filed timely, and can it go beyond that subject. He stated if that is all the Board can do, taking all the testimony is going to lead to an exercise that is going to be repeated. Chair Higgs stated the issue today is timeliness. Commissioner Scarborough stated he understands that is all the Board can decide on, but the issue is almost rendered moot by what Mr. Knox told the Board. He stated the Board is going to hear this again; the testimony it received is so broad-based that it does not hear anything specific; and it will not vary one bit whether the Board decides for or against timeliness, because it will hear exactly the same thing at the next meeting.

Chair Higgs stated she is ready to listen and does not want to exclude anyone from having the right to be heard; if the Board is going to make a decision on timeliness or anything else, she wants to hear from the public; but it seems the two attorneys may have agreed on something.

Mr. Torpy advised as he mentioned earlier, he filed the administrative appeal and vested rights determination applications; they do not care what process the Board hears it under; they agree that the Board has the ability to hear all issues raised in his administrative appeal application as well; and regardless of whether it calls it a vested rights, they would like to come back to the Board and have a full quasi-judicial hearing on all the issues raised in the appeal. He stated he and Mr. Nohrr agree that would be an appropriate process; and he believes Mr. Knox concurs.

Mr. Nohrr stated that would be fine to have the administrative appeal or vested rights issues heard all at once and not take everyone’s time now.

Mr. Knox inquired if Mr. Torpy is withdrawing the vested rights determination application or leaving it in; with Mr. Torpy responding he would like to leave it in, but does not care how it goes forward. He stated the issue raised in the administrative appeal of Mr. Brown’s decision raises the identical equitable estoppel issue of vested rights; and as long as there is an agreement that the Board will hear and rule on those facts one way or another, he does not care what it is called. He stated if the Board wants him to procedurally withdraw the vested rights application and move forward on the appeal to Mr. Brown’s administrative decision, he would be happy to do that as long as he is not waiving any of the issues that are raised in either of those documents. Mr. Knox stated that would be fine with him, as the whole thing should come to the Board under the administrative appeal route.

Chair Higgs stated if the Board wants to hear it under the administrative appeal process, Mr. Torpy will withdraw the vested rights application and the Board will proceed to a full hearing on the decisions involved in this case. Mr. Torpy stated he filed the administrative appeal to the Board of County Commissioners; it was staff that removed it to the other board for procedural issues; so if it is bringing it back to this Board, that would be fine by him because that is where he wanted it to be heard to begin with. Chair Higgs inquired if there is a motion to accept the withdrawal of the vested rights determination application and to hear the administrative appeal of the decisions of staff regarding issues raised by Robert and Carol Roberts; and inquired if that is the correct process; with Mr. Knox responding that will do it.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to authorize the County Attorney to advertise a public hearing to consider the administrative appeal of Courtney Roberts.

Mr. Knox inquired if Mr. Torpy is going to waive the LPA review; with Mr. Torpy responding that is correct. Mr. Torpy advised there is no adopted procedure for how they present the cases to the Board; and he would like to have permission to work that out with Mr. Knox and Mr. Nohrr and present that to the Board for an adopted procedure, so they do not run into the issues they had the last time. Chair Higgs stated that would be nice.

Mr. Torpy stated Mr. Roberts requested he clarify for the record, because he does not fully understand what is happening, and he feels uncomfortable; so if he can, he will try to make him feel more comfortable.

Chair Higgs advised the Board will take a ten-minute recess while Mr. Torpy talks to his client. She stated there is a motion and a second; Mr. Knox will bring back the procedure at the next meeting so the Board can adopt those as rules of operating; and that some mechanism will be provided so that testimony relevant to the issue is what they will deal with.

Mr. Torpy advised Mr. Roberts wanted clarification on the equitable estoppel issue and if they can continue to raise those; with Chair Higgs responding in the court, absolutely. Mr. Torpy stated they are not waiving that. Mr. Knox stated as far as he is concerned, Mr. Torpy can bring up the whole thing. Mr. Torpy stated they need to get back to the Board in a timely manner even though it is going to take a considerable amount of the Board’s time because of financial issues. Commissioner Scarborough recommended it come back as soon as possible; with Mr. Torpy responding that is what he would like to have; and hopefully it can be set for this month or the next meeting. Mr. Knox stated he will need ten days to advertise it. Chair Higgs stated the Board would want to review the procedures and agree to those before hearing the actual case; so it may be at least 30 days.

Discussion ensued on an appropriate date and time. Mr. Torpy requested a time certain, as it may be two to three hours. Chair Higgs stated she set a time certain for this hearing today at the request of Mr. Roberts, and she will do the same.

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

Commissioner Carlson stated for the record, she met with Mr. Roberts.

Walter Pine stated he has comments that needs to be brought to the Board’s attention; and inquired if he can make those comments. He stated the Board began taking public comments; and it would be appropriate for those issues that were brought up to be continued to be heard. He stated there were two issues; there are no waivers or variances available under the process; and there is no procedure that allows the Board to preserve the rights of an individual should he somehow get caught in some confusion or not understand the process. He stated it is necessary that the Board separate that issue and begin a process to provide itself the latitude to preserve individual’s property rights should there be some confusion, misinformation, or something of that nature. He stated at this point that does not exist; those individuals would lose those rights; and there are individuals who are not lawyers amongst the citizens and who would not fully understand the issues the Board is discussing, such as vested rights and so on and so forth or the impacts it would have on them. He stated the process, if the County is to have one, should be for the general use of the public not the lawyers; so it needs to provide some kind of leeway to itself, be it waiver or variance or some other process, so that when some confusion occurs, it can at least preserve the property rights for those individuals; and requested the Board start looking into some kind of process or rule to do that. Commissioner Colon stated she already requested that from Mr. Knox at the last meeting. Mr. Knox stated there is a draft ordinance that is going to be coming before the Board soon. Commissioner Colon stated it has already been taken care of.

PUBLIC HEARING, RE: RESOLUTION VACATING PORTION OF RIGHT-OF-WAY IN
SECTION 26, TOWNSHIP 26S., RANGE 36E. - PINEDA PARTNERS, L.L.C.

Chair Higgs called for the public hearing to consider a resolution vacating a portion of a right-of-way in Section 26, Township 26S., Range 36E, as petitioned by Pineda Partners, L.L.C.

Transportation Engineering Director John Denninghoff staff believes it will have the issues worked out by April 13, 2004; and requested the public hearing be continued until then.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to continue the public hearing to consider a resolution vacating a portion of a right-of-way in Section 26, Township 26S., Range 36E. as petitioned by Pineda Partners, L.L.C. until April 13, 2004. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY (FIFTH STREET) IN
PLAN OF TOWN OF PINEDA - TIMOTHY STICKRATH DEVELOPER, INC.

Chair Higgs called for the public hearing to consider a resolution vacating a right-of-way (Fifth Street) in Plan of Town of Pineda, as petitioned by Timothy Stickrath Developer, Inc.

Transportation Engineering Director John Denninghoff recommended the public hearing be continued until February 10, 2004; and stated they will have the problems worked out by then.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to continue the public hearing to consider a resolution vacating a right-of-way (Fifth Street) in Plan of Town of Pineda, as petitioned by Timothy Stickrath Developer, Inc. until February 10, 2004. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION ACCEPTING IMPROVEMENTS AND ADOPTING
FINAL ASSESSMENT ROLL FOR TOBY AVENUE ROAD PAVING MSBU

Chair Higgs called for the public hearing to consider a resolution accepting improvements and adopting the final assessment roll for Toby Avenue Road Paving Municipal Service Benefit Unit (MSBU).

There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution accepting improvements in the Toby Avenue Road Paving Municipal Service Benefit Unit; adopting the final assessment roll; establishing the procedure for the collection of assessments; establishing an interest rate; and establishing an effective date. Motion carried and ordered unanimously. (See page for Resolution No. 04-019.)

PUBLIC HEARING, RE: REZONING REQUEST FOR PALM BAY STORAGE

Chair Higgs called for the public hearing to consider a rezoning application by Palm Bay Storage from BU-1 to BU-2, which was tabled by the Board on December 4, 2003 to provide an opportunity for the City of Palm Bay to comment on the request.

Kay Blahauvitz of Allen Engineering advised the Board wanted to get comments from the Cities of Melbourne and Palm Bay; it has received those; and it is his understanding they could comply and meet the requirements of the County and Palm Bay Ordinances. He stated it is in the County at this time; and they foresee no change and request the Board’s approval.

Chair Higgs inquired if a binding development plan (BDP) with the condition that the only use of the property would be self-storage is acceptable to the applicant; with Mr. Blahauvitz responding yes. Chair Higgs recommended approval with a BDP.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to approve rezoning request of Palm Bay Storage from BU-1 to BU-2 on 2.07 acres located on the west side of Babcock Street, north of Palm Bay Road, which was recommended for approval by the P&Z Board on November 10, 2003 with a BDP limiting the property to warehouse facility and all BU-1 uses. Motion carried and ordered unanimously. (See page for Zoning Resolution.)

PUBLIC HEARING, RE: RECONSIDERATION OF BINDING DEVELOPMENT PLAN WITH
BDM FINANCIAL AND JACOB AARON CORPORATION FOR PROPERTY LOCATED
AT PORT ST. JOHN COLLECTOR ROAD AND GRISSOM PARKWAY

Chair Higgs called for the public hearing to reconsider a Binding Development Plan with BDM Financial and Jacob Aaron Corporation for property at Port St. John collector road and Grissom Parkway.

Attorney John H. Evans presented maps to the Board but not the Clerk; stated he was before the Board about two months ago regarding rezoning of two parcels at the intersection of Port St. John collector road and Grissom Parkway, which are marked in green on the map; and at the hearing Commissioner Higgs asked if his client would agree not to impact the wetlands on the main parcel. He stated at that time they agreed to do so, and the motion was made to submit a BDP indicating they would not impact the wetlands. He stated the reason he attached the map was to show the Board they did have a plan that avoided all the wetlands and met the requirements with the BDP; since that meeting, they have ascertained there are significant environmental constraints on the eastern half of the property that, if they do any intense development, would require some impact on wetlands. He stated they could put a convenience store, gas station, or two or three small projects, but as he understands the Board’s policy it is to encourage heavier infrastructure at intersections and interchanges; and the project cannot be built with any degree of intensity without a minimal impact on the wetlands. Mr. Evans stated they believe Policy 5.2.E.2 of the Land Use Plan allows such an impact in that location and the section was enacted to encourage larger projects at interchanges of Interstates; and accordingly, they request the condition of the BDP be removed and the zoning be passed as is.

Commissioner Scarborough stated he talked to Mel Scott and Conrad White about the issue; it is always dangerous to put something in an ordinance; but it was his idea when they got a tremendous amount of resources tied up in an interchange road structure that they balance that with environmental issues; therefore, they would allow some compromise to allow larger developments at intersections rather than compelling people to put in additional infrastructure such as drainage and bring people into an urban sprawl environment. He stated with that in mind, in both his conversations with Mel Scott and Conrad White, he did not have a problem with what is being proposed here; and requested Mr. Scott or Mr. White add to his comments.

Chair Higgs stated she understood that the 40 acres did apply; with Planning and Zoning Director Mel Scott responding the 40 acres does apply; and the issue was whether it was addressing simply land use or land use connected to 40 acres potentially of wetlands destruction if criteria A through F were followed exactly. Chair Higgs inquired if Mr. Scott is saying the commercial at that location does not exceed 40 acres; with Mr. Scott responding the interpretation of the Policy is that if a proposed development is at least 100,000 square feet in size and satisfies Criteria B, C, D, and E, those types of development activities within one-half mile of an interchange would be able to destroy and mitigate up to 40 acres of wetlands. Mr. Scott stated it is an exception policy to what has become one of the most effective wetlands protection policies that the County has. Chair Higgs inquired how many acres of commercial use is at the interchange; with Mr. Scott responding 240 acres of community commercial were assigned to the interchange area, the thought being if a developer is going to make a large investment and provide a big project that has the ability to manage curb cuts, it would satisfy the Board’s criteria to allow this very specific and narrowly-defined exception to occur to the County’s wetlands protection policy. Chair Higgs stated she understands the wetlands issue, but is concerned about exceeding the acreage at that location. Mr. Scott stated his interpretation is that it means 40 acres of commercial that is seeking to impact wetlands. Chair Higgs stated that is not what the minutes say.

Commissioner Carlson stated that is the total amount within that proximity of the half-mile from the interchange so the total, if someone comes in and wants to zap 25 and another wants to zap 25, 40 is the mark they shoot for. Mr. Scott stated that is staff’s interpretation of the policy. Commissioner Carlson stated there is a 240-acre commercial parcel. Mr. Scott stated there is a large future land use designation of community commercial around that interchange; and if the intent of the policy was to prevent the Board from assigning more than 40 acres of commercial land use around an interchange, then the policy was not followed as contemplated at the time they were assigning that kind of land use to the area.

Assistant County Manager Peggy Busacca read a portion of the April 13, 1999 Minutes, which stated, “Mr. Knox said the language by definition would apply only to wetlands that are in the vicinity of interchanges and it does not affect the uplands.”

Chair Higgs stated the Minutes of April 27, 1999 say, “Chairman Scarborough stated we could not have. . .Mr. Scott stated the Merritt Square Mall takes up 80 acres and has 992,000 square-feet of leasable area; and the way it is now is 40 for the entire interchange on both sides. Chairman Scarborough stated it would cut in half so that would be approximately 500,000 square feet.” She stated further down in the Minutes, it says, “Ms. Zarillo stated under E, it should be a maximum of 40 acres; and inquired if that is 40 acres of land. Chairman Scarborough stated it is land use for commercial.” Chair Higgs stated she thought that is where the Board was in the discussion of commercial within that wetland.

Commissioner Scarborough stated he does not have quite that recall and looked at it almost afresh when he got into his conversations and said he has something that says there is a prohibition to wetlands, and now there is an exception to it. He stated if they line up a whole bunch of exceptions and try to drive a larger development to concentrate, and get to the last, “a maximum of 40 acres shall be allotted,” that would be an exception to the exception. He inquired when the Board is talking about 40 acres around an interchange, is it talking about something outside of a wetland and to a total development discussion; and stated that should not be placed here, but maybe some place dealing with development in proximity. He stated logically he can come to only one conclusion; and that is it does not present a problem if they meet the criteria; and that was his, Mr. White’s, and Mr. Scott’s conversation.

Chair Higgs stated having sat through the conversation with Commissioner Scarborough in 1999, there were a number of Commissioners who were concerned they were bringing the discussion to the table in regard to curb cuts and other things, and square footage; so they were talking not just wetlands in the context, but land uses, curb cuts, and size of buildings; so it was consistent with the argument Commissioner Scarborough was making to the Board at the time. She stated those were okay to put in the wetlands policy; she will go back and read it again, but it was very specific on the 40 acres; she remembers the conversation on putting that in at the wetland point was rather odd; but Commissioner Scarborough was adamant that the Board wanted to put that in there; the Board tried to accommodate his concerns and had extensive discussion about what it meant; and the Minutes reflect it.

Commissioner Scarborough stated he would have to go back and review the tapes because Minutes are Minutes and some times to take that and interpret it from just the abbreviated Minutes appears to be inconsistent with the logic in his recollection at this time. He stated he does not have perfect recall of everything the Board has done. Commissioner Higgs stated at the time the Board first talked about it, she raised the issue about the 40 acres because her recall was not as great; she was reading what was there; and maybe others have other interpretations.

Commissioner Carlson stated she wanted to review it because she did not get a copy of those particular Minutes, but it does specifically talk to land use for commercial, which was when she re-read it because she was trying to recall some of the specifics when the Board went through that. She stated she first assumed it was the amount of land until she heard staff’s arguments that it was 40 acres given the fact that the particular interchange there was well over 40 acres of wetlands that could be destroyed; and asked Commissioner Scarborough if that is right; with Commissioner Scarborough responding staff could probably give Commissioner Carlson a better answer than he can. Commissioner Carlson stated she would be interested in seeing a little more detail; and the Minutes do show that she was frustrated with the conversation because they were dealing with something difficult to get their arms around at the time. She stated that is why it was brought back and it came back again before the Board finally resolved it. Commissioner Scarborough stated all he knows is in doing this both the development group and environmental group got mad at him; it was one of those strange events where he got everybody in the community mad at him simultaneously; and now he has the Board mad at him, so everybody is, but it works out in the end. Commissioner Carlson stated she is curious why environmental folks are not here today if the Board was going against what they thought it meant.

Commissioner Scarborough stated his problem is the idea of balancing resources; it was the concept of the total balance; and he cannot logically at this moment say that he stuck in something that would be an exception to the exception without stating it as such because the 100,000 at the front is driving the larger development. He stated they come in there and all of a sudden, as opposed to the wetland issue, are talking about the total acreage when he is trying to drive a larger development with A and come down to F to have a smaller development; and there are inconsistencies in the logic to read it any way except as he was told he did. Commissioner Carlson stated it would make more sense to have the wetland issue as A and proceed through that.

Commissioner Colon stated when she was briefed in regard to this issue, it made perfect sense because at one point, as elected officials and the leadership of the County, they have to be fair and be able to look at the bigger picture; and the Board did look at the bigger picture based on I-95 and exactly what it is. She stated obviously it brought a lot of discussion; but she supports the decision to be able to move forward based on what she had read because it makes perfect sense and is logical to her.

Commissioner Carlson stated if the Board looks at the Minutes, that is what it has to help it with its memory; the Minutes that Commissioner Higgs was drawing from, where Commissioner Scarborough’s comments were on the land use, and the October 2nd Minutes say it was the wetlands; and Commissioner Scarborough said both things. She stated the Board can recess so Commissioner Scarborough can determine exactly what he meant.

Chair Higgs stated perhaps Mr. Scott has other information he could bring to it that can bring consistency. Mr. Scott stated there is a degree of semantics here where they are both saying the same thing; and he will give a hypothetical example of how one could design land use to actually get to the same net effect of having potentially 40 acres of wetlands within a half mile of an interchange being able to be mitigated for a commercial proposal. He stated if this is simply land use, and if there was a 40-acre commercial proposal that had 39 acres of wetlands on it, would that proposal be able to go forward. He stated there is greater than 200 acres of commercial in the interchange area; but for the sake of satisfying the policy, if they said that 40 acres of community commercial can have wetlands on them, that would be the opposite view as he would see it, of applying the policy, which would ultimately get to the same place. Chair Higgs stated she does not think there is an argument about the policy that excludes the wetlands that might be impacted if it is within the structures and exceptions; and what the Board is discussing is what the 40 acres mean. Mr. Scott inquired if the intent of the policy is 40 acres of commercial land within the confines of the wetlands policy; with Chair Higgs responding no, it has nothing to do with wetlands; it has to do with commercial land use. Mr. Scott stated the effect of the policy then would be to limit commercial land use allocation to 40 acres within half a mile of I-95 interchange; with Chair Higgs responding that is what she is reading. Commissioner Scarborough stated that is totally inconsistent with any thought he had at the time; but other Commissioners may have voted differently. Chair Higgs stated then the Minutes are wrong; with Commissioner Scarborough responding Chair Higgs can go back and listen to the tapes that may edify the discussion. Chair Higgs stated it was the April 27, 1999 discussion on the ordinance.

Commissioner Scarborough asked Mr. Scott what type of motion should be made on this item; with Mr. Scott responding if the Board is contemplating moving it to another date, it would also have to address the BDP deadline, as there is a time limit on the BDP that is about to expire; and he would need to defer to Mr. Knox on how the Board could extend that deadline while this discussion takes place.

Mr. Knox inquired what Minutes are they looking at; with Chair Higgs responding April 27, 1999 on the final discussion of the ordinance. Mr. Knox stated in legal terms it is an ambiguous provision; the Board would have to go back and find out what its intent was at the time that it adopted the Ordinance; and it could do something else.

The Board postponed the public hearing on reconsideration of a BDP with BDM Financial and Jacob Aaron Corporation regarding property at Port St. John collector road and Grissom Parkway until later in the meeting to allow the County Attorney to review the files.

PUBLIC HEARING, RE: CONSIDERATION OF APPEAL FROM MERRITT ISLAND
CHRISTIAN SCHOOL OF ZONING OFFICIAL INTERPRETATION

Chair Higgs called for the public hearing to consider the appeal of the Zoning Official’s interpretation by Merritt Island Christian School.

Chris Harmon, HeadMaster of Merritt Island Christian School and agent for First Baptist Church, Merritt Island, thanked Mel Scott for taking the time to meet with them and help them prepare for today. He stated before the Board is a request to allow a permit for construction of lights for the stadium on the property already owned by First Baptist Church, Merritt Island which serves as the athletic and recess field.

Chair Higgs advised Mr. Harmon what is before the Board is an appeal of an administrative decision and not a permit application. Planning and Zoning Director Mel Scott inquired if the Board would like for him to frame the issues.

Mr. Scott advised the applicant is Merritt Island Christian School; and it has a great deal of land holdings in the area that are shown on the map in the Board’s report. He stated in 1977, the church and school received a conditional use permit (CUP) for a school and a church. Mr. Harmon stated the church was already there; and they came to the Board in 1977 for operation of a school within the church facilities. Mr. Scott stated that is correct; and in 1981, the property received a CUP for a church and related facilities. He stated absent the detailed Minutes, which he does not have from 1981, it was difficult for him to say their request for a lighted athletic field or football field with bleachers would qualify under the CUP that was granted in 1981 for a church and related facilities; so they are appealing the interpretation to the Board.

Mr. Harmon stated the question came up when they met with Mr. Scott on whether a church needed a lighted football field; installation of outdoor lighting and a football field for a church might seem odd; but the church is different in that it operates a school on the same facility. He stated Merritt Island Christian School is wholly owned by First Baptist Church Merritt Island; the 1977 CUP was from the Board recognizing the relationship between the school and the church; and in 1981, that is where the real question comes in of when it gives the church rights to use the related facilities. He stated he does not want to say that it is a matter of semantics; but when they talk about their church, they refer not only to the church, but to the school, which is a legal entity because of their 501(c)(3) status; and also in regards to the church operating not only the school but other things that churches might not operate. Mr. Harmon stated they have a community food bank for low-income families; they have an English language class for people who do not speak English; so it might seem odd that a church might want this, but it does seem related facilities are what they are addressing today. He stated they understand the Zoning Office would question why they need a football field; and given all that, they are asking that the Board recognize the school as part of the church entity and grant it the stadium as per the request.

Chair Higgs advised the Board is not granting anything, it is simply hearing an appeal of an administrative decision; and that would not grant a permit regardless of how the Board votes. Mr. Harmon stated they understand that, as according to Mr. Scott, permitting would take place later. Chair Higgs stated she wants Mr. Harmon to understand there is no granting of anything other than a decision on the interpretation. Mr. Harmon advised he has letters from surrounding businesses and would like to give them to the Board. He presented the letters to Chair Higgs.

Sue Cody of Cocoa advised she owns the property on the west side of the subject property and objects to the request as she sees it as increased noise and lighting nuisance, as well as increasing the amount of traffic that would be going to the area. She stated she supports the staff’s interpretation of the law; and requested the Board support its staff and the law.

Commissioner Scarborough stated when he had a conversation with Mr. Scott, he asked the question if an athletic field is a related facility to a church and the answer was negative; and then he said how about an athletic field as related to a school, and the response was it could be. He stated there are a lot of schools going in around the County and problems with them going into some very inappropriate areas; Mr. Scott said perhaps they do not have the rules in place; so even though the Board may move forward with this item, he has a feeling it would sort of be walking into no-man’s land even if it had a designated school and a type of athletic field, particularly lighted at night with a lot of noise and a lot of people coming in for games and functions. He stated he does not know how the Board would go with it; it sounds simple to say it is a related facility; but there is a void where the County is currently.

Mr. Scott stated this brought to light that there is a gap in the Zoning Code; the Code does not address this desired product, which is a private sector school that wishes to construct an athletic facility that is lit; he believes the Zoning Code is silent on that kind of an issue; and the Board has the option of overturning the interpretation. He stated the Board also has an option to direct staff to attempt to craft provisions in the Zoning Code that would either allow this to move forward if it satisfied certain criteria permitted with conditions or to set up a scenario where those kinds of proposals would go into a public hearing process. He noted there are two possible amendments to the Zoning Code, based on what the Board wishes to do.

County Manager Tom Jenkins advised there is another issue that is somewhat related to what Mr. Scott is referring to; Parks and Recreation Director Chuck Nelson is always complaining to him that there are no appropriate classifications sometimes in terms of standards for parks and he often runs into conflicts because the Planning Office treats him as a private business; so that is an issue that Mr. Nelson is interested in working on as well for park facilities and athletic fields.

Commissioner Carlson inquired if there is a definition in the Code for related facilities; with Mr. Scott inquiring if it is related facilities as they relate to a church. Commissioner Carlson stated no, just related facilities. Mr. Scott responded no, it is left for interpretation; today they have gotten very good in the public hearing process of identifying the laundry list of uses that they would deem to be related in that circumstance; in 1981 there was obviously a willingness to get them there, but it has not been preserved very well over the decades; and it is hard for him to make that leap today so he felt it was important to bring it to the Board’s attention. Commissioner Carlson inquired how did the Board deal with Holy Trinity when it wanted lights; with Mr. Scott responding he is not sure, but it was a school and that was a circumstance of a site plan coming in and the approvals going forward with the entire complex in mind. Commissioner Carlson stated one thing that is missing is church and school. Mr. Scott stated it is an easier leap from school to athletic field; in this case it was very difficult to make a leap from a church to an athletic field although many times they have school/church and school/athletic facility strung together. Commissioner Carlson stated it seems awfully broad and inquired why staff could not make that assumption given that they have been a school for a long time.

Commissioner Pritchard stated they have a church that formed a school; the school, in looking for a place for recreation as well as physical education, needs to have a yard set up for that; so he can see where it is related the same way that he can see where a food bank would be related and other activities that the church would provide. He inquired what grades are served by the school; with Mr. Harmon responding it goes through the 12th grade. Commissioner Pritchard inquired if there are buses parked on the far left side of the property; with Mr. Harmon responding yes, on the west end of the field there are a few houses the church uses to house missionaries when they come back into the country; and there is a yard where they park buses, which is between their property and the privately-held property between their property and South Tropical Trail. Commissioner Pritchard stated it says proposed field; and inquired if it is used for anything at this time; with Mr. Harmon responding the proposed field is the field they currently use for recesses, soccer games, practices, church functions, and it is used 24/7 for the most part. Commissioner Pritchard inquired if the only things it does not have are bleachers and lighting; with Mr. Harmon responding yes, it has portable bleachers but no permanent structures in regard to bleachers; and it does not have lighting, which initiated this entire process. Commissioner Pritchard inquired if the type of bleachers they are looking for is similar to what Merritt Island High School has or the new Cocoa facility; with Mr. Harmon responding it is more like the Cocoa facility that is ADA accessible and permanent.

Commissioner Colon stated the Board is sensitive to the neighbors, not just the church, whenever it has a park going into an area with lighting; she is interested to find out what the church has to do because she is concerned that the reason might be to do some shortcuts, which may not be the way to do it; and inquired if they have to rezone the property, even though it is time consuming, so they could qualify to get a field with lighting and be sensitive to the neighbors, and what kind of wording is needed to consider that situation.

Mr. Scott advised rezoning would be one approach they can take. He stated if the Board overturns the interpretation today, they would begin the site planning process and would have to adhere to the lighting performance standards; however, the noise performance standards have an exemption for athletic events, so bands that play at halftime and noise generated by the event are exempt. He stated staff would enforce the rules and require the church to design the lighting in a manner where the light is directed to the field and cannot bleed offsite in excess of a defined foot-candle measurement; but that is a site plan issue. He stated staff will also have to address the parking; and the church will go through the whole gamut of the review process if the Board overturns the interpretation today. Mr. Scott stated if that is not the option the Board selects, the ultraconservative approach would be to have the Zoning Code address it specifically, either as a use permitted with conditions or through the conditional use permit process. He stated it would be lengthy for the church and not necessarily the ideal response it would like to hear; but if it were to go into a public hearing process, the Zoning Code allows for it to be contemplated; and they could request the Board grant or deny it on its merits at that time.

Commissioner Carlson inquired if staff is saying they have to go through a rezoning process to identify the church with a school and related facilities a school would use; with Mr. Scott responding that is an avenue.

Commissioner Pritchard inquired what type of precedent would be set if the Board had to go through a rezoning issue on every other facility that would be similar to this facility; and should they come up and say they would like to have a lighted athletic field also; with Mr. Scott responding the precedent that is set by taking rezoning applications is a precedent, if the Board wants to paraphrase it as such, dealing with it once a night every month. He stated he does not necessarily think there is a precedent being set in setting up a mechanism through a Zoning Code amendment to receive applications for that. He stated the only precedent concern the Board should be aware of is overturning the interpretation, which would mean, if there is a CUP out there that staff has not identified for a church and related facilities that wishes to construct an athletic facility, then the representatives could come in and say to the Board they would like to take advantage of that as well because the Board had said it was acceptable. Commissioner Pritchard inquired what if the church did not have a school; with Mr. Scott responding that would be a different set of circumstances and staff would view it differently; and they might be back before the Board with an appeal to a Zoning Official interpretation. Commissioner Pritchard stated that might carry more of his agreement because it is not the church that would need the athletic field, but it would be the school. Chair Higgs stated it says a church and related facilities, so it does not have a school. Commissioner Pritchard stated there is a school there; with Chair Higgs responding she knows that, but it does not say that. Mr. Scott stated there are two things going on at the property; the big campus has received over its life two CUP’s; in 1981, even though there was a school and church offsite, the property received a CUP for a church and related facilities; so talking about school/church/ field is more awkward than talking about church/school/field. Commissioner Pritchard inquired if they went through a rezoning process, could they link those facilities together; with Mr. Scott responding certainly.

Chair Higgs requested a motion regarding the Zoning Official’s interpretation. Commissioner Pritchard stated he does not like the interpretation, but that is not a motion, only a comment; the Board has to accept the interpretation, but needs to make it a zoning issue so it will come back and the Board can address it as a church/school/recreational facility. Chair Higgs inquired if that would be to uphold staff’s interpretation.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to deny the appeal of Merritt Island Christian School and uphold the Zoning Official’s interpretation that the property, which is zoned RU-1-9, is not properly zoned for bleachers and outdoor lighting at the athletic field. Motion carried and ordered unanimously.

Chair Higgs advised Mr. Harmon to talk to the Zoning Official about where to go next.

Commissioner Carlson inquired if it is more prudent to go the rezoning route or go into the conditions of existing zonings and change those because of the void; with Mr. Scott responding that is what staff has to do and the Board will see a proposed amendment to the Zoning code. Commissioner Carlson inquired if the Merritt Island Christian School has to request rezoning of the property; with Mr. Scott responding they may potentially have to do that at the end; staff will provide a report that will outline two options; so the Board will have another decision at a future date to approve an amendment to the Zoning Code for permitted with conditions, which if they satisfy the conditions, staff can administratively process it through the site plan approval. He stated if the Board chose the CUP route, it would see an amendment to the Zoning Code for that and would see them at a public hearing on a Thursday night.

Commissioner Pritchard stated what the County does not have at this point is a process for the church to move forward; and by denying to overturn the interpretation, the Board needs to go through the process of restructuring the way it would allow this type of request to continue. Mr. Scott stated he would keep the church informed of the process.

Commissioner Colon stated, just to be clear, Mr. Scott said there were two ways to go; one is very expensive and the other is just a matter of the Board changing certain wording; and inquired if that is correct or do they still have to go through the entire site plan and pay the fees. Mr. Scott stated the site plan is not what the applicant is wanting to receive relief from; what is of issue is whether or not the Board selects the CUP Zoning Code, which would mean they would have to apply for rezoning; and that is an additional expense. He stated he got an indication from the Board directing staff to proceed with amendments to the Zoning Code as a staff function and not something that is private-sector driven.

PUBLIC HEARING, RE: RECONSIDERATION OF BINDING DEVELOPMENT PLAN WITH
BDM FINANCIAL AND JACOB AARON CORPORATION FOR PROPERTY LOCATED
AT PORT ST. JOHN COLLECTOR ROAD AND GRISSOM PARKWAY (CONTINUED)

Chair Higgs advised the Board will resume the public hearing on reconsideration of the BDP with BDM Financial and Jacob Aaron Corporation; and inquired if County Attorney Scott Knox had any words of wisdom. County Attorney Scott Knox advised the Board needs to listen to the tapes; and he read every word of all the Minutes and still cannot figure out what the Board was doing. He stated the Board talked about commercial land use at one place and switched over and talked about protecting wetlands at another point; and they are both in the context of the 40 acres, so he cannot decide what it was concerned with. Chair Higgs inquired if the tapes are still in existence; and instructed Mr. Knox to see if they are available.

Commissioner Scarborough stated he does not know what the tapes are going to say, but as more of the conversation went along, he is convinced the 40 acres did not apply to the total land mass because it would be totally inconsistent with where the Board was going. He stated he will move for that interpretation; he knows Chair Higgs does not concur; but it is going to be borne out with a consensus of a lot of conversations that occurred.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve the request of BDM Financial/Jacob Aaron Corporation to remove from the Binding Development Plan, the parent parcel located off Port St. John Parkway, which was already zoned BU-1 and designated community commercial, and was not part of the zoning application.

Commissioner Pritchard stated he agrees with Commissioner Scarborough’s logical conclusion of what was most likely the intent at the time and at least it would be the intent in today’s world. Commissioner Carlson stated she is also going to support the motion, but thinks there is still room for clarification of the provision in the Comprehensive Plan. She stated if the Board starts approaching it this way, it is going to have a lot of fragmentation of wetlands that it may not have foreseen; and that is something it needs to adjust in the language.

Commissioner Scarborough amended the motion to request staff to report back on additional thoughts on the matters to incorporate that, and take the interpretation, and if Commissioner Carlson has some clarification language that she would suggest, to get a memo from her now.

Commissioner Carlson stated staff should review the fragmentation of wetlands as they would occur in this piecemeal fashion. She stated the Board is talking about destroying a small piece of wetlands; the Board does not know how that attaches to any other more viable wetlands; so it could be creating fragmented pieces, which are not viable in the long run. She stated that is a perspective from a scientist, but staff ought to review that through the Natural Resources Department to see if there are specific ways to adjust the language in the Comprehensive Plan.

Chair Higgs stated she will vote against the motion and will go back and listen to the tapes and talk to the interveners who were part of the conversation at the time to try and reconstruct what was intended.

Chair Higgs called for a vote on the motion. Motion carried and ordered; Commissioner Higgs voted nay.

PUBLIC HEARING, RE: ORDINANCE AMENDING ORDINANCE NO. 03-41, PROPERTY
TAX ASSESSED VALUE REDUCTION FOR ELDERLY PARENTS OR GRANDPARENTS
HOUSING

Chair Higgs called for the public hearing to consider an ordinance amending Ordinance No. 03-41, regarding property tax assessed value reduction for construction or reconstruction of homestead property to house elderly parents or grandparents.

There being no objection heard, motion was made by Commissioner Pritchard, seconded by Commissioner Colon, to adopt an Ordinance of the Board of County Commissioners of Brevard County, Florida, amending Ordinance No. 03-41 to clarify the recital clauses and severability clauses by amending the introduction recital clauses to provide for property tax assessed value reduction for construction or reconstruction of homestead property to house elderly parent(s) or grandparent(s) of owner or owner’s spouse; amending the severability clause to provide for the effect of impairment of obligations of contract; providing for an effective date and inclusion in the Code. Motion carried and ordered unanimously. (See page for Ordinance No. 04-02.)

RESOLUTION, COUNTY DEED, AND INTERLOCAL AGREEMENT WITH CITY OF
MELBOURNE AND SCHOOL BOARD, RE: TRANSFER OF PARCEL 101 FOR
LIME DRIVE EXTENSION

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to adopt Resolution authorizing transfer of property to City of Melbourne, execute County Deed conveying Parcel 101 to the City, and execute Interlocal Agreement with the City and School Board for construction of a cul-de-sac over the un-vacated end of Lime Drive Extension. Motion carried and ordered unanimously. (See pages for Resolution No. 04-020, County Deed, and Interlocal Agreement.)

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE REGULATING
FIREWORKS SALES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance amending the Land Development Regulations to include fireworks sales, wholesale as a permitted use in IU-1 zoning classification. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE TRANSFERRING
VESTED RIGHTS PROCEEDINGS TO SPECIAL MASTER

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to grant permission to advertise a public hearing to consider an ordinance transferring vested rights proceedings to special master.

Commissioner Scarborough stated the Board has some options; it is how the Board deals with the special master taking on the vested rights; this is advertising and the Board is going to have some additional discussion; but as Mr. Knox described to him, and as he understands it, essentially if the special master takes it, there is not going to be an opportunity for the applicant to come back and have the Board rehear the thing in its entirety. County Manager Tom Jenkins advised it can go to the circuit court. Commissioner Scarborough stated it goes to the circuit court; the good part is the Board does not have Courtney Roberts or Carol Pope coming to it nine million times; he can go through the litany of issues, not all of them are vested rights he understands; but nonetheless, the Board would have to tell people that they do not have the ability to come before the Board.

Chair Higgs stated she has more of a problem with the process that the Board uses on vested rights as opposed to dealing with it; she understands the desire to go to the special master and thinks that kind of makes it a much less painful process for the Board; but she is not convinced yet that it is not the Board’s proper hearing of it. She stated it has not formed it right; it is a matter of form as opposed to who should be; but if the Board moved it forward, it would still have conversations on that. Commissioner Scarborough suggested putting options and thoughts on the table. Chair Higgs inquired what can the Board see other than this; with Commissioner Scarborough responding there are all kinds of things; and it can have a recommendation from the special master. He stated the Board has a terrible time limiting the discussion; Commissioner Colon struggled with them; Commissioner Higgs struggled with them; and as chair it is impossible to tell a person to sit down. Chair Higgs noted they are offended; with Commissioner Scarborough responding of course they are.

Commissioner Carlson stated the other piece is that it is a vested rights that the Board basically gives over to the special master; but it does not take away the Board’s authority on administrative appeals, which is what it is going to hear the next time, so there really is not a lot of difference. Commissioner Scarborough inquired so why do it if they will still get the Board one way or another. Chair Higgs stated the Board would be better served by somehow having a method that there is a preliminary sorting or something.

County Attorney Scott Knox advised there is a way to do that if the Board wants to; and the fundamental decision the Board has to make is does it want to make that decision or want a special master to make that decision. He stated once the Board decides that, staff can figure out what procedures they should go by; but what the Board told him to do was to come back with a special master making the decisions; and that is what he did. He stated he gave the Board the right to appeal it so there is that glimmer of hope that somebody can still come back to the Board and tell it about all the things he or she did not like at the special master hearing, and the Board would have to hear about that.

Chair Higgs inquired if they are going to come to the Board asking it to appeal the special master’s decision; with Mr. Knox responding no, but the Board can appeal the special master’s decision to the circuit court. Chair Higgs stated so an applicant who gets a bad rap from the special master is going to come to the Board. Mr. Knox stated no, that would only occur if the Board does not like the decision of the special master. Chair Higgs stated she understands that, but the people are going to come to the Board; with Commissioner Scarborough responding not if they win, but if someone loses, staff could come to the Board and ask the Board to appeal their side. Chair Higgs stated maybe staff would, or maybe it would be Phil Nohrr and his side; with Commissioner Scarborough responding that is true. Chair Higgs stated she would rather do it just once, make the decision, and somehow refine the process in a way that they handle it at one or two hearings. Mr. Knox stated that can be done also; there is a more paper-intensive way of doing it; and the Board does not have to hear from everybody if it wants to do it that way.

Commissioner Carlson inquired if Mr. Knox is going to bring the Board some options; with Mr. Knox responding he can do that if the Board wants to go forward with this and advertise it, or if it wants to hold off and come back with a different approach. Mr. Jenkins stated this ordinance was intended for the Board not to have to hear vested rights applications; but if the Board is now saying it does want to hear them, it is a whole other issue and needs to be redone.

Commissioner Colon inquired if the Board wants to hear it or not. Commissioner Scarborough stated there is a quasi area it could go to; it could have the special master hear all the testimony, make a recommendation, and the recommendation comes to the Board for its ratification so the person would only have the ability to attack. He inquired the Board understands what he is saying; with Chair Higgs responding no, it does not. Commissioner Scarborough stated the Board is taking all original testimony and then it has the County Attorney put together a finding of fact; and if it had the special master on the other hand put the whole thing together, then it could say yes, and it would receive in a written form, not for public comment or arguments to the contrary; and that is all it would take. He stated in other words, the Board would get a finding with the whole thing put together so it would not have this unending loose-ended thing that it deals with at meetings. Chair Higgs stated the Board would almost be sitting in an appellate role with the facts before it that they discerned; with Commissioner Scarborough responding much more.

Mr. Knox stated what would happen is the special master would make the findings of fact; the Board could not change those; it would come to the Board like all the stuff they went through today would come to the Board in the form of a written order saying this is the findings of fact and what the conclusions are; and the proposed conclusions are based upon those facts. Commissioner Carlson inquired if the Board cannot rescind that; with Mr. Knox responding it cannot rescind the findings of fact; it is stuck with those; but the conclusion about what the facts mean is the Board’s decision. Commissioner Colon stated it would be in writing; and Mr. Knox stated that could be argued in writing by either side; they can submit briefs saying this is what the legal argument is on those facts; and the Board can decide based upon the legal argument. Chair Higgs inquired if they can still appeal it to the court; and stated she would like to see that option before moving it forward. Mr. Knox stated he can do that. Commissioner Carlson stated she likes that option too and is curious about what other counties are doing to address vested rights. Mr. Knox stated he is aware of one, not vested rights, but similar proceedings to this in other counties he talked to. Commissioner Carlson inquired if the neighboring counties deal with full-blown vested rights hearings like the Board does; with Mr. Knox responding he does not know. Commissioner Carlson stated she thought Mr. Knox did some research on that; with Mr. Knox responding no.

Chair Higgs suggested a motion to ask the County Attorney to draft that for the Board and let the Board discuss that in the next 30 days or so. Commissioner Colon inquired if it can be done in 30 days; with Mr. Knox responding they can do it.

Commissioner Carlson stated she will amend the motion to include the suggestion by Chair Higgs; and Commissioner Pritchard accepted the amendment. Chair Higgs called for a vote on the motion. Motion carried and ordered unanimously.

CONSIDERATION, RE: LAND USE ANALYSIS OF SOUTH MAINLAND

Diane McCauley of Micco advised she is a member of the Long-range Planning Committee and President of Little Hollywood Homeowners Association and is here to ask the Board to approve staff’s analysis of the Comprehensive Plan and include the proposed amendment in the 2004B Amendment Cycle. She stated staff and experts devoted much time to educate her and other citizens in the South Mainland; they are concerned about their area because they love their piece of paradise; the Comprehensive Plan was painted with a broad brush; and although it is a good plan, it is now time to bring it in line with the present zoning. She stated the zoning is conceived by local segments and departments and is more detailed; and the amendment will make the laws and regulations uniform and be a first step in coordinating firmer standards and controlled planned growth. Ms. McCauley stated they have limited resources of water, roads, and schools; they need to take this step and begin thoughtful planning of land use; the amendment will be their first step toward better land and resource use; and requested the Board approve staff’s recommendation and include it in the 2004B Plan Amendment Cycle.

Vicki Benoit of Micco strongly urged the Board to approve the proposed Comprehensive Plan amendment in the 2004B Amendment Cycle; and stated as a resident of Micco and member of the Long-rang Planning Committee, she feels very strongly that unplanned, spiraling growth has a negative impact, not just on people in their area, but all of Brevard County. She stated the negative impact is the same as the concerns raised by the people in the unincorporated areas of Titusville this morning; they did a great job outlining all their concerns, which are similar to hers as far as water, roads, and schools; and they have seen unmanaged growth in Broward, Dade, and Palm Beach Counties to the point where the City of Fort Lauderdale is now totally broke because it has overextended its services. She stated the days of unplanned growth have to be over because it has such a negative impact; and strongly urged the Board to approve the proposal.

Mike Cunningham of Micco echoed the words of Ms. McCauley and Ms. Benoit; and requested the Board accept the analysis and Option 1. He stated that is the best way to go; Option 2 says the plan amendment cycle with changes; staff has done a remarkable job in putting the report together; and they are to be commended for it at every level, and the Board for having the foresight to say go ahead and do the study. He stated by doing Option 1, they should not have to worry about Option 2 because in the Comprehensive Plan amendment process, there is an out by amending the Comprehensive Plan twice a year; and there are two boards that can provide recommendations to this Board as to which way it needs to go. He stated Option 1 could also serve as an example for the rest of the County, because if they can do it in South Mainland, the rest of the County can do it also.

Chair Higgs advised there has been lots of discussion in the south end of the County on the plan; and this will move it forward to full discussion at the time of the Comprehensive Plan amendment cycle. She passed the gavel to Vice Chairman Pritchard.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize including the land use analysis for the South Mainland area in the proposed Comprehensive Plan amendments for the 2004B Plan Amendment Cycle.

Vice Chairman Pritchard inquired what kind of effect will it have on property owners of large parcels; with Planning and Zoning Director Mel Scott responding it would depend on what the property owner has in mind for the future because what the amendment is doing is matching the future land use designation to the underlying zoning. He stated if a landowner of a large parcel has future designs to increase density substantially, this amendment does not prevent the application from moving forward; but instead of only looking at a rezoning application for the proposal, the Board would also have all the goals, objectives, and policies of the Comprehensive Plan packaged in the application for deliberation of the request. Mr. Scott stated it is not as if once a month when the Board is looking at its rezonings that it is able to approve rezonings contrary to the Comprehensive Plan; but the Comprehensive Plan is brought into better focus when a rezoning application is accompanied by either a small scale or large scale plan amendment. He stated as far as downside for a landowner wanting to increase density, if it is greater than ten acres or the request is greater than ten units per acre, it would become not simply a rezoning request, which staff can process in three months, but a large scale comprehensive plan amendment, which takes about nine months; so it would be a function of time as well. Vice Chairman Pritchard stated even though the majority of the land in the area is vacant, for government use, residential 1, residential 1 to 2.5 and residential 1 with AU, staff is saying the overall effect is a betterment and potentially advantageous to property owners should they own larger tracts and at some opportune point, which could be years down the road, seek to develop that in a more densely populated fashion. Mr. Scott stated the amendment is a benefit for the greater community that wants to have brought into sharp focus the Comprehensive Plan with any proposed increase in density. He stated as far as the property owner of a single lot, if the Board was asked to identify the shortcomings, it would be a function of time; but the counter to that would be what is three months or nine months when talking about a fundamental shift in density of an area. He stated it is in the eye of the beholder; and the Board has to decide which shoe it is willing to wear in answering that question.

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

Vice Chairman Pritchard passed the gavel to Chair Higgs.

CONTRACT FOR SALE AND PURCHASE WITH REGINALD A. KOONCE, RE: WICKHAM
PARK OUTPARCEL

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to execute Contract for Sale and Purchase with Reginald A. Koonce for an outparcel in Wickham Park at $2,000; and authorize the Chair to execute any Contract amendments that may be required and staff to proceed with land closing. Motion carried and ordered unanimously. (See page
for Contract.)

CONTRACT FOR SALE AND PURCHASE WITH RAY D. BEYMER, RE: WICKHAM PARK
OUTPARCEL

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to execute Contract for Sale and Purchase with Ray D. Beymer for an outparcel in Wickham Park; and authorize the Chair to execute any Contract amendments that may be required and staff to proceed with land closing. Motion carried and ordered unanimously. (See page for Contract.)

AUTHORIZE JOINT PARTICIPATION AGREEMENT WITH CANAVERAL PORT
AUTHORITY AND MEMORANDUM OF UNDERSTANDING WITH NOAA,
RE: SOURCE IDENTIFICATION OF NUTRIENTS IN OCEAN SURF ZONE

Assistant County Manager Stephen Peffer advised when the Board last discussed this issue in December 2003, he spoke about the complexity of the problem trying to address the nutrients in the ocean waters; and one of the things the Board did was give him direction to include in the memorandum of understanding with National Oceanic and Atmospheric Administration (NOAA) a study of the cruise ships. He stated staff has spoken to NOAA about that; it generated interest with the Canaveral Port Authority and it has come to the plate with a match of the County’s funding for the study; unfortunately, when staff spoke to the representative from NOAA on the cost to fulfill that scope of work, it was beyond what the Board previously approved. Mr. Peffer stated currently, the ceiling is not to exceed $100,000 for the study; the Port has offered to share that cost with the County; the Board previously authorized $35,000; and requested approval to increase it up to $50,000 for the County’s share of the nutrient study.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to increase funding for a source identification study of nutrients in the ocean surf zone from $35,000 to $50,000.

Chair Higgs inquired if there is a way, since they are waters of the State and potentially federal waters, not County waters as the Board has been informed by the State on several occasions, that staff might talk to the Delegation or Department of Environmental Protection and other agencies to get cost sharing on this study because it is not waters over which the Board has jurisdiction. Mr. Peffer advised staff can make that request and ask for help, but the federal agency feels it is contributing a considerable amount by virtue of making the researchers available to the County. He stated there is a considerable amount of additional cost that the federal government will be sharing by NOAA participating; at the State level, if the County is successful in getting State funding, it would further delay the process; and recommended the Board consider authorizing the funding and staff request the State to share in that participation. Chair Higgs inquired if they can move forward with the study and still ask the State and others to assist with funding the study; with Mr. Peffer responding yes.

Commissioner Pritchard amended the motion to authorize staff to request the State and other agencies to assist with funding the source identification of nutrients in the ocean surf zone study.

Commissioner Pritchard stated if they find the problem is occurring on land, he does not want to face the State saying the County is polluting its waters with its outfall; so since it is an all work together project to solve the problem, the Board should move forward with it. Chair Higgs stated that is a good point, but she also wants the State to buy in if there are problems created by the State waters south or north of the County from outfalls and other kinds of things the State permitted. She recommended moving forward and asking for participation from the State even if it is in-kind contribution by scientific research, because if the sources are south or north of the County or some place else, it is the State waters and it has responsibility and is the only one that can take action.

Commissioner Carlson seconded the motion as amended. Chair Higgs called for a vote on the motion as amended. Motion carried and ordered unanimously.

Mr. Peffer advised two outstanding items are execution of the Memorandum of Understanding and authority for the County Manager or his designee to execute it, provided it fulfills the basic goals discussed previously. He stated the only item that might change in that is to further refine what NOAA would be doing for the cruise ship study that was not in the original document; so staff would be adding that. He stated there may be further definition of the cruise ship aspect, and requested authorization for staff to administratively review and approve that. Mr. Peffer advised the other aspect is the Joint Participation Agreement; and requested the Board authorize the County Manager or his designee to execute the Agreement to receive matching funds from the Port Authority rather than bring it back, so they can move forward quicker. Chair Higgs inquired why not authorize the Chair to sign it; with Mr. Peffer responding that would be fine. Commissioner Pritchard stated his motion would be to authorize the County Manager to sign it up to $50,000.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize the County Manager or his designee to execute the Memorandum of Understanding with the Canaveral Port Authority to share the cost of the source identification of nutrients in the ocean surf zone study up to $50,000. Motion carried and ordered unanimously.

RESOLUTION, RE: QUALIFYING DELTA GROUP ELECTRONICS, INC. AS AN ELIGIBLE
BUSINESS UNDER THE COUNTY’S TAX ABATEMENT PROGRAM

Ronald Reed, Marketing Director and Production Manager for Delta Group Electronics in Rockledge, advised Delta Group Electronics, Inc. is an Albuquerque, New Mexico based company; it has plants in San Diego and in Rockledge; and it is an electronic manufacturing service provider. He stated they build products for other companies; they have no products of their own; and they enable companies like G. E. Harris or G. E. Transportation Systems to exist in their current forms. He stated G. E. Harris in Melbourne does product management and design engineering, and no manufacturing; Delta Group does the manufacturing; and the manufacturer that used to be there moved to Missouri when they bought Harmon Industries, but is now coming back to Florida in Delta’s plant. He stated they provide manufacturing service to companies that want to outsource their boards, circuit cards, or final assembly; and in G. E. Harris’ case, they manufacture cables, procure all the components, test them, box them, and ship them to their customers, so they never touch or see them. He stated it is an expensive box that is used for remotely controlling locomotives in a switching yard; it is a new business in the United States; and G. E. is #1 in that business. Mr. Reed advised in 1995, the company decided to grow out of Albuquerque and bought a small company in Rockledge in a 4,000 square-foot facility; it was called Quality Components; in 2000, they came before the Board and asked for a tax abatement; at that time they employed 22 people; and now they employ 83 and have people sitting on top of each other because they are bursting at the seams. He stated during the past four years, they made significant strides in developing business, primarily in Central Florida, from Miami through Brevard County to Orlando; they include a lot of companies in Brevard County; they are looking for a 20,000 square-foot expansion of the facility and will nearly double the size; and they are going to add at least 28% to their sales workforce and probably more than that. He stated they are going to expend $1.2 million to expand the building and an additional $325,000 on equipment; he has a production line in a container stored behind the building they lease next door because he is out of space; and that production line will be brought inside. Mr. Reed stated they outsourced all production of the G. E. boards to their plant in Albuquerque where they have excess capacity; they want to bring that back to Florida; and when they do the addition, they will bring it back and control the whole process. He noted they also outsource cables to the Albuquerque facility and want to bring those back as well because it is better for G. E. and other customers if they can get in a car and in half an hour be at their plant with their engineers and talk to them without the need of telephones or airplanes; so it is very convenient and a good way to do business. He stated Hewlett Packard manufactures no printers; its printers are made by a company called Selectron, which is a $15 billion contract manufacturer; that is what they are, but on a much smaller scale; and they are what is called a low-volume, high-mix company because they do not do thousands of things and typically do hundreds of things. Mr. Reed advised they are looking at other facilities and approached two companies on the West Coast of Florida to expand there; they will also expand to Texas and the Carolinas; and they want to expand the Rockledge facility and more than double it to keep the business they have. He stated they are blessed; during the last couple of years when companies were going out of business and doing Chapter 11, Delta Group grew tenfold; that is a lot of growth and a lot of jobs; and they are happy about that. He stated they have a good team and employees are all from the local area; and requested the Board’s approval of the abatement so they can continue to grow.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution qualifying Delta Group Electronics, Inc. as an eligible business under the County’s Tax Abatement Program; and authorize staff to advertise a public hearing to consider adopting an exemption ordinance. Motion carried and ordered unanimously. (See page for Resolution No. 04-021.)

DISCUSSION, RE: TAX ABATEMENT PROGRAM REFERENDUM

Commissioner Scarborough stated on October 6, 2003, Economic and Financial Program Director Greg Lugar brought forward to the Board the criteria that is used for the State-qualified target industry program; in using it, it is 115 of the State or 115 of the County; and if that is used, the high number is over 37,000 and the low number is 35,600 or 35,700. He stated the point is, the Board is going to be moving into a question with its Economic Development Commission as to whether the people of Brevard County will vote to continue the tax abatement program come November; it has to go back on the ballot; and as a matter of discussion for the community, the provisions that the Board previously adopted and the State guidelines should be considered and brought to the Board in the format of a memorandum or white paper. He stated he would like to move that the Chair write to Lynda Weatherman and ask that her board get a committee together; but first the Board needs to inquire if the Economic Development Commission intends to have the tax abatement program placed on the ballot and to start considering it.

Commissioner Carlson stated she is on the committee this year, so she knows they are going forward with some sort of campaign to educate the voters about what they are going to do; but as far as the language and all that stuff, she is not sure.

Commissioner Scarborough stated those types of issues may become very pertinent. He stated the Board heard the conversation of Hank Fishkind on its break-even points; the question becomes do they use tax abatements that occur when there are things that are not hitting what the State would require for its action. He stated the question is, if the Board is in line with where it should be, and would the Economic Development Commission like to address that as part of preparing for discussions with the Board. Commissioner Carlson stated they are going to have an executive committee meeting soon. Commissioner Scarborough stated if Commissioner Carlson wants to bring it up, that is fine.

Commissioner Colon stated having served on that board also, it would be good for the Chair to send a letter to be able to show the support coming from the Board. She stated they are going to discuss it, but it is positive to know that the Board is going in that direction. Chair Higgs inquired if that is a motion; with Commissioner Colon responding yes.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to authorize the Chair to send a letter to the Economic Development Commission to show support from the Board for the tax abatement program referendum. Motion carried and ordered unanimously.

PERMISSION TO RETAIN COURT REVENUES, RE: HARRY T. AND HARRIETTE V.
MOORE JUSTICE CENTER DEBT SERVICE

Clerk of the Courts Scott Ellis presented a document to the Board, and stated it is a little bit of an unusual item because it seems to touch on what is happening with Article V at the State level. He stated what is happening under Article V is filing fees and traffic surcharges all go through the Clerk’s Office to fund its operations; on the back has been his estimate on the spreadsheet of what the Board is gaining and what it is losing under Article V; at this time it looks like the County is going to pick up about $2 million a year; but the caveat is the Legislature meets again and there is no guarantee that by the time it meets in the springtime the County is going to have that $2 million. He noted his personal thought is it probably would not because the State is looking at the court costs with the attitude that the State is going to break even when it takes it over and the County is going to make it break even; and that got put in motion five years ago. Mr. Ellis advised he does not understand the Agenda item; it talks about keeping revenue in Brevard County; but it is already staying in Brevard County. He stated the revenue is not going to the State; the Board drops about $8 million in funding the Clerk’s Office; it is part of the funding that goes to the Clerk’s Office; so it does not go anywhere else. County Manager Tom Jenkins inquired where does it say that; with Mr. Ellis responding the bottom of the first page says, “perhaps we can work together to keep this revenue in Brevard County,” in the email from Court Administrator Mark VanBever. He stated the second page says, “If HB113A remains as is, the Eighteenth Judicial Circuit will lose over $3 million annually”; however, the money still stays in the circuit but ends up in different parts of the courts. He stated he highly doubts that the Legislature would undo what it has done in Article V to start bringing the court fees back to the County again; his understanding is that the request is to change the direction of the surcharge, not to do an additional surcharge; and inquired if that is correct or is the Board looking to double the surcharge. Mr. Jenkins stated no, just to keep the money. Mr. Ellis stated it is to move the money because the money is already kept. Mr. Ellis stated the County is being absolved with General Fund revenue going to the Clerk’s Office; the money now goes to the Clerks’ Office to fund its operations, so the money is already kept; and inquired if what the Board is looking to do is transfer it back to the County; with Mr. Jenkins responding yes.

Chair Higgs asked for a motion on the item. Mr. Jenkins inquired if the Board would like to have an explanation; with several Commissioners responding yes.

Mr. Jenkins advised the item was brought to his attention in the past week; apparently during the Legislature’s last session, House Bill 113A was passed; and there is some language in there that can be read two different ways. He stated the language basically says, “These funds will be going to the Clerk of the court as fines and forfeitures”; further down on line 3927 it says, “except for those items created under 318.18,” which is the reference to this one. He stated the point that was made, as the Board can see from the email that was sent to each Commissioner from Court Administration, is that there is the potential, because of the conflict in language, for the Board to retain those funds and continue to use them to pay for the construction of the Moore Justice Center. He stated since the item was presented to each Commissioner, staff thought they should raise it and let the Board decide.

Chair Higgs inquired if it is for the expansion and original construction; with Mr. Jenkins responding yes. Chair Higgs stated both projects would be affected if the language is changed; and inquired if there is a motion.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize staff and Lobbyist Guy Spearman to seek to retain courts funding for Harry T. and Harriette V. Moore Justice Center debt service. Motion carried and ordered unanimously.

DISCUSSION, RE: FUNDING STATE DEPARTMENT OF JUVENILE JUSTICE
PREDISPOSITION DETENTION OF JUVENILES

County Manager Tom Jenkins advised there is a proposal in the Governor’s budget for counties to absorb, Brevard County specifically, about $2.2 million in new costs to pay the State for housing pretrial juvenile offenders at the Florida Department of Juvenile Justice Center; the Florida Association of Counties has identified it as a major issue Statewide; and requested the Board’s lobbyist be involved in trying to resist the new cost impact to county governments.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize Lobbyist Guy Spearman to get involved in trying to resist the new cost being passed on to county governments, specifically $2.2 million to Brevard County by the State for housing pretrial juvenile offenders at the Florida Department of Juvenile Justice Center. Motion carried and ordered unanimously.

PERMISSION TO SETTLE LAWSUIT, RE: WILLFORD v. BREVARD COUNTY

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to authorize staff to settle the lawsuit of Willford v. Brevard County for $20,000 including all attorneys’ fees and costs. Motion carried and ordered unanimously.

APPROVAL, RE: REVISED TOURISM DEVELOPMENT OFFICE OPERATING
PROCEDURES MANUAL

Chair Higgs advised the revised Tourism Development Office Operating Procedures Manual outlines operations for the Tourism Development Office (TDO) as well as the Tourist Development Council’s (TDC) responsibilities and what the roll of the directors are. She stated it goes back to the establishment of the TDC; over the years the TDO staff has evolved and changed and is much more confident and professional; and what she would like to get is authorization to work with staff to refine the operational responsibilities of the TDO and the advisory capacity of the TDC, so that the TDO staff reports to the County Manager, and bring it back to the Board. She stated the TDC is an advisory board that has particular responsibilities outlined in the Code, but she would like to see it refined so that staff is responsible clearly to the County Manager and that the TDC has advisory responsibilities. She stated the TDC comments on and reviews revenue; the Manual needs to be defined better because there is some lack of clarification; and it would help both groups in their performances.

Commissioner Carlson stated she read through it and had several comments; one that will probably capture her interest is page 15 where it talks about directors’ major responsibilities;
under (b) it says, “develop County proposals to enhance tourism growth”; but it does not reflect that there is strategic planning that is occurring and what the outcome and performance measures of that would be. She stated (h) and (i) say, “coordinates events, promotes tourism, coordinates tourism information programs,” without any outcomes; and suggested adding (k) which says, “provide performance reports on a biannual basis,” as a way of introducing the idea that the Board needs to have some measure of performance of what the TDC is doing just like it does with the BCA.

Chair Higgs stated what they need to talk about, because the TDO and the County Manager are in their flow of responsibility and the County Manager reports to the Board of County Commissioners and staff reports to him, those accountability measures are staff’s; the TDC is advisory to staff; and Commissioner Carlson is right on what they need to do, except that they have to clearly define where the accountabilities are because the TDC does not work for the Board or the County Manager. She stated the TDC advises and gives guidance to the Board; and she wants to work with staff and have staff refine the manual so there are clear lines of who is responsible for what. She stated her preference is to table it and send it back to allow staff to work on it and she would like to work with them.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table the Tourism Development Office Operating Procedures Manual revision; direct staff to work with Chair Higgs to clearly define the operating responsibilities of the Tourism Development Office and advisory responsibilities of the Tourist Development Council; and bring it back to the Board.

Commissioner Pritchard stated his assumption is it will improve the operation and effectiveness of the TDO; and requested Mr. Varley comment on that.

Tourism Development Director Rob Varley advised it is a living document that the Board will be amending on a regular basis; a lot of the amendments presented were results of the auditor’s suggestions; part of that suggestion was like comparing; and trade show reports and expense reports are to be tied together with the measurement performances. He stated if they go to a trade show, they expect to find x number of leads; if they do not get those, then they know that trade show is not working for them; and they revisit what they are doing and how they are doing it. He stated it is the same with advertising responses, conversion studies, etc.; and they are doing that.

County Manager Tom Jenkins advised the issue being discussed is trying to have a more clear delineation between the advisory responsibilities and the operating responsibilities; they are two separate functions; one is to advise and the other is to operate and perhaps there needs to be some clarification of some of those; and that is what Chair Higgs is referring to. Chair Higgs stated that is a good way of phrasing it.

Commissioner Scarborough stated he would like to compliment Mr. Varley; Mr. Varley told him some things yesterday, for instance the Port has 5% internationally; the Space Center has 30% to 40%; very few people who are staying at the hotels are going to the Space Center; it is a fragmented tourist industry, each of them looking to the west and their own separate markets;
and with Melbourne moving forward with what it is planning, Mr. Varley is trying to create an image of Brevard. He stated Mr. Varley sent him over to the Hobnob; that is where there are all different things; they walk into New York, Las Vegas, and the world and it is all the same symbol even though different hotels; and they walk into Florida, even though it was in Orlando, they were scattered throughout and there was no continuity of who and what Brevard County is. Commissioner Scarborough stated some of the things Mr. Varley is working with are very difficult because they deal with the Port, the Space Center, and even the hotels on the beach; each of them are powerful in their own light and able to write their own ticket; so he has some very wild horses that are very independent, but he wants to compliment Mr. Varley and his team for trying to structure Brevard as a destination, which will have name recognition that will be all encompassing. He stated if they have one of those components, they have a destination; when they run those four or five things together, they have one powerful thing; and even without the mouse, Brevard County is something that people throughout the world need to know about.

Chair Higgs stated she is not being uncomplimentary in trying to let the professional staff bring to the TDC their expertise and recommendations and their accountability for that.

Commissioner Colon stated it would be nice to have a symbol of the mouse holding the astronaut; that is not farfetched; along the lines of what Brevard has to offer, she would like to have at the next Board meeting on the agenda the possibility of putting a task force together just to have discussion on a convention center, the pros and cons, and getting feedback from the airport. She encouraged everyone in the economic development community to be part of that round table, not leave anyone out, and be able to get some good feedback. She stated she would like to have that for the next meeting for discussion; and requested Mr. Jenkins get in touch with Mr. Johnson and whoever Mr. Varley feels needs to be part of that discussion and see if the Board would be interested in getting some feedback from a task force like that.

Chair Higgs inquired if Commissioner Colon is requesting it be taken to the TDC first; with Commissioner Colon responding no, to come to the Board as an agenda item to determine if the Board would like to put a task force together. Commissioner Carlson inquired if that is something the TDC should be asked to do because it has done that once before; with Chair Higgs responding she thinks the Board has a report; and inquired what action the TDC took; with Mr. Varley responding they did a joint study with Melbourne Airport three years ago; the report came back and got mixed reviews; and most of the hotel industry was adamantly opposed to development of a convention center, which included development of an additional hotel, ending up using the resort taxes the hotels collect to build a competitor. He stated there was also a concern that it would be 54% occupied and would be a money loser from the start. He stated the Airport did another study after that; it was more positive, but it also ended up talking about being a money loser; and it may be worth looking into again, but the tourism industry as a whole should be involved, including the airport, hotels, attractions, and Port.

Commissioner Colon stated she wants to make sure it is not just the tourism industry, but companies, hotels, airports, port, and everyone looking at it with a comprehensive view; if it is only the tourism industry, then it is just interested in the competition; she is interested in seeing the bigger picture and the possibility of it not being so territorial of where it goes; so she would like to see a task force of folks in the community to give the Board some feedback if it is something that is viable. She stated Orlando keeps expanding its convention centers; Daytona Beach is also; and so is Palm Beach; and beautiful Brevard County, between Jacksonville and Miami, has no convention center. She stated there should be some feedback; so the Board should go ahead with a task force and see what it can get.

Commissioner Carlson stated if the Board does a task force, it needs to get the private sector involved because she talked to a lot of folks like the Harris Corporation and those sort of companies that do not have a convention center; there is a special market the County could potentially look at that Orlando does not deal with nor is it interested in; and that is a certain size convention. She stated Orlando has a large convention center and is adding on and wants to go for the big conventions; Brevard County may find itself in a niche market that it can specialize in that kind of thing; but the private sector should be surveyed because it has some particular interests.

Commissioner Colon suggested Mr. Jenkins inform those folks of the possibility of putting together a task for to see what kind of feedback the Board would get; and she would like to see it on the next agenda to determine if the Board wants to provide direction. Chair Higgs inquired if Commissioner Colon wants a report from Mr. Jenkins to the Board. Commissioner Scarborough recommended Mr. Varley be included; with Chair Higgs responding she is sure Mr. Varley will do the report.

PUBLIC COMMENTS - WALTER PINE, RE: INFORMATION SYSTEMS

Walter Pine of Titusville applauded the County’s quick response on the email system; they are working to correct the problems; but he may not have brought the whole point home. He stated it is not just the email system; the County has a problem with the integrity of the public record; it has a problem with security and maintaining that record; and that comes from the computer system not being standardized, upgraded, and updated. He stated the County does not have an archival system; none of that is there; and asked the Board, in the process of updating the email system, to look at the whole system and bring it up to necessary standards to protect the integrity of the public record. He stated right now if anyone wants to erase something from the computer, it is gone forever; that may be by accident or design, but in either event, it is still a loss of public record; there are also administrative issues of who has particular passwords to put programs on there; and it is different with different Departments because it has not been standardized. He stated the County needs to do that to provide the security because as it stands right now, Information Systems administration has put security in place between the outside and the inside, and to some degree there is security on the inside between various computers; but it is minimal in regards to what it should be; and encouraged the Board to broaden the considerations to make sure that the problem is solved not just with the email but with the public record. He stated that is why he mentioned security the last time because if somebody goes in and erases something, it is gone and the County is liable for that if a public record is destroyed. He stated right now there is nothing in place to protect that; there are no standards; there is nothing, so they need to go ahead and upgrade and update the whole system and do it such that it brings the system up and creates the basis for improvement of the system because without having it as a foundation, a lot of the polices that are in place are very difficult to administer and almost impossible to check up on as they do not have the integrity of the public record that is needed. He stated what brought that up was the Department of Natural Resources’ issues and the SEA’s program; he asked that they start looking at some of the policies and procedures in the executive functions because there needs to be a lot more enforcement authority or complaint opportunities for the public to ensure it is able to get the public record.

PUBLIC COMMENTS - THELMA ROPER, RE: COUNTY OPERATIONS AND PAMPHLETS

Thelma Roper of Titusville stated she has a couple of things that hit her today; one is when the Board was dealing with the issue on the church, a lady spoke and expressed an opinion and concern that hit her and went over everybody else’s head; but is it the kind of thing that disturbed her when she said the Board needs to support its County; it is disturbing to her that the image of the County is becoming staff; and the staff is running the government. She stated the Board does not make the decisions, staff does; that is disturbing to her; Mel Scott said since the Zoning Code did not speak to it, he chose the interpretation; and he said he had the right to interpret the spirit of the law; and to her that is determining intent of the law; and determination of the intent is a judicial thing not an administrative staff thing. She stated somethinjg hit her on Sunday and today, so she walked around and did a little research today; Sunday she saw an ad in the newspaper from a County office; and what got her was not that it was from a County office, but that it stated the name of the officer. She stated they picked those up across the hall at the Voter Registration Office or Supervisor of Elections Office; she does not have a problem with them giving those out; but it has bothered her for a couple of years because she has about three of them from every election year on her refrigerator. She stated she does not think they should be using names on those; those are things that are provided to the citizens for public use to promote their offices not their officers; and that bothers her. She stated the Sheriff’s Office has things with no name; other places the name is smaller; and she appreciates the information, but wanted to point that out to the Board.

Chair Higgs stated those are under the control of the Supervisor of Elections.

PUBLIC COMMENTS - BEA POLK, RE: PAMPHLETS

Bea Polk of Titusville stated there is a huge advertisement; last year he put out six or seven pamphlets with his name on them only during election; but that is what the public pays for. She stated she would love for those things to be printed by the County and given out in County buildings for a candidate she supports; it is politics; all the other information is okay; on the ad he got a little name, and that was not good enough for him; so all the employees told her to get how they pay his salary and all of the budget; but the Board does not do anything about that. She stated it is the biggest political thing for a man running for office on taxpayers’ money; it is in the courthouse, which the County runs with taxpayers money; and it is being given out everywhere. She stated it costs thousands of dollars to politic; everyone of the Commissioners running should put one of those out because it is the best ad that is given out; Commissioner Scarborough does not even put out a sign, and that is all right; and inquired if they are going to use taxpayers’ money to advertise for a man who one told her could not be beat.
DISCUSSION, RE: COMPUTER SYSTEM

Commissioner Carlson inquired if the Board has a policy that regulates keeping of electronic public records; with Communications/Information Systems Director Gino Butto responding yes, that policy is there, whether they use 3x5 cards or computers. Commissioner Carlson inquired, based on his understand and knowledge of public records law, has there been a breach or problem with obtaining public records on the electronic side of things with the existing system; with Mr. Butto responding the retention policy is administered by individual organizations and users who are responsible for that information; the County does not have a central depository for every piece of information coming in and out; so to his knowledge, there has not been a problem at the individual level to find something that is looked for. Commissioner Carlson stated there is a drive that basically can back up all the records for archival purposes; all the Commissioners and Departments have access to that; and inquired if they have too much information and do not want to bog down their system, can they move it to that data warehouse drive; with Mr. Butto responding they have the ability to offload any of that type of storage that Departments want to keep in a separate location than their offices.

Chair Higgs instructed Mr. Jenkins to give the Board a memo that addresses the issues raised by Mr. Pine. County Manager Tom Jenkins stated Information Systems’ staff is putting a plan together to address several important needs; and that is one of them; so they will give the Board the whole report.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 4:45 p.m.

ATTEST: _________________________________
NANCY HIGGS, CHAIR
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK

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