July 22, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on July 22, 2003, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners Truman Scarborough, Ron Pritchard, Nancy Higgs, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Jason Hitte of East Coast Revival Center, Melbourne, Florida.

Commissioner Scarborough led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve the Minutes of April 22 and May 6, 2003 Regular Meetings, and May 22, 2003 Zoning Meeting. Motion carried and ordered unanimously.

ANNOUNCEMENTS

Chairperson Colon announced time certains for Item IV.K. at 10:45 a.m., Item VI.F.1. at 11:30 a.m., Item V.B. at 1:00 p.m., Item IV.I. at 2:00 p.m., and Items IV.D. and V.A. at 3:00 p.m.

REPORT, RE: ITEMS REMOVED FROM AGENDA

County Manager Tom Jenkins advised he has a few items to withdraw from the Agenda; and Chief Farmer will comment on the first one.

Chief Bill Farmer advised III.B.8., Agreement with City of Cocoa for Emergency Services, needs to be removed; professionally they will be able to improve the response time in the County areas with the assistance with the City of Cocoa by cutting them in half; however, staff wishes to insure the citizens in the area are aware of the potential service delivery change. He stated staff will bring it back to the Board at the next available meeting.

Mr. Jenkins advised III.B.8. will be withdrawn as opposed to pulling it. He stated III.B.1., Amendments to the First Time Homebuyers policy, will also be withdrawn and rescheduled as it needs additional work; and the same is true with III.B.2., Amendments to the Policy for the Repair, Rehabilitation, and Replacement Housing Program. He stated when Item IV.J., ordinance amending Economic Development Tax Abatement Ordinance, comes up, he will request the Board continue it so staff can do additional work on it.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to continue the public hearing on an ordinance amending the Economic Development Tax Abatement Ordinance for 30 days. Motion carried and ordered unanimously.

REPORT, RE: INDIAN RIVER LAGOON NORTH FEASIBILITY STUDY WORKSHOP

Commissioner Pritchard advised there is going to be a workshop on the Indian River Lagoon North Feasibility Study; the feasibility study will provide recommendations for the planning, design, and implementation of water quality improvement projects for the Indian River Lagoon in Volusia, Brevard, and Indian River Counties; and if anyone has questions and need more information, they can call his office at 455-1334 or Debbie Peterson with the U.S. Army Corps of Engineers at (904) 614-5064.

REPORT, RE: RECOGNITION OF CHRISTINA FINSON AND HUNTER JACKSON

Commissioner Pritchard advised Christina Finson has been interning at his office this summer, and is a remarkable young lady; she recently graduated from high school, and received her AS degree from Brevard Community College at the same time; and in addition to filing, answering the phone, and helping the public in a variety of ways, Christina has assisted on several projects, including research for the sales tax survey, fireworks sales, and condominium associations. He stated she attended several meetings with constituents in and out of the office and wrote articles for the Merritt Island News and Views; she will be working with his office until August 6, 2003, when she will leave to attend the University of Central Florida; presently her plans are to major in political science; and someday it may be Commissioner Finson sitting up here. He stated they have enjoyed getting to know Christina and appreciate her help this summer; she is an outstanding example of today’s youth; and they wish her well.

Commissioner Pritchard advised the next young man is no stranger to him; he is his grandson; he will be nine in September, lives in Georgia, and has become quite the athlete. He stated yesterday he got to throw out the first pitch at the manatees game from the pitcher’s mound, a distance of 60 feet 6 inches, and he threw a fast ball strike. He stated when he had to do that, he was afraid he was going to roll it up to the plate, but Hunter winged it right in. He stated his name is Hunter Jackson; he is an upcoming third grader at Eagle Springs Elementary in Warner Robins, Georgia; he has been in the accelerated reading program since kindergarten; and he began playing baseball at age five for Warner Robins American Little League. Commissioner Pritchard stated Hunter played for two years in the T league division where he made the all-star team his second season; and that all-star team went undefeated in two all-star tournaments. He stated they even have baseball cards for little leaguers that give position, age, weight, height, the coach, and the leagues they play in; so it has become quite a production. He stated Hunter also played for two years in the C league division and made the all-star team both times; and this year’s all-star team went undefeated winning 8 games in both all-star tournaments they entered. He stated during the regular season, Hunter was the team’s shortstop; he was the pitcher for the all-star team; he will be moving to the B league division in the 2004 season; and he was also picked to play on a traveling baseball team. He stated the team got together Memorial Day weekend to play in their first tournament; and after only four practices together, the boys went on to be undefeated and took home the first place trophy. Commissioner Pritchard stated all baseball players should have a nickname, and he has been working on it; everyone has heard of Catfish Hunter and Shoeless Joe Jackson; with Hunter Jackson, they had to have a nickname; and having been in the car when Hunter removed his baseball shoes, he immediately came up with Hunter “Stinky Feet” Jackson, but he did not like that name, so they are still looking. He introduced his grandson Hunter Jackson.

REPORT, RE: E.A.R.T.H.

Commissioner Carlson advised Sue Leeley is here from E.A.R.T.H. Awareness of Brevard; she has a display in the foyer; and requested Ms. Leeley talk to the Board about what E.A.R.T.H. means and what it means to the community.

Sue Leeley advised E.A.R.T.H. stands for “Entertainers Against Ruining Their Homes”; it is a nonprofit organization created in 1997 to make a difference in the creative lives of children; and it is comprised of entertainment industry professionals, musicians, artists, actors, environmentalists, and anyone who loves the arts, children, and the earth. She stated they are dedicated to preservation of creative outlets and natural experiences for the youth of Brevard County; they promote quality family time in natural settings with weekends of music, art, drama, and educational fun; and they raise funds to help with supplies. Ms. Leeley stated E.A.R.T.H. has donated $500 each to Melbourne High and Rockledge High Drama Departments; they have given away over 12 guitars to the music programs in Brevard County schools; and they have given ten guitars to youth in Brevard County. She stated the organization concentrates its efforts on youth under 18 years of age; there are over 71,570 students in Brevard County schools; and they feel it is important to keep the arts alive for the children and the schools. She stated if it was not for her art and music teacher, she probably would not have made it through high school, so they are important; and the youth in this County need art, music, drama, and fun and creative outlets as an alternative to violence, drugs, and alcohol. She stated while there are a few programs in Brevard County, such as Space Coast Teens and Brevard Symphony Youth Orchestra, none reach musicians and artists in the same way that E.A.R.T.H. can; and they make a difference in each individual’s life that they touch by providing a system of empowerment and showing them how to make their creative dreams become a reality. Ms. Leeley stated young musicians are able to perform on a professional stage with proper sound and lighting; young artists have the opportunity to learn how to exhibit and have their art work judged; singers, actors, and actresses learn what it is like to perform at a major event; and that gives them lifelong learning experiences in the pursuit of a career in art, music, and drama. She noted it is also a great way to keep them out of trouble; and they provide safe and fun things for the children to do. She stated activities for 2003 are a Back to School Band Bash at Surfside Playhouse on August 16, 2003; and it will be three of the teen bands performing for other children and giving them an opportunity for something fun to do on a Saturday night. She stated they will also have a “Totally Talented Teens Competition on October 25, 2003 at the Surfside Playhouse; it is a talent competition for teenagers; and the lucky winner will receive a new guitar. She stated they appreciate the help of the Board, and hope they can do more for the community in the future.

REPORT, RE: FUNDING SHORTFALL FOR LAKES SAWGRASS AND HELL’N BLAZES

Commissioner Carlson advised she received a phone call last week from Steve Robinson of the Army Corps of Engineers; he basically explained to her, and she knows he explained it to the rest of the Board, a shortfall in a projected cost for dredging Lake Sawgrass and Lake Hell’n Blazes. She stated after they discussed it, she requested that she become the point person on it because she has a lot of history with the St. Johns River Water Management District in terms of regional partnerships. She stated the shortfall is in the amount of $1.2 million for Lake Sawgrass; and if they consider the shortfall for Lake Hell’n Blazes as well, it would be about $2.2 million together. She stated there is supposed to be a meeting in August, but she does not know the exact date; and inquired if there are any comments from the Board or a problem for her to attend the meeting.

Commissioner Pritchard stated he was also asked to attend the meeting as chairman of the Brevard Water Board; Water Resources Director Dick Martens will also be in attendance; and he thinks the meeting is August 8, 2003. Chairperson Colon advised if two Commissioners will be at that meeting, it needs to be advertised. Commissioner Carlson stated she had August 12 and told them she could not make that meeting, so she does not know what the date is and is going to check with them today. She inquired if there is any problem with the Board as far as her representing the Board.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to authorize Commissioner Carlson to represent the Board of County Commissioners at the meeting regarding dredging of Lake Sawgrass and Lake Hell’n Blazes, and direct staff to advertise the date, time, and place of the meeting. Motion carried and ordered unanimously.

REPORT, RE: ONE-STOP PERMITTING PROGRAM

Commissioner Carlson stated she received a report from Carroll Brown, the County’s Building Official, and wants to compliment the group; because of the Board’s action, an ad hoc committee of industry leaders wanted to go back and examine the functionality of the one-stop permitting program; and they came up with a lot of really good recommendations. She inquired if the recommendations will be coming back to the Board in any form or fashion or is staff just going to start putting them in place; with County Manager Tom Jenkins responding staff has the ability to put them in place. Commissioner Carlson stated she wanted to compliment them on the work and thought they put in and the good job they did.

REPORT, RE: ITEMS REMOVED FROM CONSENT AGENDA

Commissioner Pritchard advised he would like to pull Item III.A.14, Resolution Revising Review Fees for Surveying and Mapping Department.

Commissioner Carlson stated Item III.A.3., Final Engineering and Preliminary Plat Approval for Brisbane Boulevard at Sawgrass South has a list of speakers. Chairperson Colon advised Item III.A.5., Final Engineering and Preliminary Plat Approval for Sawgrass South at Suntree also has speakers.

FINAL PLAT APPROVAL, RE: CRANE’S POINT AT AQUARINA

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant final plat approval for Crane’s Point at Aquarina, subject to minor changes as necessary, receipt of all documents required for recording, and developer obtaining required jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: BIRCHWOOD SUBDIVISION

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant final plat approval for Birchwood Subdivision, subject to minor changes as necessary, receipt of all documents required for recording, and developer obtaining required jurisdictional permits. Motion carried and ordered unanimously.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: MERRITT
GLEN SUBDIVISION

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant final engineering and preliminary plat approval for Merritt Glen Subdivision, subject to minor engineering changes as applicable, and developer responsible for obtaining all jurisdictional permits. Motion carried and ordered unanimously.

APPROVAL, RE: CREATION OF FLAG LOT AND EASEMENT LOTS ALONG WITH
LOTS ACCESSING FLOUNDER CREEK ROAD

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve creation of one flag lot and two easement lots along with two lots accessing Flounder Creek Road for a total of five lots as requested by Jackie Rose. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH DAVID ECKERT, RE: MULBERRY LANE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with David Eckert for a building permit off Mulberry Lane, which has been constructed to the standards of the Unpaved Road Code of Ordinances, Section 62-102. Motion carried and ordered unanimously.

UNPAVED ROAD AGREEMENT WITH SEAN L. IRVIN, RE: LORTIE AVENUE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with Sean L. Irvin for a building permit off Lortie Avenue, which has been constructed to the standards of the Unpaved Road Code of Ordinances, Section 62-102. Motion carried and ordered unanimously.

LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE PUBLIC HEARING,
RE: ORDINANCE REVISING CHAPTER 62, ARTICLE IX, SIGNS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve legislative intent, and grant permission to advertise a public hearing to consider an ordinance revising Chapter 62, Article IX, Signs, to clarify the definition and regulating of temporary special event signs, nonconforming signs, prohibited signs, off-premises signs, and waivers and appeals. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE AMENDING
CHAPTER 22, BUILDING AND BUILDING REGULATIONS, SECTION 22-48,
CERTIFICATION OF LOWEST FLOOR ELEVATION AND FOUNDATION SURVEY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance amending Chapter 22, Building and Building Regulations, Section 22-48, Floor Elevations to be Above Grade of Adjacent Thoroughfare. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ORDINANCE FROM CITY OF TITUSVILLE,
ANNEXATION OF PROPERTY ALONG SR 405 SOUTH OF SR 50

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to acknowledge receipt of Ordinance #15-2003 from the City of Titusville, annexing approximately 46.5 acres along SR 405 south of SR 50. Motion carried and ordered unanimously.

RIGHT-OF-WAY CONSENT AGREEMENT WITH FLORIDA POWER & LIGHT COMPANY,
RE: DRAINAGE IMPROVEMENTS NEAR APPALOOSA STREET IN DEER RUN

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Right-of-way Consent Agreement with Florida Power & Light Company to allow drainage improvements within its right-of-way in Deer Run Subdivision. Motion carried and ordered unanimously.

RESOLUTION AND BUDGET CHANGE REQUEST, RE: MICCO ROAD SIDEWALK
AND INTERSECTION IMPROVEMENTS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution amending Resolution No. 98-277, authorizing execution of a local agency agreement by John P. Denninghoff, P.E., Transportation Engineering Department Director, and delivery of the Agreement to the State Department of Transportation for the Micco Road Sidewalk and Intersection Improvements project; and to approve Budget Change Requests as applicable. Motion carried and ordered unanimously.

RESOLUTION AND AGREEMENT WITH CITY OF MELBOURNE, RE: CROTON
ROAD WIDENING PROJECT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution amending Resolution 2000-010 pertaining to the County’s Constitutional Fuel Tax Revenue Bonds, Series 1999; modifying the definition of “initial project” contained therein; and providing an effective date; execute Interlocal Agreement with the City of Melbourne for Croton Road Widening project; and approve allocation of $400,000 of the current year impact fees toward the Pineda Causeway project, and reallocation of $400,000 from the Pineda Causeway Constitutional Gas Tax project to Croton Road Widening project. Motion carried and ordered unanimously.

JOINT PARTICIPATION AGREEMENT WITH FLORIDA DEPARTMENT OF
TRANSPORTATION, RE: BABCOCK STREET WIDENING PROJECT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Joint Participation Agreement with Florida Department of Transportation for Babcock Street Widening Project, from Melbourne Avenue to Fee Avenue, and to approve reallocation of $100,000 previously approved for Babcock Street, from Malabar Road to Valkaria Road, which has been abandoned, to the Babcock Street, from Melbourne Avenue to Fee Avenue project. Motion carried and ordered unanimously.

AUTHORIZATION TO APPLY FOR GRANT AND APPOINT FISCAL AGENT,
RE: EARLY LEARNING OPPORTUNITIES ACT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize Together in Partnership to apply for a Department of Health and Human Services Early Learning Opportunities Act grant; appoint Brevard School Readiness Coalition, Inc. as the fiscal agent; and authorize the County Manager to sign documents required to complete the application and receipt of the grant. Motion carried and ordered unanimously.

APPROVAL, RE: HOME CONSORTIUM FY 2003-04 CONSOLIDATED ACTION PLAN

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve the proposed Brevard County HOME Consortium Consolidated Action Plan and authorize the Chairperson to execute required certifications and two SF-424 Applications for Federal Assistance forms for the CDBG and HOME Programs; authorize the County Manager or his designee to execute the CDBG and HOME Programs Grant Agreements upon receipt from HUD, and the Disbursement Agreements with the Cities of Titusville, Cocoa, Melbourne, and Palm Bay; and authorize the Chairperson, County Manager, or his designee to sign contractual agreements identified in the Consolidated Action Plan as approved by the Board, contingent upon approval of the County Attorney and Risk Management. Motion carried and ordered unanimously.

ADOPTION, RE: AMENDED STATE HOUSING INITIATIVES PARTNERSHIP
PROGRAM LOCAL HOUSING ASSISTANCE PLAN FOR FY 2003-04,
2004-05, AND 2005-06

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt the amended State Housing Initiatives Partnership Program Local Housing Assistance Plan for fiscal years 2003-04, 2004-05, and 2005-06 as recommended by the Affordable Housing Council, increasing eligibility for First Time Homebuyer assistance to 120% of median income, retaining impact fee mitigation eligibility at 100% of median income, and clarifying other portions of the Plan. Motion carried and ordered unanimously.

AUTHORIZATION TO APPLY FOR TDC GRANT, EXECUTE AGREEMENT, AND
APPROVE BUDGET CHANGE REQUEST, RE: PARADISE BEACH PARK

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize application for a $100,000 TDC Category C, Capital Facilities 2003 grant for renovations to Paradise Beach Park; authorize the Parks and Recreation Director to execute the TDC Standard Grant Agreement; and approve temporary loan from General Fund and Budget Change Request to establish the project account if the project is approved for funding. Motion carried and ordered unanimously.

PERMISSION TO REQUEST AND ACCEPT LANDS FROM HARBOR DEL
RIO DEVELOPMENT AND AUTHORIZE ADMINISTRATIVE REZONING,
RE: LANDS ADJACENT TO ULUMAY WILDLIFE SANCTUARY

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to request and accept conservation lands adjacent to Ulumay Wildlife Sanctuary from Harbor Del Rio Development pursuant to the Binding Development Plan Agreement approved by the Board; and authorize staff to proceed with administrative rezoning of the parcel to GML. Motion carried and ordered unanimously.

RESOLUTION, GRANT APPLICATION, USE OF TOLL REVENUE CREDITS, AND
EXECUTE GRANT AGREEMENT, RE: CAPITAL INVESTMENT GRANT FROM
FEDERAL TRANSIT ADMINISTRATION FOR SCAT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution, execute Grant application, authorize use of Florida Department of Transportation toll revenue credit for the Federal Transit Capital Investment grant of $468,000; authorize staff to submit the grant application electronically; and authorize the Chairperson to execute the Grant Agreement contingent upon approval of the County Attorney and Risk Management. Motion carried and ordered unanimously.

AMENDMENT NO. 1 TO CONTRACT WITH FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION, RE: PETROLEUM CLEAN-UP

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute the 2001-2005 Petroleum Clean-up SUPER Act Contract Amendment No. 1 with Florida Department of Environmental Protection, to oversee activities associated with remediation of 95 petroleum-contaminated facilities out of 568 sites currently enrolled in the program within Brevard County. Motion carried and ordered unanimously.

AGREEMENT AND TASK ORDERS 1 AND 2 WITH POST, BUCKLEY, SCHUH &
JERNIGAN, INC., RE: ENGINEERING DESIGN AND CONSTRUCTION SERVICES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute the Professional Services Agreement with Post, Buckley, Schuh & Jernigan, Inc. to provide engineering services; execute Task Order No. 1 for design and construction engineering services for installation of radio controlled valves and pressure regulators for the reclaimed water mains supplying the golf courses at Indian River Colony Club, Baytree, and Viera East, plus a water recharge site near Suntree; and execute Task Order No. 2 for design and construction engineering services to increase reclaimed water delivery capacity. Motion carried and ordered unanimously.

AUTHORIZE INCENTIVE PAY, RE: NON-LIUNA WATER RESOURCES FIELD
PERSONNEL

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize incentive pay for non-LIUNA Water Resources Department field personnel who complete the certification program, consistent with the LIUNA Labor Agreement. Motion carried and ordered unanimously.

AWARD OF BID #B-2-03-09, RE: TRACK TYPE TRACTOR DOZER

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to award Bid #B-2-03-09, Track Type Tractor Dozer, to the only bidder, Ringhaver, Inc., at $393,782 each for two dozers. Motion carried and ordered unanimously.

AWARD OF PROPOSAL #P-2-03-17 AND CONTRACT, RE: VEHICLE FLEET
MAINTENANCE AND REPAIR MANAGEMENT SERVICES FOR SCAT

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to award Proposal #P-2-03-17, Vehicle Fleet Maintenance and Repair Management Services for Space Coast Area Transit (SCAT), to Ryder; and authorize the Chairperson to execute the Contract for a period of three years with a two-year optional renewal period. Motion carried and ordered unanimously.

PERMISSION TO BID, AWARD BID, EXECUTE CONTRACT, AND APPROVE USING
CIP FUNDS, RE: PAVING AND LANDSCAPING AT GOVERNMENT CENTER
MAINTENANCE SHOP

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve using the balance of CIP funds from North Area CIP Paving Project to fund the paving and landscaping project at the Government Center Maintenance Shop, install additional handicap parking between Buildings A and B, and restripe existing parking lot at Viera; and grant permission to bid, award bid to lowest qualified bidder, and execute Contract with the successful bidder. Motion carried and ordered unanimously.

MEMORANDUM OF UNDERSTANDING WITH EPA, DEP, ECFRPC, NORTH
FLORIDA REGIONAL PLANNING COUNCIL, AND SUBSCRIBING LOCAL
GOVERNMENTS, AND APPOINT REPRESENTATIVE, RE: ST. JOHNS
RIVER ALLIANCE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Memorandum of Understanding with Environmental Protection Agency, Department of Environmental Protection, East Central Florida Regional Planning Council, North Florida Regional Planning Council, and subscribing local governments to form the St. Johns River Alliance; and appoint Commissioner Susan Carlson as the Board’s representative on the Board of Directors of the St. Johns River Alliance. Motion carried and ordered unanimously.

RENEWAL OF AGREEMENT WITH BREVARD ASSOCIATED COURT SERVICES,
INC., RE: COURT REPORTING SERVICES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve renewal of Agreement with Brevard Associated Court Services, Inc. to provide court reporting services for Brevard County for an additional two years. Motion carried and ordered unanimously.

APPROVAL OF DONATION, RE: AMBULANCE TO MELBOURNE CHURCH OF
CHRIST TORCH MISSIONS, INC.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve donation of a 1998 Wheelcoach ambulance to Melbourne Church of Christ Torch Missions, Inc. to provide transportation of the sick and injured to a hospital. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to appoint Donald Mandery to the Suntree/Viera Public Library Advisory Board, replacing William Johnson, with term expiring December 31, 2003. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Bills and Budget Change Requests as submitted. Motion carried and ordered unanimously.

PRESENTATION, RE: GFOA DISTINGUISHED BUDGET PRESENTATION AWARD

County Manager Tom Jenkins advised he is pleased to make a presentation of the Government Finance Officers Association’s (GFOA) Distinguished Budget Presentation Award to the Brevard County Budget Office; and recognized Budget Director Dennis Rogero and Budget staff Neil Boynton, Sharon Brown, Jim Earnest, Anita Mays, Valerie McAnulty, Elizabeth Swanke, Pam Wallace, and their mentor Stockton Whitten. He stated the GFOA is a nonprofit professional association serving 14,000 government finance professionals throughout North America; its distinguished budget presentation award is the only national awards program in governmental budgeting; and in order to receive the award, the entity has to satisfy nationally recognized guidelines for effective budget presentation. He stated those guidelines are designed to assess how well an entity budget serves as a policy document, a financial plan, operations guide, and communications device; GFOA states that the award recipients have pioneered efforts to improve the quality of budgeting and provide an excellent example to other governments throughout North America; and he would like to congratulate the Budget staff.

Chairperson Colon presented the Award to Dennis Rogero, and stated the Board appreciates their hard work.

RESOLUTION, RE: PROCLAIMING BREVARD COUNTY CLOWN WEEK

Commissioner Carlson stated the Board is honored to have the clowns here again this year; when Ms. Leeley talked about funding creative things and how to lift people’s spirits, the Board has three good examples in front of it; so she would like to put the resolution on record. She read the resolution proclaiming August 1 through 7, 2003 as Brevard County Clown Week.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution proclaiming August 1 through 7, 2003 as Brevard County Clown Week. Motion carried and ordered unanimously.

David “Duckweed” thanked the Board for the Resolution; and stated a little levity in the seriousness of government business is needed. He noted someone said laughter is the lotion on the sunburns of life; in Brevard County there are beautiful beaches and a lot of sun; and they take their jobs seriously to put lotion on the sunburns. He stated they appreciate the recognition; they have a number of clowns in the caring clown business who go into hospitals and nursing homes; they provide a lot of free services to different agencies; and they have a number of professional clowns. He stated they have been bringing a number of outside folks in who are nationally known personalities and clowns to teach them how to be better clowns; they have one of the best known clowns coming in October, Bubba Sikes from Orange Park, Florida; and he is world renown. He stated Clown Bubba will be here to do a workshop so they can try to improve the art of clowning and make Brevard County a better place to live. He introduced Perky and Q-tee.

Commissioner Carlson inquired if Duckweed has historical value as far as the types of things he does in his regular working life; with Duckweed responding his father said that duckweed was just a little plant that laid on top of the water with no real roots and did not do anything, and that is why he named him duckweed. He advised they have gifts to give to the Commissioners; and presented packages of clown hugs and kisses.

Q-tee stated they are recruiting people for clown school in January; it will be a united action with the Clown Smart Clown Ally; and they have received a lot of requests for clown training and a lot of new clowns have come into their ally who need their skills worked on. She stated it will be a ten-week course, one night a week, or something like that.

Chairperson Colon inquired if there is a phone number people who are interested in clown training can call; with Q-tee responding 632-2524 or 544-7389. Commissioner Carlson stated as soon as they know where the course will be located, they could contact the Commission offices to get the message out to those who are interested.

FINAL ENGINEERING AND FINAL PLAT APPROVAL, RE: BRISBANE BOULEVARD
AT SAWGRASS SOUTH

Commissioner Carlson advised Ms. Salemmo gave the Board a list of the speakers; and inquired if they are in order; with Anne Salemmo with Citizens for Responsible Growth, responding yes, and that is for Item III.A.5. Commissioner Carlson inquired if Ms. Salemmo will be talking about Item III.A.3, with Ms. Salemmo responding yes, and III.A.5 later.

Anne Salemmo, Vice President of Citizens for Responsible Growth, advised she is speaking on this Agenda Item on behalf of that organization; they are pleased to note that the Agenda Item proposed connection of Brisbane Boulevard to Sawgrass South from the Pineda Extension in accordance with the Board’s August 1, 2002 unanimous decision; and they have no objections to that plan. She stated one minor correction they wish to draw to the Board’s attention occurs on the location map which was included with the Agenda packet and shows a connection at the north end of the proposed roadway to the current terminus of St. Andrews Boulevard, a connection that the Board’s action of August 13, 2002 expressly stated would not be considered until the I-95 interchange is in place at Pineda Extension. Ms. Salemmo stated since that issue has been the focus of much confusion and controversy over the past few years, they feel it is important to be absolutely consistent and accurate with regard to all references to that road, and would therefore suggest that the location map be revised so that no connection is shown between the existing St. Andrews Boulevard and the Pineda Extension.

Commissioner Carlson requested staff’s comments; with Permitting and Enforcement Director Ed Washburn responding he is not sure where Ms. Salemmo is talking about a connection
because there is a tract of land shown there. Commissioner Carlson stated there is a little line that takes St. Andrews all the way through to the circle, which is the project site, and is attached to the item. Mr. Washburn stated they can change that.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to grant final engineering and preliminary plat approval for Brisbane Boulevard at Sawgrass South, subject to minor engineering changes as applicable, revision so that no connection is shown between St. Andrews Boulevard and the Pineda Extension, and the developer responsible for obtaining jurisdictional permits. Motion carried and ordered unanimously.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVAL, RE: SAWGRASS
SOUTH AT SUNTREE

Robert Collins, President of Suntree Masters Homeowners Association (SMHA), representing over 4,600 homes, advised he was asked to make the following statement on behalf of SMHA: “We received the review materials submitted by Sawgrass Land Development Company supporting their request for final engineering approval for Sawgrass South at Suntree, formerly Sawgrass South, Phase I and Phase II. The Suntree community has a keen interest in this development as it borders our southern edge and will directly abut properties of Suntree. After review of supporting material for this Agenda item, SMHA has no objections with the final engineering of Sawgrass South, Phase II, Waterloo Place, provided that the BE17B eagle’s nest and habitat are adequately protected. SMHA, however, has the following concerns with regard to the preliminary plat approval specific to Sawgrass South, Phase II, Millstone Drive. (1) Engineering drawing of the proposed development shows Brisbane Boulevard continuing past Millstone Drive. By previous action of this Board, there is to be no consideration to connection to St. Andrews Boulevard until I-95 interchange is constructed. SMHA respectfully requests clarification as to why the road is indicated past Millstone Drive. Showing this continuation could lead to interpretation that this connection has been approved. (2) At the same location on the drawing there is a notation stating that utility service will connect from the north off the southern terminus of St. Andrews Boulevard, but that road construction and paving will occur at a later date. Again, since by previous action of this Board, when the road will ever occur has not been determined. SMHA respectfully request that any reference to such a connection be deleted from the plans. Earlier this spring SMHA spoke to the Board regarding similar verbiage in the amended donation Agreement between A. Duda & Sons and the County. Based on the Board’s August 13, 2002 unanimous decision, it would be inappropriate for the Board to seem to approve any agreement, plans, or document with any third party which contains warranty that makes the connection of St. Andrews Boulevard to Pineda Extension inevitable. We have just and viable concerns because there have been similar cases in the past that resulted in developers successfully taking the position that the incorporation of such language constituted County approval of plans. (3) County staff has indicated that a barrier should be placed in the unimproved right-of-way somewhere in the vicinity of the northern terminus of Brisbane Boulevard to avoid through traffic. We request clarification as to the specific location of the barrier. We would request that the barrier be placed at the northern terminus of Brisbane Boulevard on Sawgrass South property. We also request clarification as to when it will be erected in order to provide a meaningful deterrent to traffic. Will it be placed prior to any site work? Will its placement need to be delayed until after utilities are connected; if so, the timeframe of such placement and when we expect it will be present. (4) The plan as submitted does not contain provisions of a buffer between Sawgrass South, Phase I and the Suntree community at St. Andrews Isle. SMHA feels that lack of an adequate buffer could result in arbitrary incompatible or non-enforceable covenants between two communities. Additionally, the issue of buffer provision is particularly significant in light of potential dangers and increased liability related to St. Andrews Isle lake. There will be more discussion as well as County sponsored compatibility studies solutions presented on this issue following my presentation. (5) Previous Commission hearings on the final engineering plans for this property included drafts of a binding development plan (BDP). No BDP was included in the material received from Commissioner Carlson’s office; and we request clarification on what is included in the current BDP. Specifically, previously submitted drafts indicated that lots adjoining Suntree community would be of size comparable to St. Andrews Isle and would provide deed restrictions comparable to Suntree’s covenants. (6) In respect to the bald eagles’ nest BE17B, located on Lot 9 at the proposed Sawgrass South, Phase I development, Millstone Drive, our review of supporting documents indicates a radical difference in recommendations from the U.S. Fish and Wildlife Service in regard to this nest in contrast to their recommendations for BE17. The previous nest it appears had a pair of eagles. Citizens For Responsible Growth (CFRG) will address concerns related to the new bald eagles’ nest BE17B and the radical change in the approach to this nest compared to the previously identified nest BE17. SMHA working with and supports CFRG’s efforts to clarify the U.S. Fish and Wildlife Service’s policy on the nest and do not feel a viable decision can be made until such clarification is complete. We request this item be tabled until such time as these issues are resolved and that the determinations of how they will be resolved be included in writing as binding conditions of approval for any final engineering plan.”

Frank Rockwell, President of St. Andrews Isle Homeowners Association, advised the Board of Directors requested he make the following presentation to the Board: “The residents of St. Andrews Isle (SAI) do not have an issue with the Commission’s approval with the final engineering plan and preliminary plat for Sawgrass South, Phase II, Waterloo Place, provided that the BE17B eagle nest and habitat are adequately protected. Besides eagle protection in general, we have a major concern with the lack of buffering between SAI and Sawgrass South, Phase I, the Millstone Drive portion. We request the Board deny final engineering plan and preliminary plat approval for Sawgrass South, Phase I until the developer’s plan provides for a buffer that substantially impedes access to our private property, especially our lake. We own the lake, we pay to maintain it, and we are saddled with the attendant liability risks. Lake liability is what sets this case apart from purely aesthetic compatibility concerns that you routinely consider. Here we have a substantial private property impact issue. In addition, the developer’s plan gives the distinct impression to prospective purchasers of Lots 1 through 9 that they are acquiring lakefront property; they are not. Adjoining Sawgrass, Phase I property, there is a continuous strip of SAI owned land bordering our lake that varies in width from three to five feet. This strip of land is the private property of SAI homeowners and its use is governed by the covenants and rules of the SAI Homeowners Association. Any use or alteration of this property and access to our lake via this property by the Sawgrass developer or future residents is unacceptable. Such a narrow strip of land provides negligible lake liability risk mitigation because it is easily breached and virtually impossible to continuously police. The County’s compatibility review, Zoning Item No. Z-0103410, dated May 17, 2001, conducted by planning partnerships with regard to Sawgrass South, Phase III compatibility, discusses SAI related private property impact issues that are equally applicable to both Phases I and III. Page 4, paragraph 3, ‘Future residents of the applicants. Sawgrass property may want to use the SAI water retention in some manner and may cause private property issues. Other alternatives in the overall discussion, in addition to deed restrictions, would be to provide a buffer tract that would prevent direct Sawgrass residents personal access to the St. Andrews Isle water retention area or provide additional water retention with deed restrictions and shared maintenance. Note: Deed restrictions are not relevant since we own the lake and the shoreline.’ Page 6, paragraph 5, again, ‘In addition to deed restrictions, establish a community buffer or water retention area or some combination of the two to separate residential units directly abutting St. Andrews Isle.’ The engineers leave no doubt as to what action the County should take. Page 190, Conclusion. ‘The concept plan as proposed and the draft binding development plan are not adequate to resolve compatibility and density concerns. The applicant should recognize these impacts on surrounding and future property owners and resolve them as appropriate.’ Section 62-3201 of the Brevard County Ordinance, states in part, ‘The purpose of this Article is (1) to insure that a proposed development is non-injurious to contiguous and/or other directly affected properties.’ We contend that the developer’s current plans are injurious to SAI because of the developer’s unwillingness to mitigate our resultant increased lake liability risk, and the developer selfishly enhancing the value of his property at our expense. We also contend that by not requiring the adequate mitigation of our increased lake liability risk, the County is accepting partial responsibility for future negative consequences. In conclusion, we request that the Board deny final engineering and preliminary plat approval for Sawgrass South, Phase I until the developer’s plans provide for a buffer that substantially impedes access to our private property, especially our lake. In addition, we request legally binding assurances that Wetland A will be preserved as currently proposed.”

Bob Rogan, Treasurer for Citizens for Responsible Growth, speaking on behalf of the CFRG, stated the CFRG has several concerns in regard to the application for final engineering approval; they share the concerns raised by SMHA and fully support their request for clarification and written documentation with regard to the plan; and he will not repeat those concerns but will focus on the bald eagles’ nest designated BE17B located on the Sawgrass South property. He stated the site plan included with the information provided by the County staff for this meeting notes the pair of eagles occupying the nest now designated BE17A on the property has nested and successfully fledged young in that location since 1994, according to Bill Kerr’s statement on August 2, 2001 before the Board, who was the applicant’s expert witness. Mr. Rogan stated the nest has been occupied until this past winter when the eagles moved their nest to a new location; the former nest site was one of many factors discussed in previous zoning hearings for that particular parcel, and was studied as part of the process of Sawgrass Land Development Company’s application for an Army Corps of Engineers’ permit to build a road connecting the Pineda Extension at the southern edge of their property. He stated multiple correspondence from the Fish and Wildlife Service, regarding the nest site, were consistent in their stipulations that no homes would be built within the 750-foot primary zone, and the construction in the 1,500-foot secondary zone would take place outside the nesting season or accompanied by close monitoring of the eagles; and those included letters to the applicant on June 19, 2001, the Army Corps of Engineers on November 28, 2001 and February 2, 2002, and the St. Johns River Water Management District on February 5, 2002. He stated at the August 2, 2001 Board meeting, the applicant’s expert witness on environmental issues, Bill Kerr, cited the recommended habitat management guidelines for bald eagles in the southeast and indicated plan compliance with those guidelines; the applicant’s consultant, Bussen Meyer Engineering Group, stated in a February 13, 2002 letter to the Army Corps of Engineers, “House construction would not be placed any closer than 750 feet, and there will be restrictions on construction within 1,500 feet during the nesting season.” Mr. Rogan stated the result of protection, aside from the eagles, plans for the roadway can be seen in the righthand portion of the drawing; the current nest site, BE17B, is located at the top center of the map; in the northeast corner of Lot 9, adjacent to Wetland A, which is indicated as Tract L on the map, perch and roost sites are present on Lots 3 and 7 along Millstone Drive to the west of the nest site; and in sharp contrast to the zone of protection around the original BE17A nests, the construction of roadway houses extends all the way around the area of the new nest. He stated the sole protection proposed in the applicant’s plan is to delay construction on Lots 8, 9, 10, and 11 until documentation of the eagles’ abandonment of their nest; the roost and perch sites on Lots 3 and 7 are disregarded; the Board heard substantial previous testimony on harmful impact of construction so close to the eagles’ nest; and U.S. Fish and Wildlife Service, which is part of the application, acknowledged that the construction will likely result in the loss of the nest, stating, “incidental take of bald eagle nest BE-17B”. He stated there is no monitoring protocol requested, and the only terms and conditions on that is that Fish and Wildlife Service be notified properly if a dead eagle is found on the property. Mr. Rogan stated they are at a loss to understand why this same pair of eagles is no longer protected; no one could anticipate the eagles moving their nest; they are not opposed to growth; they are in favor of responsible managed growth; and part of their duties is to monitor and speak out on environmental threats such as this threat to listed and endangered species. He requested the Board table this issue so this issue and those raised by the SMHA this morning can be addressed further.

Carlyle Rogers advised their home overlooks the south side of St. Andrews Isle lake where the eagles’ nest 17B is located; they have had an incredible education this past year watching the eagles from their home and seeing two major roosting trees where the eagles often perch; and not only do they see the eagles roosting, but they are also able to see them carrying twigs from the roosting tree area to their nest. She stated the two roosting trees they have observed are located on proposed Sawgrass South, Phase I, Millstone Drive, Lots 3 and 7; they have pictures that should have been provided to the Board that show the eagles and where they roost and nest; however, there was an oversight on the latest proposal for Sawgrass South, Phase I, Millstone Drive. She stated although it is recommended to preserve Lots 8, 9, 10, and 11, to protect the eagles and their nest, it is a mystery why the plan does not include Lot 12 or protect the eagles’ roosting trees, which are located on Lots 3 and 7. Ms. Rogers stated according to the Fish and Wildlife Service’s definition, the nesting habitat of the bald eagle includes the nest tree, perch, and roost sites, and adjacent high use areas; and perhaps whoever made the recommendation on the present proposal for development was not aware of the roosting trees on Lots 3 and 7 because those lots should have been included in the list for preservation. She stated if Fish and Wildlife Service’s definition for habitat includes not only the nest but the perch and roost sites and the adjacent high use areas, then the proposal for Sawgrass South, Phase I should also preserve everything in that nesting habitat. She stated in relation to the proposed Sawgrass South, Millstone Drive, it is deceptive of the developers to market the properties on Millstone Drive as lakefront property when those residents will not be able to use the St. Andrews Isle lake and will be trespassing if they do. She stated constructing a berm or vegetative buffer between Sawgrass South and St. Andrews Isle would help prevent Sawgrass South homeowners from being deceived, and would help discourage them from using the lake for which the St. Andrews homeowners are not only responsible but liable. She stated to be fair to the property owners on Millstone Drive and St. Andrews Isle, she urges the Board to table the present proposal for Sawgrass South, Phase I until the issue of a separation barrier between the two communities can be equitably resolved. She stated in order to give the bald eagles a fair chance to survive, she would urge the Board to table the present proposal so the plan can be revised that will truly protect the eagles’ nest, roosting trees, and high use areas included in the eagles’ nesting habitat. She stated it would be inconsistent for the County to give more protection to a scrub jay, which was allowed to thwart the building of a school, than to the bald eagle, which has been the national bird and emblem since 1782. She stated the bald eagle is a majestic bird that is a national symbol like the American flag; it deserves to be protected; and urged the Board to do so.

Commissioner Carlson stated she wants to make sure she did not misunderstand Ms. Rogers, and inquired if she has some proof that shows the Sawgrass developers are actually advertising properties off Millstone Drive as waterfront properties; with Ms. Rogers responding no, she does not. Commissioner Carlson inquired if anyone does and has there been advertising to that extent; with someone from the audience responding there has been no advertising as yet. Commissioner Carlson stated she wants that clear on the record, so the Board is not accusing anyone; with Ms. Rogers responding they want to preclude that from happening.

Anne Salemmo, Vice President of Citizens for Responsible Growth, advised a number of previous speakers addressed the community’s concerns regarding the pair of bald eagles nesting on the property under consideration for development; Mr. Rogan referred to information on the pair of bald eagles and their nest, presented at previous Board meetings, regarding the connection of a roadway from Sawgrass South to the Pineda Extension; and the Board also heard more recent discussion on the bald eagles in Brevard County. She stated pages 77 to 80 of the January 14, 2003 Minutes, has Linda White of Maitland, representing Audubon of Florida as the eagle watch coordinator, spoke to this Commission regarding another property, which has been home since 2001 to another pair of bald eagles recorded as BE56; and read excerpts from the Minutes of that meeting as follows: “She stated that there have been only 58 active nest territories recorded in Brevard County since they started recording nests in 1974; that is not many eagles for a County this size; and contrary to some thinking, there is no such thing as expendable eagles. She stated Florida currently has the largest population of bald eagles in the United States with the exception of Alaska; however, in no other state is the eagle more threatened by continued loss of suitable habitat. Ms. White described St. Johns County’s recent adoption of its own bald eagle management plan to supplement the State and federal regulations; and she challenged Brevard County and other Florida counties to protect the eagle habitat while allowing for responsible growth.” Ms. Salemmo stated at the conclusion of discussion on that Agenda item, Commissioner Carlson requested Ed Slaney and Linda White to contact her office with a copy of the management plan from St. Johns County so they can go over it and see what St. Johns County did about that because Brevard County has so many eagles’ nests and it would be nice to have something that would augment the State and federal regulations because sometimes they do fall flat, which certainly seems to be the case in this instance. She stated she just located those minutes and has not had a chance to follow up and ask what happened after the meeting and whether or not the Commissioner got that information and where it is going. She stated on a personal note, a few days ago, she received a phone call from her brother who recently purchased property in Montana and who recently visited Yellowstone National Park; he was jubilant in describing his first sighting of a bald eagle in flight; and when she advised him they had a resident bald eagle pair nesting right here whose protection is under threat by development, he was horrified, and so is she. She stated the citizens of Brevard County are blessed by presence of a few nests of this magnificent creature, the national bird and symbol of our country; other counties in Florida are moving to provide their own protection of those animals; and pleaded with the Board to do the same. She stated the eagle pair has been nesting and fledging young there for years; they cannot know the reason they moved their nest to its current location this past season; but surely that move should not invalidate the right for protection and the protection of other active nests in the County.

Mary Sphar stated the Board needs to table consideration of the final engineering for Sawgrass South; staff could then get a report back on options that would protect the eagles on the property; and she was quite taken aback when she saw the documentation indicating U.S. Fish and Wildlife Service had approved incidental take for eagles residing in the nest on the Sawgrass South property. She stated the Service admits that the take is anticipated in its biological opinion, and states, “Based on our review, incidental take in the form of harm or harassment is anticipated for the adult bald eagles, their eggs, or their young at No. BE17B nest.” She stated it appears that the service has basically thrown their old guidance out the window and has condoned the construction of many homes within the 750-foot primary zone of the nest; and the Service’s habitat management guidelines for bald eagles in the southeast recommends prohibiting activity within the 750-foot primary zone. She stated ignoring those guidelines is something new; even the proposed site plan for Phase III of Sawgrass South did not show residential lots within the primary zone; and the County should have a role that insures adequate protection of the bald eagle, a threatened species under the Endangered Species Act. Ms. Sphar advised there may be some who say the federal government is the only responsible governmental entity, but she does not think that has to be the case; the Board on various occasions has expressed its desire to protect the bald eagle and quoted from the January 14, 2003 Minutes as follows: “Commissioner Carlson requested that Ed Slaney and Linda White contact her office with a copy of the management plan from St. Johns County” and so on because as Commissioner Carlson says, it would be nice to have something that would augment State and federal regulations because sometimes they do fall flat; and she could not agree more with Commissioner Carlson. She stated the Board may wonder how County regulations could be justified; the Comprehensive Plan contains policies that can be construed to authorize protective measures for the eagles; for example, Policy 9.14 says, “Brevard County shall continue to assist in the application of and in compliance with all State and federal regulations which pertain to endangered or threatened species and species of special concern.” She stated if U.S. Fish and Wildlife Service is not following federal guidelines in a particular case, it is time for the County to step in and insure that at least minimum standards are adhered to. Ms. Sphar stated also applicable is Objective 9, protecting endangered and threatened wildlife species and species of special concern from adverse impacts due to loss of crucial habitat; and another example of a relevant Comprehensive Plan policy is 9.13 which states “by 2002 the Brevard County Office of Natural Resources Management shall develop management plans for other endangered and threatened species and species of special concern dependent upon habitat rarity and loss rates.” She requested the Board table the final engineering approval and direct staff to look into options for protecting the bald eagles on the Sawgrass property and on the other lands in the County.

Commissioner Carlson stated a number of issues have been raised with this item; she will go down the list of things that she heard, starting with the first speaker just to recap the location of the terminus as it is defined on the map in III.A.5, the Florida Power & Light Company line location, the barrier location buffering, the BDP or lack of its attachment to the item; and all the different questions on the bald eagles’ nest as well as the lake liability issue and the issue brought up regarding the January 14, 2003 minutes. She stated she does not know how long it would take to review some of those things with staff, but she would suggest 30 days.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to table final engineering and preliminary plat approval for Sawgrass South at Suntree to work out the issues raised by residents in the area regarding the location of the terminus as defined in the map, the Florida Power & Light Company line location, the barrier location, buffering, the binding development plan not attached to the item, the bald eagles’ nest, the lake liability, and the issue of the January 14, 2003 Minutes.

Commissioner Pritchard asked for the President of St. Andrews Isle to come to the podium so he could get a better feel for the demographics of the community. He stated he assumes it is a family-oriented community with children in the neighborhood; with Mr. Rockwell responding yes, it is a 68-homesite gated community; and all the roads and property inside the gate are private. Commissioner Pritchard stated he can appreciate the problem with the lake liability; and he has been in two homeowners associations that had the same problem where the lake was privately owned by one homeowners association, including a strip of land, same as St. Andrews Isle has. He stated they found that people who have a home that borders on a lake view the lake as part of the amenities in that it is at least visual; and they found the best way to control it without having to police it continuously, which became much more of a problem than a solution, was not to erect a fence, because they would have incurred more liability by delineating where the properties stopped and started and would have had an attractive nuisance in that the lake was there. He stated they found the best way to handle it was to incorporate the lakefront property owners by a letter of agreement, release of liability, and a pro-rata share of whatever was determined to be the cost of maintaining the lake. He stated they hired a company to control the aquatic weeds and resulting algae blooms and they stocked the lake; and those people participate in that, so instead of creating a buffer to keep them apart from the lake, which is in their backyard, they made them part of the lake and therefore they participated and it eliminated the stress and concern. Commissioner Pritchard stated because their lake meandered, they confined the nonmembers of the association to that part of the lake that was in their backyards and it worked out well. He stated he is offering that as a solution because he does not agree with the second page of Mr. Rockwell’s presentation that says, “We also contend that by not requiring the adequate mitigation of our increased lake liability risk, the County is accepting partial responsibility for any future negative consequences.” He stated his homeowners association resolved the problem in that fashion and it worked out well both times because they found out it was not the issue they thought it was going to be; they found very few people used the lake; but to have an amenity like a lake in your backyard brings out the kid in people to throw at least a fishing line in the water and hopefully catch something, but with them it was always catch and release. He stated he wanted to bring that to the attention of the St. Andrews Isle Homeowners Association and thought perhaps they might be able to work something out with the proposed neighbors instead of trying to block them out and probably create more of a problem than they might anticipate.

Chairperson Colon inquired how long would the item be tabled; with Commissioner Carlson responding 30 days. County Manager Tom Jenkins advised it does not require a time certain, so as soon as staff resolves the issue, they will bring it back to the Board.

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

PUBLIC HEARING, RE: RESOLUTION VACATING UNIMPROVED RIGHT-OF-WAY IN
SECTION 20, TOWNSHIP 20GS., RANGE 35E. - BILLY JOE VOLNER AND HENRY
C. MORGAN

Chairperson Colon called for the public hearing to consider a resolution vacating an unimproved right-of-way in Section 20, Township 20GS., Range 35E., as petitioned by Billy Joe Volner and Henry C. Morgan.

There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Resolution vacating unimproved right-of-way in Section 20, Township 20GS., Range 35E., as petitioned by Billy Joe Volner and Henry C. Morgan. Motion carried and ordered unanimously.

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

Chairperson Colon called for the public hearing to consider a resolution vacating public ingress and egress easements in Sections 26 and 27, Township 23S., Range 35E., as petitioned by Attorney Douglas Baker representing B.D.M. Financial Corporation and Jacob Aaron Corporation. There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Higgs, to continue the public hearing on a resolution vacating public ingress and egress easements in Sections 26 and 27, Township 23S., Range 35E., as petitioned by Attorney Douglas Baker representing B.D.M. Financial Corporation and Jacob Aaron Corporation until August 12, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PORTION OF A PUBLIC UTILITY
EASEMENT IN BEL AIRE SUBDIVISION - WADE C. III AND DEBORAH M.
McCRARY/MICHAEL S. MINOT, ESQUIRE

Chairperson Colon called for the public hearing to consider a resolution vacating a portion of a public utility easement in Bel Aire Subdivision as petitioned by Wade C. III and Deborah M. McCrary, represented by Michael S. Minot, Esquire.

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to continue the public hearing to consider a resolution vacating a portion of a public utility easement in Bel Aire Subdivision as petitioned by Wade C. III and Deborah M. McCrary, represented by Michael S. Minot, Esquire until July 29, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 38, CREATIVE ARTICLE
38-6, PUBLIC GUARDIANSHIP PROGRAM

Chairperson Colon called for the public hearing to consider an ordinance creating a public guardianship program.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to adopt an Ordinance of the Brevard County Board of County Commissioners amending Chapter 38 of the Code of Ordinances of Brevard County, Florida; creating a new Article 38-6 to impose a filing fee on circuit civil actions to establish and maintain a public guardian office; providing for the collection and disbursement of funds for Brevard County public guardian office; providing for outcome in case of conflict; providing for severability; providing for area encompassed and inclusion in Code; and providing an effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, SECTION 62-2257,
LIGHTING STANDARDS

Chairperson Colon called for the public hearing to consider an ordinance amending Chapter 62, Section 62-2257, lighting standards.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Section 62-2257, Lighting Standards, to include regulations for athletic facility area lighting; to clarify intent, providing for conflicting provisions, providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, SECTION 62-1102,
ACTIVE OPEN SPACE PROVISIONS

Chairperson Colon called for the public hearing to consider an ordinance amending Chapter 62, Section 62-1102, Active Open Space Provisions.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Section 62-1102 to relate the provision of active open space to the number of units in a residential project; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, SECTION 62-2117,
PARKING OF COMMERCIAL MOTOR VEHICLES IN TOURIST COMMERCIAL ZONES

Chairperson Colon called for the public hearing to consider an ordinance amending Chapter 62, Section 62-2117, parking of commercial motor vehicles in tourist commercial zones.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Higgs, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Article VI, Division 6, Subdivision I; specifically amending Section 62-2117, parking, locating and storing recreational vehicles, recreational equipment, commercial vehicles, and heavy equipment, and cargo trailers, utility trailers, and open flatbed trailers; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING SECTION 102-186(b), ECONOMIC
DEVELOPMENT TAX ABATEMENT ORDINANCE

Chairperson Colon called for the public hearing to consider an ordinance amending Section 102-186(b), Economic Development Tax Abatement Ordinance.

County Manager Tom Jenkins requested the public hearing be continued to August 26, 2003.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Scarborough, to continue the public hearing on an ordinance amending Section 102-186(b), Economic Development Tax Abatement Ordinance, until August 26, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATION
OF OCTOBER 7, 2002 AND APRIL 14, 2003 - CARMEN REALINO

Chairperson Colon called for the public hearing to consider the recommendation of the Planning and Zoning Board, made at its public hearings on October 7, 2002 and April 14, 2003, as follows:

Item 1. (Z0210201) Carmen Realino’s request for change from GU to EU-2 on 7? acres located on the north side of Morningside Drive, east of N. Banana River Drive, which was recommended for approval with a binding development plan limiting development to two residential homesites; returned to the P&Z Board for consideration of three lots; approved by the P&Z Board with BDP limiting development to three residential homesites; applicant withdrew Tax Parcel 3 from request; and Board of County Commissioners tabled remainder of request to July 22, 2003.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to continue the public hearing on a rezoning request from Carmen Realino until August 7, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION APPROVING THIRD QUARTER SUPPLEMENTAL
BUDGET FOR FY 2002-03

Chairperson Colon called for the public hearing to consider a resolution approving the third quarter supplemental budget for FY 2002-03.

There being no objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution approving the third quarter supplemental budget for FY 2002-03. Motion carried and ordered unanimously.

CONTRACT FOR SALE AND PURCHASE WITH DARRELL AND SUSAN A. HUNT,
RE: PROPERTY FOR IMPLEMENTATION OF DRAINAGE IMPROVEMENTS
IN NORTH MERRITT ISLAND MASTER PLAN

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to execute Contract for Sale and Purchase with Darrell and Susan A. Hunt for nine and a half acres of property in Section 10, Township 23S., Range 36E., for drainage improvements identified in North Merritt Island Master Plan at $95,000. Motion carried and ordered unanimously.

APPROVAL, RE: APPOINTMENTS TO BUILDING AND CONSTRUCTION
ADVISORY COMMITTEE

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Option 2, rotating two appointments by individual Commission Districts for the appointment of two additional members with the initial appointing District being determined by lot and then proceeding sequentially thereafter.

Commissioner Pritchard stated Option 1 is one additional member from the building industry and allow the Board Chairman to nominate the one member from the general public; and Option 2 is rotating the two appointments by individual Commission Districts for the appointment of two additional members, with the initial appointing District being determined by lot and then proceeding sequentially thereafter. He stated the major difference is the Commissioner being able to appoint the second person versus the Chairman appointing the second person. Chairperson Colon stated that is what Option 2 is, and she supports it.

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

RESOLUTION, RE: AUTHORIZING ISSUANCE OF SALES TAX REFUNDING AND
IMPROVEMENT REVENUE BONDS, SERIES 2003

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution authorizing issuance of Sales Tax Refunding and Improvement Revenue Bonds, Series 2003. Motion carried and ordered unanimously.

AUTHORIZE EXPENDITURE, RE: APPLICATION FOR CERTIFICATE TO PROVIDE
WATER SERVICE IN VOLUSIA AND BREVARD COUNTIES BY FARMTON WATER
RESOURCES, LLC

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to authorize expenditure up to $10,000 for Brevard County’s discovery costs with City of Titusville and Volusia County regarding the application for certificate to provide water service in Volusia and Brevard Counties by Farmton Water Resources, LLC. Motion carried and ordered unanimously.

RESOLUTION AMENDING RESOLUTION NO. 02-320, RE: ADDING NEW SECTION
5.6, LIMITING COMMISSIONERS’ REPORTS TO FIVE MINUTES

Chairperson Colon advised she does not support the resolution.

Commissioner Scarborough stated the Board needs to move the meeting along at the front end because there are a lot of people who need to get back to work; but one thing that bothers him is telling someone like Roy Bridges he only has a few minutes to make his presentation; so special speakers could be scheduled under Section II of the Agenda instead of Reports. He stated if things are going to require action, it may be advantageous for a Commissioner to put the item on as an action item so the Commissioners have previous knowledge and can be better prepared to discuss it, and staff would have the ability to comment on it. He noted the Board may not take action at that time, but it would advance the process by having people better prepared to get involved in the issues.

Commissioner Higgs stated she supports the concept of having special speakers included under the Resolutions and Awards Section of the Agenda; she just wanted to be sure that under Reports, they bring to the table only those things to report; and if an item requires action by the Board, it needs to be put on as an action item so the Commissioners are advised in advance. She stated if Commissioner Scarborough is willing to support a motion to include speakers of general interest to the community being accommodated under Section II, she would support that. Commissioner Carlson stated she has no problem supporting that either and whether it requires an action or just lengthy discussion, it should be included under the regular agenda.

Commissioner Pritchard stated he does not agree with the resolution; any time a Commissioner has something to say he or she feels is relevant, it should be brought out; and he does not see any reason to try and control what a Commissioner is going to say. He stated many times the Report Section is used to simply provide an initial briefing because they do not talk outside of the sunshine; perhaps action may or may not come from it; but the idea of trying to control what someone has to say and then create exceptions for special people is not the way to go. He stated the Board is the represented body of the public; the Commissioners are elected by the public; they have a right to say something; and trying to control the amount of time that is provided to do that is just another way of trying to control what someone has to say. He stated there is no reason to move it any where else on the Agenda; it should stay under Reports; and if a Commissioner has something to say, then that Commissioner should be heard at that point.

Chairperson Colon stated one thing that was brought up is any item that is very lengthy and needs to be discussed, should be on the regular agenda; no one is saying for it not to be on the agenda; it depends where on the agenda the Board will discuss it; what she heard is they should use their discretion if it is something that should be under new business; so no one is stopping anyone from discussing anything with the Board. She stated where it is put on the agenda seems to be what is being echoed; even if the Board does not take action, it would probably be appropriate under new business is another thing she heard; and if there is a guest speaker, that should go under Section II and not under Reports. Chairperson Colon stated Commissioner Pritchard’s concern seems to be that the only time they have an opportunity to speak to one another is at the Board meeting in the sunshine; that is appropriate and she agrees with that; no one is saying not to do that; what seems to be said is where to put it on the agenda. She stated she opposes reports of five minutes because there may be times when there are issues that come up that may take more than five minutes; but she sees no problem with action items being on the agenda; and inquired if there is a motion to reflect what has been said.

Commissioner Scarborough stated he likes the way the Chairperson said it; he would not in any way think the Board wants to discourage any Commissioner from making reports and bringing things to the Board; Commissioner Pritchard brought some very good things to the Board, and the Board wants to encourage that; however, if the rest of the Board is given foreknowledge and it becomes a part of the regular agenda where staff has it and they all have it, they would be able to deal with it in a more meaningful fashion. He stated it is extremely difficult to get into meaty issues and normally they do not take action; but if they are able to bring something to a consensus of the Board, where they are up to speed a little better, they would be able to act more responsibly to some of the compelling issues brought before the Board by Commissioners. He stated it behooves Commissioners to use that avenue; it will in the long run advance those items the Commissioner is interested in rather than discourage it; and he hopes they will use it as a tool.

Commissioner Pritchard stated that is what will happen with this issue; the items will be heard, they just will be heard elsewhere; but the point is there are some issues that are simply brought to the attention of the Board and does not necessarily require staff intervention or have them spin their wheels on something that may not go beyond the usual. Commissioner Scarborough stated Commissioners should use their discretion in that regard. Commissioner Pritchard stated that is his point; having things to say at certain times may pop up just when the Board meets and something is brought to his attention and then of course that is when it will come out; and as long as the Board realizes that there will be some issues that will come out during Reports and there will be some issues that will be orchestrated later on into the agenda, but his intent is not to have staff spend any amount of time on an issue that is simply being brought to the attention of the Board because of not attempting to circumvent the sunshine law.

Chairperson Colon stated a perfect example is the signature bond issue; it came under Commissioner Pritchard’s report; it was something that the Board had to take action on, so it was not bringing it to the Board as information, but as something important that it needed to take some action on; therefore, it should have gone under new business for the Board to discuss it at length. She stated she recalls that item had many speakers, so it should have been under new business; and that is an example of what should be put on the agenda under new business rather than reports. She stated there were some items that Commissioner Pritchard brought to the Board that did not require action; so every Commissioner should use his or her discretion.

Commissioner Scarborough stated he does not like the five-minute limit as it could be problematic if a Commissioner has something of significance that would extend beyond five minutes, but he will move the Chairperson’s language. Commissioner Higgs stated she would second that with the caveat that if they follow the policy of doing things under new business or old business, if they cannot get that focused, they can come back and look at it again, but she will accept this as progress.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Resolution amending Resolution No. 02-320, to provide that special speakers of community interest be scheduled on the Agenda under Section II, Resolutions and Awards, and items that require a lot of discussion or Board action be scheduled under New Business, so the Board can have full knowledge of the item and be able to comment on it responsibly, and staff could be better prepared. Motion carried and ordered; Commissioner Pritchard voted nay.

County Manager Tom Jenkins advised that staff will bring the rule change back as part of the Board’s operating procedure.

RESOLUTION, RE: REVISING REVIEW FEES FOR SURVEYING AND MAPPING
DEPARTMENT

Commissioner Pritchard stated he has an issue with self-sufficiency in departments and has brought it up before; they are moving in the direction that is going to double tax people who are using services; and that is not fair. He stated what the County is doing is creating a revenue stream that is falling on the backs of people applying for permits or requesting services who pay the full cost of having the person on the other side of the counter to assist them; they should pay a portion of that, but to pay the full cost means that a developer or owner/builder would be paying ad valorem taxes based upon his tax rate; that money would be going to the County as a revenue stream; then when he shows up to get his permit, consultation, or whatever else, he is going to be charged the full rate of the person behind the counter. He stated in other words they are being charged twice; the Board is encouraging staff to become creative and increase fees categorically across-the-board, and in some cases dramatically; and an example is on page 2, the fee for site plan application preapplication conference is going from zero to $75, final plat review is going from $500 to $1,000, and preliminary plat over 50 acres is going from $200 to $525. Commissioner Pritchard stated all those fees are increasing dramatically; and the problem is every Department that moves in that direction will be encouraged to raise fees to generate their stream of revenue that they are going to be losing from General Fund; and he does not think that is the way to do it. He stated it is setting a bad precedent; and suggested the Board not approve the resolution and turn it over to the Contractors Licensing Board, which has been operating under the assumption that this Board wants the departments, agencies, and divisions to become self-sufficient. He stated if that is the message the Board of County Commissioners has sent prior his coming on board, then it needs to discuss it; and if that means restating what the position of the Board is, then it needs to do that. He stated if Department heads are operating based on that conception, and it is not the wishes of the Board, then it needs to address it; and it is totally unfair and not the way to do business. He stated a private business would not simply charge more for something and be able to get it from their customers because their customers would go elsewhere; here it is a captive audience and people come to the County because they need permits or other assistance; and the County is gauging them, which is not the way it should operate. He stated the County should operate as a business to be competitive; staff should be wearing buttons like the County did before that said, “how can I help you”, and not “how can I gauge you.”

Chairperson Colon inquired if Commissioner Pritchard’s recommendation is to send it back to the Advisory Board; and inquired if that has been done; with Transportation Engineering Director John Denninghoff responding it did go to the BCAC and was approved.

Commissioner Pritchard stated it was approved by the BCAC because the members are under the assumption the Board gave them that direction and they do not want to offend the Board. He stated he told his appointee that he appoints people to boards because he wants their input; and if he wanted them to do what he does all the time, he would be on all those boards, but that would not be good. He stated he has to have people who say no, yes, and not sure; and the direction he would give the Contractor Advisory Board is to look at those fees and at what they are doing; not only are they costing the person who comes in a tremendous amount of money, but generating in staff the need to create more money; and the only way staff creates more money is on the backs of the people.

Chairperson Colon inquired how long was the Advisory Committee’s discussion; with Roadways and Landscaping Finance Manager Greg Pelham responding the Committee spent about an hour discussing the fee increases before it approved it. Chairperson Colon inquired what was the vote; with Mr. Pelham responding if he remembers correctly, it was a unanimous vote.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt Resolution revising the review fees for surveying and mapping services. Motion carried and ordered; Commissioners Pritchard and Colon voted nay.

Commissioner Pritchard requested clarification from the Board if it wants to move to self-sufficiency and increase user fees and create another stream of revenue that is going to encourage departments to be creative and take a $500 fee and make it $1,000 and a $200 fee and make it $525 that the people are going to be paying.

Commissioner Carlson stated Ms. Busacca has a handle on why the Board has come to that point and why it is trying to make certain departments self-sufficient; and requested Ms. Busacca give Commissioner Pritchard a synopsis of what the Board discussed over time.

Assistant County Manager Peggy Busacca advised during the budget hearings three years ago, the Board directed that permitting agencies would, over a three-year period, become self-sufficient; and in the case of this instance, the reason that additional personnel is required is because the State requires a surveyor review all subdivisions and they have not previously had to do that in this way. She stated it is a new requirement put on the County by the State; and the budgets the Board reviewed in the last three years have seen incremental increases in fees in order to be self-sufficient. She stated there was a study done to look at the amount of time that is spent to do those works; and it is only intended to get the cost back that is spent by the individuals requesting the service. She stated in the case of Planning and Zoning fees, that is different because the Board directed that the Planning and Zoning functions can accrue to the community as a whole more so than directly to the applicant requesting the service; so those fees do not reflect 100% of the cost to provide the service.

Commissioner Pritchard inquired what percentage do they reflect; with Planning and Zoning Director Mel Scott responding for those instances where there is an application generated, staff recoups the cost that is expended to see that application through, such as advertising and the effort made to put that application together. Mr. Scott stated many times during rezoning there comes a point where it starts to engage in neighborhood planning on an ad hoc basis; and the theory that the Board embraced was that even though it should be recouping the cost of the applicant-driven efforts, once they get into a more general neighborhood planning mode, there is a general benefit and that should not be on the back of the applicant. Commissioner Pritchard stated every application is applicant-driven; when he comes to the County to do something, he is driving the application; and maybe other entities become involved. He stated he has been on that side and know what it is to generate user fees and have people pay and create streams of revenue; what he is saying is they are paying taxes; their taxes are going toward having an operation; and when they come in, they are paying again. He stated the analogy he used is that the County may construct a tennis court and people pay $5.00 an hour to play on that court; he does not have a problem with that; but what he has a problem with is if he wanted to play on that court and the Board took the construction cost, operation and maintenance costs, salaries, and everything else that would be part of that court, divide it into one hour, and have him pay $487 to play for one hour; and that is where he has a problem. He stated he is adamant about that and totally opposed to the self-sufficient concept that has been promulgated because it is grossly unfair.

PUBLIC HEARING, RE: REQUEST OF HANK SAUNDERS FOR DETERMINATION
OF VESTED RIGHTS

Chairperson Colon called for the public hearing to consider a request from Hank Saunders for determination of vested rights which was continued from July 8, 2003.

Attorney Ken Crooks of the Dean Mead Law Firm, representing Hank Saunders, advised this is the second time they have been before the Board; in the prior Board discussions he heard two weeks ago, there was a lot of talk about misrepresentation and fraud; and as a result, they seemed to lose track of the facts in the record, which he will make a quick review of. He stated Mr. Saunders wanted to buy property on which to build his home; before he spent money on the home, he checked with the County to determine whether he could build on the property; and the County staff told him several ways that he could build on the property. He stated the first choice that he was told was to buy back the north 15.94 feet from his lot, and if he received that property back, it would be a nonconforming lot of record and he could build on the property. He stated Mr. Saunders tried that and offered to buy the property back from Mr. Gonzalez, and said in a letter, “If I could return the south 15.94 feet that is of Lot 9, I could obtain a building permit”; and that is also what the Planning and Zoning staff says in its Agenda Report to the Board, which is, “Mr. Saunders may have several recourses to either nullify the contract or have the original nonconforming lot of record restored by regaining the 15.94 feet that was removed in ’94.” Mr. Crooks advised his client tried it and Mr. Gonzalez simply said no, so he went back to the County and inquired if there were other possibilities; in the County’s June 25th letter, in which it uses the word “subdivided”; it says “divided”; it says “separated” in regard to the lot; and it says if that was done before February ’93, it would be okay; so Mr. Saunders went back, reviewed all the documents that he could find, and indicated to the County he felt that the property had been subdivided prior to February 1993 and asked the County if what he had shown them and what he had was sufficient, okay, enough, and how can he show them what was the date on which the property was divided. He stated the response from the County was to talk about the procedure in the County Ordinance, which talks about verification of a vested right; and it is not just recorded deeds that is indicated is necessary to make a decision, and that providing an affidavit, a survey, pictures, a contract are things that he could do; and that is exactly what Mr. Saunders did. Mr. Crooks stated his client submitted those documents to the County, and the County took from June 2001 until August to make a decision; Mr. Ritchie came out with the August letter that said it is okay, he can build a single-family residence on the property; then he spent the money to buy the property. He stated what he was telling the County is not some sort of subterfuge; he was not suggesting that there was some kind of recorded deed on which he was making his request for a building permit; the record shows there were telephone conversations and an actual meeting; and there were documents submitted back and forth. He stated there were faxes and a lot of activity that occurred between June 2001 and when the County made its interpretation in August 2001; and it was only after that, that the County made the decision that the property could be built upon. He stated now they are told, notwithstanding all the discussion and all the time and all the intervening activity, that the issue of buildability was made solely on the use of the word “subdivided” in Mr. Saunders’ letter; but he gives Mr. Ritchie more credit than that. He stated Mr. Ritchie thoughtfully looked at all the documents and he made the decision to provide some help to a Brevard County citizen; and it is true that at one point Mr. Saunders used the word “subdivide”, but in fact there is no definition under the County or the State law of subdivide. He noted there is a description of what a subdivision is, but not subdivide; and this is not a word game they are engaged in, it is something that affects his clients’ lives and financial wellbeing. Mr. Crooks stated his clients have spent over $200,000, and entered into contracts for over a million dollars; and he does not think the other people who signed those contracts are going to let them out because the County has turned them down for vested rights. He stated he thinks they are going to be sued by those people; it is not a very good situation; and in fairness, they should be given the opportunity and the right to continue with the building of their single-family residence on the property. He noted Mr. Saunders wishes to be heard as well.

Hank Saunders advised he has been in the real estate business 30 years come September; and in practicing in Brevard County, he never ever had a complaint with the Board of Realtors or with the Real Estate Commission in all that time. He stated he has been working with Zoning and various administrations and never had a problem; he has never been accused of fraud; and he did everything he possibly could. He stated this item took a long period of time; it was not just one word that was said that all of a sudden changed everything; he paid all the fees that were required by the County and the State; and he paid all the taxes on the property. Mr. Saunders stated he has built only one house and has lived there for 25 years; this is his second house; he is not a wealthy man; and denial of this vested rights will destroy him and his whole family. He requested the Board to please let him build his house.

Commissioner Higgs requested Mr. Scott respond to the statement by Mr. Crooks regarding Mr. Ritchie’s letter and what was actually told to Mr. Saunders in that letter on June 25, 2003. Planning and Zoning Director Mel Scott advised Mr. George Ritchie described the criteria that would need to be satisfied; on the replied fax, the applicant verified that the property was subdivided prior to February 17, 1993; and the letter states, “Your current zoning, RU-2-4, should allow the construction of one single-family residence based upon his current lot configuration.” Commissioner Higgs inquired if Mr. Ritchie said that based on what Mr. Saunders told him about when the lot was subdivided in their discussions, he told Mr. Saunders it could be built upon; so was it based on a previous letter and also based on what Mr. Saunders had represented to Mr. Ritchie; with Mr. Scott responding that is correct. Mr. Scott stated Mr. Crooks adequately described the fact that there were numerous conversations by phone and numerous correspondence that went back and forth via fax and letters; and it was not a relationship that merely took a couple of weeks, it was quite a lengthy process. He stated there are other letters in the file, that were also included in the Agenda package, where staff is informing the applicant of the requirements that would need to be satisfied to have the lot rendered buildable per the nonconforming lot section of the Code; so it was quite a lengthy relationship. Commissioner Higgs stated she does not know that the Board has the letter that states staff said it was buildable if Mr. Saunders took the other 15 feet as represented in the letter to Mr. Gonzalez from Mr. Saunders; with Mr. Scott responding he does not believe there is anything in the record that the Board will find in writing to that point; that is a function of the kind of exhaustive option when they try to uncover every possible option for someone; and they have clarified in the last public hearing that it was something that technically the Board can recognize because the act of altering a lot passed the date of February 17, 1993; and even if it is rejoining, a past nonconforming configuration is in fact taking place in the present day and is contrary to lot alteration provision of the Code; so it was entered into the record two weeks ago that it is something the Board can recognize. He stated the act of rejoining the lot into its original configuration was just a function of a brainstorm that was taking place between the applicant and staff in trying to identify possible remedies. Commissioner Higgs stated pages 36 and 38 of the packet goes back to a potential sale in July 1992 or discussions in July 1992, which Mr. Saunders and his firm engaged in and when there were discussions about the size of the lot and the sale to the Goodmans were referenced; so there were discussions over two years ago. Mr. Scott stated there certainly was discussion, and the contemplation of the reconfiguration at that time was within the time frame that it can be done legally; and unfortunately it did not occur until 1994. Commissioner Higgs stated on page 92 of the packet the sale occurred in August 2001; the original sale to Kristin Saunders from Andrews was $100,000; the same day a sale occurred to Hank Saunders and Joanne Saunders going from $100,000 to $25,000; and those are referenced in the Property Appraiser’s records. She stated there is a memorandum from the County Attorney outlining circumstances where a local government is not estopped from revoking a building permit; and the County Attorney outlines that in the July 21 memo. She stated in regard to misstatements of fact by an applicant, as well as the final paragraph in regard to the knowledge and experience of the individual presenting this, the Board has a history of the applicant being involved with this property and knowing the property; so there is not a vested right, and she will move to deny the request.

Motion by Commissioner Higgs, to deny the request of Hank Saunders for determination of vested rights to allow construction of a single-family house on a lot deemed substandard to the minimum lot size requirement of the Comprehensive Plan.

Commissioner Carlson stated she will support the denial, but has a question that came up in her briefing regarding the letter of July 2 to Mr. Ritchie on research that the applicant had done to determine whether or not the property had been subdivided prior to February 17, 1993; and inquired if the applicant had provided staff with that research material to prove that. Mr. Scott stated he does not think there is further elaboration, but will let Mr. Crooks respond if it is the pleasure of the Board. He stated on page 12 is the letter identifying information that represented the information that was part of the fax, the sworn affidavit from Mr. Andrews, the photographs showing the boundary fence, and the property survey dated 1992. Mr. Crooks advised all the information that is included in Exhibits G through J is the information that he referred to, and that is what was given by Mr. Saunders to County staff before Mr. Ritchie made the interpretation in August.

Commissioner Pritchard stated Mr. Scott referred to the letter on page 45 dated August 6, 2001 signed by George Ritchie and that at the end of this lengthy discussion, it was not a two-week relationship; and inquired if this is the end of that lengthy discussion; with Mr. Scott responding yes, he thinks it is. Mr. Scott stated the sentiment that was related to him, because he was not intimately involved in those discussions, but it was clearly reported to him and he has investigated it since, that it was a conclusion. He stated they have gone through this issue so many times; they have provided the information so many times; and if Mr. Saunders says he has what he needs, just issue a letter saying in effect, if you have what you need, then we are good to go as well. Commissioner Pritchard inquired if Mr. Gonzalez owns Lot 9 and the Board is talking about Lot 10; with Mr. Scott responding yes, Mr. Gonzalez is the neighbor to the north. Commissioner Pritchard stated the neighbor to the north is a realtor who lives in Miami; and being a realtor he could see the value of keeping the 15 feet, which would in effect have an affect on the Saunders being able to build on the remaining property; and he probably has an idea of perhaps building something on that property and being able to do something with it since he would perhaps purchase the property for $25,000 or whatever. He inquired if it is determined to be unbuildable, where is the value, and what can it be used for. Commissioner Pritchard stated he can understand why Mr. Gonzalez might say no, he will hang on to his 15 feet and maybe later be able to orchestrate something; whether or not the Board would allow that to happen in terms of issuing a building permit would have to be decided at a later time; but there is motivation there to keep the 15 feet. He inquired if the property is located across from Aquarina and on the northern end of Archie Carr or what the sanctuary is called and is it vacant; with Commissioner Higgs responding she would not call it that and it is not vacant. Commissioner Pritchard stated the Aquarina group also has property on the southern end that is being pushed for resolution to set aside at this point; who knows what is going to happen; but he is sure they would like to see it remain vacant. He stated the Saunders have been above board on this issue; the Saunders were given a bad interpretation because of perhaps a word and its usage; but he thinks they are entitled to build on the property. He stated the comments that came from the Board at the last meeting on this issue were totally inappropriate; it is something they have spent a considerable amount of time and money on to see it happen; they followed all the rules as they should have been; they should be able to build the house; and he will not support a motion otherwise.

Chairperson Colon advised there is a motion and a second.

Commissioner Scarborough stated at the last meeting he thought the Board needed to have an intentional misrepresentation; what led him to that belief was the fact that if there is any act that the County does that staff knows will be relied upon; and there is probably nothing more profound than issuance of a building permit. He stated the Board has discussions all the time with people; in fact within the vested rights, the acquisition of land is not an act in reliance; but once a building permit is issued, certain major things take place; so staff needs to be extremely cautious when issuing a building permit because they have foreknowledge that is an act on their behalf that is going to be relied upon. He stated knowing that, he thought that the Board would have to go to the level of showing an intentional misrepresentation. Commissioner Scarborough stated Mr. Knox prepared the memo; he also has some cases; he does not know if Mr. Crooks reviewed them or not; but he would think that the issue rely on the finding of fact that would be within the parameters of the law, keeping in mind that the act of issuing the building permit is probably the most profound act the County can have, which would generate a response, an act in response leading to equitable estoppel; so he would support the motion. He stated they need to understand that normally when there is an act by the County that is relied on, it is generally because somebody is confused and then comes back and says he or she made a mistake; the fact that there was a mistake there cannot in itself be a trigger because there has got to be a higher measure, particularly with the building permit; so he is willing to proceed with the finding of fact based upon the law in those parameters.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioners Scarborough, Higgs, and Carlson voted aye; and Commissioners Pritchard and Colon voted nay.

Commissioner Scarborough stated he is of the opinion that the Board needs to have this come back as a finding of fact based upon the statement of law and that it needs to afford Mr. Crooks the full opportunity to address both facts and law as part of that proceeding because this is just the preliminary step.

Chairperson Colon stated to understand this correctly, the Board is going to go back and get its findings of fact, but it is also going to allow at that time or beforehand speakers, or follow the policy that it has spoken to before. Commissioner Scarborough stated he wants to provide Mr. Crooks a week or ten days of sufficient notice that he does not get it the day before so he can do legal research and come back with a memorandum that can be part of the package; then allow him to address it at the same time based upon those findings. He stated he does not have any problem proceeding, but thinks the two need to come together in the finding of fact.

Chairperson Colon inquired if she should take that as a motion. Commissioner Higgs seconded the motion. Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously. Chairperson Colon advised the motion was made by Commissioner Scarborough, and seconded by Commissioner Higgs.

Commissioner Pritchard stated Mr. Knox is an attorney and can argue both sides of an issue quite eloquently; that is his ability; and as the County Attorney, he would not be surprised if he does not take the gist of where the Board is going and then provide an argument that would support the Board. He stated he would expect Mr. Crooks to do the same thing for clients that he represents; Mr. Knox would be fully capable of coming up with a legal opinion that could say the sun would not come up tomorrow morning and vilify Copernicus at the same time because that is his skill; this would probably return as litigation at some point; and his concern is that this may not go the way that the Board would like it to go. He stated Mr. Knox will again be able to come up with positions that he feels will support the majority of the Board, whereas if it were one side or the other, he could do equally as well; and he just wanted to make mention of that.

The meeting recessed at 11:01 a.m., and reconvened at 11:15 a.m.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, SECTIONS 62-2129
AND 62-1953, EXEMPTING AMATEUR RADIO OPERATORS’ ANTENNAE AND
SUPPORT STRUCTURES FROM TOWER REGULATIONS (FIRST HEARING)

Chairperson Colon called for the first public hearing to consider an ordinance amending Chapter 62, Sections 62-2129 and 62-1953, to exempt amateur radio operators’ antennae and support structures from tower regulations.

Maureen Rupe of Port St. John advised she read the Titusville-Cocoa Airport Zoning Ordinance for an upcoming meeting and noticed that the height restrictions around airports are nonconforming uses and were quite extensive; the City is taking no responsibility for anything outside the City limits; and the nonconforming use goes about half a mile into Port St. John. She inquired if the County is not going to be reviewing any antenna height restrictions, how is the County going to be able to comply with the State law on height restrictions. She stated the State law regarding amateur radios requires safety issues; and she does not want to stop them from doing whatever they do or having fun, but somehow it should go through a conditional use permit. She inquired how would the County keep a count of how many antennas are put up, and if there is diminishing of property values; and stated she would like an answer to the question of how the County will be able to review what goes up in an airport notification zone.

Stephanie Phillips of Titusville, representing the American Radio Relay League and Brevard Emergency Amateur Radio Services, stated on behalf of Bob Keim, who is a volunteer for their organization, she might be able to speak to some of the concerns of the previous speaker, but there are other people here who can deal with the legal and technical matters of antenna heights near airports and unrestricted areas of the County. She asked the Board to positively consider the proposed amendment to exempt the amateur radio operators from the current CUP requirements and fees, as it will make her job a lot easier to recruit amateur radio operators and volunteer emergency communicators for disaster support in the County in the event there is a disaster. She stated without their antennas they cannot do their job; some of them live in the far North part of the County and require communications with the South part of the County, so they need the height above obstructions. She noted some trees exceed 70 and 80 feet; most of them want to put up a tiny wire antenna at the top of those trees; the current regulations will cost $2,000 to possibly get approval for that; and requested the Board reconsider the amendment and vote to exempt federally-licensed amateur radio operators.

Mary Schultz, Emergency Preparedness Coordinator for the City of Palm Bay, advised she is a licensed HAM radio operator; they have developed a volunteer base using HAM radios in the City in the event of an emergency or disaster; and HAM radio operators are called out after every disaster, such as the Shuttle crash in Texas and when tornadoes go through areas. She stated they are dedicated volunteers who put in thousands of hours a year in the County; and by limiting their tower heights, the Board will limit the community’s ability to communicate. She stated the citizens will not be able to contact family members out of State; the family members will not know what their status is if a major disaster hits the area; and requested the Board consider passing the ordinance and allowing those people to continue what they do.

Hank Phillips of Titusville requested the Board favorably consider the exemption of amateur radio antennas because it is good for the County’s emergency preparedness. He stated to address the concerns of a previous speaker, both the FCC and FAA require amateur radio operators to register towers that are within the exclusionary limits of an airport; and that has been in effect for more than 25 years, so they already have a federal requirement to comply with in that regard.

Robert Keim of Mims stated they have all devoted countless hours to the amateur radio antenna and support structure exemption ordinance that is before the Board; and once again they all heard the benefits of amateur radio, so he will not go over that again. He stated they have presented the Board with many facts and reasons why it is a good exemption and good for the County; but upon receiving the amendment draft, they noticed some changes were made and included CB and GMRS. He stated when the ordinance was before the LPA, everybody who spoke requested removal of those services; they in no way reflect the federal and State statutes and protections; and amateur radio is the only service that shares that statute protection. He stated the LPA decided to recommend approval of the ordinance with removal of CB and GMRS; and that is what he is asking for today. Mr. Keim stated the ordinance has been before the Board three times and before the LPA once; and requested the Board move on the issue as there is zero opposition. He noted he was informed there was an email opposition and if there is, he would be curious to hear about it, because he has heard no opposition; they canvassed the areas throughout the County; CC&R deed restrictions protect communities from antennas so those communities that there was concern for will not be jeopardized based on this exemption; and it will only apply in the unincorporated area of Brevard County. He stated their main function is civil preparedness and defense; the service was created specifically for those reasons and is backed up by a skilled pool of trained, tested, and highly-regulated operators, which the Board heard testified to by many people; and requested the Board move on the issue, take a vote, create the amendment to exempt amateur radio operators from antenna regulations and allow them to keep being dedicated volunteers for the County.

Commissioner Higgs inquired if Mr. Keim is under the assumption that antennas and support structures shall continue to be subject to Land Development Regulations, permitting requirements, and setbacks; with Mr. Keim responding if they are exempt from those two sections, they would still be subject to getting a building permit. Commissioner Higgs inquired if they would get a building permit and meet setback requirements; with Mr. Keim responding setbacks are not an issue at all. Commissioner Higgs inquired if adding that language, in Mr. Keim’s opinion, would not cause a problem; with Mr. Keim responding he does not see setbacks being a problem as long as they are not weighted with a percentage of height based on setbacks. He stated if it is 25 feet from the property line or something similar that is no problem and he does not see anyone here objecting to that. Commissioner Higgs inquired if they are opposed to building permits; with Mr. Keim responding he personally opposes it and believe the majority of the people present would also; they already go through a giant hoop of federal regulations to achieve what they are trying to achieve; and it is another cost and more hassles to get up antennas that benefit the County. He stated everybody seems to be worried about the growth of antennas; they are already here; there are very few people coming in and erecting giant towers and antennas; the antennas they are talking about have been here as many as 60 years; and people have testified to that. He stated it is just now that the County Codes are catching up and citing people who have been in noncompliance for many years; so that is something to consider.

Commissioner Pritchard inquired if building setback requirements for antennas include the guy wires; with Mr. Keim responding most people are using guy wire towers, but the County Code infer they are not for guy towers; however, they are the safest, easiest, and most cost effective towers to construct. Mr. Keim stated he is not sure why guy wires would play a part in setbacks, but they could be discussed if there was an issue with them and people would be open to interpretation of how the Board would take that. Commissioner Pritchard inquired how far would the guy wires have to go for a 75-foot tower; with Mr. Keim responding it depends on the manufacturer’s specifications, but the average is about 40 feet based on height and how many sections are used, as there are five different types of sections with their own ratings and specifications for assembly. Commissioner Pritchard stated Mr. Keim mentioned building permit; and inquired if it was an LPA recommendation; with Mr. Keim responding they mentioned it to the LPA that they did not feel building permits were an issue; they were looking for an open exemption and already comply with many federal regulations; and he is not sure how the LPA took it. He stated from reading the minutes of the LPA meeting, it recommended full exemption for amateurs minus CB’s, GMRS, and land mobile, and were in total agreement except for one member. Commissioner Higgs stated it was an exemption from the conditional use permit. Mr. Keim stated the way the draft ordinance is, it says exemption and does not say just from that Chapter; it says Sections 62-1953 and 62-2129, which are part of the tower regulations; so the way he took it was exemption from those two sections. Commissioner Pritchard inquired if Mr. Keim knows what a building permit would cost for a tower; with Mr. Keim responding he does not have a clue, but would guess $150.

Chairperson Colon stated this is the third time the ordinance has been before the Board; they already discussed the pros of having antennas; and she wants the Board to stay focused and discuss anything that it had not touched on before.

Danny Burdick of Rockledge, representing USAF MARS Military Affiliate Radio System for Patrick Air Force Base, advised he has 16 volunteer operators; their duties are telephone patching for people who are in the military overseas; and most of their work is done at home. He stated all 16 operators live in Brevard County; the majority are in the area that will be affected by the ordinance; and requested favorable view of the proposal otherwise they will be out of business because the volunteers do not get paid to do what they do.

Janis Walters of Valkaria requested the Board accept the amendment as recommended by the LPA, excluding general mobile, CB, and land mobile. She stated there are already federal height restrictions on general mobile and CB; they are quite low; and it does not make sense for the County to make a less restrictive ordinance for those classes. She stated they are not covered under federal protection PRB 1; and although some CB and general mobile operators may volunteer to participate in Brevard emergencies, those classes are not subject to demonstrate their competency for licensing. She stated if there was a potential for interference with safety problems, that is where it would lie; there was no indication in the Board’s direction at any prior meetings that any other radio class would be included; and requested the Board exempt federally-licensed amateur radio operators only as the ordinance is written.

Curt Lorenc of Valkaria advised currently Brevard County is in violation of State and federal laws that say it has to use the minimum practical regulation for legitimate purpose; and it is not business as usual with full regulation, building permits, and setbacks because that is getting outside the scope of what the federal law says. He stated the County has a budget crunch; they have 4,000 volunteer civil defense workers at no cost to the County; and they maintain their own equipment and volunteer their time for the protection of the community. He stated there is a #1 terrorist target in Brevard County, the Space Center; it is possible something could happen to it; and presented the Board, but not the Clerk, an article of a plane making an attempt on a nuclear power plant in Florida. He noted if the pilot was successful and there was radiation, they would need those guys to help out; there is no way the County can put 4,000 civil defense operators all over the County at a minute’s notice to protect its citizens; so it is important not to put a lot of restrictions on amateur radio operators, especially any sort of setback on a house because the towers need to be next to the house. Mr. Lorenc stated Palm Bay and Melbourne have set precedent; they have totally exempted the amateurs; he called Zoning and Code Enforcement

and they have not had any problems; and there have not been speakers here in opposition to the item, only a concern about towers around airports. He stated they are allowed one foot of height for every 100 feet, so tower heights around airports are not a problem; and they are well addressed by federal law as well as FAA law. He stated the Board met on the legislative intent to create an ordinance for amateur radio and amateur radio only; and since the ad was that and direction to staff was that, it would be good to remove CB and general mobile from the ordinance as recommended by the LPA. He stated the Board is looking at a very large group; there are about 4,000 HAM’s Countywide; they deserve consideration; and he would appreciate it if the Board would pass the exemption as a total exemption.

Jim Hagan of Malabar stated he has been a licensed amateur radio operator for 49 years, 40 of which has been in Brevard County; he had a tower of one sort or another probably out of regulation just about all that time; and there is not much he can add to what has been said, but he personally would have no problems obtaining a building permit for his tower provided it was reasonable. He stated he built a garage and the building permit cost $25.00; and he would have heartburn if they had to get a building permit that cost $150; but as long as it is reasonable, he would not have a problem nor would he have a problem with setbacks from the property line, which is good common sense. He stated other than that, he is in favor of the ordinance as written with exception of the GMRS and Citizens Band operators.

Bud Hughes of Titusville stated he is an extra class licensed amateur radio operator, licensed in April 1953; hopefully Cbers and amateur radio operators can work together particularly in emergency situations; and he has issues that need to be addressed. He stated to get a license as an amateur radio operator, there are several classes of licenses; each class course has a different set of theory questions to get a license from DFCC; and Cbers do not take a test and just buy equipment and put it up. He stated an amateur radio operator is required to identify himself or herself every ten minutes; that identification is a call sign; and the FCC can tell the persons name in ten seconds. He stated if a Cber is on the air, no one has any idea where he or she is because they use nicknames and are not licensed by FCC; because of its lack of manpower, the FCC has asked the amateur radio club be instrumental in trying to iron out problems that Cbers or amateurs may have with their next door neighbors; and the FCC never goes to the Cbers to go to the offending individual with an olive branch. He stated they have zero authority and are just peacemakers; and they work with the FCC to iron out problems that might come up. He stated most amateur radio operators build their own equipment or a lot of it; it enhances their ability; and he does not wish to imply that Cbers are bad people and HAM operators are good people, but one is a duly licensed radio operator and the other is not.

Chairperson Colon advised Leonard Zbiegien from Titusville, Walter Hart from Mims, Robert Farrington from Cocoa, Kenneth Tendick from Titusville, James Davis from Melbourne, Linda Farrington from Cocoa, Paul Bernhardt from Cocoa, Joseph Myers from Titusville, Don Alford from Melbourne, Gary Johnson from Rockledge, Sherry Hughes from Titusville, Charles Leisy from Melbourne, and William Young from Titusville are all here in support of the ordinance.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to forward an ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Sections 62-2129 and 62-1953 by providing an exemption to the provisions regulating the height of towers and antennas to amateur radio, general mobile, and citizens band radio operators; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances to the final public hearing on August 7, 2003.

Commissioner Higgs advised some people said it would be reasonable to have some restrictions, and others did not; but the Board should include language such as, “However, towers and antenna support structures shall continue to be subject to all other applicable Land Development Regulations, including but not limited to a structure setback, accessory structure setbacks, and building permit requirements.” She stated there are many people who do services in the community that have regulations apply to them; there are people doing all kinds of wonderful things for animals and other things, but still must meet requirements of the Zoning Code and permitting requirements, setbacks, etc.; so those serving the community could be exempt from the conditional use permit, but must meet the setback requirements to protect their neighbors.

Chairperson Colon inquired if Mr. Keim is comfortable with that; with Mr. Keim responding he personally does not have a problem with it, but suggested the Board follow the LPA’s recommendation as they already follow a host of legislation. Chairperson Colon stated the setbacks are important; with Mr. Keim responding he does not know of anyone who is out of regulation on setbacks now; and inquired what kind of setbacks is the Board talking about; with Commissioner Higgs responding structure and accessory structure setbacks. Mr. Keim inquired if the setbacks are from the homes, which will be a problem because every tower in the County right now is up against a home; with Commissioner Higgs responding it is not from the home, but the same setbacks that the home would be required to meet. Mr. Keim inquired if it is normal distances from property lines. Commissioner Higgs inquired what are the requirements for accessory buildings; with Zoning Manager Rick Enos responding they tend to be between five feet and fifteen feet from the property line and 25 feet from the front property line. Mr. Keim stated he does not see a problem with that.

Commissioner Pritchard inquired about the guy wires; with Mr. Keim responding it is totally reasonable to be within 15 feet of the property line, but 25 feet may start an argument because it is going to make it difficult on small lots because of the span that is needed to properly support a tower by proper engineering guidelines. Commissioner Pritchard inquired if it was modified to say antenna structure excluding guy wires would that work; with Mr. Keim responding it would be more reasonable. Chairperson Colon inquired if everyone is comfortable with that; with Mr. Keim responding yes. Chairperson Colon inquired if Commissioner Carlson is comfortable with the amendment; with Commissioner Carlson responding yes.

Commissioner Scarborough advised Commissioner Higgs mentioned setbacks from the property lines for towers, but her language was much broader; with Commissioner Higgs responding she gave the language that was suggested to her by staff. Commissioner Scarborough stated if the property line setbacks are only for towers, he thinks the Board and community would agree with it. Commissioner Higgs inquired if it will require building permits; with Chairperson Colon responding no. Commissioner Scarborough stated that was not discussed. Commissioner Higgs stated some people commented that a building permit would not be unreasonable. Mr. Keim stated that is his personal opinion; he said if it was reasonable he would not have a problem with it; but there are many people on fixed social security; and a lot of them will struggle with a building permit fee. Commissioner Higgs inquired if the building permit fee is the question of the building permit; with Mr. Keim responding the fee and the regulations. Commissioner Higgs stated the Board has building permits to protect people around the structure as well as the person constructing it; if the Board might consider a building permit with a waiver provision, she would be willing to term it that way; and she believes a building permit is a reasonable safety measure the Board has recognized. Commissioner Scarborough stated they are not people who are coming in to put up towers; they have had towers for decades; so if the building permit is required, the next question staff is going to ask is whether the Board wants to grandfather everybody in or have them all come in for building permits; and inquired if all those people who have had towers for decades has to come in and get building permits.

Assistant County Manager Peggy Busacca advised anything the Board does today does not alter the requirements of the Florida Uniform Building Code; the Board has already adopted that, and the State precludes it from making any modifications to that Code; so if the Florida Uniform Building Code requires a building permit, then it is required; and modifications to the ordinance does not change that. Commissioner Scarborough inquired if there are State Statutes which specifically address it elsewhere; with Ms. Busacca responding yes, her understanding is the building official who is given the authority to interpret the Building Code would have to work that out and his interpretation then goes to the Contractor Licensing Board. Commissioner Scarborough inquired if all the operators will be going to the Contractor Licensing Board; with Ms. Busacca responding not necessarily, and she does not know of any reason why they could not be grandfathered in. She stated for a new permit, the Board does not have the ability, in modifying its Code, to affect the Florida Uniform Building Code. Mr. Keim stated there are already about two-thirds of the counties in Florida that have an open-ended exemption with no building permits; based on what Ms. Busacca is saying, they are all in violation of the Florida Uniform Building Code; and he highly doubts that is the case. Ms. Busacca stated she did not mean to state the Florida Uniform Building Code does or does not require a building permit because she does not know that; she simply stated that the Code has been adopted and that any modifications to Chapter 62 would not change the requirements of that Code.

Commissioner Carlson stated her motion is based on the LPA recommendation with amendments regarding setbacks and to make sure that the County stays in compliance with the Florida Uniform Building Code.

Chairperson Colon inquired if Commissioner Pritchard is comfortable with that; with Commissioner Pritchard responding yes. Chairperson Colon called for a vote on the motion as amended. Motion carried and ordered unanimously.

PRESENTATION BY MAYOR RON SWANK AND CITY MANAGER TOM HARMER,
CITY OF TITUSVILLE, RE: MARINA PARK DEVELOPMENT OPTIONS

City of Titusville Mayor Ron Swank introduced City Manager Tom Harmer, and expressed appreciation for the opportunity to present a conceptual plan for Marina Park to the Board. He stated the reason it is coming to the Board is because they have an Interlocal Agreement with the County to maintain the City parks; the County does a very good job of taking care of their parks; and they appreciate it. He stated as part of the Parks and Recreation Referendum, they are renovating several parks in the City; Marina Park is one of those parks; there have been several conceptual plans that have come to the City; and they looked at those, and thought there would be an opportunity to make it even better for the citizens. He presented a conceptual plan to the Board, but not the Clerk, showing Marina Park; stated on the south side of the Park they added quite a few more boat slips because boating is a big event in Brevard County, and they are always running out of places for boats to launch and trailers to park. He stated the Park being right next to the marina seemed like an ideal place to have additional boat slips for the community. Mayor Swank advised the concept shows a separation of parking for boats and people who are using the park, which in this case will generally be the younger people because of the fields that are there; it gives a safety separation of boats and vehicles of those using the park; and other than that, the concept is essentially the same as what has been looked at before. He stated it is a positive addition to the Park; it adds more amenities for the citizens; and the City is trying to make it the best it can for the community. He stated because it is part of the Parks and Recreation Referendum, the City and County have to work together to come up with a final plan; and requested the Board’s support to have staff look at the concept plan and see if it can be incorporated into the final plan. He stated they are not dead set on the final concept; they are just trying to come up with an idea and present it to see if it can be looked at; and Mr. Harmer will advise the Board of anything else he may have overlooked.

City of Titusville Manager Tom Harmer thanked the Board for the opportunity and its efforts to manage and operate the City parks, especially with the referendum projects that are going on. He stated Mr. Nelson has his hands full throughout the County; the $15 million in North Brevard is going to make a significant difference over the next five to ten years; and they are excited about working through each of those projects. He stated Marina Park is just one of those projects that County staff is working on, but it is one that is very important to the City; the City Council looked at and considered the plan and voted on a concept; it supported the Mayor coming to the Board to ask for its support of the concept; and it is not the final drawing, specifications, or plans, but it is a concept. He stated the Interlocal Agreement for the City parks requires the County to come back to the City for final approval of plans and specifications, so Council wanted to come forward to the Board and let it know what concept it is looking for, so that when the County comes back to the Council for approval of the plan, it will meet the general concept.

Walter Pine of Titusville stated he has to ask a question before he can make comments; and inquired what was the purpose that the Board created the Marina Park Referendum Committee, and what was the function that Committee was supposed to perform.

Chairperson Colon advised Mr. Pine the question will be answered later. Mr. Pine stated he needed an answer to that question before he could make his comments. Chairperson Colon advised Mr. Pine to keep going with his comments. Mr. Pine inquired if the Board is refusing to answer the question; with Chairperson Colon responding no, it will be answered afterwards. Mr. Pine stated there have been misrepresentations of fact and unlawful acts performed by the County in regards to Marina Park; and gave a scenario of a convenience store robbery and the driver of the car being a part of the crime, noting the County is the driver of the Park project. He stated he brought evidence to the Board of unlawful acts and violations of the government in the sunshine; at least one Commissioner has refused to look into some of those allegations of conflict of interest required by the contracts; and there are significant problems denying equal access to the process. He stated he attempted to put in an alternative proposal and was told he could not get on the agenda and to use his public presentation time only after he complained about not getting put on the agenda; and unfortunately he was not able to give an adequate presentation. He stated there are people who have been denied any access at all; there have been numerous misrepresentations or funny things that do not add up; the record stands for itself; and he does not see the Board taking any action to get clean hands. He stated they need to draw a line in the sand and restart the process; and he would like to have the time to present all the evidence to the Board. He stated there are documents; it is not his word, it is not interpreted, it is documented; it is letters the Board can read and things it can see where its own people have violated the law and others have misrepresented the facts; and the Board is refusing to hear it. He stated he asked to be on this agenda and was denied; now it is saying it gives out only so many time certains; so persons with disabilities in the County are not entitled to four positions or five positions per day or per meeting. He stated if the Board needs more time, it should have more meetings; that is what it is here for; if Commissioners are not going to do the job and give it the time it needs to adequately perform those duties because they do not want to spend more than one day, then they should not be here. Mr. Pine stated this issue has been fragmented; it is coming to the Board now when it supposed to have gone to the committee; then it is supposed to be heard by the North Brevard Parks and Recreation Commission before coming to the Board, but yet it has been put on the Agenda and the Board is hearing it. He stated if the Board is going to establish a policy and procedure to do something, then it should require everybody to stick to it or do not require anybody to stick to it; that is what equal access is; so if its purpose for having the Marina Park Referendum Committee is access, then it should make everybody stick to it, which it has not done. He stated if the Board needs the documents, he will be glad to give them to it, but he is not going to spend the money to copy them if they will be ignored. He stated he knows that most of the Commissioners are aware of many of the comments; he made them over and over; he would like to know when it is going to draw a line in the sand and start the process or take a clear look at it and get to a point where it gets rid of all the misrepresentations and all the problems. He stated the Board should give everybody equal access and do it the way it should be done, that is giving the greatest benefit possible for the dollars spent to the voters of North Brevard Parks and Recreation Referendum District. He stated if the Board is not concerned about giving the greatest benefit to the voters and only wants to let the special interest have it, shame on it.

Thelma Roper of Titusville stated they have been before the Board quite a few times on the Marina Park issue; she has seen the City’s plan and looked it over at the City Council meeting; and one of her biggest things that she has complained about to this point is allowing a commercial use on the Park which is a violation of a State dedication wherein they run the risk of losing the whole park. She stated she heard many things, such as they cannot go to the State until they have a proposal or plan, until they have it in writing, or until something is drawn up; but as many discussions and votes that have been taken at City Council meetings on this issue, somewhere a question could have been answered by the State as to whether this particular type of use would have been allowed. She stated the plan that the City showed would allow for the shared use agreement with Vectorworks for parking of their vehicles during the day time; at least they said during the day time at one point; at other times they said it would be day and night; and according to the dedication, it would be a violation and has in past instances, in other parts of the State, been declared a violation and caused part of the park to be changed. Ms. Roper stated when they change the dedications, they are not brought up to current law; this dedication was written in 1963 according to the laws of 1963; and it applies by that law; therefore, it cannot be changed except under certain specific conditions; and by changing it at all, requesting a change, requesting a modification, they bring it up to current law where it can be yanked without the criteria that now applies to it to have it revert to the State. She stated she would hate to see this property for whatever reason revert to the State at any time; it is a very important piece of property with the shrinking shoreline that they have for public access; and if anything is going to jeopardize or possibly jeopardize the Park so the citizens could lose it, she would turn it down and not run the risk of losing it. She stated it is not a guarantee that it will happen, but the risk is there and it is very real.

Bea Polk of Titusville stated she heard the City say it has the final plan; it is a referendum project and not just a City park; it is being done by the County and the City; and to stand up and say they have the final plan does not allow the County taxpayers any say. She stated it was to be a park and now it has become a fight to give part of it to a business; the owner had the business before the referendum; and inquired why were they not told by the City that it wanted to give part of the park to the business. She stated it bothers her because she thinks the vote would have been different; and inquired if the City has a final plan, what happens to the taxpayers in the County, do they have any say, why did the City not go to the State, and how many hours of taxpayers time has been spent on this park. She stated the Parks and Recreation Commission voted to go along with what the referendum said; and since the City did not get the vote it wanted, it ended up at the County; it is time the Board tells the City to go back to its board or eliminate all the boards and forget it. She stated that was a slap in the face to those people who spent hours on the park issue. She stated the City said there was not much changes; the change is that the City wants the north part for parking for a private business; and they promised all kinds of jobs, but if one goes back and gets the paperwork, those jobs are not there. She inquired if it is more important to have ten jobs or to keep the park for all taxpayers who paid for it. Ms. Polk stated they told the Board they changed the northern part of the park; they said they would only use it in the day time, but the owner of Vectorworks mentioned at one time he might have second shift; and inquired if she parked in the north part of the park would her car be pulled away because it is to be used for business people. She stated there are a lot of legal questions that need to be answered before anything happens; and inquired if Vectorworks would have vested rights if it gets a loan and constructs the parking lot. She stated she asked two banks; and inquired if the Board thinks a bank is going to give it back to the County or sell it. She stated those questions need to be answered, but she cannot get them answered; it has been going on for almost three years; another referendum is coming up; and there are a lot of things that they need in the County, but if they cannot use this referendum the way the people thought it was going to be used, she would not want any more referendums or any more taxes for something she cannot control because she does not live in the City and it is going to have the final plan. She inquired what happened to the County and its taxpayers; do they have any say; and stated if the City does not want to keep this park for the public, maybe the County can go to the State and ask it to put the park in the County’s name. She requested the Board send it back to the Parks and Recreation Commission that approved the County plan and proceed with the park project.

Joan Wheeler of Titusville stated she would like to read a few words from a speaker who could not be here, as follows: “There’s only one decision for the Commission to make today regarding the City of Titusville’s presentation on Marina Park. That decision is whether the City of Titusville has satisfied the intent of the motions carried and ordered by the Board of County Commissioners pertaining to Marina Park during the Board meetings of January 14 and March 4, 2003. At stake in your decision is the integrity of not only the City of Titusville, but also the Board of County Commissioners in the satisfaction of the expressed and proposed purposes and expenditure of funds generated from the voter-approved referendums passed and future initiatives.” Ms. Wheeler stated the County Parks and Recreation staff has bent over backwards to accommodate the City of Titusville in all the projects that are in the City; they heard that the City would never sell or get rid of Marina Park, but at the beginning of this issue, the City considered just that, getting rid of it except for a strip along the river; she read in some paperwork that at this time the parking would be sufficient for the next five years; and she wonders what they would need after the five years. She stated Marina Park is to take the stormwater and have a retention pond for 60,000 square feet of rooftop for the expansion; and inquired how much stormwater are they going to have to have for Marina Park to accommodate that and how many houses would they have to have for 60,000 square feet of rooftop. She stated she is concerned about the conditional use permit that was given in 1996 that did not indicate there was going to be anything more than what was in the permit and now it is growing too big; the business has seemed to have turned it into an industrial park with not just one business there, but several of them; and she does not know which ones are there and which ones are gone, but there is something that has to be done and it has to be done properly. She stated she hopes the Board will look into doing it the proper way.

Bill Horner of Titusville stated he resides in Titusville with his wife, six children, and six grandchildren; they have lived in Titusville for 37 years; prior to that they lived in Eau Gallie; and he arrived at the meeting this morning aboard a SCAT bus and that is quite a ride for 50 cents. He stated he is a member of the Marina Park Referendum Committee but is not here today representing that Committee; he wants to express his personal views regarding Marina Park; and in his opinion, the County plan is far superior to the City plan. He stated in late Spring of 2000, there was a proposition Countywide for a multimillion dollar referendum, $15 million in North Brevard alone; and it was supported and promoted by the City of Titusville Community Relations Division, numerous civic associations and groups in North Brevard, the North Brevard Parks and Recreation Commission, North Brevard Parks Operations Office, the Brevard County Parks and Recreation Department, and Brevard County. He stated the County published a proposed project list that was basically the guidance to the taxpayers and voters; and the projects in the City of Titusville were Brewer Causeway at $590,000, downtown urban park at $50,000, Gibson gym at $980,000, and improving Blanton and Stewart Parks at $420,000, but no mention whatsoever of shared parking and stormwater retention for a private company at Marina Park. He stated there was also the pier project, Brevard Senior Center, Sand Point Park, Sandrift Community Center, the Veterans Memorial pier, the Space Walk of Fame, and W. W. James Little League Park; and it seems that the City got 11 of the 18 projects. Mr. Horner stated the City plan for Marina Park should not be before this Board today because the City’s action is premature and tantamount to bypassing the established procedure for referendum projects; and that is the City should have made a formal presentation to the Referendum Committee on Marina Park. He stated the Referendum Committee would then make a recommendation to the North Brevard Parks and Recreation Commission and the NBC then would make a recommendation to the Board of County Commissioners for a final decision, but the City plan is before the Board today; and if the Board compares the County plan with the City Plan, it would conclude as he has, that the County plan is far superior to the City plan.

Susan Canada of Titusville stated at the time the City plan was being developed, they already had a meeting of the Committee for Marina Park where they stated they wanted to increase the number of parking spaces and boat slips and such; they also brought up dividing and separating the parking between the boat parking and car parking; and everything the City hurried to do had already been talked about at the previous meeting and they had different committee members there that were aware of it; so it is not where they are suddenly giving the Board something new and improved because it is something the committee worked on. She stated the City plan did go before the committee; the committee is made up of people who are there because of the City and some for the County; by either way, the City plan was voted down by the committee that preferred the County plan. She stated those people put hours a week into looking at different plans, the public calling, going over things, and then the City plan was introduced, but not by the City. She stated the City plan was voted down for several reasons; the County Plan has the boat parking the same; the division between boat parking and car parking has already been addressed under the County plan; it is not the first area on the referendum where a private business wants to go in; Mr. Nelson bent over backwards and so has everyone with Parks and Recreation to get along with the City, sometimes to the point it made her angry; and she watched them do all kinds of things just to find out after a year and a half of making plans for a park on Julia Street that the City has been in the works to put private business into that and Mr. Nelson was never informed of it. Ms. Canada stated if the Board goes into any type of referendum where there is any joint project, a contract should be drawn up on exactly what the land can be used for and reserved for. She stated she has been to City Council meetings where the City stated the County would not work with them; but she will say Parks and Recreation staff has bent over backwards to work with the City. She stated if Vectorworks is going in Marina Park, they can sign a statement saying no vested rights, but that is the exclusive parking for the building of Composite Structures and not Vectorworks; Composite Structures is building there; it is their exclusive parking and retention pond; they cannot build the building without those things; so if the Board does not think they do not have vested rights due to the fact it is exclusive use, they do and at that point they have got that property. She stated if they work second shift, there will be problems; if they move out and a new business moves in, the Board will have problems; Councilman Jeff Raney stated at a City Council meeting that Vectorworks did not need the parking, but if they should move on, they may need it for retail; and inquired what is the Board going to do if it does not like the retail going in there and competing with the Little League hours. She stated she has a tape of all of those issues, and if there is any problem she can bring it out. Ms. Canada inquired if anyone checked into how financially sound those companies are. She stated she dug a few million dollars worth of loans of one company out of Nebraska just the other day; no one has checked as to how financially sound the company is; they claim there is going to be jobs; and inquired at what level and what rate of pay will those jobs be. She stated there are groups working to keep it a park for the community; at one meeting Commissioner Scarborough said lets design the park and if there is room and it is beneficial to the park, then consider the other company coming in there; and that is exactly what the committees are doing. She stated they are trying to design a park; they had councilmen stating they helped on the proposal for Vectorworks and they would not change their mind; and another one said it was his friend and he wanted him in there. Ms. Canada stated they have been given false statements by the City of Titusville; they were told the reason Vectorworks has not paid their taxes is there was a dispute on the taxes; Rod Northcutt and Jim Ford’s offices both sent letters stating there was never a dispute on the taxes; and at a Parks and Recreation Commission meeting Jeff Gray stated there were no taxes owed and the loan was paid off; and he paid the 2001, but the 2002 taxes were still owed and B&I Lending still has a loan. She stated Composite Structures has millions of dollars in loans in Nebraska; several companies have moved into that area; it is not about one company or just Vectorworks, it is several companies; and requested the Board not let it become an industrial park adjoining Marina Park. She stated Composite Structures applied to the Board for a tax abatement; and they withdrew it, but some of the questions were not answered correctly. She stated several citizens have tried to get on the agenda of the City of Titusville to bring up problems with the company, but they were not allowed on the agenda; they understood it could not be that agenda, but they were not allowed on any agenda; and they only get three minutes under public comments. She stated not all the councilmen agreed with the City’s plan; Councilman Chris Broome voted against it; and the Board may want to check the tax incentives and do a title search in the State of Nebraska on some of those companies and see what it finds out. She stated the Park is State dedicated lands for public and recreational purposes; the City thinks it has a final say so; the State does, not the City; and in the B& I Lending Contract, the loan states if for any reason Vectorworks was foreclosed on, all the future contracts current and present go to them; and that includes alleyways, roads, and everything else. She stated if for some reason those companies that are millions of dollars in debt should fold, the Board is not going to be dealing with them. She stated she hopes the Board will reconsider the City plan as it has already had one committee turn it down, and give Mr. Nelson who is representing the community and those from the County and the City, an opportunity to show the Board what a wonderful plan has been designed so far.

William Young of Titusville stated he used to live on the other side of I-95 and could not see the river; he lived in Daytona Beach and could not see the river; he has been to Miami Beach and could not see the river; and he drove through Titusville and has been here since 1957 when U.S. 1 was two-laned and he could see the river. He stated he looked at a house in 1996 on Indian River Avenue, but a woman bought it from under him, so he recently married her and has the house anyway. He stated at the end of South Street they could look out their front door and see the river; then they built a pumping station there so he can no longer see the river. He stated he does not know the politics that is going on, but he knows there are condos after condos putting up signs saying buy a condo on the river; and he does not want the City of Titusville to be like Miami and other cities that have condos all along the river, but that is what he is seeing in Titusville. Mr. Young stated there are about five properties and a big condo project being built across from Sears; he wants to see the river and be able to go to it; and his mission here is to have somebody protect the park and land so they can see the river and have access to it because someone took it away from him.

Chairperson Colon inquired if staff could answer Mr. Pine’s question; with Parks and Recreation Director Charles Nelson responding Mr. Pine’s question was why was the committee formed; and the committee was formed to provide recommendations to the North Brevard Parks and Recreation Commission on the design and development of Marina Park. He stated those commendations will ultimately go to the Board of County Commissioners after review and approval by the NBC; and that is the purpose of the committee.

Commissioner Scarborough inquired if the City has complete final approval for anything that is built in the City, with Mr. Nelson responding yes, in terms of the Interlocal Agreement; and for Marina Park, the issue of the State dedication aside, the City has the ability to approve whatever improvements are finally made. Commissioner Scarborough stated it is complex with several committees and two governmental entities, but Mr. Nelson has done an amazing job dealing with all of them.

Mr. Nelson stated in terms of the committee and its progress, at its meeting last Monday it reviewed the conceptual plan, made amendments to the one that was prepared by Honeycutt and Associates, and approved it. He stated there was comment and discussion about the City’s plan, and there were concerns; he cannot reflect on why the committee voted one way or the other; however, there may have been bruised feelings about coming directly to this Board, so he may never know what may have happened relating to the two plans. He stated the next step is to take the plan that was approved by the Marina Park Committee to the NBC pending any other direction from the Board. Commissioner Higgs inquired if the Board of County Commissioners will see it after the NBC; with Mr. Nelson responding yes, it will and the City would have the opportunity, after the Board’s approval, to comment, request changes, approve it, or send it back. He stated the final authority for approval to implement the design rests with the City.

Commissioner Carlson inquired if the NBC has seen the plan provided by the City; with Mr. Nelson responding he does not believe it has been before the NBC, but there is a liaison member from the NBC that sits on the Marina Park Committee. He reiterated the NBC has not had the opportunity to review or comment on the City’s plan.

Commissioner Pritchard advised when he was briefed by Mr. Nelson, he was shown the plan that was developed and was told it could easily be flipped to somewhat fall in line with what the City has; with Mr. Nelson responding what he indicated was that at the point they started the design of the park area, the parking area for boat launching needed a roadway to get to it; they were going to use the parking lot for the Little League to get there; and they would have to drive through the parking lot to get to the boat parking. He stated because of the number of boats that would be launched there and the conflict with the curved parking lot, there was concern by the committee that there could be conflict, and it wanted to separate the two roads; so the design they had at that point, using that parking lot, went away. He stated at this point he does not have the same level of reason to place the parking in any particular location; and where they were using a shared parking and travelway initially has gone away with the need for a road directly to boat parking. Commissioner Pritchard stated he recalls being shown the drawing that had the separation and access for the boat traffic separate from the fields and same for the parking that could be for the fields; and in particular, they talked about the possibility of flipping, of taking the major field and putting it on the other side and putting the parking on the Vectorworks side as well as the side that would have access with separation for boats. Mr. Nelson stated at this point the absolute necessity to place that parking on the south side versus the north side is no longer there, so it now becomes a choice. Commissioner Pritchard inquired if there is a counter proposal that Mr. Nelson could provide to the City that could perhaps resolve any potential conflict that might occur; with Mr. Nelson responding yes, but he would like to reflect that the advisory board consider that, one of the members of the advisory board specifically spoke to the desire to do that, but the committee elected not to move the parking.

Mayor Swank stated again they are here to present a park concept; it is just that, a concept for a city park; and it is not inconsistent with the referendum. He stated they are not asking the Board to take any position on the joint use proposal; they are not talking about that at all; and they are only talking about a park concept they presented to the Board. He stated the Council has not entered into any formal agreement with the business the Board heard about for the north part of the park; what was presented to the Board has nothing to do with that; it is a stand alone park they presented; and the request today is mutually exclusive of that issue. He stated it is a city park; it is not inconsistent with the pier project that Mr. Nelson had the privilege of working on where the City Council and CRA gave directions to the County prior to the plans being formalized; and that is what they are trying to do now, work with the County before the formalization process while it is still in the early process. Mayor Swank stated the City is not a voting member of the committee; it only has a liaison representative that has no vote; so the City had no process and has no representation on it. He stated the Interlocal Agreement says in Section 12, “The County may construct permanent improvements to the premises of those properties listed in Exhibit B provided however that the County shall not construct any facilities for which costs exceed $5,000 except upon submission of applicable plans and specifications to the City Manager for review and approval by the City.” He stated they want to be in the process and are trying to do a project that is very positive for the community; the plan is not a final plan, it is just a conceptual plan; and it is possibly a way to get there.

Commissioner Scarborough stated the City and County make appointments to the North Brevard Parks and Recreation Commission; it has been in existence for a long time; they have an excellent relationship with the City of Titusville; the Parks and Recreation millage is uniform throughout the County and City; and the County has a contract to do all the parks and recreation services. He stated his dilemma is the Board has been given a concept plan; he has not actually individually been involved that much in the plans that the committee has with the architect and staff because he was waiting for it to work through the process before getting involved; but today his fellow Commissioners are being given a singular plan. He stated there has been an ongoing process of discussions; and while there is an apparent conflict, hopefully as it goes through the process, the NBC items can be discussed and worked out. He stated if the Board wants to get involved, it needs to get more input before it becomes involved in the location of parking; and he would caution that what appears to be simple, has ramifications and multiple roles. He stated there are boat launching facilities, ball parks, and along the railroad tracks there is a desire to also have facilities for those persons who want to enjoy the river; and each of those have different demands for parking, competing interests, and even without Vectorworks, it would have different comments being made; and requested the Board’s patience with the Marina Park issues. He stated he is of the opinion if they follow the procedures they will ultimately come to a better decision because if they interject themselves they might find the committees that have put so much time into it may elect to drop out; and the Board does not have the time to talk about all the elements of how to park boats in certain configuration, etc.

Commissioner Carlson inquired if the City plan is going to the NBC or committee; with Commissioner Scarborough responding Titusville is going to play a fundamental role under the agreement; it is significant that the City be recognized as a player at the table; but on the other hand, for the County to get involved in the configuration of parking is a profound mistake because with $75 million in appropriations through the County, it is an invitation for every park project to come before the Board and discuss a parking lot or where to put facilities, etc. He stated it has not been easy on everybody, but some patience at this moment is probably the best. Commissioner Carlson inquired if the plan will be brought to the NBC or the committee; with Commissioner Scarborough responding he prefers to follow the ongoing procedure to present it to the NBC for its recommendation to this Board. Commissioner Carlson inquired if the committee has seen it but not the NBC; and if that is the next step.

Chairperson Colon thanked the Mayor and City Manager of Titusville for the presentation; stated they said they did not want the Board to take action and was basically informing it of some other plan; and there will be continued dialogue between the City and County to move forward.

The meeting recessed at 12:43 p.m., and reconvened at 1:07 p.m.

DISCUSSION, RE: USE OF SIGNATURE BONDS BY JUDICIARY

Chief Judge James E. C. Perry advised he was invited to come to the meeting but did not realize he was supposed to be a speaker. He stated he responded to the Board’s letter and did not know if that answered its inquiries or not; and if not, he will be glad to address the Board’s concerns rather than give a random speech.

Chairperson Colon advised the Board wanted feedback from the judiciary because residents who brought it to the Board’s attention had concerns about the negatives regarding signature bonds.

Judge Perry advised he needs to preface his remarks by saying they have the best judges in the State and nation in the 18th Judicial Circuit and in Brevard County; the bond requirements of the State are promulgated by the Legislature and implemented by the Supreme Court; and what a judge does relative to any kind of bond is discretionary. He stated a lot of factors are considered; it is hard to talk about the totality when talking about individual cases and individual merits; and the case he has seen on television that brought this to a head was not a first appearance. He stated it was the end of plea bargaining and the judge in that instance did give what they call a quarterman’s bond, which means that if the person does not appear, if the guidelines say he can be sentenced to five years, the judge can sentence him to 20 years; and that was the agreement the judge made with that person. He stated signature bonds are allowed by the Legislature and federal court and what is done in the country; if the person does not appear, when it comes time to sentence that person, instead of five years, the judge can sentence him to 20 years; and that is probably what will happen. Judge Perry stated those issues are never objected to by the State Attorney because the State Attorney likes it; the defense attorneys do not like it because they do not think their clients will show up and they will be sentenced to a longer sentence; but if a judge abuses his discretion, the State Attorney can always appeal it; however, they never do because they agree with the judge.

Commissioner Pritchard stated he was the Commissioner who brought the item to the Board’s attention and it was mainly because of not specifically the one individual referred to, but it appeared as if the signature bond program was not working. Judge Perry advised it is not a program. Commissioner Pritchard stated well the signature bond release was not working well; and the reason is because there were too many people released on signature bonds, and so many of them were not coming back in, which required the fugitive squad with a budget of $1.25 million to go out and retrieve those persons. He stated it was backlogging the Sheriff’s staff and the courts; and the Board felt it was missing out on an opportunity to address the issuance of signature bonds and perhaps create a revenue stream that would benefit the system, as well as not have the deputies and other law enforcement officers going out and bringing in the same persons time after time. He stated that was the reason it came before the Board; it had a lot of testimony that was supporting, for the most part, what he was saying; then it came to Judge Perry, and it looks like he has made some changes that are going to be meaningful.

Judge Perry stated he has not made any changes because he does not have the authority to dictate to or second guess what a judge will do; and the only person who can second guess a judge is an appellate judge. He stated they are all constitutional officers and equal; they do not work for him, so he does not have the authority to dictate to them; judges are reasonable people; and he cannot make any promises or give any mandates, but he is led to believe that there probably will be a diminution of signature bonds.

Chairperson Colon thanked Judge Perry for coming to the meeting; and stated this was brought to the Board’s attention because some citizens were under the impression the Board allowed signature bonds to happen; and once discussion took place, the judges were the final ones who had a say in the matter. Judge Perry stated it is not just the judges, it is each individual judge; it is like trying to herd cats; and the authority can be taken away by the Legislature if it is so inclined. He noted if they remove that authority, it simply will not be done any more. Chairperson Colon stated if the Board has a concern, then the next direction would be to bring it to the attention of the Legislative Delegation and have it carry the issue forward; with Judge Perry responding he would think so, but then again that may be ruled unconstitutional, although he does not know that for sure. Chairperson Colon inquired if Judge Perry had any suggestions.

Judge Perry stated what he can tell the Board is signature bonds are not widely used; in Seminole County where he normally sits, they are released on their own recognizance. He stated nobody thinks there is any money to be picked up; they do that only for less serious cases; on a serious case they might do a signature bond with a possibility the County can collect on that, but as with all criminals, sometimes they do not appear; and that is why they have the Sheriff’s Department and Special Task Force to find fugitives because the judges cannot control that either. He stated they give it their best judgment; and they have the interest of the community at heart because they also live in the community.

Commissioner Carlson stated Judge Perry said in Seminole County they usually do ROR’s and so the mindset is not the same as Brevard County; and inquired is that what he perceives as far as signature bonds versus ROR’s; with Judge Perry responding his perception as Chief Judge is that he is like a father with two children who are entirely different, and he cannot treat them the same way. He stated they all follow the laws of the State. Commissioner Carlson stated she understands that, but it is interesting to note the differences from one county to the other where here they tend to use signature bonds more often than those in Seminole County who normally use ROR’s. Judge Perry stated that is true, and any time he can assist the Board, it should feel free to call him; he believes in confronting the issue, but not being defensive, dealing with it, and moving on; and that is his basic philosophy.

Sheriff Philip Williams advised he would like to give the Board an overview from their perspective and answer any questions regarding the impact of signature bonds on his office. He stated they have 24,087 active warrants in the Sheriff’s Office; 45 to 55% are failures to appear (FTA’s); and those people have not been to court for their initial appearance, second appearance, jury trial, sentencing, or violation of probation. He stated of that 45 to 55%, he does not know how many during the continuum of the criminal justice process, were given signature bonds, but what Judge Perry highlighted is really the crux of the matter. He stated the Florida Rules of Criminal Procedure favors the release of a criminal defendant on the least restrictive means that can guarantee their next appearance and protect the community; according to the Constitution and Florida Rules of Criminal Procedure a judge may authorize a release on recognizance (ROR); that is where a judge looks at an individual and determines he is not a person of means but works here, lives here, has family ties here, and has no record to indicate he is not worthy of trust; and the judge releases that person on his own recognizance, basically his word is his bond. He stated sometimes that works and sometimes it does not; the signature bond has been applied too liberally in Brevard County; it says to an individual who has no money sign a piece of paper for $10,000 or $200,000 and promise to appear; and if he lived under a bridge he would sign for all the money in the world to walk out of jail because he has no money to pay, no intention of paying, and no intention of showing up in court. Sheriff Williams stated if the individual is required to post a cash bond or surety bond and fails to appear, the County gets the bond money to put back into the General Fund and pay the deputy who goes out at great risk, not only time and money, to capture the guy once again. He stated when it is repetitive and the same individual goes out over and over again or someone has three prior arrests and one conviction or three prior FTA’s, that person should not be considered for ROR nor for a signature bond because he has demonstrated by his past conduct that his word is not worthy of belief as far as showing up for court. He stated when they convene a jury with a public paid judge, prosecutor, jurors, deputies, clerks, and courthouse and utilities, it is an expensive endeavor; and when the guest of honor fails to appear for the trial, they have wasted a tremendous amount of money and throws the system into scrambling for more witnesses, different deputies, different cases, and so forth, so it is a huge problem. He stated if an individual is placed on probation and given judicial grace to be among the public to serve out his sentence rather than behind bars, whether it is County or State probation, that individual has already demonstrated he has been convicted of a crime or had adjudication withheld but there is a sanction imposed given that judicial grace of probation; and if he chooses to violate that judicial grace and is arrested again, he should not be given the signature bond to wonder freely. Sheriff Williams stated there are classes of cases not individual cases that they need to focus on that are not worthy of a signature bond; and if the judges would adopt that, the dockets over time will go down, the jail population will initially rise, but ultimately will go down because if they bring them in and release them several times a day, that counts against the daily population. He stated if they all knuckle down, and he is not advocating being unfair to persons who are not wealthy, but whatever monetary means can be set by the judges to guarantee their appearance is what he is talking about. He stated the use of the bondsmen by defendants basically puts the onus on the bondsmen to guarantee the appearance of the individual; it is not on the Sheriff’s office, judge, prosecutor, or public defender; there is a contract between the individual and bond agent that he will appear in court; and the bondsman will snatch him up and bring him in because if his deputies do that, they bill the bond agent. He stated the County may have the illusion of granting some monetary bond with a false sense of collection; and if they could collect millions of dollars in cash for those signature bonds, they would be in good shape.

Chairperson Colon inquired is there anything the Board can do. She stated she does not want to give the community a false sense of security that the Board is able to do something; and it could use some direction if there is anything it can do. Sheriff Williams stated the Board is the representative of the will of the people in the County; while the Rules of Criminal Procedure were promulgated by the Florida Supreme Court and the State Statutes that are enacted by the Legislature is outside the purview of the Board, it is not powerless to make a public statement to encourage the Legislature to alleviate the problem by a change in the law. He stated it can be alleviated by recognition of the judges that use signature bonds only when appropriate and not pass it out like candy at a county fair. He urged the judges to look at the backgrounds of individuals and circumstances surrounding the cases, and the prior history of the individuals; and sparingly use signature bonds or ROR’s. He noted a resolution is judiciously applying the use of signature bonds. Chairperson Colon inquired if Sheriff Williams is suggesting the Board let its feelings be known to the judges and Legislative Delegation; with Sheriff Williams responding any State Statute or change in the Rules of Criminal Procedure that are enacted by the Legislature will be ultimately challenged by a criminal defendant; the constitutionality of that rule or statute will be ruled upon first perhaps in county court or circuit court; and if that judge ruled it unconstitutional, it would be appealed to the district court and ultimately to the Florida Supreme Court. He stated given the Constitutional flavor and mandate of the Florida Criminal Justice System, that being release of those individuals on the least restrictive means, and given the balance between making sure they appear and protecting the public, it can be read two ways; everybody could be let out on a promise to pay a million bucks or it is a serious crime and third offense and to bond out they must post a $1,000 or $500 cash bond; and there is a philosophical difference. He stated Judge Perry was correct in that he is the chief judge of the 18th Judicial Circuit and cannot modify the Florida Statutes but can encourage all judges to take a second look at this issue because it is becoming an issue that the public has a great deal of concern about. He stated Commissioner Pritchard has a great deal of concern as do the rest of the Commissioners, but he is the protagonist behind getting this issue before the Board; and he as Sheriff has a concern, as well as the prosecutor, and public defender because they need to move their cases as well. He stated appearance of a defendant at any stage of a proceeding is critical because the case cannot go forward without him or her.

Commissioner Pritchard stated the Sheriff mentioned perhaps a review and categorization of cases might be in order so that the Board could go to the Legislative Delegation and say State law needs to be revised and perhaps certain cases or repetitive offenses should be excluded from consideration of signature bond. He inquired if the Sheriff is suggesting that might be the direction the Board can go; with Sheriff Williams responding that could be one. Sheriff Williams stated if he was a judge and saw an individual for the third time, that individual will not get a signature bond; a home robbery is too serious to qualify for that bond; however, to exclude those options would take legislative action. Commissioner Pritchard stated that type of analysis falls outside the expertise of the Board; and inquired if Sheriff Williams’ office would be interested in providing recommendations that the Board could forward to the Delegation; with Sheriff Williams responding they could look at a sampling of their warrants for FTA’s and examples of that, and work with the Board on most serious crimes and felonies. He stated they would be happy to make recommendations and probably other sheriffs could provide recommendations also although Brevard County seems to be the leading judiciary of the 18th circuit in the use of signature bonds. Commissioner Pritchard stated there are 26 of 67 counties that use signature bonds; Brevard County is one and Seminole County does not; one judge in 2002 issued 417 signature bonds in Brevard County; and the closest one to that was 42 bonds, so there is quite a discretion that is applied. He stated while he would like to hold a little more accountability, he wants to make sure it is done properly so they do not stifle the process. Sheriff Williams stated there is no magic wand; it will take some thought and study; but it can be done with some adhesive guidance to the judges. Commissioner Pritchard stated if they can turn the majority of the recapture to the bail bondsmen they would have a better use of them in their occupation and a better use of deputies in their occupation, which would be law enforcement instead of a fugitive squad. Sheriff Williams stated there is very little difficulty guaranteeing a person who posts a bond with a bondsman or a cash bond appearing in court because whether they are found innocent or guilty, if they post $1,000 they get their money back. He stated the bondsman is on the hook for the entire amount if there is an FTA and so they become very efficient bounty hunters.

Commissioner Carlson stated based on the input the Sheriff provided, it is clear that signature bonds is a disincentive to appear; and that is one of the main reasons they should not be used; but they need to forward statistical analysis to the Legislature. She stated because it takes the Legislature a long time to move things through, she would prefer to hit this head-on and take a diplomatic step with a letter by the Chairperson and an attachment from the Sheriff identifying the issues to hopefully educate the judicial folks in understanding why signature bonds may not be in the best interest of the community. She stated what that would do is help Judge Perry, who has the understanding background of Seminole County, to relate better with the herd of cats in Brevard County versus the other herd of cats that he has been dealing with. She stated to elevate it to the Legislature is where the Board wants to go ultimately, but it could take two or three years; and meanwhile, they will be doing the same thing over and over again; and money does not grow on trees, so she wants to have an effective justice system and public safety.

Commissioner Higgs stated there is a clear avenue to take action; first the Board needs to send a letter to Judge James Perry outlining its concerns, and ask the County Manager to draft that letter for the Chairperson's signature; then as soon as the Sheriff’s information is received, send it to the County Attorney and he in turn, at the Board’s direction, could develop a legislative package which would be presented to the Chairman of the Delegation and to the full delegation when they meet in December; so her motion is to do both.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to instruct the County Manager to draft a letter for the Chairperson’s signature to the Chief Judge outlining the Board’s concerns, and the County Attorney develop a legislative package after receipt of information from the Sheriff to be presented to the Chairman of the Delegation and the full Delegation when it meets in December. Motion carried and ordered unanimously.

DISCUSSION, RE: SURTAX PROJECTS

Chairperson Colon advised it is 1:34 p.m., and the next time certain is at 2:00 p.m.

Commissioner Higgs inquired if the Board could talk about the issues in regard to the sales tax. She stated the regular hearing is at 3:00 p.m.; she is not suggesting any action now, but if any members have questions, the Board can talk about that now; and if it is going to have extended discussion on the list of projects, it could do that at this point, since what is on the Agenda for the public hearing is the ordinance and the resolution.

Chairperson Colon stated anything she has to say she would prefer to say at 3:00 p.m., but if anything the Commissioners want to take of beforehand, they could discuss it.

Commissioner Carlson stated there were some Commissioners who had concerns if they did not know what was going to be on the list they could not support the item; and inquired if there is a Commissioner who has a problem with that. She stated Mr. Jenkins created the list by taking all the Commissioners comments and putting them together but he did not have time to do the time line to see what might be the best possible first year cuts. She stated if that is an issue for any Commissioner, then it makes the item at 3:00 p.m. moot because it will not pass; so if there are any comments to that extent, she would like to hear them now and save a lot of people time and effort.

Chairperson Colon stated she has one item and wants to be perfectly clear on it when the folks are present. She stated everyone has received a fax that discussion will take place at 3:00 p.m.; she wants to make sure that folks know she is not voting in favor of it; and she owes it to them to share with them some of her views.

Commissioner Pritchard stated he would prefer to hold his comments until 3:00 p.m. because he would like to hear from the people first. He stated they may fill in some of the blanks that he has at this point; and he does not want to belabor the conversation now without having the citizens here.

Commissioner Higgs stated she wants the Board to understand that her expectations of the list has not been met; she thought when the Board discussed how the list would be put together there would be a balance between projects that would meet transportation needs, public safety needs, open space needs, and community projects; and in her mind, that is not in the list. Commissioner Carlson stated she would agree and has some issues with that as well.

Commissioner Carlson stated her question was originally to say that the real issue is if the Board is going to put it on the ballot and let the people decide and then determine what is going to be on the first cut. She stated what she has seen is basically after the Commissioners have said rank the projects; what has risen to the top, stayed on the list, and has been yanked off the list is not where her problem lies; her problem is the money that has been taken away from certain projects; but she has no problem putting it on the ballot for folks to vote on. Chairperson Colon inquired if Commissioner Carlson wants to know if the majority of the Board is still going forward; with Commissioner Carlson responding that would be nice because the Board owes that to the public and those who are coming at 3:00 p.m. and also to the School Board because it is on a time line and can separate itself from the whole process. Commissioner Carlson stated there is a limited window here and they either have to take the vote or just forget it.

County Manager Tom Jenkins advised the last instructions from the Board to staff is not to consider the 25-25-25-25% or the 60/40%, but to go through the projects and rank them; staff also received rankings from the Commissioners and indicated they would take those and other considerations and prepare a tentative list; and inquired if the Board wants to discuss the list that was handed out late yesterday afternoon. He stated perhaps Commissioners Carlson, Higgs and others might want to make suggested revisions to that list, so that there would be a better understanding of what is on the list and what is not.

Chairperson Colon stated she has seen a process where everyone feels they are there and at the last minute the rug is pulled out from under them; and Commissioner Carlson’s concern is she does not want to go through the whole process at 3:00 p.m. knowing it is not going forward.

Commissioner Carlson stated it would be a sad state of affairs if the Board decided it was not going to do anything after all the effort that has been expended. She stated there are a lot of great projects on the list; they know they need the money; she agrees with Commissioner Higgs that it needs to be equally distributed because they have to have buy-in by the community, which was Commissioner Scarborough’s issue; Commissioner Pritchard has always looked at the issue of making sure they put the money in the right place for the right reasons; and she is the same way, but she crosses the board on all those things and wants to see the balance. She stated there are projects on the list that have been in the pipeline for a very long time; they are important projects to a great number of people in the community; and those projects should not be ignored or get done halfheartedly. Commissioner Carlson stated in other words, money should not be taken out because they want to put it on some other thing that has never had any sort of analysis until the time has come when they are asking for projects and all of a sudden a project comes up and it sounds wonderful and nice and it might have a buy-in from a segment of the community, but yet it does not make fiscally good sense; and that is where she has always stood. She stated it is very important for the accountability side of the equation for the Board to put those projects on the list that have all the analysis in place; and they owe the common sense and credibility aspect of making those go through to the public. She stated the road projects that have been sitting on the shelf, had millions of dollars applied to them, are needed in the community, have gone through the analysis, the MPO process, and the Board of County Commissioners process, and the Board knows they need them, and she does not know how it is going to fund them if it says no at this point. She stated they all need to work together as diplomatically as possible and look at what they have done, what work they have accomplished to date, and at what they would like to have in terms of quality of life issues, which are very important. She stated there has to be a balance between those two; and that is what she is about, as far as pushing it to the referendum and having the people say they want it.

Commissioner Higgs stated the Board saw emerge late in the game the issue of road resurfacing; that tipped the scale in the transportation area; the capacity projects had been identified long-term; they have not been pared down much because they are very important; and the Board knows that but the road resurfacing, which over the years will be part of the MSTU’s and other funding sources, could be shifted to balance the projects. Commissioner Carlson inquired if the shifting is in terms of dollars; with Commissioner Higgs responding her concern is that the Board came forward with a referendum that would balance preservation of open spaces and character of the community through special environmental areas, recognized the deficit in terms of transportation needs, have the community projects that people wanted, and a significant public safety aspect in particular that recognizes the long held need for expansion of the jail. She stated what the Board has is almost one-third in transportation; she wants to see a greater balance as they go forward with the list; and it would seem to her that the Board could not take away the capacity projects, which all of them are projects it identified for a long time, but it could shift resurfacing that just has to be met in other ways the same way as it has met the needs over the years.

Commissioner Carlson stated on the preservation side and capacity side, the only for instance is the Pineda project; even though the Pineda has been on the books for almost probably 15 years, and unfortunately the Board did not take action it could have taken ages ago to collect the right-of-way and build the road; and to take away two lanes of that road and not see any funding source in sight for many years to put those two lanes back in is poor foresight as far as trying to build a road that is going to impact the community that is growing the fastest. She stated those are the kinds of things that she thinks, from the long-term perspective, is lacking when they apply some of the criteria they have applied thus far.

Mr. Jenkins advised the original request for the green space acquisition was $54 million and is now $40 million; he does not believe there is that much transportation dollars currently being projected for North Brevard; so he would like to propose funds for some roads in Port St. John and reduce the resurfacing by $20 million of which $14 million could go to green space and $4 million for the Board to allocate.

Commissioner Carlson stated the other two lanes of the Pineda is in the $7 million range. Commissioner Higgs inquired what would it do to go to $50 million; with Mr. Jenkins responding $50 million for green space and $4 million for roads in Port St. John, would leave money for the Pineda four-laning.

Chairperson Colon stated she will save her green space discussion for the 3:00 p.m. hearing.

The meeting recessed at 1:48 p.m., and reconvened at 2:00 p.m.

PUBLIC HEARING, RE: ORDINANCE CREATING SPECIAL WATER AND SEWER
DISTRICT WITHIN UNINCORPORATED AREA OF BREVARD COUNTY

Chairperson Colon called for the public hearing to consider an ordinance creating a special water and sewer district within the unincorporated area of Brevard County.

Attorney Paul Gougelman, representing the City of Melbourne, advised the Board had an ordinance before it many months ago that seemed like it was going full speed; the Cities asked the Board to slam on the brakes, engage in intergovernmental cooperation, run it through the Water Supply Board, and seek input from municipalities; and he wants to thank the Board for doing that. He stated it was a true exercise in intergovernmental coordination; and as a result, they can all say they have come a thousand miles and the product that the Board has is going to be much more meaningful. He stated what the Board is creating is actually a water and sewer plan for Brevard County; commissions all over the State over the last 20 years have tried to do that without much success, and this Board is doing it; and they have a lot of thanks and praise to give County Attorney Scott Knox who has done a yeoman’s duty in trying to work with the various municipalities in taking input, and working with city attorneys to fine tune the language. Mr. Gougelman stated they did not always agree, but it has been professional; he has done nothing but credit for Brevard County in putting the package together; and on behalf of the City of Melbourne, even though there may be a little fine tuning to be done today, and there are a couple of rough edges and comments from other cities, on the whole, Melbourne has no objection to what the Board is doing. He stated it is supporting of the Board’s efforts and thanks it for the opportunity to be part of the production.

James Payne with East Central Florida Services, advised the last time he was before the Board he mentioned a couple of concerns; he went to the next meeting and expressed those concerns as well; and it is his understanding that there may be some additional language that Mr. Knox has prepared that may be inserted into the ordinance. He stated he received a copy of something that seemed to address the majority of those concerns he expressed. He stated the Statute is designed to eliminate confusion or at least that is the state objective; he has one additional comment or thought and that is with respect to paragraph 10 on his page 17; and it appears that there is still some confusion in that paragraph as to exactly how it is to be applied and under what circumstances. He stated it seems there are two types of areas that it would address, one is an area where consent has been granted and the other is an area where no consent has been granted; paragraph 10 seems to apply only to an area for which consent has not been granted; and he is not sure if that is exactly the intent of the Board. He stated if consent has been granted, then perhaps the ordinance would not apply at all to that area or at least paragraph 10 would not apply; so if any utility wanted to come in and do something in that area, if consent had been granted to that area, then any utility could do anything within that area; and he is not sure if that is what the Board intended to do in that regard. Mr. Payne stated if consent has not been granted, then additional confusion is created by subparagraphs (a) and (b); they talk about an area where consent has not been granted; they say if somebody comes in and files an application in that area, then consent would be granted if all of the following provisions are met; and the first provision talks about no other local government entity or private company has rights in that area. He stated subparagraph (b) talks about the area does not lie within the service area of the district or another local government entity whose service area has been established by the ordinance, interlocal agreement, special act. He stated that would preclude anybody from doing anything except in a very small portion of the County; and if the proposed area lies within the service area of the district, another local government entity, or private utility, then it would seem like nobody could do anything in that area at all. He stated that would preclude a private utility from doing anything in that area because it would not meet either paragraph (a) or (b); in other words, there is no way for anybody to meet those paragraphs the way they are presently written, at least as he reads them; and perhaps Mr. Knox can clarity that. He noted it seems like paragraph 10 really needs to be rewritten to give a little bit of clarify to exactly what the County’s intention is. Mr. Payne reiterated where consent has been given, there is an area where consent has not been given; if it is an area where consent was not granted, then consent would be granted if those conditions are met; and he came up with some language to change subparagraph (a) to read, “If the proposed area lies within an area in which facilities are owned by the district or to which another local government entity or private company might provide service, then the district could approve an application if the owners of those other facilities are unable or unwilling to provide service.” He stated subparagraph (b) could be rewritten to say, “An application would be granted if the proposed area lies within the service area of the District, another local government entity, or private utility, and such government or private utility is unwilling or unable to provide service.” He stated subparagraph (c) could be eliminated altogether. He stated the idea is if a spot lies within one of the consent areas, and the person who is granted consent does not wish to provide service, then no one can provide service the way it is written; and he will be happy to try and answer any other questions.

Chairperson Colon requested Mr. Knox explain paragraph 10.

County Attorney Scott Knox advised paragraph 10 only applies to areas where there is no consent given already; and the whole purpose of paragraph 10 is to provide a mechanism for either private or public entities that provide water or sewer service to obtain consent through the district; so if he has consent already, the paragraph does not apply. He stated in terms of the issue Mr. Payne raised about whether one can comply with the terms and conditions, he can see his point if there is a situation where a city has consent under the agreement and does not want to provide service; maybe some tweaking needs to be done with that; and the way to handle that is change the “and” in paragraph (a) to an “or”. He stated that will take care of it and eliminate it as a cumulative requirement.

Commissioner Carlson stated subparagraph (a) states, “The proposed area does not lie within an area in which facilities are owned by the district, and to which another local government entity or private entity company has rights as set out in this ordinance”; and inquired if “and” would fix that.

Commissioner Higgs stated envisioning a situation like that is hard for her because if the County is given consent, the cities have outlined it, and she would hate to wordsmith that right here today when there are a couple of things the Board could do. She stated since all of the attorneys and people are here, this does not seem to be an issue that she can see of coming up next week; and inquired if they could work that through the various processes because they have come to a balance on most of the issues and most of the cities seem to feel fairly comfortable with the ordinance as written. Commissioner Higgs recommended not interjecting the new wording as she does not know if it would ever come up where someone would say he or she has consent but do not want to serve the area; and suggested putting it through the process. She stated if the Board adopts the ordinance today, it can always come back and add that language, as that particular change may be harder than thought.

Commissioner Carlson stated she agrees it may be a complex issue and she wants to make sure, before she voted on it, that she would understand the ramifications of paragraph 10. She stated she is comfortable with the way it is right now and thinks the Board can work through it if it can pass this and get through this hump and bring it back with tweaking that might be necessary in the future.

Mr. Knox stated that is something the Board should think about; there is probably a way to handle it by just adding a catch-all at the end saying that if for some reason the city does not want to provide service and was granted the consent, then some other could. Commissioner Higgs stated it may be an interlocal agreement between the consented city and the proposer; that may be the way to do it; but that can be worked out later. She stated the language that was given to the Board recognizes that there are some private utilities that need to be recognized; and the language would do that. Mr. Knox stated he would propose to add that as number 15 on page 20.

David Henderson thanked Mr. Knox for his patience at the Water Supply Board meeting; stated he is not sure they are totally comfortable with the ordinance the way it is worded, but there are provisions and safeguards they have seen be put in place and appreciate that. He stated they are concerned but at this point quiet about the ordinance.

Commissioner Higgs stated the City of Rockledge that Mr. Henderson represents was concerned that the interlocal agreement could be amended; and inquired if Mr. Knox took care of that; with Mr. Knox responding Mr. Martens was working on that. Mr. Henderson stated Mr. Feldman has an ordinance that is not as current as the one he has; it would be very important to them if all the cities could get the most recent revisions as quickly as possible; and he understands that is a voluminous task, but that would help from their point of view. Commissioner Higgs inquired if the City of Rockledge’s issue of amendment has been taken care of in terms of suggesting language; with Mr. Knox responding the last he heard some of the City’s concerns were addressed; staff asked them to consider what territory they would want to serve in the future; and that would be done as part of an interlocal agreement, which would be incorporated as part of the consent format once the ordinance is adopted. Commissioner Higgs inquired if the County is basically agreeing to amend the interlocal agreement with Rockledge at its request; with Mr. Knox responding that can be done independent of the ordinance. Mr. Henderson advised they will do some amendments to the September 2000 Agreement.

Lee Feldman, City Manager of the City of Palm Bay, agreed with what Mr. Gougelman said; stated they are very appreciative of the efforts of the County to work with the cities on this issue; and noted a lot of their concerns have been addressed. He stated County staff has been excellent in trying to pursue resolutions, although there are still a couple of outstanding issues he would like to address; but before he gets to those, it is important to recognize that the City of Palm Bay does not believe the ordinance is necessary to accomplish the goals in South Brevard County. He stated the Board has the discretion of setting the boundaries for the district; they do not believe the City of Palm Bay or their service area should be included within the district; and the Mayor and City Council, because of that, object to the ordinance. Mr. Feldman stated recognizing that they need to get a document that ultimately the Board can vote on that will work for all the cities, it has three issues to address; first is the dispute resolution process; in the draft dated July 7, 2003 that he is working off, Section 4.10 on page 18 and 19, there are two options; they are not sure which option the Board selected; and assuming it does move forward with one of them, the option they would prefer is Option 2, but they need to clarify two aspects of that. He stated he believes it means binding arbitration and not binding mediation; they are not sure exactly what binding mediation is; as to the scope of what dispute resolution would apply to, as drafted in the ordinance now, it is limited to withhold unreasonably withheld consent provided under the ordinance; and they would like the dispute resolution process to include all aspects of the ordinance and all aspects of the district’s operations which may affect any city in Brevard County. He stated the second issue deals with Section 4.11, Subsection 11, which is on page 19; it deals with the issue of annexation; the way the ordinance is drafted today, if a municipality annexes an area, it will become part of the service area for that municipality; and the ordinance does not make any provision if that service area already belongs to another municipality. Mr. Feldman stated for example, in the case of the City of Palm Bay, there is an area of unincorporated Brevard County that lies between Melbourne and Palm Bay, and under their Settlement Agreement, it is not specified whose service area it is until services are actually commenced at that location. He stated if the area remains part of unincorporated Brevard County and is served by the City of Palm Bay, and the City of Palm Bay makes an investment and Melbourne annexes the area, it will take away that service area from Palm Bay after it made an investment; so that needs to be addressed. He suggested adding at the end of the sentence, “If it is not part of a service area of another municipality” to clarify that issue. Mr. Feldman stated the third issue deals with Section 4, paragraph 12, where it limits the scope of the paragraph to consumptive use permits; when the ordinance was originally drafted, it pertained to all permits relative to groundwater or surface water withdrawals; and they think it should be for all permits. He stated consumptive use permits are not the only type of permits that municipalities will be seeking under a water and sewer utility; there are other things such as MPDS and other types of permits that will be affecting groundwater and surface water withdrawals; and they think the scope should not be limited. He stated their last issue which was raised by the City at the very beginning of the process is that the ordinance is one mechanism, but also interlocal agreements that preserve the rights of municipalities should be looked at as well; and the Board can amend the ordinance in the future, so the consents it grants today may not be the consents it maintains five or six years from now.

Commissioner Pritchard inquired if there is a problem changing mediation to arbitration and providing clarification for the dispute resolution process mentioned by Mr. Feldman; with Mr. Knox responding the only thing the district is going to do, other than grant consents that are already granted in the ordinance, is to grant consents some time in the future, so he is not sure what other kind of dispute Mr. Feldman would ever see erupting between the district and a utility company or a public utility. Mr. Knox stated they may be trying to interject something that could create an ambiguity they do not need to create because the only thing that the ordinance deals with is consents. Commissioner Pritchard inquired about Section 4.11; with Mr. Knox responding he does not have a problem with what Mr. Feldman proposed on that. Commissioner Pritchard inquired about Section 4.12; with Mr. Knox responding there is a misunderstanding there in terms of how the City is reading it, because all it says is that the Board does not have jurisdiction over consumptive use permitting and that nothing in the ordinance prevents any local government from challenging or objecting to anybody’s application for consumptive use permits. Mr. Knox stated that was put in there in recognition of the original criticism of the ordinance that the County was trying to usurp consumptive use permitting, which is not the case, because the County does not have jurisdiction over that issue. Commissioner Pritchard stated with much thanks to County Attorney Scott Knox and Water Resources Director Dick Martens, the Board has attempted to eliminate confusion by way of ten revisions and expanding the ordinance to 28 pages; the pages are color-coded with input; and they are in the typical underline or strike-through method. He stated as far as he can recall, everything that was removed was discussed prior to the final draft coming out; it was a major undertaking; the Board met over several months; the Water Supply Board met over several months to put this together; and he would like to thank all the participants as chair of the Water Supply Board. He stated they ended up with a 9/1 vote to approve the ordinance that was provided that day; the board did decide to select Option B, which was the specific conflict resolution that was mentioned earlier and also recommended by Mr. Feldman; so thanks to everyone for all the work they put into providing a water/sewer district ordinance.

Commissioner Higgs complimented the Water Supply Board for sticking to it, as well as the various municipalities and the County Attorney for all their work on this ordinance. She stated she is aware of the conflict resolution proposal; and while she appreciates that some folks would want the option to be that the Board would go through some sort of binding mediation or binding arbitration, she thinks that the agreement to go through the dispute resolution process and the commitment of the Board to deal with objections of the municipalities indicates its willingness and commitment to work with people. She suggested Option 2, which says the County will go through the mediation, have a panel with one member appointed by the district, one by the city, and one jointly agreed to, but the final conclusion/implementation would be the district’s governing board’s responsibility; and recommended adoption of the ordinance with non-binding arbitration, which would be Option 2. Commissioner Pritchard stated that is Option 1; with Commissioner Higgs responding it is Option 1.

Motion by Commissioner Higgs, to adopt an ordinance creating the special water and sewer district within unincorporated area of Brevard County with Option 1. Motion died for lack of a second.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt an ordinance creating a special water and sewer district within the unincorporated area of Brevard County; setting forth the purpose of the district; establishing the organization and duties of the district governing body; setting forth powers of the district; granting certain consents for the expansion and operation of water and sewer facilities; setting forth budgeting and reporting requirements; providing for consistency with the Comprehensive Plan; providing for severability; and providing for an effective date, with Option 2 for binding mediation/arbitration.

Chairperson Colon inquired if that is the opposite of Commissioner Higgs’ motion; with Commissioner Pritchard responding yes. Commissioner Higgs stated only on that one point. Commissioner Carlson suggested including in the motion the proposal for number 15 on page 20 and any language Mr. Feldman suggested that the Board can agree on; with Commissioner Pritchard responding he would agree with that and also with the caveat at the end that it would be subject to revision as needed. Commissioner Higgs stated the phrase would be, “when it is not a part of a service area of another municipality” for number 11 on page 19; and inquired if that is the language that would be included and the binding arbitration; with Commissioner Pritchard responding yes, and he would also expect that if there is going to be disputes about annexation, the two parties would move into discussions to resolve the problems at their level prior to bringing it to the district board.

Chairperson Colon called for a vote on the motion as amended. Motion carried and ordered; Commissioner Colon voted nay.

PUBLIC COMMENTS - BOB KEIM, RE: AMATEUR RADIO ORDINANCE

Bob Keim stated what was voted on today opened Pandora’s box; he went to see Mr. Rick Enos and discussed the issue with him; he was sent to Mr. Brown; and Mr. Brown said if they include the building permit, the discretion of the whole issue is again left in one person’s hands to decide what is prompt and proper and applicable to the specific installation; and that is what they need to avoid. He stated the fee is another issue; and most of the people who were here met afterwards and everybody was in opposition to the building permit and fees.

Chairperson Colon inquired if Mr. Keim’s concern is the building permit; with Mr. Keim responding yes because it is left to one person. Mr. Keim stated it is not getting the building permit or paying a small fee; he understands Commissioner Higgs’ concern with neighbors being worried about proper construction; but after talking to Mr. Brown, the discretion of what will be involved in securing that permit is left up in the air.

Commissioner Scarborough stated Mr. Keim recognized that and the Board tried to avoid it; and requested the motion be read by the Clerk. Mr. Keim stated they agreed to a small setback; with Commissioner Higgs responding they agreed to a setback for the building. Commissioner Scarborough stated that was the only thing he thought the Board encouraged. Mr. Keim stated when he went to speak to Mr. Enos, he said the hypothetical question is if he wants the permit today, what does he do; and Mr. Enos told him to speak with Mr. Brown. He stated he went to Mr. Brown who explained to him that he would apply, but there are no more separate commercial noncommercial building codes, and they are all lumped together in one Uniform Building Code. Commissioner Carlson stated that was part of the motion because statutorily the Board has to abide by that and cannot just make its own rules; with Mr. Keim responding he understands that. Commissioner Carlson stated they cannot have an exemption on that sort of thing; and she thought that was how the motion was stated.

Chairperson Colon stated the Board will clarify that. Mr. Keim stated that is all he is asking for because if he goes to the meeting tonight with seven different clubs and does not have the right information, there is going to be heck to pay for him and on August 7, 2003 the Board will have a full house, which he is trying to avoid. Chairperson Colon requested the motion be read back; with Deputy Clerk Berni Talbert responding what she has written says the amendments will be to stay with the setbacks and with the Florida Uniform Building Code. Chairperson Colon stated that is what was voted on, and it has nothing to do with building permits. Mr. Keim stated the clarification he is asking for is if he went to apply for a building permit, the County may apply commercial standards or site plan and engineering specifications and the whole nine yards, which is exactly why other counties have exempted amateur radio operators.

Assistant County Manager Peggy Busacca advised this is the first reading of the ordinance; the second reading will be held on August 7, 2003; she will have Mr. Brown review the Building Code to make an official interpretation and contact Mr. Keim so the two of them can discuss it and have it worked out before August 7, 2003. Mr. Keim stated they did that after the first reading with Mr. Enos who is a wonderful person, but what they discussed came out in the package as totally opposite and included three services that should have never been included, so the input they gave did not matter. He stated he wants to know what to tell the club members; the clarification is important because they trust the Board; and every time it goes to staff, they come back with something different, so the members are nervous about it. Chairperson Colon stated the only thing the Board added was the setbacks. Commissioner Higgs stated the Board also added the Uniform Building Code. Ms. Busacca stated what they have not determined is what the Uniform Building Code would say in this instance; her understanding is Mr. Keim spoke with Mr. Brown; Mr. Brown said he needs a chance to review it because it was only given to him to look at in the last few minutes; so he does need the opportunity to review that. Ms. Busacca advised staff will figure out an interpretation and speak with Mr. Keim; if he is not satisfied, there are methodologies for getting through the process, which is the Contractor Licensing Board, to appeal an interpretation by Mr. Brown; but at this time, they do not know what Mr. Brown thinks because he has not reviewed the Code.

Chairperson Colon stated she wants to make sure staff is not doing their own interpretation; she wants to be able to send that message pretty clearly because it is going to be quite confusing for them; she does not want one individual interpreting what the action of the Board is; so she wants to bring it back to the Board. She stated her view of it is not having those folks dealing with any building permits; but definitely they are to respect the setbacks. She stated that was her clear understanding; and if it comes back that they are going to have to go through the whole process of an appeal process and all that, then she wants it understood that is not what those folks are going to have to go through. Ms. Busacca stated she is not trying to be difficult, but the State Building Code says that Mr. Brown is the interpreter of that.

Commissioner Carlson stated other counties have exempted amateur radio operators, so staff can look to them to see how they manage it; with Ms. Busacca responding absolutely; and Mr. Brown, when he has questions, calls other communities and people at the State level as well as other local governments and asks how they interpret things. She stated he aims for consistency across-the-board, and that is part of the process; and because there is a second reading, there is still time to get it worked out before it becomes law. Chairperson Colon inquired if Mr. Brown will give the Board that report as soon as he can; with Ms. Busacca responding affirmatively.

The meeting recessed at 2:38 p.m., and reconvened at 3:00 p.m.

PUBLIC HEARING, RE: ORDINANCE PROVIDING FOR LEVY OF ONE PERCENT
INFRASTRUCTURE SALES SURTAX AND RESOLUTION CALLING FOR A
SPECIAL ELECTION FOR HOLDING A REFERENDUM ON LEVYING ADDITIONAL
ONE PERCENT SALES SURTAX

Chairperson Colon called for the public hearing to consider an ordinance providing for the levy of one percent infrastructure sales surtax; and advised the resolution calling for a special election to hold a referendum on levying the additional one percent sales surtax will be heard at the same time.

County Manager Tom Jenkins advised the issue before the Board today is not whether it chooses to raise taxes, but rather whether it chooses to allow the voters of Brevard County to decide for themselves if they want to implement a local option one penny sales tax to pay for infrastructure in the community. He stated every county that touches the borders of Brevard County, the voters have chosen to implement a local sales tax; it is ironic that residents in Micco and Barefoot Bay who shop in Indian River County already pay the one penny tax, and those in North Brevard who shop in Orlando also pay the local option sales tax, all of which go into the coffers of those counties. He stated in order to maximize the impact of the one cent sales tax, the County has forged a partnership with all Brevard cities, towns, and the School Board to share the proceeds of the local option sales tax; the municipalities of Brevard, through the Space Coast League of Cities, have unanimously supported the referendum going forward; and in fact 11 of the 12 cities have already returned interlocal agreements signed and executed. Mr. Jenkins advised the School Board said it will go alone with a half-cent sales tax referendum if the County does not schedule this proposed referendum; over the past year, the Board has received a significant amount of input on the infrastructure needs of the community from a wide and diverse group of residents; and staff is now finalizing a catalog of County sales tax projects that will enhance the safety of residents, preserve green space for residents to enjoy, improve roads to reduce traffic congestion, provide cultural and leisure time facilities for residents of all ages to use, improve water quality of the rivers and lakes, and improve drainage. He stated some of the projects would provide for essential basic needs of the community to sustain the existing quality of life. He stated the only other realistic alternative to pay for those needs will be increasing property taxes or drastic cuts in services; despite the views of some, history has shown that the current general operating funds of the County, Cities, Towns, and School System have not been adequate to pay for those needs; and in fact the School Systems are being mandated by the State to increase local revenues before they can be eligible for additional State dollars for education. Mr. Jenkins stated the proposed projects will be enhancing the quality of life in Brevard County; the facilities will make Brevard County an even better place to live, work, raise a family, or enjoy one’s retirement years; and for the referendum to be successful, it is important that the one penny local sales tax be used to provide the facilities that the voters of Brevard County feel are needed and what they want to have in their community. He stated no one knows for certain what the outcome of the referendum is going to be; but the most important fact is that the voters of Brevard County will be making that choice; and regardless of the outcome, the County can be satisfied that the process was successful.

Maurice Meisner, Co-chair of the Veterans Memorial Center or Veterans Museum on Sykes Creek Parkway, advised he is a good steward of County property; a few years ago the Board agreed to expand the museum; but to this date there has been no money set aside for the project. He stated their position is not to be in favor or against the sales tax; since they are a community organization, it is their job to manage the community’s money that is donated to them and that the County has entrusted them with; and they would like to express their interest in, if there is additional money coming in for buildings and parks, they should be at the top of the list. He stated they feel there is no better way to improve the quality of life Mr. Jenkins mentioned than to improve the museums, zoo, botanical gardens, and facilities that will bring in tourism and enhance the quality of life for everyone. Mr. Meisner stated the veterans of Brevard County have been working very hard to be an asset to the community with their educational programs and scholarship programs; they need help to take their programs to the next level; they are willing to make the commitment and hope the Board will join them; and as part of their community commitment, he would like to announce within the next couple of days there will be a billboard going up on U.S. 1 on the westbound side half a mile south of Barnes Boulevard that will say, “We support our troops and their families.” He stated he hopes the whole community will join them in that tribute.

Bruce Weichsler, Chairman of the Libertarian Party of Brevard County, advised he is taking this opportunity to express their opposition to the proposed one percent infrastructure sales tax or any other form of tax increase. He stated Americans are being taxed at the highest level in history according to Americans for Tax Reform; July 11 was tax freedom day this year, the day when Americans finished paying for government services and regulations; that is 193 days out of 365 days, which equates to government consuming 53% of the national income. He stated in the past three years, Congress has been on a pace to increase spending three times the amount that it did in the previous eight years combined, according to ATR figures; and this tax increase is wrong for a variety of reasons. He stated unemployment is at 5.2% in Brevard County; and those who are hit the hardest and most directly are the least able to afford it, the working class and small business owners. Mr. Weichsler stated the Board has claimed to recognize the advantages of attracting businesses to Brevard County with its tax abatement schemes; and inquired if the Board thinks businesses include the local sales tax rate in their calculations to locate in an area, about the effect the tax will have on local retail businesses, and if consumers evaluate the cost of sales tax when making large purchases. He stated he would like to say that the Board has been a shining light of fiscal responsibility and small effective government concerned with protecting the lives, rights, and properties of its citizens; however, that is not the case; from the deceit perpetrated on the citizens involving the financing of this Government Center to the give away of Cape Canaveral Hospital to HealthFirst, to the $7 million Sarno Landfill boondoggle, to the pending case regarding the CAPIT situation, the Board, and its past and present makeup has shown time and time again that acting in the interest of the taxpayers is not a priority. Mr. Weichsler stated the Board has not shown respect for the voters’ wishes; it has not shown the ability to act in a fiduciary manner with the people’s money; it has not shown an ability or desire to act within the confines of the letter and spirit of the Brevard County Charter; and it has not shown an understanding that government should only do what the people cannot do for themselves. He stated to give the Board access to an additional one cent sales tax would almost be like giving the next fix to an out of control junkie; the difference is the junkie would probably do harm only to himself and the Board’s harm would encroach on all of them. He requested the Board not waste its time putting the measure on the ballot and not waste the taxpayers money putting it on the ballot because it will fail since the people will not give the Board another fix.

Bob Brewster of Cocoa stated a guy named Mazlow was a psychologist who was known for his self-actualization and the steps to get there; the first rung on the ladder is providing for basic needs, food, clothing, shelter; and only after that step is satisfied can one build self-esteem where he may own a car or make payments on a house. He stated as one goes up the ladder, one can experience thoughts of self-actualization satisfied with accomplishments and can play golf, eat out twice a week, own a Lexus, and live in Viera; but the Board will not find a single person in this room on step 1 or 2 even though there are thousands of them in Brevard County. He stated if the Commissioners would come to Cocoa, he will show them one area that has 96% living in poverty; he heard at the last meeting there were over 100 speakers for the sales tax for one project or another that those on steps 1 and 2 have never thought of; and the Board is asking them to pay for those projects for their use. Mr. Brewster stated the published average is 400 a year to a level 4 or 5; that equates to three rounds of golf or a fishing rod; but to level 1 that means food on the table for four. He stated the Board appears to be leaning toward riding the coattails of the School District; if enough people think the School District needs money, they will approve it; the School District is already about $300 million in debt; and if this passes, they will have $500 million to leverage and overnight their debt will be $1.1 billion with principal and interest for 25 years. He stated it is not a tax on the Commissioners but a yoke on the shoulders of their children and grandchildren; because Orange County approved the sales tax as Mr. Jenkins said, it is spending $14 million just for an auditorium and media center and gym at one school; that is wasted money; and because there is plenty of money, the County was not paying attention to what was going on, and had a four million dollar overrun on the project. Mr. Brewster stated when the flawed $350 million bond issue was defeated in 1995, it issued $60 million in certificates of participation that it can do without taxpayer approval; it added a discretionary tax without voter approval; and when it got the money, it built $125 per square-foot schools and additions. He stated they hammered on them, pointing out that modular construction was just as good and only cost $85 a square foot; and when the $60 million was almost gone, it went to modular construction and saved about $24 million. He stated then it issued another $54 million in certificates of participation and went back to $125 per square-foot construction and paid as much as $20,000 per roof just for inspections. He stated that is a lot of money just to have inspections of roofs because it had a private company do it; the County only charges a few hundred dollars; and much of the new construction is for Levels 4 and 5 of Mazlow’s ladder where they are building in Viera. He stated they have built three schools already and two more planned; there are several school district regulations that keep free lunch recipients from attending schools of choice; the schools of choice are for the affluent; and those are some of the reasons the tax should not be passed or even considered. Mr. Brewster stated there are several other paths to follow as Commissioner Pritchard pointed out; privatizing of the schools custodial service could have saved $10 million a year; and the schools went away from it; $90 million could have been saved last year if they implemented year round schools, but they would not consider it; and requested the Board not take a Pontius Pilate stand. He stated if a bridge is needed in Titusville, then the residents of Titusville should be taxed for it; if they want a botanical garden in Merritt Island, then the Merritt Island residents should pay for it; if they want to purchase wetlands for future use, the people who will be using them should be taxed; and those on Mazlow’s 1 and 2 rungs will never use the bridge in Titusville or go to Merritt Island because they do not even own a car.

Mark Ryan, City Manager of the City of West Melbourne, advised he has been before the Board in the past to support placing the referendum on the ballot so that the informed voters of Brevard County can decide whether or not to implement the one cent sales tax to fund the myriad needs of Brevard County schools, the County, and the 15 municipalities. He stated Brevard County is a vibrant growing community; the County, School Board, and municipalities are challenged to provide quality services to the residents, businesses, and visitors to Brevard County; they are at a crossroad; and the crossroad is the ability to provide a funding source if the voters decide to fund those needs. He stated the City supports placing the issue on the ballot to let the voters decide whether or not this is a viable option to fund the many needs of Brevard County; their community has voted, if the voters of Brevard County pass the tax, to take 75% of its proceeds for Hollywood Boulevard corridor, a major transportation need in their community even though it is a County Road because they want to partner with Brevard County to solve that need. He urged the Board to place it on the ballot and let the voters decide.

Lee Feldman, City Manager of the City of Palm Bay, advised last Thursday night the Council endorsed putting the item on the ballot for consideration of a 20-year one penny sales tax, and authorized execution of the interlocal agreement to effectuate the partnership that the County Manager talked about between the cities and the County. He stated Palm Bay is a growing community; the sales tax for infrastructure is going to be critical to their sustainable growth; they need roads; and that is a funding mechanism for those roads. He stated they need to enhance public safety and provide more parks, and this is a funding mechanism for that; and together they can work on joint projects. He stated he looked at the County’s list of projects discussed last week; there are critical facilities and programs that the County is looking at funding from its share, which are important not only to Palm Bay but all of South Brevard, such as DeGroodt Library Cultural Art Center, Palm Bay Youth Center, South County Courthouse, South Animal Care Center expansion, and Mosquito Control aircraft for the area; and those are all things they can do together as partners to make not only Brevard County a better place to live, but South Brevard and the City of Palm Bay. He urged the Board to support putting the item on the ballot.

Jim Hearon, Public Works Director for the City of Titusville, advised the City Council has voted in support of placing the one cent infrastructure sales surtax question on the November ballot and looks forward to working with the County in the event the Board decides to move forward with the sales tax.

David Henderson, Assistant City Manager of the City of Rockledge, advised he was asked by the City Council to come and indicate to the Board its support for the referendum and give the opportunity for the citizens to decide the issue of a sales tax referendum. He stated the County staff and cities have worked together to develop a breakdown for the monies they would receive; the School Board has been included, which they all recognize has a dire need of additional resources for construction and improvement of schools; and the four-laning of Barnes Boulevard, addition of cultural and recreational facilities as well as libraries proposed are well deserved by the citizens of Brevard County. He stated the City wants to mimic the comments of Mr. Feldman and Mr. Ryan, and includes its support for the issue of the referendum.

G. B. Lane of Melbourne Beach advised he moved to Brevard County to enjoy the low cost of living and quality of life offered here; he did not move here to be subjected to an extra one percent surtax sales tax that is already imposed by Orange County, which has one of the highest cost of living in the entire State; and the counties with the one percent sales tax also offer the residents traffic congestion, toll roads, and urban sprawl. He stated for those who support the one-percent tax increase, he would suggest they move to Orange or other counties that charge it and take their expensive programs with them. He stated Brevard County must tighten its belt and learn to live and operate within its existing budget; and suggested they all work together to keep the cost of living low so they can continue to enjoy Brevard County without the stress created by having to pay more taxes.

Maureen Rupe of Port St. John advised Section 14 of the Ordinance states, “If the infrastructure sales tax is approved by referendum an oversight committee of residents will be established by interlocal agreements between the Board of County Commissioners, School Board, and municipalities representing the majority of the County’s municipal population to monitor and report on the Countywide implementation of sales surtax referendum proceeds”; and it says so little about the responsibility of the committee, that she is concerned if it is going to overlook the referendum proceeds, which is something the County should be doing. She stated committees are usually advisory; she wants assurance that the committee would not be recommending any changes to the list of projects and is just there to assure the process; and perhaps they can use boards that are already in existence such as the EEL’s Committee or Historical Commission. Ms. Rupe stated as for putting it on the ballot, the people are so involved and spent a lot of time looking into this issue and the projects; there are some enthusiastic and some not enthusiastic; but it must go on the ballot so the people can decide.

Kay Burk, President and CEO of Brevard Cultural Alliance, advised the Brevard Cultural Alliance is the arts council for the County and as such has been involved in some planning processes, including a five-year strategic cultural planning process. She stated Brevard Tomorrow and Myregion.org has put them in touch with thousands of people in Brevard County over the past five years; as recently as July 2003 they have been talking with hundreds of people; and they do not just talk to one set of people but go into the communities and talk with students, private citizens, business leaders, and the elderly. She stated they do not say come to us, they go into the communities, senior centers, libraries, schools, and private areas to speak with people and collect information; and what they have been told is that people want access to quality of life amenities in their home communities, libraries, parks, and community centers; and those things have been included in some of the lists that is before the Board. Ms. Burk stated as she understands the issue today, it is whether to take the infrastructure sales tax to the voters and let them decide if those things are important to them, to us, to the Board, and to her; it is their decision, once it goes to the voting booth, if it makes a difference to them as human beings the type of community they live in; and it is the decision of the Board of County Commissioners this day to decide whether that belongs on the ballot for them as citizens to make that decision in November. She stated it is her job as President and CEO of the Brevard Cultural Alliance, an advisory body to the Board of County Commissioners, to say to the Board today that the Brevard Cultural Alliance, based on input from citizens from one end of the County to the other, students through senior citizens, children through age 90 to say they think it belongs on the ballot for the citizens to decide.

Georgia Phillips, President of Space Coast League of Cities, advised at the League’s meeting of July 14, 2003, it voted unanimously and wholeheartedly to support the Board placing the item on the ballot to let the citizens decide what they want; and upon a positive referendum, they will be there to help the Board enforce it.

Dolores Kane of Merritt Island advised she has lived in Brevard County for 37 years and has seen a lot of changes; and she wants to speak against the tax increase. She stated in response to Mr. Jenkins speaking about other counties, just because others do it does not mean Brevard County has to do it; it should not judge others by itself because if they are going to jump off the cliff, Brevard County does not have to. She stated she looked over the list and it looks more like a wish list than a needs list; it seems if the County needs something, it should have the thing listed with a price and the money should only be allocated and spent on that need and not what they want. She commented if she was given a bank account she would spend it not necessarily on what she needed but what she wanted to have. Ms. Kane stated Melbourne is the third fastest growing area in the United States; prices of houses are going up and with that the increase in ad valorem tax revenue; and inquired why does the County need this sales tax. She stated except for roads, the Sheriff, Mosquito Control and mental health needs, she does not see things that they really have to have; they are nice luxury items; but Brevard County is not Coral Gables and does not have people who make that kind of money. She stated she spends $220 a year on beach and riverfront and environmental lands as well as parks and recreation according to her tax bill; now they just passed a $72 million referendum for parks and recreation; the EEL’s program is $55 million; and with the CARL program, Brevard County can run out of property. She stated it has more parks than it needs; and she does not think one cent of the money should be used to buy land. She stated the County owns enough land; it needs to take care of what it has; it is getting more money every year for EEL’s that need to be spent on debt service; and inquired what is the Board doing with that money. She stated she took her granddaughter to Hoo Hoo Park and she was scared to death; it is absolutely useless and has been closed a long time; so that is not being good stewards. Ms. Kane stated the Board spent $7 million for a $1 million piece of property; she does not want to send her money to the County Commission with the history that it has; and she is absolutely against the tax. She stated there is a rumor that money wants to be spent on the property south of Merritt Square Mall; elders need to be close to their needs, shopping, medical exams, etc.; and that property could be used for a 55 and over park if the Board wants to help elders. She stated more people are retiring so Brevard County will have more elders; and instead of allowing them to drive around and knock people down, the Board needs to do something about transportation and put elders where they can live without having to drive their cars. She stated $55 million for land and $37 million for the jail is not balance; maybe Brevard County needs money, but she does not think it needs the one percent for 20 years; the Board needs to go back to the drawing board and see what it needs and come up with something that the people really need.

Amy Elliott, Assistant City Manager of the City of Melbourne, advised she is here to report that the Melbourne City Council has gone on record twice in support of the infrastructure sales tax; in April, in response to a request of the County Manager, they provided a list of projects, which are proposed to be funded by the tax; and since then, they have been asked to develop a catalog and are in the process of finalizing it. She stated it will be presented to the City Council along with the proposed interlocal agreement in August. Ms. Elliott advised the City Manager spoke to the Board in support of the tax a couple of months ago; and she is here to reiterate that support for the infrastructure sales tax, and request the Board allow the item to be put on the ballot so the voters can decide.

Ann Coburn of Cocoa advised the County needs more jail space, assessment centers, help for the mentally ill and homeless, decent roads, and money to accomplish mandates; the one percent sales surtax would accomplish that and benefit Brevard County; the citizens know that and think they would vote for it on that basis; but the Board has added into the pot a number of what it calls quality of life projects. She stated quality of life is like the word “cool”; it can mean so many different things; these in reality are entertainment projects that should be the realm of private enterprise; and the Board is asking the people to subsidize entertainment for others. She stated the King Center wants $350,000 a year; they have 250,000 patrons a year; and if they raise ticket prices by $1.25 that revenue would exceed the $350,000 the people are being asked to subsidize. She stated they are also being asked to subsidize two off-road vehicle parks at $2 to $3 million each; they do not know where those parks will be located; and in her survey of off-road vehicle enthusiasts in Canaveral Groves, only two riders of the about 20 she talked to said they might go to the park only if it is close by. She noted most of them would not use the park because they do not like the regulations; the County had an off-road vehicle park that it had to convert to sports fields because of lack of use; and inquired if they will end up with a white elephant or two white elephants. Ms. Coburn advised one of the Commissioners told her they have to have an alternative to offer riders when they were told to stop using the right-of-way; and inquired why a multimillion dollar alternative that the riders most likely will not use. She stated there are many projects like that in the proposed list; a gun range for $1.3 million and a botanical garden for $9.5 million are nice to have but the Board should let private enterprise take care of those; and she has seen too much of those things in other states where the taxpayers ended up footing the bill for projects that failed. She stated they have been tried by private enterprise and failed; and inquired why should the taxpayers throw money at it. She stated if it was a good idea, a company would have gone ahead with it; and if the tax does not pass because of the waste in the package, it is not only the County who will lose, but the School Board and municipalities will also suffer. She stated she would only support the Board going forward with the resolution if it were for projects that would benefit those who would be paying the most disproportionate share of the tax, and they are the poor and lower working classes.

Roman Scharf of Melbourne advised he moved to Brevard County a year ago; Melbourne is his and his wife’s home; in setting up their home, he looked at building maintenance, fire safety, smoke alarms, and health issues; and like most folks, until recently, he was not informed as to what his government’s responsibilities were. He stated the Board of County Commissioners is his government, so he went online to look at what it is doing; it is involved in public safety, fire protection, health, and buildings; and it sounded familiar as some of the things he is concerned about where he lives. He stated many projects are compatible to what the role and responsibility of the Board is; it tells him the County is looking at maintaining everyone’s home; his specific interest is health care; and they are all concerned about the problems with medical malpractice and physicians leaving. Mr. Scharf stated Brevard County has a problem and needs physician care and health care; as mentioned earlier, there are areas of poverty; and those citizens go to the County Health Department for care. He stated one of the projects is the County Health Department; that project should be kept; and requested the Board think about other County health or community health centers for South Brevard.

Anne Spencer, President of Brevard Federation of Teachers, advised education is a great enticement for attracting business and industry to the area; it is the reputation of the schools that entice them; not many school districts have the reputation Brevard County has; and property values depend largely on the reputation of the schools in the area. She stated Brevard County has one of the top school districts in all of Florida; it is important that it be able to attract and retain quality teachers if it is going to maintain quality education; the sales tax is important because the school district is in dire straits right now; and in order to fund the contract which was agreed to, it has to make serious cuts in programs and personnel. She stated surrounding counties have higher salaries and better benefits; surrounding states are attracting Brevard County teachers; and if Brevard County is going to keep quality education, it needs to be able to fund it. Ms. Spencer stated the classroom reduction amendment is causing them to need more classrooms and definitely more teachers; the funding they received from the State had mandates and allocations for class size reduction and very little money for anything else; and with their teachers retiring and the need for more teachers and classrooms, they need to be able to fund those things. She stated the Legislature and the Governor has said in order for the State to fund Brevard County schools, they need to do something; they need to increase their local effort; the sales tax is important to them; and urged the Board to put it on the ballot and let the voters decide.

Mr. Jenkins advised the Board should consider the ordinance, which is the first of two items.

Motion by Commissioner Scarborough, to adopt an Ordinance pursuant to Section 212.055, Florida Statutes, providing for the levy of a one percent (1%) discretionary infrastructure sales surtax for a period of twenty years; providing that the proceeds of said discretionary infrastructure sales surtax and any interest accrued thereto shall be expended within Brevard County, Florida, to finance, plan, construct, and improve local government infrastructure as defined and permitted by this Ordinance; providing for the distribution of proceeds to the County, municipalities, and School Board in the manner prescribed by law; requiring approval by a majority vote of the qualified electors of Brevard County; providing for a special referendum on the issue to be held November 4, 2003; providing for publication of notice of referendum; authorizing the Brevard County Supervisor of Elections to properly conduct the election called for hereby; providing for ballot language; providing for an oversight committee; providing for severability; providing for repeal of inconsistent ordinances or resolutions; and providing for an effective date.

Mr. Jenkins advised the cities and School Board have expressed an interest in participating. He stated from the outset, the purpose of the oversight committee is to provide accountability for the public, so that as the School Board, Board of County Commissioners, and all the cities and towns indicate prior to the referendum what they are going to spend their money on, the panel of citizens will monitor that to assure the residents that those government entities are spending the money the way they said they were going to spend it. He stated over a period of years, individual governments may want to make changes to their project lists; and they could communicate that to the oversight committee. He stated the intent was to be a watchdog, but not have decision-making authority; that authority cannot be taken away from the elected officials of the County, Cities, and School Board; they have to retain the final say in terms of expenditure of those funds; but it is an accountability committee to provide additional levels of assurance to the public that the elected bodies are doing what they said they were going to do.

Commissioner Scarborough inquired if adding “completion of the proposed projects” contemplates what was discussed; with Mr. Jenkins responding yes. Commissioner Scarborough advised as part of his motion he would like to include that the last page say, “to monitor and report on the Countywide implementation and completion of the projects according to the surtax referendum”; it will indicate the committee is there to see the projects through as the people want them; and they will do something similar to the Parks and Recreation projects. He stated some people may not agree with all the projects, but they want to know what they are voting on; one of the reasons the EEL’s passed was because of the separate committee for selection of the properties; and that was a major issue in the passage of the EEL’s referendum. He noted accountability is a key issue.

Commissioner Carlson seconded the motion as amended.

Commissioner Scarborough inquired if there are additional amendments; with Mr. Jenkins responding another issue he had is Sections 3 and 10 which spell out what the funds can be spent for; the Ordinance went through several revisions based on input from the cities, Commissioners, and so forth; so they need to take the language in Section 10 and insert it in Section 3 and remove the outdated language in 3. He stated it should say, “To finance, plan, and construct local government infrastructure projects, including schools, public safety, environmental, cultural, transportation improvements to include land acquisition, public facilities, technological enhancements, and to pay debt service on bonds issued.” He noted it is not a substantive change, but to get the two Sections to coincide.

Commissioner Pritchard inquired what is the difference between Items IV.D. and V.A.; with Mr. Jenkins responding one is the ordinance and the other is the resolution. County Attorney Scott Knox advised the resolution calls for the election and the ordinance is the mechanism by which the tax gets levied; and it only takes effect if the referendum passes. Commissioner Pritchard inquired why are they not reversed; with Mr. Knox responding the Board has to have both in order to move forward with the surtax. Commissioner Pritchard stated it just seems the Board would want to know the results of V.A. before going to IV.D.; with Mr. Knox responding it would seem that way, but unfortunately the law is structured so that the ordinance has to be adopted, but it does not take effect unless the referendum passes. Mr. Jenkins stated there is a quirk in the agenda process where public hearings come before unfinished business, but the Board can consider V.A. first if it prefers. Commissioner Higgs inquired if it makes a difference; with Mr. Knox responding no.

Chairperson Colon called for a vote on the motion to adopt the Ordinance as amended. Motion carried and ordered; Commissioners Pritchard and Colon voted nay.

County Manager Tom Jenkins advised the word “cultural” needs to be inserted in Exhibit A, as it was a suggestion from the Board at its last meeting.

Motion by Commissioner Scarborough, to adopt Resolution of the Board of County Commissioners of Brevard County, Florida, calling a special election on November 4, 2003, for the purpose of holding a referendum on the question as to whether the Board of County Commissioners should levy an additional one percent (1%) discretionary sales surtax for a period of twenty years to finance, plan, and construct local government infrastructure projects of the type described in this Resolution; providing for an effective date.

Chairperson Colon stated there is a motion, and called for a second.

Commissioner Higgs stated she will support this as she did the other, but has concerns that perhaps the Board should have gone with half a penny for ten years. She stated that would have gotten a more positive reception by the voters, but either way, the citizens will get an opportunity to vote and they may accept or reject it. She stated it is never a bad idea to let people decide what they want to do; it might have been wiser to go at it differently; but she supports giving the people the opportunity to vote.

Chairperson Colon stated there is a motion and second.

Chairperson Colon stated when the Board did Exhibits A and B in regards to ranking, it talked about balance and quality of life, but she does not see the balance. She stated it is important to acquire environmental lands and protect the crucial lands; but at this point she is not sure if it is at $40 or $50 million for acquisition of lands by what was presented to the Board. Mr. Jenkins advised the Board discussed earlier reducing the resurfacing of roads to give Port St. John $4 million for road improvements since North Brevard was getting minimal road dollars, to increase green space to $50 million, and to add four-laning of the Pineda extension. Chairperson Colon stated she is in an awkward position since she is opposed to the sales tax yet she has to be as fair as possible; but she wants the community to know her philosophy and that she does not support the sales tax increase. She stated in the last year she has been consistent in bringing to the Board’s attention how it was voting; those votes were four to one because she did not think it should have been spending money especially throughout the year; but that is what the majority of the Board wished to do and she needed to respect that. She stated in regards to the project package, she does not agree to the amount of money being allocated to certain projects; and she wanted to share that with the Board and share her concerns before the final vote.

Commissioner Pritchard stated he said from the start the voters have a right to decide, but that he was also opposed to the sales tax because it is a regressive tax; he also said that if it is prepared properly, similar to the Parks and Recreation projects referendum, where they had a specific list and the costs so everybody knew what they were voting for, then it would be a good thing; but that has not happened, and he has problems with that because he does not believe they should vote for a pig in a poke. He stated what they have is a list of items, but there are no definite costs or locations and nothing that tells him, other than a wish list, where they might be spending a considerable amount of money. He stated the memo from Mr. Jenkins dated July 21, 2003 regarding the proposed County sales surtax County projects, says, "The scheduling of the projects based on need, urgency, and cash flow will be completed at a later date. The cost estimates are very preliminary using construction cost standards. More specific details on the cost estimates will be provided at a later date." Commissioner Pritchard stated that does not provide enough reason to put something as substantial as a one-percent sales tax to the voters for them to make a decision; and it has to come much more into fruition before he can support it. He stated the survey he conducted both in the mail and online resoundingly said no they do not want sales tax, with one exception; the online survey outcome is as follows: Would you support a one-cent sales tax increase to be in effect for 20 years? 100 no, 70 yes. Would you support a one-cent sales tax increase for ten years? 97 no, 78 yes. Would you support a half-cent sales tax increase for 20 years? 54 yes, 45 no. He stated there was a flip on the last question, so he is not sure if the people want a 20-year one-cent sales tax or not. He stated of the items that were listed under comments, the one that received the most comment was, “no more taxes; live within your means”; and that was the thrust of the statements. He stated he does not know how the rest of the Board thinks about the sales tax, but he thinks of it as going to the store and purchasing something and paying 7% instead of 6%; he found out the discretionary sales tax is levied on the first $5,000 of any item of tangible personal property; the $5,000 limitation does not apply to commercial property rentals, or transient rentals and services; and gave examples of business activities affected by the proposed tax, such as product uses and consumption requiring collection of the sales tax on all retail items, rental leases or licenses to use real property for commercial office space, mini-warehouses, short-term living accommodations, admission for places of amusement, sports, or recreation, operating or using on a regular basis mail order products of which no sales tax was charged, and the big one to him is business owners who rent offices would pay 7% on what could be a lease of several thousand dollars a month; and families who rent apartments for a home would also be disproportionately affected. He stated generally people who rent cannot afford a home because they do not have the money to pay for it; so the Board is hitting them twice; the Board does not have a good list to go by; it does not have a real handle as to how the money is going to be spent; it has not been taken as far as he said it should be taken; and all during those four to one votes, he said he wanted it to be orchestrated so that they know where the money is being spent; but they have not done it, so he is not going to support it.

Commissioner Scarborough stated there are two votes involved, the vote today and the main vote in November; he agrees that if they do not have the information Commissioner Pritchard suggested and the voters are requesting, there is no chance of the tax proceeding; so the work of the Board, if it proceeds today, is to come back and describe in as much detail as possible which projects will be funded because if the people do not know the issues they assume it will not happen; and the Board needs to give those assurances. He stated he would have liked to have everything come together and compliments Mr. Jenkins for all his efforts in trying to bring it together; but that does not mean the Board does not have to bring it together and put it in the format it did for the Parks and Recreation referendum.

Chairperson Colon called for a vote on the motion. Motion carried and ordered; Commissioners Pritchard and Colon voted nay.

Commissioner Scarborough stated nobody came to him and said they are for a tax; quite frankly, no one is for a tax; everyone has a separate agenda; and they need to understand that having separate agendas is not to their detriment. He gave a scenario of an airport with people flying to different areas for different purposes; and noted the airport is where all the agendas come together. He stated to say he has the only legitimate agenda on a particular thing will ruin Brevard County; they need to work as a team; some people are against the tax and have the right to be against it; but they should not pick everything apart. He stated someone may say a road is more important than an Alzheimer’s center, but to the person whose spouse has dementia, it is not unimportant because that family relationship is about to go into a deep dive; so they should all be generous and kind and look at it in a positive manner.

PUBLIC COMMENT - JANIS WALTERS, RE: BABCOCK STREET

Janis Walters of Valkaria advised the County is responsible for the maintenance of about six miles of Babcock Street, from Malabar Road to the southern city limits of Palm Bay; however, the eastern Palm Bay city limit includes all of the road frontage on the west side of Babcock along the six miles more or less, and on the east side, the first half mile, from Malabar Road to I-95, which is the Malabar Town north limit, then from Malabar Town south limit to across from Waco Street another one to two-tenths of a mile, then the three-tenths of a mile north of Valkaria Road, and then all of Plantation Acres, but she does not know where it begins and ends and cannot give the Board that frontage. She stated the City of Palm Bay has all of the west side and between one and two miles on the east side of the six miles of Babcock Street; and inquired if the County can turn the road maintenance responsibility over to the City of Palm Bay for those six miles and save a little money.

PUBLIC COMMENT - CURT LORENC, RE: BABCOCK STREET

Curt Lorenc of Valkaria stated he knows the Board is pressed for money and if it could reduce some bills, it might help. He stated some Commissioners were on the Board when Palm Bay came across the road and annexed part of Valkaria; it was not the zoning that suited the area and the City wanted it to go commercial; there was a big to-do with the City that went to a 120 hearing; and Brevard County lost the hearing so the City was able to keep the property and the commercial zoning. He stated when Palm Bay came across the road and annexed that property, it obtained 51% of the property on Babcock Street; and he believes the law requires, once a city has 51% the County can give the road to the city and let it pick up the expenses. He stated that would free up some money for the County. Mr. Lorenc stated since the annexation, Palm Bay has come across the road again and annexed another bunch of properties so it may even have 52%; and requested the Board follow the law and see if it can give Palm Bay Babcock Street and let it do the maintenance on it.

Commissioner Higgs requested County Manager Tom Jenkins get a report to the Board on that.

PUBLIC COMMENT - LILLIAN BANKS, RE: CHARTER LAWSUIT

Lillian Banks of Merritt Island stated she would like to ask the Board a question regarding the lawsuit on Section 5.4 of the Brevard County Charter heard on December 19, 2002. She stated the Board was a defendant; and when she was before the Board on May 20, she asked if the Board authorized or directed County Attorney Scott Knox, in representing the Board, to remain silent and raise no defense on behalf of the Board and also on behalf of the citizens of Brevard County. She stated the verbatim transcript of that meeting reflects the following words were spoken in response to the question: “Commissioner Colon: Okay, Mr. Knox. Mr. Knox’s answer: That was the direction I was given so that’s what I said. Commissioner Colon: During the executive meeting? Mr. Knox replied: Right. Commissioner Colon: And just to kind of as far as procedure the transcripts of the executive meeting does not get presented until after the case is over. Mr. Knox replied: That’s right. Commissioner Colon: No, that’s not what we said, what we said was that decision that he made was based on the executive meeting that took place upstairs.” Ms. Banks stated that was the end of the transcript; she has a letter from Mr. Knox to Mr. Ellis dated June 26; the subject is public records request dated June 19 and 26, 2003; the letter addresses emails and so forth; and quoted one sentence from the letter as follows: “In summary, there was no executive session and there are no public records or transcripts relating to such a session because it never took place.” She stated on a website dated July 18 entitled Brevard Whistleblower, Commissioner Colon emphatically contradicts Mr. Knox’s denial that such an executive session ever took place; so she will again ask the same question, did the Board direct Mr. Knox to not defend the Charter Amendment Section 5.4 and further asks was the direction given in the executive meeting.

Chairperson Colon stated she stands behind the same thing she said to Ms. Banks when she came before her; if any other Commissioner feels that they recollect differently, they are welcome to share that with her; but nothing has changed since the last time Ms. Banks came before the Board; and that was her response to her. Ms. Banks stated if the answer is yes, then she would like to know when the meeting took place, was it properly advertised, and were minutes taken of the meeting as required by law. Chairperson Colon inquired if that is the only question Ms. Banks has; with Ms. Banks responding that is it.

Commissioner Scarborough stated he has never gone into an executive session that he can remember going into without a court reporter being present; and as to what particular meetings it was discussed, he would not recall; but he would never think the Board would go into an executive session without having a report. He inquired if it has to be announced in the regular meeting and be a part of the record and then always have a court reporter; with Mr. Knox responding plus it has to be advertised.

Chairperson Colon stated the question was asked in regard to was there direction given by the Board; to her recollection, there was not; and at that point the Board had the opportunity to say she was incorrect and that the meeting did not happen. She stated later on there was a memo that went out that said basically the information was given to the Commissioners by email; and that is how she recalls it. She stated she could be wrong, but she believes that Mr. Knox was given a direction probably by the Board; and inquired if Commissioner Higgs had any comment.

Commissioner Higgs stated she has never attended an executive session where there was not a court reporter present other than an executive session, where maybe under contract negotiations or something that they have some special rules. County Manager Tom Jenkins commented the labor contract. Commissioner Higgs stated she has never attended an executive session that talked about lawsuits that did not have a court reporter there.

Chairperson Colon stated the question is how did Mr. Knox get his direction not to represent the Board; it was the County being sued and not the County suing itself; and that is why folks are asking. She stated that is the best of her recollection, and everyone is welcome to give feedback in regards to the issue.

Commissioner Higgs moved to adjourn. Chairperson Colon called for a second to the motion.

Commissioner Pritchard stated he does not think the question was answered; Ms. Banks asked where Mr. Knox got his direction from; and he was not on the Board at that time so he cannot provide an insight, but that seems to be the question and nobody seems to know how Mr. Knox got his direction, when he stated at the court hearing, something to the effect that he was just there to observe.

County Attorney Scott Knox advised what happened was the information about the hearing came in at 5:00 p.m. the day of the hearing; he sent an email out previous to that saying he learned of a lawsuit; and he told the Board he had a conflict of interest because he had already opined that he thought the Charter provision was unconstitutional, and that if the Board wanted to have somebody represent the County in support of that Charter provision, it would have to hire someone else. He stated there was no response then; he probably called a couple of Commissioners, but cannot recall who he talked to; then he got word that there was a hearing the next morning and he went to the hearing. He stated there was no time for a meeting between 5:00 p.m. on the night before the hearing and 10:00 a.m. when the hearing was held; so he does not think there was any kind of meeting.

Commissioner Carlson inquired if that answers the question that he did not defend the County; with Mr. Knox responding he did not defend because he had a conflict of interest; and Mr. Ellis showed up with an attorney to defend the Charter provision, so he just took a neutral position when he got there. Commissioner Carlson stated she hopes that answers Ms. Banks’ question.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 4:11 p.m.

ATTEST: ________________________________
JACKIE COLON, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

____________________
SCOTT ELLIS, CLERK

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