MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

August 29, 2006

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in special session on August 29, 2006 at 9:00 a.m. in the Government Center Florida Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chair Helen Voltz, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, County Manager Peggy Busacca, and County Attorney Scott Knox.

 

 

 

Emergency Management Director Bob Lay advised Brevard County is facing a potential tropical storm; it is starting its call down for special needs evacuation within the County, which started this morning; the special needs shelters that will be used have been identified; and based on what the forecasted track of the storm is, the County is obviously facing a tropical storm at this point.  He noted there has been some discussion that it could intensity a little bit; but he believes it is going to stay as a tropical storm; the forecast right now is about 60 m.p.h. winds as the maximum winds; and 74 m.p.h. is the maximum gust.  He stated Brevard County will receive a lot of winds, which will probably cause some beach erosion and other things; County staff does not see this event lasting probably any longer than Wednesday evening; any damage should be minimal-type damage; and all counties to the south of Brevard County are doing special needs sheltering.

 

 

Commissioner Scarborough advised when the Harry T. Moore Center was built, the architect for that was the Secretary of Department of Community Affairs Thadeus Cohen; they are going to be recognizing him in a reception; it is important, at least through the Board’s Chair, that the invitation go out jointly from the Board of County Commissioners and from that Foundation; and he believes there will be a lot of interest from persons in the County who are interested in just talking and greeting Mr. Cohen.

 

Chair Voltz inquired when will the reception take place; with Commissioner Scarborough responding he does not know, but someone will be in touch with Chair Voltz.

 

Commissioner Colon requested approval from the Board to direct staff to review the possibility of establishing an ordinance that would protect neighboring areas from the effects of mining and blasting.

 

 

 

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to direct staff, including the County Attorney, Planning and Zoning Department, Code Enforcement Department, and Office of Natural Resources Management, to review the possibility of establishing an ordinance that would protect neighboring areas from the effects of mining and blasting.  Motion carried and ordered unanimously.

 

 

Commissioner Carlson stated electronic signs that are bright and move are starting to become more frequent; she does not believe the County’s Sign Ordinance deals with such signs; she wants to make sure the County does not end up with a problem with those; and it should treat them in the Sign Ordinance.  She requested staff report back to the Board on the issue.

 

Assistant County Manager Ed Washburn advised he asked staff to review it, including Assistant County Attorney Terri Jones; the County permits electronic message boards, but does not permit the flashing and distracting signs; the issue needs to be reviewed by staff; and there are several terms that the legal staff needs to review. 

 

 

Chair Voltz called for the public hearing to consider proposed amendments to the Landscaping, Land Clearing, and Tree Protection Ordinance.

 

Rick Kern advised of suggested revisions to proposed amendments to the Landscaping, Land Clearing, and Tree Protection Ordinance, including the definition for protected tree, to remove 1.5” dbh scrub oaks on the Mainland from the protected tree list.  He stated due to the potential high density of 1.5 dbh scrub oaks in some areas, trying to protect small oaks on a tree-by-tree basis is an extreme hardship; replacement of the trees with the standard 20-foot spacing could consume significantly more land than even exists within the boundaries of the project; and this provision is not practical.  He noted forcing the developer to spend $60,000 per acre to mitigate for this is unreasonable; this could easily add $30,000 or more to the cost of a residential lot; if the County wants to protect scrub jays then it should be open and honest about it and adopt a scrub jay habitat protection ordinance, and not do it under the veil of a tree protection ordinance; a 1.5 dbh oak does not merit the special standards set for larger diameter protected trees; and it is not fair nor just to make this a protected tree in the new ordinance.

 

Mr. Kern advised the proposed ordinance would require that the proposed landscaping and tree mitigation be installed prior to the Certificate of Completion being issued for a residential subdivision; however, on some subdivisions, the proposed tree mitigation planting must occur inside the conservation easement in the residential lots; and the tree planting cannot occur on the lots until the house is built and an irrigation system is installed to keep the trees alive.  He stated the proposed ordinance needs to have language added, which gives the Natural Resources  Management  Director  the  authority  to  allow the developer to defer planting of the

 

required mitigation trees until the Certificates of Occupancy for the homes are issued or within a certain time period after the Certificates are issued.

 

Dolores Kane stated she would like to see credits given to people for all the money they are spending on this, instead of penalizing them for not doing something, but she is sure it is not going to happen; and commented on buildable areas, plantable areas, pervious areas; Page 8, 5.a. of the proposed ordinance stating no mechanical equipment is used; affordable housing, and shade around parking areas.  She noted she does not understand why a person should pay for a permit to survey their property; she does not see any citrus on the approved plant list; and inquired is there any way to have non-native plants approved.

 

Office of Natural Resources Management Director Ernie Brown advised the new ordinance allows non-native plants to be used toward landscaping credit, but 50% of landscaping in the proposal must be native; so there is allowance for non-native plants, but not non-native exotic invasive plants.

 

Commissioner Scarborough stated the citrus would apply to the non-native plants; with Mr. Brown responding affirmatively.  Mr. Brown advised Appendix C under Exhibit 2 provides a long list of plants; it is not limited and just provides the common plants that are used; such list is not meant to be an inclusive or exhaustive list; and it is a common list and tool for developers to use.  He stated the other list included are the non-native noxious invasive species, which are prohibited to be used as part of landscaping and also required to be removed prior to Certificate of Occupancy; citrus is not on that list either; so it is not a prohibitive plant nor is it listed as a common plant, but it is not prohibited from use in landscaping.

 

Bo Barnavon inquired is there going to be another round of public comment after the Board discusses the issue.

 

Chair Voltz stated there is another public hearing and at that time Mr. Barnavon might want to write down his questions today and get them to the Commissioners so perhaps they can get them resolved before the next public hearing.

 

Mr. Barnavon encouraged the Board to be cognizant that the Task Force spent over a year on this issue.

 

James Buck, representing Image Building System, expressed his concern with the proposed ordinance regarding when developers have lots for single-family residences and have to put trees on the lots; stated in his particular case he has quarter-acre lots or slightly less, and has to put five five-inch trees on them; to do it before he puts the house and the septic tank in, he does not know how to do that and keep the trees alive; and he does not have a problem planting the trees, but one-quarter acre lot, five trees, house, concrete trucks, and a septic tank it does not work.

 

Mr. Brown advised single-family lots in both subdivisions, and metes and bounds properties actually  do  not  have  to  deal  with that until just prior to Certificate of Occupancy of the house;

 

 

and it is when that individual lot owner comes in for a building permit it is dealt with in that regard.

 

Courtland Lewis stated he has a number of suggestions regarding the proposed new ordinance; urged the Board to retain the one acre or less exemption from the canopy and tree preservation requirements, unless there are unavoidable restrictions with regard to house siting that would justify an exemption; and requested it rule that no property within 500 feet of the Indian River Lagoon, Banana River or their tributaries, or the Atlantic Ocean, be exempt no matter the lot size, except for the house footprint itself, and that building site plans should be reviewed by the appropriate County officials to determine if all reasonable efforts have been made to avoid the removal of protected trees.  He noted removal of protected trees should never be permitted for placements of outbuildings, swimming pools, patios, or other optional structures, and for driveways only if no other option is feasible; there should be no distinction between residential and commercial or income-generating properties with regard to the applicability of the ordinance; the ordinance should apply equally to residential properties with a Certificate of Occupancy as to homes planned or under construction; and obviously, inspection, detection, and enforcement are more difficult in this case.  He stated to encourage compliance, reporting by the public could be facilitated by a “hot line”; improper filling of lots, especially around the base and trunk of mature trees, oaks in particular, is usually fatal, and usually long after the inspectors are gone; clear and precise stipulations should be made in the ordinance for how fill should be applied under the canopy of protected trees; and these requirements should be strictly enforced.

 

Mr. Lewis stated mitigation is a very subjective subject; penalties should include a mix of substantial monetary fines and replanting, to minimize the likelihood of avoidance through incomplete or inadequate replanting; a Specimen or Heritage tree is literally irreplaceable; and a live oak with a trunk four feet in diameter that sprouted around the time of the Civil War cannot be replaced with a half-dozen five-inch diameter saplings.  He noted farm-grown trees do not attain the individualistic character and appearance of wild trees; replacement trees should be required to be as large as can be purchased, moved, and safety planted, and their combined cross-sectional area should equal or exceed the cross-sectional area of the protected tree that was removed, or be compensated at $15,000 per tree, whichever is less in value, at the violator’s option; in any case, protected native trees should never be replaced with non-native trees, nor hardwoods with softwoods; and additional code enforcement officers should be hired and the County should ensure that the requirements of the ordinance are enforced strictly and consistently.  He stated violators should be penalized in every case as the ordinance requires, without subjective or case-by-case special treatment; County officials should maintain a map and prioritized list of desirable areas for offsite mitigation replanting to occur; this should take into account prior deforestation, public use, and balanced geographic distribution; and the goal should be to uphold the overall quality of life across Brevard County to the greatest extent possible through replanting.

 

Mr. Lewis advised the ultimate goal should be to strive toward adoption of these rules by all the incorporated  areas  of  the  County; this  sounds like a challenging idea, but as an example, it is

 

 

 

 

his understanding that the entire watershed of the Chesapeake Bay, encompassing Maryland, Virginia, and Delaware, conforms to the same stringent set of rules; no tree over five inches in diameter there can be cut without permission within 1,500 feet of the water; and these rules have been in place for the past 20 years.  He stated Brevard County is a highly diverse landscape encompassing oceanfront, barrier islands, estuaries, rivers, wetlands, and uplands; the Space Coast has every claim to natural beauty that other famous coastal areas of the United States, such as the Chesapeake, Cape Cod, Maine, Southwest Florida, and the Pacific Coast of California boast of; nearly all those other landmark coastal areas maintain much stricter ordinances with regard to tree protection and land clearing than even the proposed revised ordinance; and they thrive as a result, both economically and in terms of the qualify of life their residents enjoy.  He urged the Board to be bold and tough on this; he knows it is doing its best to balance many competing forces, but being conservative here actually means holding the line on degradation of the place where people live; and requested the Board keep in mind that whatever is lost now is lost forever.

 

Commissioner Pritchard inquired is the 1.5” dbh an arbitrary number or is it based on some sort of science.  Mr. Brown responded it is based on a propensity of an adult or a mature scrub oak. 

 

Mr. Brown provided the Board with a brief overview of the history of the Landscaping, Land Clearing, and Tree Protection Ordinance, including the matrix.  He stated in March 2004, the Board directed staff to address three primary concerns, including some problems dealing with agricultural exemptions, problems with tree protection and how to deal with the limited flexibility with tree protection, and problems dealing with the limited flexibility associated with canopy preservation; in May 2004, the Board directed staff to have some public meetings on the issue; five meetings were held; and in October 2004, after review of the public comments and legislative intents, the Board tabled the discussion to a workshop to be held in January 2005.  He advised at the January 2005 workshop, after much discussion and real challenges, the Board again tabled the discussion and recommended that a Task Force of qualified competent individuals, with interests in the community to include property rights interests, environmental interests, and the general citizenry be established to look at this in detail and to evaluate and recommend revisions to these Ordinances in a manner that the Board could move forward with; in February 2005, the Board approved the Task Force by Resolution; between March 23, 2005 and March 2, 2006 the Task Force met 21 times; and some of the meetings lasted for seven hours.  Mr. Brown advised in March 2006, staff compiled the comments and recommendations from the Task Force in the format of an ordinance; it was reviewed by the Local Planning Agency (LPA) and the Building and Construction Advisory Committee; and both of those organizations approved the recommended ordinance with several recommendations.  He introduced those Task Force members present in the audience, and advised of those members not in attendance at today’s meeting.

 

The Board expressed appreciation to the Task Force for its efforts.

 

Mr. Brown stated an important facet of the Task Force is it was consensus-driven; there was a lot of discussion; it was a very big challenge for the Task Force to reach consensus; what has been presented to the Board is a consensus document; it  is  not  perfect, but is a document that

 

 

 

 

the groups coming together said they could live with and are willing to work with as a continuous improvement process; and most of the members would say it is better in whole than the Ordinance the County is operating under now.  He noted another critical component is that the proposed ordinance was not staff-driven, but staff supported; the new proposed ordinances are set up to be a progression where it starts out with the land clearing issues, then landscaping issues, mitigation, and the compensation issues at the end; there is one set of definitions for the entire process; and advised of the exemptions, including for single-family lots that are less than one acre, which are exempt from tree protection and canopy preservation, and exemptions for agricultural activities.  

 

Discussion ensued concerning pervious and impervious areas, buildable areas versus plantable areas, pavers, turf block systems, pervious materials, canopies and preservation, emergency perspectives, hurricane season, provisions for administrative waivers, dangerous trees that are hazardous to either property, health, or the public welfare; education process, specific criteria, incentives dealing with density bonuses that are being proposed for additional preservation of certain trees and their associated canopy, zoning criteria, Betterment Plan, natural degradation of trees, mitigation protocol, Certificate of Occupancy, elimination of point system, commercial and residential plantings near power lines; noxious, non-native, and invasive plants.

 

Mr. Brown reviewed the recommendations of the Local Planning Agency, Building and Construction Advisory Committee, and Task Force, including linear project exemption, and to work with Zoning to look at increased densities to provide incentives for canopy preservation and tree preservation where applicable.

 

Commissioner Colon stated she would prefer knowing what is the consensus, vote on it, and take it to the next level; she would like feedback from Mr. Brown concerning the safety factor of where the consensus is pretty solid; there are maybe nine recommendations or possibly more that still need to be tweaked and reviewed; and at a later date the Board would have to consider those, and she is willing to handle them in a workshop session.  She noted she would like to be able to go forward and keep those two items totally separate; today she would like to be able to have the focus on the recommendations that have been tweaked and the Board is very comfortable with; and that is the kind of direction she would like to see it take.

 

Mr. Brown advised Exhibit 2, which is the ordinance as proposed by the Task Force, is the consensus document of the Landscaping and Land Clearing Task Force; the additional recommendations and comments include minority reports and issues that need to be resolved over time, but are not essential for the functionality of the ordinance; Exhibit 2 is the stand alone consent document from the Task Force; and there needs to be exploration of the recommendations, but they do not have to be done prior to approval of the consensus document.

Commissioner Pritchard inquired is there any action the Board needs to take today.

 

Chair Voltz suggested moving the ordinance forward as it is to the second public hearing.  Commissioner Pritchard stated that is the only action staff needs today; and inquired if all the Board  is  going  to do is move the ordinance forward to the next public hearing, does Mr. Brown

 

 

 

want to hear further comments or have the Commissioners send their comments to him so they can be included at the next public hearing.  He stated he is not interested in fast-tracking something when he thinks there is opportunity for a little tweaking.

 

Chair Voltz noted she has not had a chance to meet with Mr. Brown on the issue.

 

Commissioner Colon advised Exhibit 2 is what both sides have really reviewed, tweaked, and feel comfortable going to the next level.

 

Commissioner Scarborough stated it would be very helpful if Mr. Brown could meet with each Commissioner to receive their full input; sooner or later all of these things will be discussed; it is not contrary to what the Task Force, Local Planning Agency, and the Building and Construction Advisory Committee have said; and each Commissioner has their own thoughts and will have their input also. 

 

Commissioner Pritchard stated he would like Brevard County to focus on essential services; and roads are a huge issue right now, it needs to focus on them, and put its money in roads.

 

Natural Resources Management Director Ernie Brown advised the Board that he would meet with each Commissioner and compile a matrix of the outstanding questions and recommendations from the Local Planning Agency, Building and Construction Advisory Committee, and the Landscaping, Land Clearing, and Tree Protection Task Force prior to the second hearing.

 

Chair Voltz stated she does not want to negate any part of what the Task Force has worked on; and it has done a great job.

 

There being no objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Voltz, to approve moving forward Exhibit 2, Proposed Landscaping, Land Clearing, and Tree Protection Task Force Ordinance, to the second public hearing.  Motion carried and ordered unanimously.

 

 

Chair Voltz stated she wants to know that what the Board is doing is correct; and requested Clerk of Courts Scott Ellis address the issue.

 

Clerk of the Circuit and County Courts Scott Ellis advised if the Board goes to the voters for a referendum and they vote yes, then it can do more bonds; it has a capit here; it depends on what money will be raised through that millage, so it has the ability to issue the bonds; and he would expect that would be the end of the court case if the County goes to referendum. 

 

 

 

Commissioner Colon inquired is it a huge gamble; stated today the Board is going to be discussing how it is going to come up with $23 million it does not have; there is going to be some serious cuts if the Board goes forward; and inquired is there the gamble if the citizens do not understand what the Board is asking and vote against the referendum.

 

Mr. Ellis responded there are two types of gambles; one is if the Board goes to referendum and it fails then does it continue the court case; legally it can continue the court case, but does it do so after the referendum fails; and on the other hand, it also has a gamble long term financially if the referendum passes because if home values fall and the taxable value falls, there is a limit to the millage in each of the Districts.  He advised if everything is tied up in debt service, the County has to have money to operate the parks; it may be tying its hands on money to operate the parks in the future as housing values fall; the worst case, if the millage on .6 mill does not generate debt service then the County must go to the General Fund to cover the cost of those bonds; and if it ties itself into recurring expenses, it makes it very difficult to address them when the time comes.

 

Commissioner Colon inquired does Mr. Ellis support the referendum.  Mr. Ellis responded he does not support it from a financial point of view, but supports it from a legal point of view that it is certainly the legal resolution to the problem the County is in. 

 

Chair Voltz stated it is the only reason the Board is doing it.  Commissioner Ellis stated from a financial point of view, he is highly concerned that there are windfall dollars going into recurring expenses, and as things come backwards, the County is going to be in a major fiscal bind.

 

Commissioner Colon inquired if the referendum fails, where should the Board be looking at getting those millions of dollars to finish the projects that are already halfway there.  Mr. Ellis responded the County needs to assess what is the minimum amount of money it needs to complete what is already in the ground, and not what does it take to complete a park by starting a community center from scratch; if a project has not been started then the County needs to put it on the back burner; and if a project is already started, then it must finish it.

 

Commissioner Pritchard stated everything the County has that is ad valorem is based on property values; the voters have supported parks, the Environmentally-Endangered Lands Program, fire services, Merritt Island Library, MSTU’s, and a variety of ad valorem projects; they are all based on an assumption that there is going to be money to pay; and he looks at real estate as being cyclical.  He noted he understands Mr. Ellis’ concerns, but he also thinks that the County has an opportunity to move forward and complete projects that are underway.

 

Commissioner Scarborough stated Brevard County has done a good job and does not need to apologize; it lives in a real world; it is working beautifully for the people; and it is a struggle, but the bottom line is it is going to work.

 

 

 

 

 

 

Commissioner Scarborough suggested revised language on the Resolution for North Brevard Recreation Special District, as follows:  “To expedite the construction of previously approved projects”; stated rather than $12.8 million, he only wants to show $12 million for the North Brevard Recreation Special District; and suggested revised language on the Resolutions for Merritt Island Recreation MSTU and South Brevard Recreation Special District, as follows: “To expedite and complete the construction of previously approved projects”.

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to adopt a Resolution of the Board of County Commissioners of Brevard County, Florida, sitting as the Governing Body of the North Brevard Recreation Special District, calling a bond referendum on November 7, 2006, or such other date as may be authorized by law, within the territorial limits of the North Brevard Recreation Special District on the question of whether in order to expedite the construction  of  recreational  projects, as  well  as  to  operate and maintain projects, the District

shall use funds available from the previously approved .8 mill ad valorem tax levy on all taxable property within the District to issue and repay additional bonds in a principal amount not exceeding $12,000,000 bearing interest at a rate not exceeding the maximum rate permitted by law; and providing for an effective date.  Motion carried and ordered unanimously.  (See page

                       for Resolution No. 06-237.)

 

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to adopt a Resolution of the Board of County Commissioners of Brevard County, Florida, sitting as the Governing Body of the Merritt Island Recreation Municipal Service Taxing Unit, calling a bond referendum on November 7, 2006, or such other date as may be authorized by law, within the territorial limits  of  the Merritt Island Recreation Municipal Service Taxing Unit on the question of whether

in order to expedite and complete construction of recreational projects, as well as to operate and maintain projects, the Unit shall use funds available from the previously approved .8 mill ad valorem tax levy on all taxable property within the Unit to issue and repay additional bonds in a principal amount not exceeding $13,410,000 bearing interest at a rate not exceeding the maximum rate permitted by law; and providing for an effective date.  Motion carried and ordered unanimously.  (See page                        for Resolution No. 06-238.)

 

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to adopt a Resolution of the Board of County Commissioners of Brevard County, Florida, sitting as the Governing Body of the South Brevard Recreation Special District, calling a bond referendum on November 7, 2006, or such other date as may be authorized by law, within the territorial limits of the South Brevard Recreation Special District on the question of whether in order to expedite and complete the construction of recreational projects, as well as to operate and maintain projects, the District shall use funds available from the previously approved .8 mill ad valorem tax levy on all taxable property within the District to issue and repay additional bonds in a principal amount not exceeding $60,270,000 bearing interest at a rate not exceeding the maximum rate permitted by law; and providing for an effective date.  Motion carried and ordered unanimously.  (See page                        for Resolution No. 06-239.)

 

 

 

Upon motion and vote, the meeting adjourned at 12:35 p.m.

 

 

 

 

ATTEST:                                                        __________________________________

                                                                       HELEN VOLTZ, CHAIR

                                                                       BOARD OF COUNTY COMMISSIONERS

                                                                       BREVARD COUNTY, FLORIDA

 

____________________

SCOTT ELLIS, CLERK

 

 

 

          ( S E A L)