MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

March 10, 2009

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on March 10, 2009 at 9:18 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Chuck Nelson, Commissioners Robin Fisher, Trudie Infantini, Mary Bolin, and Andy Anderson, Interim County Manager Stockton Whitten, and County Attorney Scott Knox.

 

 

The Invocation was given by Reverend David Haw, Pineda Presbyterian Church, Melbourne.

 

Commissioner Bolin led the assembly in the Pledge of Allegiance. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve the September 23, 2008 Special Meeting Minutes, October 9, 2008 Workshop Minutes,  and November 25, December 2, and December 16, 2008, and January 27, and February 5, 2009 Regular meeting Minutes.  Motion carried and ordered unanimously.

 

 

Commissioner Bolin advised she has the privilege of reading this resolution every year; and it is because her name is Mary Ann Catherine Francis Dunahue Duffy Kennedy MacElrady Bolin; and if anyone else can outdo, that he or she can have the honor of reading the resolution next year.

 

Commissioner Bolin read aloud a resolution proclaiming March 2009 as Irish American Heritage Month in Brevard County.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Resolution proclaiming March 2009 as Irish American Heritage Month in Brevard County.  Motion carried and ordered unanimously. 

 

 

Ed Kelley stated in appreciation he wishes to present Commissioner Bolin with a certificate and hopes that she will be the speaker this year for Commander John Barry Day; and noted the Commander was made an Admiral three years ago by Congress.

 

  

Commissioner Anderson read aloud a resolution proclaiming March 15, 2009 through March 21, 2009 as Surveyor’s Week.

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to adopt Resolution proclaiming March 15, 2009 through march 21, 2009 as Surveyor’s Week and recognizing the many contributions and the ongoing dedication of surveyors to the citizens of Florida and the United States.  Motion carried and ordered unanimously. 

 

David Swann stated on behalf of the Space Coast Chapter of the Florida Surveying Mapping Society, he would like to thank Commissioner Anderson and the rest of the Board for sponsoring the Resolution; the local surveying community is honored that the Board recognizes the role surveyors have in the development and maintenance of the infrastructure that is vital to the citizens of Brevard County; many of the country’s great leaders and explorers were surveyors; this year marks the 200^th birthday of the 16^th President Abraham Lincoln; and President Lincoln was not only one of the greatest leaders, but he was also an assistant county surveyor in the State of Illinois.  He advised Thomas Jefferson was not only one of the nation’s founding fathers, but he is one of the surveyors who created the Public Land System; at the time of its creation, the Public Land System was a unique way to petition land that was a very different method of surveying compared to the common practice throughout the world; and this method of surveying is still used in all but a few of the original 13 colonies.  He noted two of the country’s most famous explorers, Meriwether Lewis and William Clark, were actually hired by President Jefferson to survey the largest land acquisition in America’s history commonly known as the Louisiana Purchase.  He stated he would like to invite the Board, as well as the citizens it represents, to the Third Annual Florida Surveyor’s Festival on March 21^st from 11:00 a.m. to 6:00 p.m.; this year the Festival will be held at F. Burton Smith Park in Cocoa; this is a family event that will feature Florida history for this year’s theme; for entertainment there is live music, a rock climbing wall, as well as many other kids activities; there are also several education exhibits and a geocaching course for those people who want to test their skills using mobile GPS units; no festival would be complete without regional artists and local food vendors; and suggested everyone mark their calendars as he hopes to see everyone there.

Commissioner Bolin read aloud a resolution proclaiming March 2009 as Purchasing and Materials Management Month in Brevard County.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Resolution proclaiming March 2009 as Purchasing and Materials Management Month in Brevard County.  Motion carried and ordered unanimously. 

 

 

Central Services Director Steve Stultz stated he appreciates the Board for recognizing March as Purchasing and Materials Management Month; he feels honored to be able to work with such a dedicated and professional staff; they take their jobs very seriously; he was thinking of some of the key words he would use to describe his staff; he thinks professional, dedicated, ethical, and conscientious; but the County is very blessed, not only as an organization but also the vendor community and the taxpayers to have such a professional staff.

 

Keep Brevard Beautiful Chairman and Waste Management Representative, George Geletko, stated it is an honor to promote Trash Bash; he introduced his colleague Pat Brown, Executive Director of Keep Brevard Beautiful; and she is the one who really makes all of this happen.  He advised Trash Bash will be held Saturday April 18^th from 8:00 a.m. to 12:00 p.m.; there will be over 31 sites throughout Brevard County; and last year there were over 1,600 volunteers that collected 147,000 pounds of trash.  He stated Waste Management will be sponsoring Trash Bash; and they will be sponsoring $4,000 to the winners of each of the categories.  He stated the categories are for the most volunteers and the most trash picked up for each of the District offices; that money will be donated to the winners favorite charity; they will also have four categories listed within the cities that will be ranked according to population; last year District 1 Commissioner, Truman Scarborough, had the most improved; and Commissioner Fisher has his challenges set for him this year.  He noted last year the City of Palm Bay won overall with the most volunteers and the most trash collected; Cocoa Beach and Cocoa tied in their category; Satellite Beach won in its category; and Town of Malabar won it its category.  He advised Commissioner Voltz’s office had the most volunteers and trash collected; and she received the stained glass pelican.  He stated every year they find unusual things out there as they go through the waterway, weeds, and right-of-ways; this year some of those items were a pickup truck, a boat, a television, a bowling ball, computers, and a varnished alligator head; he encourages everyone to participate; the cash prizes will be great; and it will be great for each Commissioner’s wonderful charities. 

 

Executive Director of Keep Brevard Beautiful, Pat Brown, stated they are partnering this year with The Brevard Nature Alliance to sponsor the Natural Heritage Camp; it is going to be held on Wednesday May 27^th at the Florida Solar Energy Center from 8:00 a.m. to 4:30 p.m.; the one-day camp has been created by 12 various organizations to enhance the knowledge of natural resources in Brevard County and the green approach to management; there will be hands-on fun activities planned for the days events; there will be four sessions throughout the day; two will be held at the Florida Solar Energy Center and two at McFarland Park, which will include a scenic boat ride; and she encourages the Board to take a day off and come and learn some things and have some fun.

 

Chairman Nelson stated he appreciates everything they do; he got the chance to ride around with Pat to the sites last year; it is amazing the number of people who come out and how willingly they volunteer; and in Cocoa they throw a great bar-b-que at the fire house.

 

Commissioner Bolin stated if a person volunteers at Satellite Beach they have donuts in the morning and she will supplement that as needed because she wants to keep that award; and George and Pat have given a tremendous amount of effort and work and have kept Brevard County beautiful.

Commissioner Anderson invited Rick Porter and Melissa Breckenridge to come up to the podium; stated he is honored to read the resolution; everyone wants to help find a cure for Cystic Fibrosis; he is encouraging everyone to participate in the Cystic Fibrosis Foundation’s Great Strides Walk; and some of the Commission offices are already involved.

 

Commissioner Anderson read aloud a resolution supporting the Cystic Fibrosis Foundation’s Great Strides Walk.

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to adopt Resolution supporting the effort to help find a cure or control for Cystic Fibrosis with participation in the Cystic Fibrosis Foundation’s Great Strides Walk.  Motion carried and ordered unanimously. 

 

 

Mr. Porter stated on behalf of the Cystic Fibrosis Foundation, Congressman Bill Posey, who is the 2009 Honorary Chair for the Great Strides Walk in the Space Coast, and the many families in the community that are affected by this disease, he wants to thank the Board for its support of the Foundation and for the Walk; and he is looking forward to the participation from the Board.

 

Chairman Nelson stated the Board attended the luncheon where Congressman Posey gave a pep talk; he has a cold today, and something like that could kill a person with Cystic Fibrosis; and that is just terrible.  He advised it is a great cause and the challenge is on.

 

Commissioner Anderson stated the Commissioners are working hard to get his or her team together; his Eagle Scout Project in Boys Scouts was a bike-a-thon for Cystic Fibrosis; everything comes full circle in life; and within the County family there are people who are affected by Cystic Fibrosis.

Interim County Manager Stockton Whitten stated he provided the Board with a memorandum requesting two additional budget workshop dates in May; those dates are May 7^th at 1:00 p.m. and May 26^th at 9:00 a.m.; he requested the Board’s approval of those dates; there are a lot of wheels in motion with regards to the budget development process; and he has outlined the process staff is undertaking in order to get back to the Board with good information at those workshop dates.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve additional Budget Workshops on May 7, 2009 at 1:00 p.m. and May 26, 2009 at 9:00 a.m.  Motion carried and ordered unanimously.

 

 

Commissioner Infantini stated she would like to recognize the Finance Department of West Melbourne; it is the 22^nd year in a row that it has won a Certificate of Achievement for Excellence in Financial Reporting; and it has been awarded to the City of West Melbourne by the Government Finance Officers Association of the United States and Canada for comprehensive annual financial report (CAFR).  She noted the Certificate of Achievement is the highest form of recognition in the area of governmental accounting and financial reporting; and its attainment represents a significant accomplishment by its government and its management.  She stated she would like to specifically recognize some of the individuals who took part, Charlotte Luikart, Finance Director, Joseph Menz, Accounting Supervisor, Shannon Mizelle, Budget Coordinator, Lisa Weeks, Senior Accounting Clerk, and Faye Zegler, Payroll Specialist.

 

 

Commissioner Anderson stated he went out with Parks and Recreation Director Don Lusk, Fred Poppy, and Greg Minor; they showed up in his office and said they were going to the Palm Bay Senior Center and meet with a few people; he did not know it was the Prime Timers Group; there was a lot more than a few there; and it was a huge turnout.  He stated former Commissioner Truman Scarborough was instrumental in making that happen; and he would be very proud to see what is going on with it.  He stated they went to the new John Rodes Park and gave him an update on the construction efforts out there; and the Road and Bridge guys are helping out on that and doing a fabulous job.  He stated they went to Commissioner Bolin’s District to Wickham Park; he did take a look at the construction efforts on the new senior center; that is a fabulous facility; it was very interesting; and a person could see the results of the Park Referendum and how it is at work.

 

  

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to appoint John Ells to the Merritt Island/Beaches Service Sector Advisory Board, with term expiring December 31, 2009.  Motion carried and ordered unanimously.

Chairman Nelson stated he and Commissioner Fisher attended a prayer breakfast put on by the YMCA and got to hear Sam Wyche, former Tampa Bay Buccaneers Coach, speak; it was notable because they were commending the Cocoa High School Football Team; he gave them the Resolution that the Board had previously approved; the following day the Cocoa High School Boys Basketball Team won the 4A State Championship; what is interesting is that five of the kids on the football team are also on the basketball team; and there are kids who have won two State championships.  He stated he will be doing a resolution at the next available meeting for the Cocoa High School Boys Basketball Team; what a great year for Brevard County overall because that is the 8^th State championship this year; and there are still some sports to go.  He advised there was a wrestler from Palm Bay, Astronaut Girls High School Girls Basketball Team 4A, Melbourne won in boys and girls soccer 5A, Merritt Island High School won in boy’s soccer, and now Cocoa with football and basketball.

 

 

ITEMS TO BE REMOVED FROM THE AGENDA 

Interim County Manager Stockton Whitten stated he would like to delete Item III.C.5, Agreement, Re:  Loyal Order of Moose Sebastian River Lodge #1767, Inc.; and to move Item III.D.2a, Approval, Re:  Agreement with Property Appraiser for Developpment and Maintenance of Expanded Use Code for Non Ad Valorem Assessment, to New Business. 

Commissioner Infantini stated she would like to pull Item III.A.10, Permission to Advertise, Accept Proposals, Appoint Selection Committee, and Award Contract, Re:  Pavement Management Program, and Item III.A.11, Permission to Bid and Award, Re:  Sidewalks, Intersection Improvements, and Widening Projects.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to grant final plat approval for San Marino Estates, subject to minor changes, if necessary, receipt of all necessary documents required for recording, and developer responsible for obtaining all necessary jurisdictional permits; and authorize the Chairman to sign the final plat.  Motion carried and ordered unanimously.

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to grant final plat approval for Brisas Del Mar, subject to minor changes, if necessary, receipt of all necessary documents required for recording, and developer responsible for obtaining all necessary jurisdictional permits; and authorize the Chairman to sign the final plat.  Motion carried and ordered unanimously.

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to accept a Sidewalk Easement and Joinder in Dedication of Easement from the Central Brevard Humane Society.  Motion carried and ordered unanimously.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to accept a Sidewalk Easement from Agree Port St. John, LLC.  Motion carried and ordered unanimously.

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to accept a Sidewalk Easement and Joinder in Dedication of Easement from The Commons at Wickham Park, LLC.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to adopt Resolution and execute Easement in favor of the City of Cocoa for Children’s Services Building, which is within the Viera Health Department Complex.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to grant permission to demolish the building and parts of the dock located on County property at 11480 Tropical Trail.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to waive the required fixed-route fare for those homeless Veterans traveling to the Homeless Standdown on March 21, 2009.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to execute Interlocal Agreement with City of Melbourne for the purpose of providing Bus/Transit Shelters and Benches within the City limits.  Motion carried and ordered unanimously. 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to acknowledge Florida’s Space Coast Financial Statements for the years ended September 30, 2008 and 2007.  Motion carried and ordered unanimously.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to grant permission to Bid replacement of the underground pre-insulated piping, above ground pre-insulated piping, and valves at the County Service Complex in Titusville; and authorize the Chairman to sign the contract.  Motion carried and ordered unanimously.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve a Water and Wastewater System Agreement with the City of Palm Bay to provide construction and maintenance of water and wastewater facilities for the Brevard County Fire Station #83 located at 5148 Minton Road, Palm Bay; and authorize the Chairman to execute the Agreement.  Motion carried and ordered unanimously. 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to execute Extension of Access and Use Agreement between Brevard County Health Department and Unconditional Love, Inc. for property owned by the County at 611 Singleton Avenue, Titusville.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve Interim Fire Chief; Deputy Fire Chief Brad Hall; Donny Hughes, Space Coast Fire Chiefs Association (SCFCA); and Steven Schwartz, D.O., Parrish Medical, to be members of the Selection Committee for the Medical Director Requests for Proposals (RFP).  Motion carried and ordered unanimously.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to acknowledge receipt of the Brevard County Health Department Quarterly Variance Report covering the period of October 1, 2008 through December 31, 2008.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to acknowledge the List of projects for staff to pursue to be funded using economic stimulus dollars allocated by the February 17, 2009, signing of the American Recovery and Reinvestment Act.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to appoint and/or reappoint Cindy Mitchell to the Brevard County Commission on Status of Women, with term expiring December 31, 2009; Richard Cherry to Contractor’s Licensing Board, with term expiring December 31, 2009; Dottie Reed and Donna Watkins to Onsite Sewage Disposal Variance Board, with terms expiring December 31, 2009; Bonnie Venable to Personnel Council, with term expiring December 31, 2009; Rodney Honeycutt to

Transportation Planning Organization Citizens Advisory Committee, with term expiring December 31, 2009; and Fred Kusterer to Zoning Board of Adjustment, with term expiring December 31, 2009.  Motion carried and ordered unanimously.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve bills and budget changes, as submitted.  Motion carried and ordered unanimously. 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to acknowledge receipt of the Titusville-Cocoa Airport Authority Annual Audit Report for 2007-2008.  Motion carried and ordered unanimously. 

 

 

Commissioner Infantini stated she would like to have this item brought back to the Board for approval; it looks like by approving this item that the Chairman is authorized to execute the associated contract; but she would like to have the bids brought back for approval.  Public Works Director John Denninghoff stated staff can bring the item back to the Board; and the intent was just a way to expedite the item. 

Chairman Nelson stated historically if it follows the purchasing process and there have been no protests, it was just to expedite the process; but if Commissioner Infantini would like to bring it back to the Board, she needs to understand that it may delay the item two to four weeks based on scheduling.

 

Commissioner Infantini stated add-ons are accepted as late as the day before the meeting, so she does not know why it would take two to four weeks if the item is added on the day before the next meeting.  Chairman Nelson stated yes, if she wants staff to make it an add-on, but historically, it is not done that way. 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to authorize advertise of request for Proposals (RFP) for a Paved Road Evaluation and Management Program; approve establishment of a Selection Committee to evaluate proposals consisting of Public Works Director John Denninghoff, Engineering Manager Gil
Ramirez, Assistant Public Works Director Ed Gardulski, or their designees; and authorize staff to return to the Board with a recommendation for award of the Bid.  Motion carried and ordered unanimously.

Commissioner Infantini stated she would like to see costs associated with these before she approves something; and the Board should have the actual cost impact so everyone is aware of how much is being spent of the impact fees project-by-project rather than just saying everything is fine.

 

Commissioner Fisher stated one of the reasons there are no costs on the Agenda Report is that for some reason when costs are put on there it is amazing all of the bids coming to the numbers the County projected; and by actually letting it go out to bid, staff will be able to get real numbers and the contractors will not have an idea what the County is willing to spend on those projects.

 

Commissioner Infantini inquired if after accepting the lowest bid, can it be brought back to the Board for approval rather than just passing straight through to the Chairman; with Mr. Denninghoff advising that can be done.

 

Commissioner Fisher stated he does not want to micromanage staff on every issue; they should be allowed to award the contract to the lowest bidder; and he has confidence in staff that they can do that.  He stated it is sidewalks, intersection improvements, and those kinds of things; and inquired if it is all coming from impact fee dollars; with Mr. Denninghoff responding this is actually a combination of impact fees, gas tax bond proceeds, and gas tax funds. 

 

Commissioner Anderson inquired if Commissioner Infantini wanted to see the contract before the Chairman signs it; with Commissioner Infantini responding yes, but she is not in a habit of approving costs before she knows what they are; stated she would like to see the cost; she has no idea what the costs are; it impacts her District; and she wants to make sure that the costs associated with each project are in an acceptable range.  Commissioner Anderson inquired if there is a way to put the item on the Consent Agenda before the Chairman signs the document for review; with Chairman Nelson responding the history of this goes back long before any of the present Commissioners were on the Board; stated it was the intent of the Board at that time to try to get the projects completed as timely as possible and where the project was within the budget for the project they were allowed to award that; and there is no magic as to whether or not the Chairman signs it or not other than the fact that it is a requirement.  Chairman Nelson stated it will delay projects to some extent by the time it takes to get it on the Agenda; and if the Board wants to do them as add-ons it can be done.

 

Commissioner Fisher stated the Economic Stimulus Package has some projects that will also create some jobs and some improvements; and he is all for getting the economy going, unless Commissioner Infantini has some reason why she is concerned.  Commissioner Infantini stated she just sees it as possibly a two-week delay; that would be assuming staff had projects in hand right now today that need to be signed; she only sees it as taking an extra two weeks if staff left tomorrow and got the projects and agreements; and she sees the biggest cost is a two-week timeframe because the Board is meeting every week. 

 

Commissioner Anderson stated he thinks there is a compromise solution; the Board gets a spreadsheet of ongoing projects; Mr. Whitten can send the Board the lowest bid information; if a Commissioner thinks it is necessary after seeing that to put it on the Agenda it could be done that way; and inquired if that is fine.  Commissioner Infantini advised that would be acceptable.

 

Chairman Nelson stated his only concern is that if Commissioner Infantini is not available for some period of time it could create an issue with staff and timeframes.

 

Mr. Whitten stated the easiest way for staff to handle it is to just put it back on the Agenda whether or not it is an add-on or on the Advanced Agenda. 

 

Mr. Denninghoff stated some of the items are going to be above the typical thresholds that will be qualifying for Consent; and inquired if they would be put back on Consent, New Business, or Unfinished Business.  County Attorney Scott Knox stated if the Board goes that route it needs to make sure the specifications and bid proposals are written so the Board has the discretion to override whatever the low bid is at the end because otherwise the Board will not have a contract and it will not have anything to say about it. 

 

Commissioner Infantini inquired if those items are going to go over the threshold for the Consent then should they be on the Consent in the first place; and stated she is just trying to get costs that the County is spending out to the public so everyone knows where the tax dollars are being spent because later on she will have to justify this to the taxpayers who are having their houses foreclosed.  Mr. Whitten advised these are budgeted projects; he is not aware of a dollar threshold or what the threshold is for a Consent item; and he is not sure the Board has ever said there is a threshold amount for the Consent items.  Commissioner Infantini advised she did try to do that in November 2008 but that was overridden; and she believes there is no dollar threshold.

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to grant permission to bid the construction for the List of Projects; and authorize staff to bring back to the Board the lowest responsible bidder and costs associated with each project for final approval.  Motion carried and ordered unanimously. 

Chairman Nelson called for a public hearing to consider a resolution for petition to vacate right-of-way west of Lipscomb Street, as petitioned by Sutton Properties of Palm Bay II.

 

There being no comments or objections heard, motion was made by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Resolution vacating right-of-way west of Lipscomb Street, as petitioned by Sutton Properties of Palm Bay II.  Motion carried and ordered unanimously. 

 

 

Chairman Nelson called for a public hearing to consider a resolution for uniform method of collection for non-ad valorem assessment for Morningside Drive Road Paving MSBU.

 

There being no comments or objections heard, motion was made by Commissioner Fisher, seconded by Commissioner Bolin, to adopt Resolution providing for a uniform method of collecting non-ad valorem assessments for Municipal Service Benefits Units (MSBU), pursuant to Section 197.3632(3)(a), Florida Statutes; describing the boundaries of the real property subject to the levy for such fees; providing an effective date; and providing for adoption.  Motion carried and ordered unanimously.

 

 

Chairman Nelson called for a public hearing to consider a resolution for Morningside Drive Road Paving MSBU.

 

There being no comments or objections heard, motion was made by Commissioner Infantini, seconded by Commissioner Bolin, to adopt Resolution accepting improvements for the Morningside Drive 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. 

Chairman Nelson called for a public hearing to consider approval of Amendment to Developers Agreement with Melbourne 95 New Haven, LLC, Echo Trading Company, LLC, Floridana, Inc., James E. and Barbara Fulcher, and City of West Melbourne as approved by the Board on July 29, 2008.

 

There being no comments or objections heard, motion was made by Commissioner Anderson, seconded by Commissioner Fisher, to approve Amendment to Developer’s Agreement with Melbourne 95 New Haven, LLC; Echo Trading Company, LLC; Floridana, Inc.; James E. and Barbara Fulcher; and the City of West Melbourne as approved by the Board on July 29, 2008; authorize the Chairman to execute the Amendment on behalf of Brevard County; and authorize the Budget Office to implement all necessary budget changes.  Motion carried and ordered unanimously. 

 

Chairman Nelson called for a public hearing to consider an ordinance for adoption of Water Supply Plan and Associated Comprehensive Plan Amendments.

 

There being no comments or objections heard, motion was made by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Ordinance amending Article III, Chapter 62, of The Code or Ordinances of Brevard County; entitled “The Comprehensive Plan”, setting forth a plan amendment 09-RWSP1; specifically amending Section 62-501, Part I entitled The “Conservation Element” to provide for water conservation practices; specifically amending Section 62-501, Part VI entitled “Potable Water Element” to provide for water supply planning provisions; specifically amending Section 62-501, Part XI, entitled “Future Land Use Element” to include potable water availability as a public planning suitability consideration; specifically amending Section 62-501, Part XII entitled “Intergovernmental Coordination Element” to provide for greater coordination with other agencies; specifically amending Section 62-501, Part XIV entitled “Capital Improvements Element” to provide for a new level of service standard; providing for internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date.  Motion carried and ordered unanimously. 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve Stipulated Final Judgment of Stack v. Brevard County, Case No. 05-2004-CA-025310-XXXX-XX, in the amount of $160,000.  Motion carried and ordered unanimously.

 

Chairman Nelson stated the Board was having a number of continuances of items that were coming before it, and this kind of restructures that so there is an administrative approval instead of seeing so many of these coming back.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve legislative intent and granted permission to advertise revisions to Chapter 62, Article VIII, Site Plans, to extend the time limitations and expiration for the review and approval of plans, related changes, and exhibit references.  Motion carried and ordered unanimously. 

 

 

 

Commissioner Fisher stated he has questions regarding the CDBG funds and that organization and affordable housing; both of those people will be on that committee that will help decide how those funds are distributed; there were a couple of citizens who had some concerns on this, but Assistant County Manager Heidi Denis did a good job resolving the issues. 

 

Commissioner Infantini stated this item was an add-on by staff on Friday; this is one of the things when she met with Heidi Denis and Housing and Human Services Director Gay Williams she mentioned she would not be approving any more housing projects prior to the Housing Workshop where there could be a discussion and Gay would be able to put together all of the different grants and funding sources; the last time there was a little bit of confusion as to whether or not the County had to build a new triplex for $660,000 as opposed to purchasing existing homes; and the Workshop will help the Board define specifically what its plan is and where all of the funding is going to go.  She stated at this point she is not inclined to approve anything that she finds on the Agenda Friday afternoon.

 

Chairman Nelson inquired what is the urgency associated with this item; Ms. Williams advised this has to be back by the 16^th; staff just received the grant; there was a delay by HUD; and upon receiving the grant staff was to get it back into them by March 16, which is before another meeting.  She stated this is a grant that the Board has already approved; and this is just the grant signing the acceptance of the dollars.  Commissioner Fisher inquired if this is HUD money and not coming out of the General Fund; with Ms. Williams responding that is correct.

 

Commissioner Anderson stated he is still concerned how strategically the Board is allocating funds from the Housing and Human Services Department; and until the Board has that Workshop he will be voting against the item.  Chairman Nelson inquired if Commissioner Anderson realizes that he would be giving up $5 million because he is uncomfortable.  Commissioner Anderson advised it is still taxpayer money.  Chairman Nelson stated the Board has the ability, even after the grant is approved, to deal with those issues he is concerned with; the Board is setting up the structure; it will go through the continuation of the process; and he would hate to lose the opportunity to have it.  

 

Commissioner Infantini stated she would like to get the Housing Workshop scheduled for April  7^th;   she   does   not   think   there   is   currently   a   workshop  scheduled  for that date; and she would like Ms. Williams to prepare this within a month so the Board would have all that information together so better informed decisions can be made rather than the last minute decisions.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve and authorize the Chairman to sign a Grant Agreement with United States Department of Housing and Urban Development for the Neighborhood Stabilization Program, upon approval of the County Attorney and Risk Management.  Motion carried and ordered; Commissioners Infantini and Anderson voted nay. 

 

 

Commissioner Infantini stated she would like to have a Housing Workshop scheduled for April 7^th.  Chairman Nelson inquired when is the next Board meeting; with Mr. Whitten responding March 24^th.  Chairman Nelson asked Mr. Whitten to bring back potential meeting dates and look at April 7^th on everyone’s calendars.  Commissioner Infantini stated she has no problem as long as Ms. Williams understands so it is prepared by then.

 

Commissioner Anderson stated April 9^th through the following Monday he is out of town, and he will not be available at that time.

 

The Board recessed at 10:17 a.m. and reconvened at 10:37 a.m.

 

 

Chairman Nelson called for a public hearing to consider approval of transmittal of 2009-1 Comprehensive Plan Amendment Package.

 

Chairman Nelson stated he structured the cards within the Agenda Item so that the Board will be dealing with each of the Comprehensive Plan Amendments as they come; he would like to recommend to the Board that one-by-one the Board vote on that particular item; and at the end the Board will vote for a package as a whole.

 

He stated the first item is Plan Amendment 2009-1.1, which is a proposal by Brevard County to change the Future Land Use Map from Neighborhood Commercial to Community Commercial for approximately 1.6 acres west of U.S. Highway 1, east of Turner Road, approximately 900 feet north of Tkacs Road; and he does not have any speaker cards for this item.

 

There being no further comments or objections, motion was made by Commissioner Fisher, seconded by Commissioner Anderson, to approve Plan Amendment 2009-1.1, proposal by Brevard County to change the Future Land Use Map from Neighborhood Commercial to Community Commercial for approximately 1.6 acres west of U.S. Highway 1, east of Turner Road, approximately 900 feet north of Tkacs Road in Section 12, Township 26 South, Range 36 East.  Motion carried and ordered unanimously.

 

 

Chairman Nelson stated the next Amendment is Plan Amendment 2009-1.2, which is a proposal by Turnbull Farms, Ltd. To change the Future Land Use series designation from Residential 1 to Neighborhood Commercial for approximately 2.75 acres south of Flounder Creek, west of U.S. 1 in Section 2 in North Brevard.

 

Jim Thompson stated this application is in addition to a larger package submitted to the Board in 2007; it was approved in 2007, and reapproved in 2008; they are additional lands he was able to purchase adjacent to his project; and he is asking for approval.

 

There being no further objections or comments, motion was made by Commissioner Fisher, seconded by Commissioner Bolin, to approve Plan Amendment 2009-1.2, a proposal by Turnbull Farms, Ltd to change the Future Land Use Map series designation from Residential 1 to Neighborhood Commercial for approximately 2.75 acres south of Flounder Creek Road, west of U.S. Highway 1 in Section 2, Township 20G, Range 34 East.  Motion carried and ordered unanimously. 

 

 

Chairman Nelson advised the next Amendment is Plan Amendment 2009-1.3, which is a proposal by Mims Property Joint Venture Partners to amend the Future Land Use Map from Residential 1 to Residential 4 for approximately 84 acres located east of Tracy Court and south of Irwin Avenue.

 

Matthew P. Boerger with Miller Legg Consulting Services, who is representing the applicant, stated they opted to separate as an applicant a while back because the Board directed staff to iron out some of the other issues with the Small Area Study; they thought to get a jump on the process that they would apply as a separate applicant; but unfortunately because of the school element they got held up.  He stated they are asking for approval of this; it is consistent with the Small Area Study; and there are no changes.

 

There being no further objections or comments, motion was made by Commissioner Fisher, seconded by Commissioner Bolin, to approve Plan Amendment 2009-1.3, a proposal by Mims Property Joint Venture Partners to amend the Future Land Use Map from Residential 1 to Residential 4 for approximately 84 acres located east of Tracy Court and south of Irwin Avenue in Section 5, Township 21 South, Range 35 East.  Motion carried and ordered unanimously.

 

 

Chairman Nelson stated the next item is Plan Amendment 2009-1.4, which is a proposal by CC Group LLC and Roth II LLC to amend the Future Land Use Map from Residential 15 to Community Commercial and Neighborhood Commercial for approximately 19.2 acres located north of Lucas Road and west of Courtenay Parkway.

 

Planning and Zoning Director Robin Sobrino stated this is an application that the Board had seen previously and it had to be held back because of the public school facilities element.

 

Chairman Nelson stated this request is in his District; and he sees no issues with it.

 

Commissioner Infantini stated when reading through the information, Letter E states, “The availability of required infrastructure at or above adopted level of service”; it does not appear that there is the proper infrastructure; while she helped expedite the passing of the removal of impact fees, she said she would not approve any projects if there was no existing infrastructure in place; and for this particular project it does not appear to have infrastructure in place according to the information presented.

 

Attorney John Evans inquired if Commissioner Infantini is referring to traffic; with Commissioner Infantini responding it said the preliminary concurrency with the estimated traffic from proposed future land use peak hour volumes may exceed available capacity; stated she would not be inclined to approve this Amendment based on that information; she does not want to overburden the roads; and that is why she approved the impact fee waivers because she said she would only approve projects the County has adequate capacity for.  Mr. Evans stated the staff report indicates that it is presently at 80 percent of capacity; they would have to give the Board a traffic study prior to getting any permits; and if the traffic study shows they exceed the capacity they would either have to do the improvements or not build the project.  Chairman Nelson inquired if that is the way that works; with Planning and Development Director Robin Sobrino responding yes, that is correct.  Commissioner Infantini stated she prefers to wait until the traffic study has been performed and validated prior to approving the project; and inquired if staff reviews those projects, the study, to verify their adequacy.  Ms. Sobrino responded yes. 

 

Commissioner Fisher inquired if the Board is approving the project today; with Chairman Nelson responding no.  Commissioner Fisher stated the applicant still has to come back and request approvals; and that is when the Board can decide whether it makes sense or not.  Ms. Sobrino stated under the State requirements, when staff reviews a Comprehensive Plan Amendment they are not dealing with a specific use per se, but a grouping of uses; and the State requires the most stringent of traffic generator volumes are imposed until such time that staff knows exactly what the use is going to be; and this portrays the very worst case scenario.

 

Mr. Evans stated he has been working on this since February 2008; it has taken a year to get to this point; and if the Board makes him get a traffic study first, it will take another year before he can get the zoning.

 

Ms. Sobrino stated staff is in the transmittal phase; this is not the adoption phase; this application, if it were approved for transmittal today, would be back before the Board in approximately six months as part of the adoption package; this is just the pale green light, so to speak, for the State to evaluate it and to receive comments from other agencies; and there will be another opportunity to make a firm decision at the adoption stage.   

 

Chairman Nelson stated in addition, it comes down to the landowner’s choice, either he or she can select a use that does not exceed capacity or make the capacity improvements.

 

There being no further objections or comments, motion was made by Commissioner Bolin, seconded by Commissioner Anderson, to approve Plant Amendment 2009-1.4, a proposal by CC Group LLC and Roth II LLC to amend Future Land Use Map from Residential 15 to Community Commercial for approximately 19.2 acres located north of Lucas Road and west of Courtenay Parkway, in Section 23, Township 24, Range 36 East.  Motion carried and ordered; Commissioner Infantini voted nay.

 

 

Chairman Nelson stated the next item, Plan Amendment 2009-1.5, was withdrawn by the applicant.  He stated Plan Amendment 2009-1.6 is a proposal by Merritt Island Development, LLC to amend the Coastal Management Element and Glossary regarding residential marinas; and the approval was recommended by Natural Resources Management staff.

 

Ms. Sobrino stated this is a text amendment that has been requested by Mr. Wise’s clients; it is a request to change the definition for residential recreational marinas; currently there is a requirement that only a maximum of 30 slips can be classified as a residential recreation marina; the Office of Natural Resources has recognized that a 30-slip limitation was done back in the 1990’s and was not based upon necessarily good biological and scientific evidence at the time; now there is better information, and a Manatee Protection Plan, and Natural Resources also agrees that the 30-slip limitation should be revisited; and this would allow the Manatee Protection Plan to be the one to determine how many slips a piece of property could have and still be classified as a residential recreational marina.  She advised if a text amendment to lift that limitation is not granted by the Board, the applicant would be limited to a 30-slip marina, or anybody else would be limited to a 30-slip marina, as a maximum for a residential recreational marina.

 

Chairman Nelson stated it is his understanding that initially Mr. Wise’s project was looking at about 42 lots on the Indian River, which would have then additionally been 42 docks that came out; and then at the permitting stage that it was actually U.S. Fish and Wildlife and the State that recommended that he consolidate or go into a different configuration, which would be called a marina.

 

Jake Wise stated they have been working on this project for about three years through the different environmental agencies including St. Johns River Water Management District, Army Corps of Engineers, and U.S. Fish and Wildlife; they started off with a project that had an internal canal system with each home having its own boatlift; and then a single lift to be able to take boats from the internal canals and put them into the river.  He advised that ended up not being acceptable to the different environmental agencies at the State level; then they went to a private boat ramp, which they thought would be the next best thing; that also was denied by the State agencies; the State agencies and the Manatee Protection Plan have forced them into in order to have any boats out here without requesting individual piers or docks for each home is to go to the marina; and while doing that, their project pointed out a couple of inconsistencies with the Comprehensive Plan and the Land Development Code.  He advised staff was aware that there were some inconsistencies when the Manatee Protection Plan was enacted,  and   with  all  of  the  other  things  staff  was   working on it   was   not  something   they had a chance to get to; the reason he is before the Board today is a countywide change to change the definitions of a residential marina; that is not to put an arbitrary 30-slip limit on it; it would allow projects such as theirs, and anybody else that wants to do a residential marina, to be able to have the ability to get approved for more than 30 slips.  He noted for their specific project they already have a Conditional Use Permit application into the County; and they will be back before the Board with that request at a later date because of the way that the Comprehensive Plan has to be changed first.  He advised a neighborhood meeting was held because this is related to their project but not project-specific today; today, if approved, they would not have any kind of entitlements or anything like that for the project; they did go ahead and have a neighborhood meeting because there was some confusion about the process and what they were applying for; and they were very well received at the neighborhood meeting.  He stated he would appreciate a chance to respond to any other public comments.

 

John Vivian stated that he does not wish to speak.

 

Chairman Nelson stated it makes sense; the thought of 40-plus docks going out into the river to him is of more concern; they can do more damage and there would end up being more boats on the river; and he cannot find anything that showed a scientific basis for this other than it was just grabbed out of the air.

 

Natural Resources Management Director Ernie Brown advised that is correct, it was a placeholder prior to the Manatee Protection Plan being implemented; it fits the criteria of arbitrary capricious truthfully because that is all it is; there is no valuation to the 30 slips; at least with the Manatee Protection Plan there is a criteria process that is followed to determine the slips; by the removal of the 30, it will allow the recreational, commercial, or industrial criteria associated with the marina to link more to the upland land use that it is dedicated to as opposed to an actual slip size or slip number; and the slip numbers will be evaluated by the Manatee Protection Plan, which provides a streamlining process for staff. 

 

Chairman Nelson advised that all other protections are still in place; and this does not allow fueling or repairs, it is basically taking those 42 docks and putting them into a single configuration in water that is deeper than some of the other locations.  Mr. Brown stated he really does not like to use this particular project as an example because it is still has not gone through its final full review, so he looks at it from a countywide application of having two criteria that come to bear on this where there is currently a State-mandated criteria of the Manatee Protection Plan; and staff is in support of defaulting to that statewide mandated criteria and not having an arbitrary number in the Comprehensive Plan that further restricts.  Chairman Nelson inquired if it was actually recommended by Florida Fish and Wildlife; with Mr. Brown responding yes.

 

There being no further objections or comments, motion was made by Commissioner Fisher, seconded by Commissioner Infantini, to approve Plan Amendment 2009-1.6, a proposal by Merritt Island Development, LLC to amend the Coastal Management Element and Glossary regarding residential marinas, which was approved as modified by NRMO Staff recommendation.  Motion carried and ordered unanimously.

 

 

Chairman Nelson advised the next item to be considered by the Board is Plan Amendment 2009-1.7, which is a proposal by Brevard County to amend the Future Land Use Map from Neighborhood Commercial and Residential 2 to Residential 4 on approximately 50 acres to reflect the densities permitted by the existing San Sebastian plat, located in Sections 14, 23, and 24, Township 30 South, Range 38 East.

 

Ms. Sobrino stated she wants to point out that this was an amendment that had been sent  forward  to  the  State  previously  but  was  returned  until the  school  concurrency element was adopted.  Chairman Nelson inquired if it is now in compliance; with Ms. Sobrino responding yes.

 

Commissioner Infantini stated she has a problem with this because it does not appear that the density change is consistent with the existing land use in the surrounding area; when the residents of South Brevard met with her at the Barefoot Bay Library they voiced a strong concern that they did not want their property densities to be increased, they wanted them to remain the same; and she told them that she would do that.

 

Ms. Sobrino explained this was a County-directed Comprehensive Plan Amendment to proceed through the process; there is an underlying plat, a non-conforming plat called San Sebastian Subdivision; as a result of lots being reconfigured as lots were sold off and the roadway pattern was changed, a lot of people ended up buying what he or she thought was a developable lot; and they discovered that they ended up with a piece of one lot and a piece of another platted lot, which rendered it to be unbuildable under the County’s regulations.  She stated consequently, there are a number of property owners out there who own property that they thought that they purchased in good faith only to find out now that he or she cannot pull a building a permit for the residence; there are also people who may have gotten a building permit in error and are similarly situated that they would be unable to rebuild; and the Board directed staff to initiate this Comprehensive Plan Amendment in order to establish a Comprehensive Plan density that equated to the density that was allowed under the San Sebastian Subdivision but does not hold these owners to having to respect the old plat lot lines, which is what is causing the major problem here.

 

Commissioner Infantini stated she believes the reason why staff is coming before the Board to get its approval is because it should probably read through this information, evaluate it, and determine in its best opinion whether to go forward with approving this; it is in her best opinion that the Board should not go forward; and if the Board is just going to approve everything she does not know why there is a meeting.  She noted it does not seem consistent and each owner, lot-by-lot, if he or she wants to come forward and ask for a variance or exception then they can have an exception based on facts and circumstances; but to go from a density of 6.7, over time it is 3.8, and from her information it looks like it would be going from Residential 2 to Residential 4; and she is not inclined to make that vote because the residents down south, maybe not in this one specific area, have indicated to her that they do not want the density changed.      

 

Fred Jorge stated the density is still 6.7; that is because those are non-conforming lots of record;  they are only 50-foot wide;  when it was originally platted, those 50-foot wide lots were grandfathered in, even though it is two units per acre in the surrounding area; but the roads and the property lines were redrawn, so in order for someone to build on their lot they have to have a full 50-foot wide lot of non-conforming record.  He advised what has happened is some of those properties have only 35 feet of this lot and perhaps only 45 feet of that lot, so they do not have a full 50 feet, but they do have an 80-foot wide lot; according to that, Zoning cannot approve that that house be built; unfortunately there are a lot of houses in there that have been built on such lots; and Zoning has informed him that if a hurricane or fire came through, the homeowner would not even be able to rebuild the house.  He noted a lot of people bought 80-foot wide pieces of parcels not to have one full non-conforming lot of record in there, and because of this technicality he or she cannot build.  He stated they just want to make it consistent with what is already drawn; density will actually be decreased by going with 80-foot wide lots; the original developer could have said they wanted to build a house on each of those 50-foot wide lots, and would have a lot more houses in there than building on just 80-foot wide lots; and in a sense the density has been decreased.

 

Commissioner Infantini stated the lots do look like what some people would be able to do on certain lot situations; they would be able to tear down one old structure and put up two structures; and while some individuals may be hurt by not adopting this, she would rather allow people who have a problem with their lot come to the Board on a case-by-case basis rather than do a blanket change on so many acres.

 

There being no further objections or comments, motion was made by Commissioner Infantini to deny Plan Amendment 2009-1.7.  Motion died for lack of a second.

 

 

Chairman Nelson stated right now there is not the audience that was present when this issue was dealt with; there was a packed house for this issue; this is the only way to kind of clean this mess up; it should never have happened but it did; and now the Board is kind of stuck with it. 

 

There being no further objections or comments, motion was made by Commissioner Fisher, seconded by Commissioner Bolin, to approve Plan Amendment 2009-1.7, a proposal by Brevard County to amend the Future Land Use Map from Neighborhood Commercial and Residential 2 to Residential 4 on approximately 50 acres to reflect the densities permitted by the existing San Sebastian plat, located in Sections 14, 23, and 24, Township 30 South, Range 38 East.  Motion carried and ordered; Commissioner Infantini voted nay.

 

 

Chairman Nelson stated the next item is Plan Amendment 2009-1.8, which is a proposal by Brevard County to amend the Future Land Use Map to implement the remainder of the Mims Small Area Study.

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to approve Plan Amendment 2009-1.8, a proposal by Brevard County to amend the Future Land Use Map to implement the remainder of the Mims Small Area Study, on approximately 160 acres in Northern Brevard County.  Motion carried and ordered unanimously.

 

 

Chairman Nelson advised the next amendment to be considered is Plan Amendment 2009-1.9, which is a proposal by Brevard County to amend the Future land Use Map to implement the recommendations of the North-North Tropical Trail Small Area Study.

  

There being no further objections or comments, motion was made by Commissioner Fisher, seconded by Commissioner Infantini, to approve Plan Amendment 2009-1.9, a proposal by Brevard County to amend the Future Land Use Map to implement the recommendations of the North-North Tropical Trail Small Area Study on approximately 617 acres.  Motion carried and ordered unanimously.

 

 

Chairman Nelson stated the next item to be considered is Plan Amendment 2009-1.10, which is a proposal by Brevard County to amend the Future land Use Map to implement the recommendations of the South-North Tropical Trail Small Area Study on approximately 329 acres.  Chairman Nelson stated that is an area where there is an existing trailer park; this would be a step down from the other densities; it has multi-family to the south; and high density to the north and to the east.

 

There being no further objections or comments, motion was made by Commissioner Fisher, seconded by Commissioner Infantini, to approve Plan Amendment 2009-1.10, a proposal by Brevard County to amend the Future Land Use Map to implement the recommendations of the South-North Tropical Trail Small Area Study on approximately 329 acres, as modified to recommend Residential 6 (rather than Residential 4) on 19.05 acres at the northern perimeter of the study area.  Motion carried and ordered unanimously.

 

 

Chairman Nelson stated the next item is Plan Amendment 2009-1.11, which is a proposal by Brevard County to amend the Future Land Use Map to implement the recommendations of the East Merritt Island Small Area Study.  He stated he does have cards from some folks who do not wish to speak but would like to have the Small Area Study adopted in whole; and those cards are from Barbara Reed, Rita M. Snyder, T. James Snyder, A. L. Christensen, and William R. Taylor.   

 

Peter Winne stated he finds himself today in what he thinks is a fight between the East Merritt Island Homeowners Association and some developers of condos in the South Newfound Harbor Area.  He stated he has lived in Brevard County for 20 years, and has been a homeowner for 19 years; he was fortunate in 2002 to buy a piece of property that is 150-feet wide; and the zoning in that area allows him to split the lot to 75x100 foot lots, which are consistent with the majority of the homes built in the 1950’s and 1960’s in Merritt Island.  He stated he spent two years with the County working with the Department of Natural Resources to bring sewer down the street because he lived in a home built in 1957 that had a septic system; and he has faith that over time things will turn  around.   He advised  he built a new  home last  year and that  is where he  and his family live; it meets all of the Codes; he used to pay $3,500 in homeowners insurance and now he pays $1,000; and thanked the Board for having him build the home up to the new building Codes.  He stated he respectfully requests to have his property removed from the planned amendment change from the northern part of East Merritt Island.

 

Chairman Nelson inquired what the specific impacts are of going from Residential 6 to Residential 4 in Mr. Winne’s particular circumstance; with Ms. Sobrino responding the unique circumstance here is that Mr. Winne’s property is not technically part of the re-plat of the subdivision; and stated he does not enjoy the same protection that the remainder of his neighbors do.  Ms. Sobrino stated the change in land use density for non-conforming subdivisions would automatically be covered under the change in the land use designation; if someone has a platted lot and the zoning meets the land use designation, then that would continue to be a buildable lot; Mr. Winne does have zoning that is consistent with the Residential 6 and the Residential 4 since he is not a platted lot but rather he ended up being a parcel of land, he does not have the benefit of being able, if this Comprehensive Plan Amendment is approved in the future, to come back and now split that piece of land; currently he is in a position that between now and any such time that the County might adopt this land use change that if he were to go ahead and split it under the current land use designation he would be fine; and once the land use is adopted for this area, he would be precluded from splitting since it is a parcel and not two platted lots currently.

 

Chairman Nelson inquired if Mr. Winne has any intention of splitting his lot in the future; with Mr. Winne responding he had not intended to do that because it was really just an investment in his family’s financial future; stated in order to split the lot it is kind of complicated because there is a mortgage on the property; and he will be paying taxes on the other piece of property that he would not otherwise have to do.  Mr. Winne advised he could just accept it and build an Olympic swimming pool on the other portion of the property; but it would look a little odd because it is on 75 feet and he has another 85 feet with nothing on it.  He stated the original was 100x100 foot lots; the people who bought the property originally got half of one lot and the other entire lot; and it may have been one of the first platted subdivisions on the east side of Merritt Island on North Banana River Drive.  He stated one street north the lots are 75x100 foot lots; everything to the west are 75x100; and when getting past about three streets there are the same size lots.  Chairman Nelson inquired if there is any indication of how many other similar circumstances there are within the study area; with Ms. Sobrino responding she cannot speak for the entire study area as no one else has come forward with such a predicament; but stated Mr. Winne is the only one in this neighborhood who did not end up with a platted lot or two platted lots, instead he ended up with a parcel of land that is doublewide.  Chairman Nelson inquired if it is doublewide because he heard one and one-half as opposed to double; and inquired what is adjacent to him.  Mr. Winne advised down the street most of the lots are 100x100; and there are some homeowners, one directly across the street from him, that has 150 feet.  Chairman Nelson advised he would be creating 275; and the Zoning allows it, but the question is if that is consistent with what is in the neighborhood.  Ms. Sobrino advised on today’s Comprehensive Plan he could   proceed   right   now   to   go   forward   and   split  his  parcel  into  two;  but if the Comprehensive Plan Amendment is adopted by the Board he would not be able to split that.  Chairman Nelson stated he understands what she is saying, but what is being discussed is what is consistent with what is out there versus what he may be able to do; if he had two lots that were a single parcel so that if he reconfigured then the final were 100 wide  each,  that would be  a different story; but what is being said is that it would be creating two lots that are actually smaller than the adjacent lots.  Ms. Sobrino stated staff can check that for the Chairman.

 

Mr. Winne stated he counted in the north area 2,227 property owners that are on the amendment; and he only saw that there were probably 80 that owned more than .34 acre.  Chairman Nelson stated the Future Land Use will reflect that; the real question is within the area of where the lot or parcel exists, what are the lots in that area; and Mr. Winne is asking the Board to create something that is smaller than that.  He stated he is not inclined to withdraw this from the Plan; Mr. Winne has a choice to make; he originally intended to have that lot for the purposes to build on and thought he would need it for septic; now he has the ability as the County is going through this process to divide if he chooses to; but he is not inclined to pull it out because it would be creating smaller lots in an area where the lots are larger.

 

Karin Biega stated her husband, several of her neighbors, and now a lot of new friends served on the Small Area Study for over a year for 17 meetings with all of the County Departments and came up with very valid, good recommendations; and she requested that the Board submit them in whole.

 

David Biega stated he served on the Small Area Study; they believe that they came up with a plan that respects the majority of the wishes of the homeowners and neighbors in both the north and the south study area; it is a plan that has been before the Board for approval of the Small Area Study; now the Board is about to vote on whether to transmit it on to the State with or without any amendments; and he requested the Board do so without any exceptions or any do over’s.

 

Tony Phelps, President of the Harbor Pines Homeowners Association, stated he is in the southern half of the study about half way down the Peninsula; and all of his friends and neighbors would be at the meeting today but they had to work so they sent him and Art James the Vice President of the Homeowners Association.  He advised they reviewed the Small Area Study, and requested that the Board pass it without any exemptions.  He stated the Study was developed by the residents and it reflects their interests.

 

Antonio Rovira stated last week, as a member of the south section of the Small Area Study Group of the East Merritt Island, he delivered to some of the Commissioners letters written by his neighbors last October; they were as they are today very much in favor of maintaining the uniqueness of the community; today he feels the Small Area Study unanimously approved by the Board last October should again be approved unaltered to the Department of Community Affairs (DCA); he is astounded that the developers are opposed to the Study; they never participated at any of the meetings, which went on for over one year; and according to the October 14, 2008 Board meeting, Attorney   Kevin   Markey   had   no   comment  to make during the public comment time. 

Mr. Rovira stated investment and greed has placed the country, State, and County in a huge economic mess, which brings to mind the fact that people who have no roots in East Merritt Island should have no say in anything regarding the community; this is his home and he invested in the area; and he is living in the home now.  He requested the Board recommend in favor of sending the Small Area Study to Tallahassee for final approval.

 

Roger Williams stated he is thoroughly agrees with the Small Area Study; he is very close to most of his neighbors; they do not want changes and want to leave stuff the way it is; he lives against the marina; and what everyone really wants is to keep things the way they are. He stated everyone has worked hard for what they have; and everyone wants to keep their little places to themselves.

 

Catherine Baldwin stated her property abuts the Banana River Marina; when the marina was requesting to be developed, she recommended it be developed; but she has learned a lot since them.  She stated she walks a lot; there are no sidewalks; and people need to be courteous.  She noted during Tropical Storm Fay, the river turned the street into a river; it took her 20 minutes to drive two miles to the 7-Eleven; and if someone is allowed to build in her back yard it will flood her house.  She stated she hopes the Board approves the Small Area Study completely as it stands.

 

Janet Bryant stated she also worked on the East Merritt Island Small Area Study; and she recommends the plan amendment be approved for transmittal as written, as she is opposed to the exclusion of any parcels.

 

Kim Rezanka, representing the Law Firm of Dean Meade, stated she represents 68 residents that live along South Banana River Drive; the residents are in opposition to the abatement request by Pelican Bay Acquisitions/Banana River Village; and the names and addresses of the residents she represents are in the Board’s packages.  She stated all of this came about in 2005 and 2006 when Pelican Bay wanted to initially build a nine-story condominium along the river; it caused great consternation; and everything in the Small Area Study is what was presented in 2005 and 2006.  She stated she has provided the Board with certain sections of the Comprehensive Plan Future Land Use Element, Chapter 11; stated in Administrative Policy IV, Character of the Neighborhood, the findings from 2006, adopted in September 2006, clearly state it is a single-family detached residential neighborhood; and it is appropriate to have a lesser residential future land use designation all along South Banana River Drive.  She stated one objective is to manage growth in a manner that enhances the natural and manmade systems; another objective is quality of life and the delivery of services; and all of that is included in the Small Area Study.  She noted there are many policies in the Transportation Element, Chapter VIII of the Comprehensive Plan that talk about road deficiencies, proper transportation, and things the Board has already heard about, and will hear more about today.  She advised by forming the Small Area Study Group, the County determined that the land use policies in the area needed to be looked at; that is what happened with the Small Area Study; the Board adopted the Small Area Study in October; the Small Area Study clearly indicated the community’s vision and the need for policy changes as to the future land use map along South Banana River Drive, south of S.R. 520; and the  Small Area Study has  clear  evidence  to  support the  change in  the future land use map.  She stated she would like to ask that the October 14, 2008 Board minutes be included as a reference as evidence in today’s meeting because it talks about the recommendations of the Small Area Study; and she knows the Small Area Study is already included in the package, but she would ask that the minutes be part of the minutes of today’s meeting.  Ms. Rezanka noted she did not become involved in the issue again until early January 2009 when Pelican Bay submitted the letter on January 6, 2009, requesting the abatement; Pelican Bay asked for an abatement to wait for the Working Waterfront Land Use Overlay; Pelican Bay also stated there are potential inefficiencies associated with changing the land use designations in the coming months, only to change them again upon conclusion of the overlay development course of action; no one knows what the potential inefficiencies are, as it was never stated; and no one knows what the overlay will look like or how it will apply, therefore, it is speculative at this point.  She stated Pelican Bay also did not identify the parcel numbers in the letter; maybe it has been identified someplace else; but it is not in the letter; she believes it is approximately 17.25 acres around the marina and against the river; the letter also talks about a public/private partnership, which she is not sure would work; it is speculative in the early stages; and the letter does not seem to give the Board any reason to pull the 17.25 acres from the Comprehensive Plan Amendment.  She stated the residents have asked her to look into the public/private partnership and to look at other issues related to the working waterfront overlay district; when the letter came about in January 2009, the first issue that came up was South Banana River Drive, as it is a sub-standard road; in 2006 the residents asked that it be evaluated; and it is not labeled a collector road with an allowable use of 15,600 trips, but it is a very small road and cannot handle that capacity.  She stated in the Small Area Study recommendations that the prior Board approved, there was a request that the County hire an independent traffic engineer; with budgets, there is no way that has been done at this point; 38 families along South Banana River Drive collected the money for that survey; and it has been directed that the County hire the independent engineer.  She noted she submitted the money to the County on February 17, 2009; the notice to proceed has gone out to the engineer; the proposal by Fred Farrell is in the Board’s package, dated September 23, 2008; and Mr. Farrell from Traffic Engineering Data Systems, Inc., out of Debarry, is going to do a capacity analysis, which shall produce a modified capacity other than the default capacity from the generalized tables representative of the existing conditions along South Banana River Drive.  She advised she spoke to Mr. Farrell yesterday; he has gathered substantial data; he even referenced it to be a tiny road; and Mr. Farrell suspects there will be a draft report to the County within this month.  She stated also, in the Board’s package is a letter from Bussen-Mayer, which is a consultant with the County; Mr. Meyer is also a consultant for Pelican Bay Acquisitions, so she did not feel it was appropriate to go through Bussen-Mayer for the study; and there is another contractor with the County, Dyer Riddle Mills and Precourt, that is actually acting as the agent for Mr. Farrell to work through for the County. 

 

Ms. Rezanka stated going through the process she met with a number of County employees; there was a lot of vagueness about the working waterfront and the public/private partnership; a public records request was generated from her office to the County to find out what Pelican Bay Acquisition is trying to accomplish; the mandate was clear that multi-family does not belong  on  that  area  of  Merritt   Island; but  it   appears

 

 

Pelican Bay is continuing to try to do multi-family; and she plans on defining that further as it is something the residents have asked her to look into. 

 

Ms. Rezanka stated the third issue to review with the abatement was the potential claim by Pelican Bay of Vested Rights; the mere purchase of land does not create a right to rely on the existing Future Land Use Map; case law in Florida states it would be unconscionable to allow land owners to ignore evolving and existing land use regulations when they have not taken any steps to further the development of their land; and Pelican Bay Acquisitions has not done anything since April 2006 to further develop of the land.  She stated Pelican Bay has seemingly ignored the public input and the substantial evidence presented in 2005 through the Small Area Study regarding what the area is; Pelican Bay is not losing any units it could put there by the change in the Comprehensive Plan; the testimony in 2006 was that they would have between 64 and 68 units that could be built on the land; and Pelican Bay is not going to be losing that by this change in the Future Land Use Map.  She stated as to the abatement request, she looks at it as a spot zoning analogy; if the 17 acres is taken out, it leaves an island of potentially higher development in a well-established single-family residential neighborhood; the Small Area Study shows the Future Land Use Map needs to be changed by what is existing there; and if the Residential 15 is left, there is going to be dis-harmony with the surrounding area; and it in essence gives Pelican Bay Acquisitions preferential treatment at the expense of the Comprehensive Land Use scheme as a whole.  She stated like zoning decisions, the Comprehensive Plan amendment should be made on the basis of rational planning goals as opposed to somebody’s political or personal agenda.  She stated the final thing she would like the Board to consider when looking at the Working Waterfront Overlay Ordinance is that it is believed it might be accomplished by using what it already in the Comprehensive Plan, which is the redevelopment and re-gentrification, Objective 11 of the Comprehensive Plan, which says Brevard County shall alleviate the impacts of inadequate public facilities and services, sub-standard structures and lot configurations in blighted or other affected areas in the County through redevelopment activities; it has the criteria for redevelopment plans in Policy 11.1; the issues that have to be looked at for the Pelican Bay property is the traffic, parking, aesthetically pleasing, environmentally sound commercial office and residential opportunities, and all the criteria that is listed; and she would ask that the Board look at those types of issues if there is future consideration of redevelopment of the marina area.  She stated in conclusion, on behalf of the residents, she would ask that the Board deny Pelican Bay’s request for abatement, as there is not justification or explanation for removing the parcels from the Comp Plan Amendment; and any future land use request should come back to the Board for review. 

 

Chairman Nelson stated he was not aware Ms. Rezanka sent a check to the County to do the traffic study; he would like to return the check and have the District 2 MSTU pay for that study; and he does not think it is necessary for the residents to pay.  Ms. Rezanka stated the residents were concerned that it had not been done yet; she had spoken to the Public Works Department; and they could not find the funds.  Chairman Nelson stated he appreciates it, but he will find the money in the MSTU and pay for the study; and he will get the check back to Ms. Rezanka. 

 

Mary Hillberg stated she appreciates the Board hearing the item; the East Merritt Island Small Area Study started a long time ago, and because of the unique composition of the different aspects of Banana River Drive, the residents thought the most expedient thing to do would be to split it into two sections of north and south; and she was elected Chairman of the northern section.  She stated there have been several meetings; some meetings were filled to capacity; there was a lot of public input; the residents worked very hard to be inclusive, collaborative, and as fair as possible; and almost all County department staffs gave wonderful presentations, which went into the decision making as well.  She stated in addition, all of the meetings were publicly noticed in the newspaper, and on the website; at the time, the County did not have the money to send out thousands of surveys; but signs were up all over the place; and everyone was aware of the meetings.  She stated in conclusion she would like to extend sincere appreciation to Commissioner Nelson and Land Planner Stuart Buchanan; the Small Area Study has been through two Commissioners and two Land Planners in the past four years; and she respectfully requests the Board transmit the amendment without the exclusion.

 

Kevin Markey stated he is the attorney representing Pelican Bay Development and its affiliate companies who are the owners of record of the 17-acre parcel located in the south area of the East Merritt Island Small Area Study.  He stated the question has been asked of what is the purpose of Pelican Bay’s request; it has become clearer to him over the past several weeks after some research he has done; and as some people know, he did not represent Pelican Bay in 2005.  He stated he has lived in Merritt Island for 40 years and went to elementary school in the East Merritt Island Small Area Study area; and he may know the area better than some people present.  He advised in 2005 and 2006 the State Legislature amended State law, and in one case created State law, recognizing recreational and commercial working water fronts; that is the critical term to bear in mind; that State law requires Comprehensive Plans to include regulatory incentives and criteria that encourages the preservation of recreational and commercial working waterfronts; and the Coastal Management section of the County’s Comprehensive Plan is supposed to have this regulatory incentive of the newly created concept of working waterfront.  He noted the last time the Comprehensive Plan was amended with regard to this issue was in 2003; his clients did not know of the Small Area Study, and did not participate in the Study; and even a member of the Local Planning Agency who has lived in the area for 30 years did not know about the Study; but that does not diminish the hard work that went into the Study.  He stated the marina, which has been in existence since the 1960’s, is 14 acres; in the 122-page long Study, the only mention of the marina is, “In the mid 60’s the Banana River Marina was built.  The marina basin and a channel were dredged, the small draw bridge owned and operated by the marina was built in 1963”; that is the only mention of the marina in the Small Area Study; it is a critical omission for there to be no discussion of the marina in the Study; and therefore, he thinks his clients would be unfairly prejudiced.  He stated he does not think asking that the property to temporarily be abated from the transmittal to the State hurts the recommendations or harms the residents in any way; his clients would like to clean up the marina; it is 40 years old, but it looks 60 years old; and that is the basis of Pelican Bay’s request, which he does not think is unreasonable.

 

Commissioner Fisher inquired what Mr. Markey means when he says his client wants to clean up the marina.  Mr. Markey  replied his  client  would  like to  bring the marina up to Code from an environmental standpoint; he does not know what his client wants to do from a development standpoint in terms of units or condos; there have been discussions about preserving the property for a working waterway; and perhaps his client can work with the County in some way because the County can get grant money that a private interest cannot get.  He stated together, his client and the County can do things to enhance public access to the river, to enhance the use of the marina, to prevent it from being privatized, which was a big deal in the County a couple of years ago, that is the objective; and there are no specific plans yet because there are no specific rules yet. 

 

Commissioner Infantini inquired if the marina is currently a working marina with boat slips and boat launching facilities; with Mr. Markey responding affirmatively.  Commissioner Infantini stated in the south part of the County it is nearly impossible to build a boat launch, so the last thing she wants to do is close down a boat launch facility because right now there is virtually no place to do it.  Mr. Markey advised he spoke with another client yesterday who was working on a project in the marina because that is the only place he can do it; and stated he asked the gentleman to speak today, but he was too busy. 

 

Chairman Nelson inquired if the property is changed to Residential 4, how will it negatively impact Mr. Markey’s client; and his understanding is that if it is Residential 4 it still will not have an impact because there are other issues that still have to be resolved.  Mr. Markey stated that may be true, and he is not dismissing that, but he does not think it addresses the bigger picture of the 14-acre parcel.  Chairman Nelson inquired if the Board approves Residential 4, does it negatively change any of the circumstances that Pelican Bay has currently.  Robin Sobrino, Planning and Development Director, advised the property can continue to operate as it currently does; and the change in land use would not affect the operation.  Chairman Nelson inquired if Mr. Brown is working with the Marine Advisory Council; with Mr. Brown responding affirmatively.  Mr. Brown stated in 2005 and 2006 when the State Statute changed, staff had conversations with the State, and added Water Dependent Facility language in the Comprehensive Plan; the State was willing to accept that with the understanding that Brevard County was embarking on the Comprehensive Maritime Management Master Plan Process; and working waterfronts and the associated public access is part of the working group conversations that are going on currently. 

 

Commissioner Infantini inquired where the commercial portion is located.  Chairman Nelson stated there is some commercial property in the area; it is residentially zoned, but it is being used as commercial; and there is an inconsistency between future land use and the zoning, which is part of the issues that have always been there.  He stated adoption does not create an additional hardship; there is a process that is going to occur in which the Board will continue to address Mr. Markey’s concerns; and as a Commissioner, he needs to separate the two issues.  He stated one issue is the Comprehensive Plan Amendment that has been transmitted to the State; the other issue is whatever happens in the Maritime Master Plan and any other future plans the developer may have; those two issues are separated from the process; and whatever the Board may do today does not impact that process for Mr. Markey in any negative fashion.  Mr. Markey noted the Small Area Study does not address the marina; and he is not sure he can agree with Chairman Nelson.  Chairman Nelson stated Study addresses the right-sizing of residential uses in the neighborhood at this point in time; that is what the Plan was intended to do; stated Mr. Markey is getting into a specific area that will be addressed; and it is Mr. Markey’s right, as representative of the property owner, to make those kinds of requests.  Mr. Markey stated he disagrees with Chairman Nelson, as the basis for the Small Area Study does not discuss the marina; and he is not talking about in individual residential lot, he is talking about a 17-acre unique use in the area.  Chairman Nelson stated right now the future land use is Residential 15 units per acre; it will go to Residential 4 units per acre; and the current zoning is not good for either designation. 

 

Commissioner Fisher stated going to Residential 4 will affect the developer’s density.  Chairman Nelson stated the zoning does not match up with the future land use; and that is the dilemma.  Ms. Sobrino noted right now the developer has single-family zoning on a portion of the property; and there is commercial zoning on the other portion.  Commissioner Fisher stated just to make sure he understands, there is a marina in single-family zoning.  Ms. Sobrino advised it is an old, non-conforming marina when it comes to the zoning regulations; the marina has been there for a long time; and it can continue regardless of the fact that it does not jive with the Comprehensive Plan or current zoning regulations; and it can enjoy continued use in its current way, as long as they wish to do so.  Chairman Nelson stated when the owner tries to change the use in some fashion, it is going to trip across the issue of incompatibility with the current future land use.  Commissioner Infantini inquired if the marina is destroyed in a hurricane, is the owner allowed to rebuild; with Ms. Sobrino responding no. 

 

Jim Stone stated after having gone through the Small Area Study process on North Merritt Island, and experience the rudeness, he does not have a good feeling about Small Area Study Committees; but he does applaud what the East Merritt Island Small Area Study is doing; and he understands that his neighbor may decide to put up a 4-unit apartment on a 70-foot wide lot.  He read a portion of an article in the Florida TODAY, “Why are Commissioners from Micco to Mims involved in Merritt Island business?  Are they involved in city planning? If incorporated, we could decide what is best for Merritt Island; long-term growth is better decided at the local level”. 

 

Kathryn Bird stated she serves as Chair of the South Study Area for the East Merritt Island Small Area Study.  She stated she would like to remind the Board that it actually has to vote to refund the citizens’ money; and it was a heartwarming issue for the neighborhood to chip in for the survey.

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to approve reimbursement in the amount of $5,000 to Dean Meade and Associates for a MAV/Capacity Study along South Banana River Drive in Merritt Island to be taken from the District 2 MSTU; and authorize all budgetary modifications necessary to incorporate the payment to the consultant from the District 2 MSTU.  Motion carried and ordered unanimously.

 

 

Ms. Bird stated as a rebuttal to Pelican Bay Acquisitions’ counsel that for the year-long study not to have included the bridge is a  personal  asset  of  Pelican Bay  Acquisition’s; the process is about participation; and inquired where were Pelican Bay Acquisitions.  She stated she would like to keep the document whole; her request is based on the simplistic concept that the Small Area Study urges those impacted to make their concerns known first, not at the eleventh hour; and most importantly is the issue of South Banana River Drive, as it should be refined at this stage since its approval in October 2008 by the Commission; and any decision the Board makes today per individual parcel owner is based on the County’s knowledge of the refining of South Banana River Drive concurrency.  She stated the informal capacity study of the Traffic Engineering Department concluded the MAV value for South Banana River Drive as 3,800 MAV; this was an informal study that created the language for part of the recommendations; and in the sweep study, the conclusion was 3,800 MAV.  She stated South Banana River Drive is only four miles long and has an asphalt at its skinniest point of only 16 feet wide; it has a 20-foot wide bridge on the public right-of-way with an extraordinary MAV of 15,600; other areas of the Drive are wider, however, it has a significant amount of substandard right-of-way; and any density loads on its back has to be light.  She stated the area of Marina Villages, and Harbor Homes is Mike McPhillips’ existing condo; the planning management begs for public input in meetings since the developer in existing neighborhoods are encouraged; the neighbors sat down with the developer, McPhillips, in 2006; and they were told the Marina Villages condo was a 55-plus community, therefore, the traffic generated from that condo was not like a regular condo trip generation based on the studies that Florida Department of Transportation works with.  She noted the condo is not a 55-plus community, and the Board may want to ask the developer about that; the Binding Development Plan with Harbor Homes show that it is in fact a 55-plus community; the site plan was reviewed as a straight-up single-family condo; and requested the Board hold off on any road concurrency at this time until a determination is made.  She stated the Board should consider the Schenk family that has owned River Palms Trailer Park for years and has paid County taxes for years; the mobile home community is as old as the marina and needs assistance from County; the Schenk family also owns Pirate Cove, which is referred to as a garden apartment complex; and the Schenk family has been in the community for a long time.  She stated Resolution 08-261, is an agreement with the County and River Palms Mobile Home Park that discusses issues with that park.  She stated the area is full of vulnerabilities including the rattle-trap bridge; if the bridge were to fail one day, all the trip generations south of the bridge on South Banana River Drive will immediately utilize Newfound Harbor Drive; and the homes on Newfound Harbor Drive will be impacted if the bridge were to be defunct.  She stated she and her husband have always encouraged partnership with Pelican Bay Acquisitions as well as the original owners of the marina; partnership is encouraged because if the bridge fails it immediately impacts Newfound Harbor Drive; if the bridge is owned by the County, the lowest cost for a replacement bridge is a fixed bridge, therefore the basin is defunct and it can no longer be opened.  She stated there needs to be a functional use in the marina; everyone loves the marina; but they do not like the high-intensity loads in the area; the neighbors encourage partnership, which is why they are exasperated by talks of a public/private partnership; the County is going to be at a crossroad when the transfer of ownership happens; and the transfer of ownership came and went.  She stated she would like the Board to seek counsel with Emergency Management Director Bob Lay; the area is a vulnerable coastal high hazard area; it is in an AE flood plain; AE floodplain is exactly what the Thousand Islands are in; the roads go straight through the floodplain; and that speaks to why the three days of 25-year flooding during Tropical Storm Fay made an impasse on Newfound Harbor Drive and people went to the historical South Banana River Drive to use it to go over the bridge and get back onto Newfound Harbor Drive to continue to wherever they lived on Newfound Harbor Drive. 

 

Chris Scheetz stated he would like the Board to accept the Small Area Study and pass it as it is written without exception; the Study has taken a long time to come to fruition; and countless meetings have produced a fair and unbiased recommendation for an old, established area that is begging to be right-sized.  He stated those now wishing to exempt their property have had plenty of opportunity to exercise any objections during the lengthy Small Area Study process; and there are other avenues later in time in which any property owner can adjust their status at a later date.  He stated he would like the Board to keep in mind the many eclectic single-family residences that the Small Area Study affects; the old neighborhood did not invite the developers to move in and change the landscape; the people who live there do so because of the quiet lifestyle the peninsula offers; and it is the diversity that some people cannot appreciate or understand.  He noted just last week he was shocked to hear that the District 2 office told one of his neighbors that this is a blighted area that can be improved; that inference is not only insulting, but unprofessional; and he would bet the people from the community do not believe their property is blighted.  He stated there was another remark dating back to February 2007 and took place at the Freedom Outpost debacle; when the District 2 office was questioned about the Consent Agenda on the particular issue, the reply was, “You already have that low, low-income housing there anyway, so what’s one more”; to the neighborhood that casts a dark cloud over the intentions and integrity of the District 2 office; and therefore, he is pleading with the other four Commissioners to scrutinize and oversee any ideas, deals, or plans that derive through the District 2 office that affect the neighborhood.  He stated he would like to see such oversight come through the County Manager’s office in unison with the County Attorney’s office, as they have the knowledge base of all the departments along with the old Resolutions that are pertinent to the area; and in closing, the neighbors want to protect the community and retain their quality of life, and they would like the Board to accept the Small Area Study as it stands.

 

Cliff Repperger stated he is with the law firm of Gray Robinson and he represents Harbor Homes, LLC, also known as the pre-approved project of Marina Village.  He stated his clients do object to the recommendation of the Small Area Study overall; however, with respect to the parcels that are owned by the ownership group, they do have an issue with the way the Comprehensive Plan amendment change is being proposed and applied to those parcels; and his clients’ issues are significantly different than the issues related to the marina property, given the historical development efforts that have taken place on his client’s parcels.  He stated members of the ownership group have an interest in two other parcels that were sought to be excluded initially to the north; his client’s property is located at the northwest corner of Worley Avenue and South Banana River Drive; the parcels are identified as 24, 37, 31, 75, 47, 49, and 50.01, which are the parcels on the corner; and he is also seeking to exclude the two  parcels,  11 and 9  to  the north  of  the  existing   project  on  the  east  side  off of South Banana River Drive.  He noted recently, however, it was verified with staff that what is being proposed for those parcels is a reconciliation of the zoning, which is currently RU-2-15 to Residential 15; it is currently Community Commercial on 9 and 11, and his client no longer has an objection to the recommendations proposed to match the zoning and the land use to Residential 15; and they are only focusing on the three parcels on the corner.  He stated with respect to those parcels, the acreage is 1.03 acre, the Future Land Use is currently Residential 15; and the zoning is RU-2-15 with a CUP for Residential/Recreational Marina; and he would like to give the Board a little bit of history on the parcels.  He noted the property was acquired by the current ownership group in April 2002; in June 2002, Resolution Z-10696 was adopted carrying forth a rezoning of the property from RU-1-9 and BU-2 to RU-2-15, with a Conditional Use Permit for Residential/Recreational Marina; and there was a Binding Development Plan that was approved at that time for the overall project.  He stated the parcels to the east side of South Banana River Drive, along with the parcels being discussed today were part of an overall approval; and the parcels in question today are actually Phase IV of the Marina Village project.  He advised in May 2003 there was an easement granted to Brevard County on the southeast corner of the property for roadway drainage, sidewalk, and utilities, which was required as part of the site plan approval process for the overall project; on July 8, 2003, the site plan was approved for the entire project; in August 2003, construction began on the whole project; in April 2005 the condominium documents were recorded; and in August 2005 final sewer certificate of completion was issued by Brevard County.  He noted one of the differences between this project and the parcels the Board heard earlier today is that there were significant construction efforts that took place on the parcels in question; the infrastructure for the development of Phase IV of the project was completed, but the project itself was not built on Phase IV prior to the expiration of the site plan; in November 2007 all phases of the project were complete except for Phase IV; and in December 2008 a site plan expiration notice was provided to the owner by Brevard County.  He advised recently the owner has submitted an extension request on the site plan; that has been denied; and the owner is seeking to file a renewed site plan approval for Phase IV.  He stated one of the things he wanted to address was the plus-55 component of the development overall; on March 9, 2006 Brevard County Planning and Zoning staff released the owner from that condition; that condition was actually put in place due to the school impact fees not being adopted at the time; once the school impact fees were adopted, the owner was released from that condition; so that was not a traffic component; that was solely related to the school impact fee; and because the document was not recorded, that may be why Ms. Bird was not aware of that.

 

Chairman Nelson inquired if the owner paid the impact fee for schools.  Mr. Repperger replied the other phases were already complete at that time; Phase IV was not completed; and he thinks the owner would have to pay the impact fees on Phase IV.  Chairman Nelson inquired how a project can be only 55-plus because of capacity, and then release the developer of having to pay that impact fee; with Steve Swanke, Impact Fee Programs & Budget, responding the impact fee is not due until a Certificate of Occupancy is issued.  Chairman Nelson stated there are Certificates of Occupancy on at least portions of the project that did not pay the school impact fees; now the County has released the developer from paying them; and inquired how that is done; with Mr. Swanke responding he does not know, he was not aware of the zoning requirement; but there was a period of time prior to the adoption of the school impact fee when the Board considered rezoning requests and asked the applicants to either limit their projects to age 55 and older, or to pre-pay the school impact fee.

 

Commissioner Infantini stated Barefoot Bay was supposed to be a 55-plus community; and inquired if the developer got a waiver of the impact fee for education.  Mr. Swanke replied yes, the developer pre-dated it.  Commissioner Anderson stated Barefoot Bay was self-imposed 55-plus.  Commissioner Infantini stated Barefoot Bay is not 55-plus.  Chairman Nelson stated Barefoot Bay pre-dated the impact fees; there were not impact fees when Barefoot Bay was built; and he would like the County Attorney to review that circumstance, as it is going to be an issue the Board is going to have to deal with.

 

Mr. Repperger stated the point is that it was not a traffic related issue; it was solely a school impact fee issue; at the time the zoning was approved, the trips were significantly reduced, as evidenced in the staff report on the approval; and so there was a significant reduction in traffic from the parcels at the time the approval was granted.  He advised the architectural plans for all six phases were approximately $226,500; of that, the architectural plans for Phase IV were $22,000; engineering for Phase IV was approximately $22,245; and site infrastructure construction efforts was approximately $132,311, including the sewer storm drain and water meter site work, in addition to the easement and site improvements given at the corner of Worley Avenue and South Banana River Drive on Parcel 50.01.  He stated there were significant development efforts that exist on the parcels that do not apply on other parcels the Board has heard today; the traffic was significantly reduced; also, one of the issues that is different from some of the other properties the Board has heard today is that what is happening is not a right-sizing of the land use and zoning currently; it is RU-2-15 being left as Residential 15; and going from Residential 15 to Residential 4 would take it out of that consistency. 

 

Chairman Nelson inquired if there was a discussion about the fact that the zoning and the Future Land Use matched on that parcel because throughout the rest, the Board has basically been right-sizing.  Mr. Buchanan replied on that particular corner, it was not discussed individually; what was discussed was that the Residential 15 that was vacant should be reduced; that was recommended by the Committee itself; and singly, the subject parcel is one where it would be non-conforming with the existing zoning.  Chairman Nelson stated that is not what he just heard; and he heard it is consistent with zoning.  Mr. Buchanan stated he meant after the change.  Chairman Nelson inquired if it is a total of seven units.  Mr. Repperger replied the site plan that expired was for seven units; and now they are talking about 1.03 acre.  Chairman Nelson stated, in effect, the Board is creating a non-conforming use.  Ms. Sobrino advised the zoning would not be consistent with the land use change; and that is correct.  Mr. Repperger stated given that fact, he is respectfully requesting that the Board keep those three parcels as identified, out of the change to Residential 4.  Chairman Nelson inquired instead of out of, would it be more appropriate to have it as it is currently zoned and future land use.  Mr. Repperger stated all he is arguing for is to keep it exactly as it is currently. 

 

Commissioner Fisher inquired if staff’s recommendation would be to allow the property to stay as it is today.  Ms. Sobrino replied there are certain facts that have been brought to bear today that staff has not considered in the past; and given the level of infrastructure involvement that has been incurred by the applicant and the fact that the applicant has the RU-2-15, she thinks staff would have looked more closely had it know these facts then.  Commissioner Fisher inquired if staff’s recommendation is to pull out the property, or can the developer be allowed to keep the development as planned.  Ms. Sobrino stated the developer can retain the Comprehensive Plan designation of Residential 15 since it makes sense as part of the one area being left as Residential 15; it is not just an island of Residential 15 amidst what might go to Residential 4; it is connected to the Residential 15 on the other side of the street; and that would be retained.  Mr. Repperger stated that is an excellent point; all other phases of the project are being left as Residential 15 in addition to those two parcels to the north; and so as it is proposed, it is really carving it out of what it should be left as. 

 

Chairman Nelson stated he recalls in 2004 there was a Comprehensive Plan Amendment that matched the zoning.  Mr. Repperger stated 2002 is when the actual Resolution went through, so there was a component of commercial zoning on it; it was BU-2 in addition to RU-1-9; and it all was changed to RU-2-15 at the time with a Conditional Use Permit.  Chairman Nelson stated the original site plan allowed for seven units; and more could come out of that.   Ms. Sobrino stated it is hard to say; it is not always a density issue, but the Board should bear in mind that retention, landscaping and all other issues come into play that may end up resulting in a lower density than what the zoning or Comprehensive Plan would allow.  Chairman Nelson stated a development can go up, though.  Ms. Sobrino advised 35 feet would be the maximum.   Chairman Nelson stated they can go to 35 feet without coming back to the Board; and inquired given the fact that the zoning and future land use are consistent, and there has been significant expenditure of dollars for that site, what is the Board’s risk to go Residential 4 in terms of the owner’s Bert Harris rights.  County Attorney Scott Knox replied if Mr. Repperger’s client believes somehow the property has been diminished in value because of the change, then he will come back to the Board making a claim for the Board to pay the difference; and that means the Board would have to negotiate some kind of compromise somewhere. 

 

Chairman Nelson inquired if there is anything else in the Small Area Study with the same circumstance.  Ms. Sobrino replied staff is not aware of anything else.  Chairman Nelson inquired if staffs suggestion is to leave the zoning as it is currently.  Commissioner Fisher inquired if the Board has to vote on that separately.  Chairman Nelson stated the Board can address it by itself. 

 

Chairman Nelson advised what the Board has is a circumstance where the zoning and current future land use match up; the applicant has a site plan that was active until recently, but it has now expired; but the applicant did expend dollars on the site for capacity to build; so that then exposes the County to some level of potential suit over diminished value; the Board has not done that anywhere else, nor can it afford to do that because that would be an expensive proposition; and the suggestion is that the plan would be amended to reflect the fact that it is currently Residential 15 and RU-2-15.

Chairman Nelson passed the gavel to Vice Chairman Bolin.

 

Chairman Nelson advised he met with the developer of the project, as other Commissioners do from time-to-time; that is a common practice; his comment to the developer was that they needed to meet with the community and listen to what they had to say about what they believe their community should look like; that was his involvement with the developer; and that seemed pretty reasonable to him.  He stated his second action was to contact the Chairman of the South Area Study to explain the nature of discussions with the developer; there were some signs, but he did not see them; and it did not reflect will on him, but that is okay.  He stated he wanted to clarify something because it was suggested that he called the area blighted; that is not true; and if someone hears it from him then that is one thing; but people should not take the word of something someone else said.  He stated if the marina needs to be cleaned up, then he would probably agree with that; he thinks most of the residents would agree with that; the area is eclectic with a lot of different types of structures; it is a unique neighborhood; and it is troubling to him that someone said he called it blighted. 

 

Motion by Chairman Nelson, seconded by Commissioner Anderson, to approve transmitting the 2009-1 Comprehensive Plan Amendment 2009-1.11 with the exception of Lots 47, 49, and 50.01 owned by Harbor Village, LLC to stay at Residential 15 and RU-2-15.  Motion carried and ordered unanimously.

 

John Denninghoff, Public Works Director, stated as far as the reimbursement, the Board took care of who to write the check to, but staff needs authorization to make all the budgetary modifications that are necessary to go ahead and incorporate the payment to the consultant out of the MSTU. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to authorize all budgetary modifications necessary to incorporate the payment to the consultant from the District 2 MSTU.  Motion carried and ordered unanimously.

 

Interim County Manager Stockton Whitten advised the item is a request for the uncollectibles for the Fire Rescue Department; and it is also a request for the Board to provide direction with regard to any collection action on write-offs that are deemed uncollectible in the future.  He stated right now all the County does is collect through a billing company; and the second request is for the Board to give staff direction that if after a year of being unable to collect through the billing company, staff will send those to the County’s debt collection agency. 

 

Commissioner Anderson stated if the Board looks at continuing collections, it costs the taxpayers nothing because the collection agencies will only collect upon successful collection; some figures indicate there is an opportunity for some money to be collected; and he thinks the Board should continue to pursue collections and get every dollar possible.  He stated in some instances it might be a billing error, it might be something to do with Medicare or Medicaid, but some of the transport fees, people are just not paying; the people who do pay are the one’s that are suffering; and the taxpayers are supplementing bad behavior. 

 

Motion by Commissioner Anderson, seconded by Commissioner Fisher, to approve FY 2007-2008 uncollectible ambulance write-off accounts receivable; and direct staff to continue further collection action following write-offs of uncollectible accounts receivable.  Motion carried and ordered unanimously.

 

 

Interim County Manager Stockton Whitten advised the Board directed staff to bring back a proposal for a Working Group to assist with issues in the Animal Services Department; and if the Board approves of the concept, staff will bring back the resolution for approval.  He stated what is missing from the item is the process of making the appointments; the membership calls for seven individuals; but it is not outlined on the document how those appointments are going to be made; and the Board may want to give some direction in that regard.

 

Commissioner Fisher stated he would like to have an option to make an appointment; and maybe each Commissioner can make an appointment.  Chairman Nelson stated he agrees.  Commissioner Fisher stated at some point he would like the Board to consider breaking the groups out and have somebody for the North Shelter and somebody for the South Shelter.

 

Commissioner Bolin stated she concurs with Commissioner Fisher; she would like to have an appointment by each Commissioner; and inquired if there are going to be two members at-large, or if they will be replaced.  Chairman Nelson stated at this point in time he would just have one member per Commission District instead of two at-large; and the Board can expand it later if it needs to.  He stated he likes Commissioner Fisher’s idea of splitting off in the future; but the Board can look at the big picture first and then let the Working Group advise the Board.  He stated there will be five members, plus the two from the non-profit shelter placement organization; and there is a question as to how those two will be chosen.  Commissioner Anderson inquired if the Board can advertise for people to come forward. 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to approve each Commissioner appointing one individual to the Animal Welfare Working Group, in addition to the seven members outlined in the attached format; and direct staff to seek potential   interested  parties  who  qualify  for  each  category, and  develop  a  selection

process to discus with the Board when the resolution comes back for approval.  Motion carried and ordered unanimously. 

 

 

Anna Brown stated she represents the Brevard No Kill Coalition, doing business as Space Coast No More Homeless Pets; she would like to make several recommendations of people to be appointed to the Working Group; she would like to see Clerk of Courts Scott Ellis in the Working Group as he has been working with her group since its beginning in January 2008; and stated Mr. Ellis has guided the group throughout the entire time.  She stated Mr. Ellis has established working relationships with the Departments; he is a known entity; he has a lot of resources, and he has the understanding; the Working Group needs Mr. Ellis’ expertise; and Mr. Ellis would be a tremendous benefit to the group.  She noted she would also like to recommend herself to be on the Working Group as she is the founder and President of Space Coast No More Homeless Pets; the organization has been working for the last year to identify the problems with the animal shelters and working on creating solutions, programs and services that can be implemented, particularly without costing the County money; she has already established a working relationship with Bobby Bowen; and the organization’s guidance would be a great benefit.  She advised she would also like to recommend Leon Sisson to the Working Group; stated Mr. Sisson is already working with her group; he is with the Space Coast Feline Network; he also has a lot of established working relationships with rescue groups; and he is currently working with her group to help develop new policies and procedures for rescue groups in the shelters. 

 

Chairman Nelson stated names will be collected for the Working Group; and staff can match the candidates with the categories they are qualified for.  He advised Ms. Brown to give staff information on the three recommendations she just made.

 

Leon Sisson stated limiting appointees to the Working Group based on geographical Districts might be unnecessarily limiting, as it might limit the Board’s access to the best expertise; and he will also submit a list of people who he thinks would be well qualified.  He stated in pursuing the No Kill Agenda, the Board is going to need to place a lot of emphasis on spaying and neutering, low-cost, no-cost, and homeless cats; and the Board is going to need a lot of emphasis on adoptions, fostering, and rescuing from the shelters, which reduce the kill rate in the shelter.  He inquired once the group is established, how often and where will it meet.

 

Chairman Nelson stated he does not know that that has been established yet; at the first organizational meeting, the Working Group will get together and select a Chair and Vice Chair, and begin to develop the program based on those needs; and it will be up to the Working Group.  He stated the candidates will have to submit their qualifications for those areas, so the Board can review that.  Mr. Sisson stated he would like to see high emphasis on feral cats.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve the attached Road Resurfacing Prioritization List that has been reduced to $4,686,664 from the previously approved funding level of $6,128,206. 

 

 

Commissioner Infantini stated almost all of her projects were removed from the list except for $400,000; and she would like to see a reprioritization of the listing since the Board is going to be territorial rather than looking for a project such as Nasa Boulevard and Ellis Road, which is not in her District, then she would like to see a fair distribution of the funding.

 

Chairman Nelson inquired if that includes all projects; and inquired if he can get a portion of the Palm Bay Beltway money.  He noted that is the difficulty with roads. 

 

John Denninghoff, Public Works Director, stated in this particular case, the timeline established by Congress and then FDOT, has really limited staff in the types of projects, the location of projects, and the amount of the projects.  He noted in the eleventh hour of the project staff had to go from almost a $7 million list down to a $4.6 million list; in addition, the individual projects became more costly than staff had originally anticipated because of the requirements that had to be achieved with each of the projects.  He stated the effect was staff had to reduce the number of projects, which it did, and in many cases the length of projects; staff attempted to have the projects make sense on a stand-alone basis, and also on the size of road, and which District the project was in; unfortunately, in the case of the District 3 location, there are a total of three roadways which could qualify for the stimulus money; and one of them has been recently resurfaced, which is Fleming Grant Road.  He stated in the case of Babcock Road, it is actually split between District 3 and District 5; and staff ultimately settled on the list it had.  He stated almost all of the projects are shorter than they were originally, yet they are still more expensive because of the standards that have to be met; and at this point he is not sure more projects will be allowed to be added.

 

Chairman Nelson stated it is a difficult project because in some cases where the road is, it impacts other Commission Districts even though the road is not in that District. 

 

Chairman Nelson called for a vote on the motion.  Motion carried and ordered; Commissioner Infantini voted nay. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to deny Partial Release of foreclosed property located at 4525 Pine Street, Cocoa, regarding James Ivors, Sunbelt Title.  Motion carried and ordered unanimously.

Clerk of Courts Scott Ellis stated the Value Adjustment Board used to do approximately 600 to 700 petitions per year; and now it is closing in on 4,000.  He stated the current software package is overwhelmed; and he would like the Board to go to bid on the software package, as it is a Board function.  He advised he went to bid and only had one bidder; while it was a good package, he is not comfortable with one bidder; he knows Central Services Director Steve Stultz has more contacts than his office on a bidding process like this; and he would like it to go out to bid and come back to a Selection Committee.  He stated he would like one person from the Clerk’s Office, one person from the Property Appraiser’s Office, and one person from the Board to sit on the Selection Committee; the Property Appraiser is deeply involved in the Value Adjustment Board process; it is a scheduling issue with the current program; it cannot handle the amount of petitions it has been having; and with the tax roll going up and down, a lot of people are filing petitions. 

 

Chairman Nelson inquired if Mr. Ellis has time to get the software out to bid and in place for the next Value Adjustment Board season.  Mr. Ellis responded there is plenty of time; and stated it would not need to be installed until August or September.  He stated the only systems his office wanted to look at were actually operational in a Florida county.

 

Chairman Nelson inquired whom the current Selection Committee is made up of; with Mr. Ellis responding there is none.  Mr. Ellis stated generally, the Board and Purchasing will set up a Selection Committee and who it wishes to have on it; he would like to have one person from the VAB on it from the Clerk’s side; the Property Appraiser should be invited to participate; and also someone from the Board should participate.  He stated he would like someone from the Property Appraiser’s office to be involved because it has to do with the scheduling of their Special Masters; and the building was pretty well jammed all year.

 

Commissioner Fisher stated this is a mid-year budget adjustment; inquired where the money will come from; and inquired why the software package is not coming out of the Property Appraiser’s budget.  Mr. Ellis stated the Value Adjustment Board is a County Commission expense; the Clerk’s Office handles the clerical side of that; and the Property Appraiser deals with the Special Masters.  Commissioner Fisher inquired if it has always been typical that the Board furnishes software to make this mid-year adjustment.  Mr. Ellis stated the program was written 10 or 12 years ago by someone in the Clerk’s Office.  Chairman Nelson noted by law, it is the Board’s responsibility to handle the Value Adjustment Board.  Commissioner Fisher inquired how it will be funded.  Mr. Whitten advised it can be part of the Board’s budget discussions; if the software is obtained before this year, the Board will have to fund it out of reserves; but Mr. Ellis has to install it this year to be ready for next year’s Value Adjustment Board hearings; and it will have to be taken out of the Board’s reserve accounts.  Mr. Ellis stated for the last eight years he has not asked the Board for any funding for anything that is information related.  Chairman Nelson inquired how the Value Adjustment Board got so far along in the system if that determination had not been made previously.  Mr. Ellis stated the Board did not take it to bid; his office took it to bid; and that was all he received as a response.  

 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to reject Invitation to Bid from Pioneer Technology Group for a Value Adjustment Board (VAB) Software Package (AXIA).  Motion carried and ordered unanimously.

 

 

Mr. Ellis stated he is requesting the Board go to bid; the Board does not have to award; he hopes the Board does award, but just because the Board goes to bid, it does not necessarily mean that it has to award; and generally, the Board always reserves the right to reject all bids.  Commissioner Anderson stated the Board also needs to establish a Selection Committee.  Chairman Nelson stated the big issue is where the money is going to come from.  Mr. Whitten stated if it is the Board’s desire to authorize the bid and the establishment of the Selection Committee, staff will craft the RFP, issue it, and come back with the results; within that process the Board will have to decide if it is going to take it from contingency or reserve accounts.

 

County Attorney Scott Knox advised the expenses of the Value Adjustment Boared are borne by the Board and the School Board; and it is split two-fifths to the School Board, and three-fifths from the Board.  Mr. Ellis stated the School Board has never really been billed; in his office there is personnel that work the VAB, and their salary is not billed partly to the School Board; and it is always billed directly to the Board. 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to grant permission to Rebid a Value Adjustment Board Software Package; appoint a Selection Committee consisting of one representative each from the County, Clerk’s Office, and Property Appraiser’s Office; and direct staff to bring back the results to the Board for discussion of how to fund the software package.  Motion carried and ordered unanimously.

Glen Rothbart stated he is with a company called Court Programs; and his company was asked nine months ago by the judges in Brevard County to provide an Offender Pay Program for adult and juvenile offenders.  He stated soon after he started, Judge Ryman said he needed to do something with juveniles that he did not want to put in secure detention; five years ago under Governor Bush, the State struck all money for electronic monitoring for juveniles; and his company came in and started a program.  He stated the Board’s share of money that has to be paid to the State of Florida for the Detention Center’s estimated amount for this year is $2,400,071 that must be paid; for every juvenile put in secure detention by the judge, it costs the Board between $180 and $184 per day; and his company has been monitoring the juveniles for approximately $8 per day.  He stated his company does not make any money on it; the units cost $7 per day; but Judge Ryman is trying to divert young people from juvenile detention and get them home with their parents; and his company monitors them on a GPS monitor.  He stated there is a flaw in the system because the kids that cannot afford to pay it are not being put on the system and they are in juvenile detention; he is proposing that instead of paying $180 or $184 per day, if a juvenile is monitored 24/7, that the County pay his company   $15   out   of   the $180   because   it   is   not paying the $180; and he is also proposing, since his company is collecting $8 per day, that it refund to the County what it collects on a daily basis from the juvenile parent or guardian.  He stated Court Programs’ collection rate over the last nine months has been approximately 80 percent; but it varies because they do not know how many people will be coming into the system; and it is strictly up to the Judge to send the people.  He noted there are a lot of juveniles that do not have to be in secure detention but cannot afford the $8 per day; they have found out that they have saved a little over $300,000 for Brevard County by diverting the first nine months juveniles from secure detention into the GPS monitoring; they needed to know how they would react to the monitoring because they are now being watched 24 hours a day, seven days a week; and the juveniles cannot get away from it.  He stated the normal violation rate on a juvenile in a regular probation program is approximately 25 to 30 percent; Court Programs’ is approximately 10 percent; the program is also used as a public safety factor because if there are victims involved Court Programs can prevent the juvenile from going within 1,000 feet of the victims’ homes; and Court Programs has had no violations.  He stated he is asking the Board to approve, on the juveniles Court Programs diverts at $180 per day, to offer Court Programs $15 per day; but if Court Programs collects the $8 per day from the parent or guardian, they will refund the Board; and Brevard County is the first County in the State that has done such a program since Governor Bush struck the electronic monitoring money.  He stated since Brevard County started the program, Indian River has started the program along with Orange County, Osceola County, and Pinellas County; but Court Programs has actual facts to back up what it has done; and Judge Ryman approves of the program.

 

The Board recessed at 1:25 p.m. and reconvened at 1:37 p.m.

 

Mr. Rothbart stated one juvenile would cost approximately $180 per day; for 21 days, which is the maximum, it would divert over $60,000 in County costs at $180 per day; and the Board would be paying Court Programs $5,300; but that does not include what he will give back to the Board if he collects money. 

 

Shauna Heffernan, Criminal Justice Services Director, stated her Department has been tasked with sending out a request for information in which her staff will contact different vendors to see what is out in the community and what type of services will be provided, along with prices; and the RFI was just received a few days ago from the County Attorney’s Office. 

 

Commissioner Fisher inquired how the Board knows the judge will put the juveniles on the system.  Mr. Rothbart replied it will be a case-by-case basis; and it is the judges’ decision.  Commissioner Fisher inquired if the judge requests that the parent pay for the monitoring.  Mr. Rothbart replied currently it is in the court order that the parent or guardian pays for the monitoring.  Commissioner Fisher inquired why the Board would pay for it if the Court Order is going to make the parent put the juveniles on a system.  Mr. Rothbart advised there are parents that cannot pay for the monitoring; and instead of going on the system, those juveniles are going in secure detention. 

 

Chairman Nelson stated the Board is paying the cost of detention versus the cost of monitoring.  Commissioner Fisher inquired if the longest the juveniles can stay in detention is 21 days, even if they cannot pay for it; with Mr. Rothbart responding affirmatively.   Mr. Rothbart  stated  if  the  juveniles  then  go  back   to   Court   and   get convicted or adjudicated, and they are going to go into residential placement, they can go on the system at that time, but that is up to the judge. 

 

Ms. Heffernan advised the County’s responsibility is only pre-dispositional days; and that is only 21 days, which is the maximum.

 

Commissioner Infantini stated when she did the research, last year the Board paid $212 per day; and she was for the request once she did the research.  She inquired when someone it is discovered that a juvenile took off the device, how are they tracked.  Mr. Rothbart replied the Sheriff’s Office tracks them down, per the judge’s order.  Commissioner Infantini stated it would not be a full 100 percent cost savings because if they violate, it could cause increased cost for the Sheriff’s Office. 

 

Chairman Nelson inquired if the Board actually pays on a per-diem basis.  Ms. Heffernan advised yes, and right now it is $184 per day, per person.  Chairman Nelson stated it is an open bid process and Ms. Heffernan is establishing it; and she will be recommending a company based on the bids received.  Ms. Heffernan advised staff is going to take it to the Public Safety Coordinating Council for them to look at; judges will look at it at their meetings; and staff will bring something back to the Board.  Chairman Nelson stated it comes down to the willingness of the judges to use the process.  Ms. Heffernan stated that is correct.

 

Fred Kusterer stated Bobby Human has had a family business in the community for a long time; there was a lot of confusion on the issue on both Mr. Human’s and the County’s parts; the Board just gave a break to all the new businesses coming into town; and he would like the Board to give Mr. Human a break too. 

 

LeRoy Fogle stated the issue has been going on for a long time, and he would like to ask the Board to waive the fine as it stands; Mr. Human is in compliance with the County as far as everything the County has requested; but it has been dragged out and frustrating; and he would like to see the fine gone away.

 

Commissioner Fisher stated it is a difficult issue; there has been some confusion; in December, the Board approved the recommendation of the Special Magistrate; for a small business, the fine is difficult to pay; and the Board should put it to rest.  He stated he also thinks Mr. Human has done some things to his property to improve the area on the corner; in these economic times, anything is difficult; but at the same time he does not think Code Enforcement was totally wrong in trying to make sure Mr. Human complies with Code; and it would be his recommendation to reduce the fine to $1000 if Mr. Human can pay it in the next 30 days. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to reduce Code Enforcement fines on property located at 3042 Jefferson Avenue, Mims, owned by Bobby Human, to $1000 to be paid within 30 days or the fines will go back to the original amount of $8,400.

 

 

Chairman Nelson inquired what are the County’s hard costs to date on this issue.  Wanda Scanes, Code Enforcement Interim Manager, stated the cost to date is $8,400.  Chairman Nelson inquired what the actual costs are that has been incurred with staff time.  Ms. Scanes stated Mr. Human has paid the enforcement costs, which was $504.  Chairman Nelson inquired if Mr. Human is currently in compliance; with Ms. Scanes responding affirmatively, as of November 6, 2006.  She stated $8,400 is the accrued fine, which was reduced to $4,200.  Chairman Nelson requested the motion be repeated for clarification.

 

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

 

 

Stockton Whitten, Interim County Manager, advised he pulled the item off the Consent Agenda because in his briefings it was noted to him that he did not provide the Board the option of a one-year contract as opposed to the request from the Property Appraiser of a four-year contact; and it was pulled off the Consent Agenda to provide the Board that consideration. 

 

Commissioner Infantini stated she wanted to suggest that rather than going to the Property Appraiser, that the Board offer this option to the Tax Collector to see if perhaps the Tax Collector can get it done for a lower fee.  Commissioner Anderson stated he had an opportunity to speak with Tax Collector Lisa Cullen yesterday, and he spoke with Mr. Whitten during the last break; and he would suggest tabling the item for one meeting to give staff the opportunity to speak with the Tax Collector to see if it is something she can do at a reduced cost.  He stated it looks like the Board is using the Property Appraiser as a middle man; but it may not be feasible because of the Use Code situation. 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to table Agreement with the Property Appraiser for development and maintenance of expanded Use Code system for Non-Ad Valorem assessments, to the March 24, 2009 Board meeting to provide staff the opportunity to speak with Tax Collector Lisa Cullen to determine if she can accomplish this at a reduced cost.  Motion carried and ordered unanimously.

 

 

 

Parks and Recreation Department Director, Don Lusk, stated he has a PowerPoint Presentation that orients the Board to where the project has been and where it is going to give an overall view of it.  He stated at the December 16, 2008 Board meeting, the Board directed staff to review the options that were similar to the Tedder System, which staff has done; staff met with Steven Webster  of the  Marine   Contractor’s   Association; and the Board also asked staff to bid the remainder of the work, including the upland portion, and that is still in progress.  He stated the remaining issues related to the project are the FDOT (Florida Department of Transportation) permitting; it is still pending at this time based on a left-hand turn requiring some redesign, and as well as necessary to get the permit; there is also the St. Johns River Water Management District permit modifications staff decided to do to help bring down the costs; and that would be going to the wood laminate instead of concrete pilings, aluminum decking to a composite, and mechanical to hydraulic dredging.  He stated that leaves the issue of how to handle the Tedder Purchase Order; since December 16 2008, the $1.2 million change orders that related to that purchase order has been off the table; the Board was clear on that on December 16^th; and that Change Order was based on two years of people saying that time was of the essence; and staff created the Purchase Order in July 2007 with the idea that once it finally had a permit, staff could move forward as quickly as possible on a project that had been delayed for quite some time.  He advised the Purchase Order with Tedder is $660,250; the impression staff has had since December is that it was to minimize the amount of work that Tedder did, which was basically a no-bid situation because the County had previously standardized; staff decided after the December meeting that there are probably some alternatives to Tedder with regard to the standardized boat ramp system; and so in the future, those will be put out to bid, so staff will probably not go in that direction; but there is still a Purchase Order with an existing company that the County has a relationship with.  He stated staffs thought process to date has been to do a deductive Change Order and try to get Mr. Tedder to just focus on the boat ramp itself and the things necessary only to put in the boat ramp; at this point, staff would take the $660,250 Purchase Order and do a deductive Change Order of $97,500; there have been three progress payments to date totaling $55,000; and there is an outstanding invoice that has not yet been paid for $27,750, which leaves a balance of $480,000.  He stated what that would mean if the Board decides to move forward today, is that the Purchase Order with Mr. Tedder would be $480,000 just to do the basic boat ramp work; and everything else would be bid.  He stated the remainder of the project components to bid include the water related components, and the upland components; if FDOT is received quickly it will all be bid at one time; but if not, staff will just bid what there are permits for because it cannot be delayed any longer; and the estimated cost for the rest of the work would be approximately $3.9 million.  He stated the expenditures to date are $5,155,695; the Tedder expenditures are $480,000; the remaining project estimate is $3,976,232; and that is a total of $9,611,927.  He advised funding sources are the South Referendum, Grant Florida Boating Improvement, Grant Brevard Boat Improvement, and Grant from FIND; the referendum reserves are $1,253,977; and the total budget is $9,611,927. 

 

Commissioner Infantini inquired how staff arrived at $480,000 because Mr. Tedder’s boat ramp costs $385,000 for his bid, and $70,000 for the bulk head; and that comes out to $455,000.  She stated if the County has already paid Mr. Tedder $55,000, there should only be $400,000 left on that portion; her understanding of why the Board has costs owed to Mr. Tedder to date is because he already started working on the slabbing; and she would suggest the Board move forward and pay Mr. Tedder the total of $455,000, of which $55,000 could be deducted out because the Board has already paid it.

 

Mr. Lusk stated the important piece to understand is that when the County originally received prices from Mr. Tedder, it was March 2007; it has been two years since those price quotes; as staff went back to talk to Mr. Tedder about his prices, it ended up with two different animals; and he thinks it is difficult to go back to the original prices of 2007.  He stated he understands what Commissioner Infantini is trying to say, but as staff went back to Mr. Tedder to renegotiate, there are different things that have occurred on the project; the prices are two years old; different pieces have changed; some additional engineering work was done through Mr. Tedder that needs to be taken care of; there have been permitting changes; and there was a lot of time spent with advisory boards to get to this point.  Commissioner Infantini stated the Purchase Order did not include engineering work; and that is why the engineering fees doubled from $132,000 to $260,000.  She stated if the County had a Purchase Order agreeing to pay Mr. Tedder for six docks, a floating ramp, a pre-stressed boat ramp, the bulkhead, and excavation for $660,000, she does not know how the prices have increased when everybody else has prices that are decreasing and are looking for work.  She inquired what were the progress billings for if not for getting the work complete; stated the Board should enforce the contract for $660,000, or if Mr. Tedder is not willing to honor his contract at $660,000, then the Board can put it out to bid, which was originally what she thought the Board was going to do. 

 

Commissioner Anderson inquired if there were increased costs from Tedder.  Mr. Lusk stated comparing to what Mr. Tedder looked at in 2007 with the engineering that had been done and permitting, it is almost like comparing two different projects.  Commissioner Anderson stated it is not that Mr. Tedder changed his price, there were changes in the engineering.  Mr. Lusk stated yes, along with several other things. He stated based on staffs conversation with Mr. Tedder, he cannot do what he said he could do originally for $660,000; and there would have to be some adjustments in price to have him do what he originally stated he would do for that price.  He stated on the Agenda Report in December there were five different options; if the Board chose Option 1, it would have had to raise the original Purchase Order from this to that; some of that included permitting conditions, which he hopes are going to go away; but it also included some of the other factors that have impacted this. 

 

Commissioner Infantini stated from the minutes she has from that meeting, the motion was made to direct staff to review options similar to the Tedder system; she thought that instead of going with Tedder Systems, and the money paid at that point was $35,000, the Board could have gone with somebody else, which was the gentleman that showed up at the meeting and said he could put in a boat ramp system just like Tedder’s; and she thought the Board was off the hook.  She stated it was not until Assistant County Attorney Morris Richardson said the Board would be out $200,000 if it tried to cancel Tedder’s contract; either there is a contract at $660,000 and Mr. Tedder can remove the old docks and all the old paneling, put in a boat ramp system, and the bulkhead for $455,000 total, or he does not get the job.  She inquired what kind of contracts the County enters into; and inquired if Board does not enter into enforceable contracts.

 

Morris Richardson, Assistant County Attorney, stated it is an enforceable contract; the problem is the Board action in December 2008 directed staff to explore options, but it did  not   terminate   Tedder;  so the  Board  has   had  a   contractor  who   has  been   under contract for months while staff explores options; and that results in significant exposure.  He stated if the Board terminates the contract, it is going to have to pay considerable costs; the contract only allows the Board to terminate for cause, such as if Mr. Tedder failed or refused to perform; but the problem is that up until that December meeting, Mr. Tedder was performing; and the Board did not have a basis for termination.  He stated if the Board terminates the contract, it will have to pay the costs Mr. Tedder has into it to date, the services provided to date, and Mr. Tedder could sue the County claiming loss of profit expectations, which is typical to any construction claim when one party terminates without cause.  Commissioner Infantini stated she is not suggesting the Board terminate the contract; but she would just like to enforce the contract at $660,000; the only addition she can see to the $660,000 is the additional cost for the pilings, which can be some kind of wood coated piling; and that is the only difference she can understand.  She noted Mr. Tedder does not have to do the dredging or plant the sea grass. 

 

Commissioner Fisher inquired after the Board did the Purchase Order, has staff requested any additional services from Mr. Tedder.  Mr. Lusk stated yes, there was some additional engineering work that was done with Mr. Tedder that the Board would be responsible for.  Commissioner Fisher stated that would move up the $660,000.  Mr. Lusk stated there are some other factors in there related to materials and redesign based on some of the engineering work and things of that nature.  Commissioner Fisher stated at $660,000, that was the original contract based on Mr. Tedder performing certain work; it sounds like the Board expanded that either because it did not know what direction it is going in, or it asked for some additional engineering; and inquired if that is why the numbers are not adding up.  Mr. Lusk stated yes, that is part of the reason the numbers are not adding up. 

 

Commissioner Infantini stated $455,000 is from Mr. Tedder’s original bid; $385,000 to put in the boat ramp system, take out all the old docks, and an extra $70,000 for the bulkhead; and that is how the Board gets the $455,000.  She noted it was her understanding the Board hired an engineer to do engineering; the Board did not hire Mr. Tedder to do engineering; and the Board has paid Coastal Tech double what it agreed to, to do the engineering.  She inquired what the Board is paying the engineer for if it is not for engineering.  Mr. Whitten inquired if the difference in what Commissioner Infantini believes is owed to Mr. Tedder is $455,000 or $400,000.  Commissioner Infantini replied $400,000 if Mr. Tedder does the boat ramp and the pulls out the old docks and puts in the bulkhead. 

 

Chairman Nelson stated on the engineering question, whether Coastal Tech did the engineering or Tedder did the engineering, somebody was going to do it and they were going to be paid; just because the Board has Coastal Tech onboard does not mean that was part of their scope of services; and what he is hearing is that based on permitting there was a change that required additional engineering.  He advised at that point in time, that was not covered under the Coastal Tech Agreement, so there is going to be a Change Order to Coastal Tech, or Tedder has to do the engineering because it is his system; it has to be one of the two; but someone has to be paid for it.

 

Mr. Lusk stated staff felt that it was better just to make sure it applied based on Mr. Tedder as opposed to Coastal Tech; and it would look funny to go back and cover it with Coastal Tech when it was not originally with them.  He stated one thing that happened in moving quickly was that staff made some decisions on engineering that he did not even know had happened until it was examined in late December.  He stated staff brought the Board back the best possible deal it could have in terms of what he thought the Board said in December, which was to focus only on the boat ramp. 

 

Commissioner Infantini inquired how Mr. Tedder has an opportunity to not honor his $660,000, but the Board does not have an opportunity to back out of the contract.  Mr. Richardson advised Mr. Tedder does have to honor the $660,000; the problem is that every indication to him was that up until the meeting in December, Mr. Tedder was willing to do that for that portion of the work, but there was extra work outside of his purchase order scope that was included in the Change Order; and once that was stripped out, he has to comply if he can.  He stated his understanding is that the permitting has changed some of the things that were incorporated into the Purchase Order; and those are either going to have to change in terms of materials or be stripped away from the Purchase Order.  He noted Mr. Tedder still has to perform, but at the December direction there was no breach by the contractor, it was just to go explore options other than the contractor, but no direction to terminate the contractor.

 

Commissioner Fisher stated under Board direction, staff entered into a Purchase Order Agreement not knowing what it was really permitting; and now that there is a bid of $660,000, the Board is finding out that the permit requirements are more than Mr. Tedder knew.  Mr. Lusk stated that is correct.

 

Chairman Nelson stated the urgency stemmed from a lightening strike in which a woman was killed in 2004 and her son was injured; and that was always hanging over the project because they had come to the ramp and could not get in, so they went to an island, and tragically the mom was killed.  He stated it has been the most difficult boat launching facility in terms of permitting.  Commissioner Fisher stated that is part of the confusion of the numbers not adding up.  Chairman Nelson stated even if the Board got out of the contract it would have to pay for work done to date, and that is going to be a number greater than any potential savings.  Commissioner Infantini stated she does not want to get out of the contract, she just wants to enforce it.   Mr. Richardson advised the price of $660,000 was good through September 30, 2008 by the terms of the Purchase Order; the problem is that the permitting delays have pushed it beyond that; and that is why if the cost increases are changes required by the permit, the Board cannot hold them to a price that was only solid through 2008, however, the Board is required to pay for everything that was performed under the contract.  Commissioner Infantini inquired if the permit was approved on September 9, 2008, why did the Board not move forward and have Mr. Tedder go forward with his project instead of waiting to bring it to this Board in November or December.   

 

Chairman Nelson stated the difficulty was even though the permit was received in December, the contractor could not immediately start because he had to respond to what the permit called for, and so it was impossible for everyone. 

 

Commissioner Anderson stated even though it expired on September 30^th, it does not give the contractor the right to go and start asking taxpayers for more money; if that is what is going on, then that bothers him; but if that is not what is going on, then he wants a justification of all the Change Orders on an excel spreadsheet so he can see for himself what Change Orders were made with justifications; and if Mr. Tedder cannot come up with that, then the Board needs to reconsider the issue.  Mr. Richardson advised there are no Change Orders to date; the first change order is a deductive change order that would reduce the contract amount by pulling out some of the scope that has been changed because of the permitting issues.   Chairman Nelson stated he does not disagree with Commissioner Anderson in terms of getting the details; the difficulty is that it is a copyrighted system that has some limitations on who can do the work; and inquired if the Board can have the spreadsheet by its March 24, 2009 meeting.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to table request for staff to take action to enforce existing Contract to build a boat ramp and docks with Randall G. Tedder or demand he refund money advanced and place the Contract out to bid, to the March 24, 2009 Board meeting.  Motion carried and ordered unanimously.

 

  

Interim County Manager Stockton Whitten advised on March 5, 2009 staff advertised an Executive Session LIU for the end of today’s meeting; it was not put on the Agenda; and he would like to request the Board reschedule the Executive Session to the end of the March 19, 2009 Budget Workshop. 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to reschedule Permission to Schedule Executive Session, Re:  Discuss Status of Collective Bargaining Negotiations with the Laborer’s International Union (LIU), Local 678.  Motion carried and ordered unanimously.

 

 

Upon motion and vote, the meeting adjourned at 4:04 p.m.

 

 

ATTEST:                                                         ____________________________

                                                                        CHUCK NELSON, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

                                                                        BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

          (S E A L)